The Court reasoned..."Here, Worker possessed knowledge of his special sensitivity to fumes and received generalized warnings regarding the dangers of continued employment as a welder. There is no evidence he was ever definitively advised to end his career as a welder prior to October 2002, and it is similarly clear that he had sometimes worked as a welder without the occurrence of a fume exposure or a flare-up of his lung condition. Worker's choice in continuing to weld therefore does not present the type of situation in which he wilfully faced almost certain injury. His actions, though they may fall below a standard of ordinary care, are at most negligent."
Pearson v. Johnson Controls, Northern N.M., LLC __P3d___ (N.M. App. Div. 2011 ) 2001 WL 1660631