Work Related Personal Injury Claims are Complicated due to the Workers’ Compensation Act

Work related injuries come with many complications. It is important to understand the rules on compensation.

Work related injuries cover a lot of ground.  There are countless ways in which employees can be injured while in the performance of their work duties.  The circumstances of the injury will dictate the possible claims that an injured worker will have.

This FAQ section will address some of the many frequently asked questions that workers have following work related injuries.

The FAQ‘s that follow are meant only to provide a general understanding of some of the issues surrounding work related injuries.

They are not meant as legal advice.  Specifically, they are no substitute for an individualized review of your case by an attorney with experience with work injuries.

Workers’ Compensation May Not be Only Option for Compensation

Though most work injuries are governed by and limited by the New Mexico Workers’ Compensation Act, many give rise to other claims against third parties other than the employer.

Keep in mind that there may be more than one claim involved with a work injury.  Most obvious, work injuries lead to Workers‘ Compensation claims.  In fact, most injured workers are limited to bringing claims under the Workers‘ Compensation Act.

This means that in most work injury cases, the employee cannot also bring a personal injury claim for all recoverable damages resulting from his or her injuries.  The limitation on available claims is the result of the exclusive remedy provisions of the Workers‘ Compensation Act.

Third Party Claims in Work Injury Cases

Work sites often involve many third parties such as contractors, subcontractors, vendors and so on. These parties are not protected from liability by the Workers’ Compensation Act.

However, there are many cases too numerous to list where the injured employee will have a personal injury action above and beyond the Workers‘ Compensation claims.  These most often arise in what are called third party liability claims.

In a nutshell, the injured employee may sue a third party other than his or her employer if that third party caused his injuries.  In extremely rare situations, the employee might have a personal injury or wrongful death claim directly against the employer under the Delgado exception.

FAQ’s No Substitute for an Experienced Personal Injury Attorney

The FAQ‘s that follow will address these issues along with other questions that commonly arise with injured workers.  Again, keep in mind, the information here is quite general in nature.

Every case must be individually analyzed.  This is particularly true in work injury cases due to the many complicated issues and exceptions.  Moreover, there are very strict deadlines associated with Workers‘ Compensation claims as well as personal injury claims so it is very important to speak with an attorney right away.

Because of the many complications and challenges in these cases, it is highly advisable to seek the guidance on a personal injury attorney experienced with work injury claims.



What's the Difference Between a Workers' Compensation Work Injury and a Personal Injury Work Injury?

, injured workers falling under the New Mexico Workers’ Compensation Act will be compensated for only a fraction of their injuries and damages.

Under New Mexico law, injured workers are limited to recovery by virtue of the exclusive remedy provision of the Workers’ Compensation Act .  Though the worker is entitled to receive medical care (for life if necessary), the Act falls far short of fully compensating the worker for all of his or her injuries and damages.

For instance, the worker is limited to recovery of only a portion of lost wages (past and future) and some pittance for permanent injuries no matter how severe.  This remains the case even if the worker is unable to continue to work in his or her chosen field due to the injuries.  Even worse, the death benefits are obscenely low.  In short, the Workers’ Compensation Act is grossly unfair to workers (and their families) who have suffered serious injury or death.

Because of the gross deficiencies of the Workers Compensation Act, it is important to determine whether the case might fall outside the Act.  There are a couple of ways this might be the case. First, the case might come under what is called the Delgado exception derived from Delgado v. Phelps Dodge.  Exceptions under Delgado are extremely rare.  Delgado requires that the employer basically send the employer into a situation knowing that the employee will be badly injured or killed.

The facts of Delgado are remarkable and worth reading here:  Delgado v. Phelps Dodge .  In that case, the employee was sent into a situation unwillingly and under great protest where his death was almost certain.   In short, it is very unlikely that a work related injury will fall under the Delgado exception.

Much more common, the work related injury will give rise to a personal injury claim because it was caused not by the employer or working conditions but by a third party.  There are countless ways that third parties can cause injuries to workers either on or off the employer’s premises.  These would include run of the mill auto accidents.  It would also include defective equipment and machinery negligently manufactured or maintained by a third party.  It could also result from all varieties of negligent acts by contractors, subcontractors, visitors, guests, customers and so on that cause an accident.  There are too many possibilities to name them all.

These are generically referred to as third party claims.  This means a third party other than the employer or working conditions created by the employer caused the injuries.  It is extremely important to identify possible third party liability.  Third party liability will give rise to a personal injury claim.  In the absence of a third party claim, the worker will almost always be bound by the very inadequate recovery allowable under the Workers Compensation Act.

If you are not certain whether you have a third party claim, then you should immediately consult with an experienced personal injury attorney.  It may very well make the difference between a full recovery for your injuries and losses, and a horribly inadequate recovery that can leave you in your family in a dire financial condition for years to come.

 




Do I Have Personal Injury Claims for Injuries Suffered on the Way To or From Work in My Work Vehicle?

Understand and Identify All Possible Insurance Coverage in Your Auto Accident ClaimsAuto accidents often occur on the way to or from work. The question of compensation for injuries suffered in such an accident brings up a couple of different issues.

In many respects, these accidents are treated like any other auto accident.  However, there can be important differences depending upon the circumstances  of the accident.  It is important to understand the differences and the possible means of compensation for your injuries.  A personal injury attorney with experience with both auto accidents and work related accidents can help.

The First Challenge is Identifying Insurance Coverage

Like any auto accident, the first and most important step is to identify available insurance coverage.

First, the issue of possible personal injury claims should be distinguished from possible worker’s compensation claims. The focus here is on personal injury claims. The availability of worker’s compensation benefits will follow a very different analysis under the “coming and going rules” related to work-related travel, which will not be addressed here. Aside from that, the same “coming and going” rules apply if you are driving your employer’s vehicle or your own.

The personal injury aspect would be treated much like any other auto accident claim. The big challenge, like any other auto accident, is in identifying insurance coverage. The general coverage issues will follow the general rules governing New Mexico auto accidents and insurance coverage for such accidents.

Underinsured Insurance Coverage Often Only Available Coverage

Work related injuries often come with many restrictions on coverage. In auto accidents, there actually may prove to be greater coverage than other accidents depending upon the auto insurance coverage of the employer.

The first issue that will arise is obviously whether the other driver is insured and to what degree. In a significant portion of auto accidents in New Mexico, the at-fault driver is either uninsured or underinsured. In these cases, the primary concern will then shift to the availability of uninsured/underinsured motorist coverage (UM/UIM coverage).

here could in fact be a couple of possible sources of UM/UIM coverage. If in fact you were driving your employer’s vehicle, then you would be entitled to any UM/UIM coverage on that vehicle. Unfortunately, despite the marginal costs of UM/UIM coverage, some employer may reject the coverage, which might foreclose the possibility of this coverage under the employer’s policy.

Validity of Rejection of Uninsured/Underinsured Coverage Including Stacking Must be Examined Carefully

Rejection of underinsured coverage, including stacking, is not favored in New Mexico and comes with many restrictions on the insurer.

However, New Mexico law places fairly strict requirements on the rejection of UM/UIM coverage. This will apply to both individual and employer rejection of coverage. As a result, it is important to determine whether the UM/UIM coverage was properly rejected. There are cases where it was not, which means that the full benefits of UM/UIM coverage, including stacking of coverage, will be available through the employer’s coverage.

Stacking is very important, as we have discussed in a number of other posts. Basically, stacking allows the insured to stack the UM/UIM coverage across multiple vehicles. For example, if there is $25,000 in UM/UIM and there are 3 vehicles on the auto policy, then the total coverage would be $75,000. These same rules apply to employer policies.

Just like the rejection of UM/UIM coverage, generally there are strict requirements on the rejection of stacking. Just like the rejection of UM/UIM, rejection of stacking must meet strict requirements or stacking will be allowed.

The availability of UM/UIM and stacking will more often than not make the difference of full compensation in the case of serious personal injuries. As mentioned previously, there are employers, including very large employers that reject UM/UIM on its policies. This is really inexcusable in light of the very high number of uninsured and underinsured drivers in New Mexico. Such behavior places employees at great risks in case of an accident.

Your Own Auto Insurance Coverage Will Come into Play Even Though Driving Employer Vehicle

Do not forget to look to your own underinsured policies if you have them. This coverage will protect you in any auto accident, including work related auto accidents.

In case the employer has rejected UM/UIM coverage, then you may still turn to your own UM/UIM coverage, which hopefully you have purchased. Despite the fact that you are driving your employer’s vehicle, you are still fully covered under your own policies.

In fact, there may be cases involving very serious injuries where both the employer’s UM/UIM and your own UM/UIM will be enlisted for full compensation. The existence and use of one will not rule out the use of the other.

In any event, like most auto accident cases, the critical questions will come down to insurance coverage. The insurance companies are not going to lead you through all the possible coverage. In fact, just the opposite is likely, as the insurance companies will often begin with the position that there is no coverage. It is important that you identify all available coverage.

Seek Guidance from an Experienced Auto Accident Attorney

As should be clear, work related auto accidents come with special considerations and challenges.  In cases involving serious personal injury or wrongful death, it is extremely important to identify all possible means for compensation.

Keep in mind and expect that the first response from your insurer, your employer’s insurer and your employer will likely be to deny coverage.  Do not accept this position at face value.  A thorough examination and investigation of insurance coverage issues will likely find otherwise.




Can I Sue My Employer for Work Injuries?

Know the Rules on Compensation for a  Work Injury in New Mexico

This is a very common question. The answer is almost always, “No, you cannot sue your employer for injuries that occur at work.”  However, there are a number of rules and issues that you should understand to fully protect your rights to compensation for work related injuries.

Most Workplace Injuries Are Covered By Workers’ Compensation

There are a number of things to keep in mind. First, the question and the answer presume that you are talking about a personal injury lawsuit and not a worker’s compensation claim. If so, the answer above stands.

To be clear, if you are injured at work, your will have a workers’ compensation claim.  There are situations where you would also have a personal injury claim.

To be clear, you are entitled to benefits under New Mexico’s worker’s compensation laws. There may also be exceptions allowing you to sue your employer.  Most importantly and far more common, you may be able to sue third parties who caused or contributed to your injury as addressed below.

Rare Exceptions to New Mexico Workers’ Compensation Act Exclusive Remedy Provisions

The Worker’s Compensation Act, and the benefits derived therefrom, is in fact the basis for the answer above and why you can rarely sue your employer for injuries at work. It is referred to as the exclusive remedy provision, meaning you are entitled only to worker’s compensation benefits from your employer and nothing else.

This includes when the employer caused your injuries, the employer was negligent and even in cases where the employer was grossly negligent.

Employer Failure to Comply with Workers’ Compensation Act Requirements

There are not many protections for workers injured on the job in New Mexico.  In fact, the New Mexico Workers’ Compensation Act, the very act that presumably protects workers is the primary limitation on fair and complete recovery.  Under the Act, the employer is protected against personal injury claims by the worker even where the employer was negligent or even grossly negligent.

The primary basis for waiving protections under the Act is failure to maintain insurance.

However, the protections of the Workers’ Compensation Act are limited to those employers that are in compliance.  What does this mean?  Basically, it means that the employer has maintained workers’ compensation insurance.  There are other more technical requirements that in theory could jeopardize protection but these would be extremely rare.  The primary basis for waiving protections under the Act is failure to maintain insurance.

The Delgado Exception to New Mexico Workers’ Compensation Claims

The Delgado exception is an important exception but is extremely limited in scope.  Gross negligence is not enough.  The conduct must be reckless and wanton. 
There is an extremely rare exception to the prohibition against suing your employer called the Delgado exception. Delgado v. Phelps Dodge set forth the requirements for a personal injury claim against the employer.

The claim in Delgado was actually a wrongful death claim. The facts were beyond outrageous. The employer basically sent the employee into a fiery cauldron where he burned to death, and this outcome was pretty well assured from the outset.

The Delgado standard basically requires just that—that the employer sends the employee into a very dangerous and unnecessary situation where serious harm or death is virtually certain. In short, it is a very difficult standard to overcome, overwhelmingly favoring the employer.

The Third Party Exception to New Mexico Workers’ Compensation Claims

The most important and common exception to the exclusive remedy provisions under the Workers’ Compensation Act is third party liability.
As mentioned, you may recover against third parties who caused or contributed to the accident that caused your injuries. These are treated just like any other personal injury claim. It matters very little that it occurred at work.

Third party liability is not precisely an exception to the Act though it is discussed as such.  More precisely, it falls outside the Act.  In short, you are simply suing a non-employer for personal injuries suffered as a result of that party’s negligence.

There are a host of situations that give rise to third party liability. This would include auto accidents, equipment failures, negligent contractors or their employees, and so on.

If you are injured at work, it is important to determine whether there is possible third party liability. Without it, you will soon find the benefits under the Worker’s Compensation Act are woefully inadequate in cases of serious personal injury or wrongful death.

Very Limited Recovery in the Absence of an Exception

Only by way of an exception will a seriously injured worker and his or her family have a chance and full and fair compensation.
The New Mexico Workers’s Compensation Act is anything but friendly to injured workers.  In cases of serious personal injury or wrongful death, the Act will not come close to fully compensating an injured worker or family.

It is critical to find an exception if you are to be fully and fairly compensated.  To do this, you will typically need the assistance of an experienced work injury attorney.   Get your case reviewed as soon as possible after the accident, it may be important in identifying an exception.




What is a Third Party Liability Work Injury Claim and Why is it Important?

Third Party Claims are Best Chance for Recovery in Work Related Personal Injury CaseInjured workers often face very significant hurdles in obtaining fair compensation for their injuries.  Under the New Mexico Workers Compensation Act’s exclusive remedy provisions, the worker’s recovery for injuries is limited to the remedies under the Act.

In cases involving serious personal injuries, these remedies are grossly inadequate to fairly compensate a worker for his or her injuries.

In short, under the exclusive remedy provisions of the Act, the worker cannot sue the employer for negligence in a personal injury lawsuit.  That is the case even if the employer is in fact negligent and that negligence is the sole cause of the worker’s injuries.

If you or a loved one has suffered serious personal injuries or wrongful death in a work related accident, seek the assistance of an experienced personal injury lawyer experienced in work related injuries.  Finding alternative means of compensation beyond Workers’ Compensation is absolutely essential for fair compensations.

Third Party Liability Claims for New Mexico Work Injuries

Third party liability allows for an employee to sue the third party, if that party was negligent.
Although the worker is prevented from suing the employer for negligence, the worker is not barred from suing third parties for theirs.  These are referred to generally as third party liability claims.  This means that the worker can sue the third party for negligence even if the worker was injured on the job and on the employer’s premises.  Of course, this presumes that the third party was negligent and the negligence caused the injuries to the worker.

In case the negligence of a third party did in fact cause the worker’s injuries, the worker may proceed with a personal injury action against the third party.  The personal injury case would proceed like any other such claim notwithstanding the fact that it was a work related injury.  This means that the worker is entitled to recover all recoverable damages which are set forth in the New Mexico Uniform Jury Instructions.

As New Mexico is a comparative negligence state, the damages may be apportioned depending on who is responsible for the accident.
Because New Mexico is a comparative negligence state, the third party would be liable only for that portion of the damages that the party caused.  On the other hand, because of the pittance allowed to injured workers under the Workers Compensation Act, this will still likely far exceed the allowable damages under the Act in cases of serious injury.  This is particularly true in cases of wrongful death where compensation for deceased workers and their families borders on offensive.

Because worker’s (or the surviving spouse and/or children) are so limited in recovery under the Workers Compensation Act, it is extremely important to try to identify third party liability.  In other words, were there other causes to the accident beyond the negligence of the employer.

Third Party Claims for Work Injuries are Fairly Common

In fact, third party liability comes up fairly often. In many cases, the injuries were solely caused by a third party.  For instance, many workers are injured on the job in automobile accidents.  The worker may proceed against the other driver just as would any other innocent driver.  The same rationale applies for workers injured on the premises of customers, contractors, associates and the like.

One area where third party claims are quite common are accidents on construction sites due to the sheer number of contractors and subcontractors and their employees.

In other cases, the worker may be injured on the employer’s premises or work site. Again, the fault may entirely lie with a third party.  A good example, though there are many others, is a construction site where contractors or subcontractors are negligently operating equipment causing injury to a worker.  Third party liability claims in construction accidents are very common due to the large number of different actors on a construction site.

As might be expected , there are also many cases where workers are injured due to the combined negligence of the employer and third parties.  This could occur with defective and poorly maintained equipment.  It might also occur where the employer has created unsafe working conditions with the third party’s negligence combining with those dangerous conditions to cause an injury.

In short, there are countless ways that third party liability might arise.  It is extremely important to determine if there is third party liability.  It is no exaggeration to say that third party liability may mean the difference between a full recovery for a worker’s injuries and financial ruin.

 




Are There Exceptions to Workers‘ Compensation Act Exclusive Remedy Where Employer Causes Accident?

Rare Exceptions to Workers Compensation Exclusive Remedy Provisions

There are rare exceptions to Workers’ Compensation Act exclusive remedy provisions. However, there may be other routes to compensation such as third party liability claims

Workers have few rights or remedies against their employer for injuries that occur on the job. This is the case even in the situation where the employer is negligent, and even where the employer is grossly negligent in causing the accident.

It is also the case no matter how serious the injuries, even if the worker is killed.

The basis for the limitation is the exclusive remedy provision under the New Mexico Workers’ Compensation Act.  The pretext, rather cynical in the minds of worker advocates, is that this is best for the worker.

In the event of serious injury or wrongful death resulting from a work accident, Workers’ Compensation will not come close to full compensation.  It is therefore necessary to try to find other routes to recovery.  A personal injury attorney with experience in work related injuries can help.

Worker’s Compensation Act for Benefit of Employees? Not Really!

Workers’ Compensation provides grossly inadequate compensation for workers who have suffered serious personal injury or wrongful death.

How so?  It is argued that the Workers’ Compensation Act provides for certain and prompt recovery for work related injuries.  Tell this to the many workers who are injured and must fight for every scrap of benefits against the employer and the employer’s worker compensation insurance carrier.

The Workers’ Compensation Act does little to protect workers.   This is particularly so in cases of very serious personal injuries.  The recovery borders on immoral and reprehensible in cases where workers are killed on the job. The recovery allowed under the Workers’ Compensation Act does not come anywhere close to fully compensated workers who are seriously injured or killed.

Worker’s Compensation Act Favors Employers

The real purpose of the Workers’ Compensation exclusive remedy provision is protect employers from their own negligence, even gross negligence.

In short, the Workers’ Compensation Act is there to protect employers, not employees.  This is made clear in decision after decision in the New Mexico courts.  Never has the message been received so loudly as in the New Mexico Court of Appeals case of May v. DCP Midstream.

The worker had brought a claim against the employer under the Delgado exception (Delgado v. Phelps Dodge) for the employer’s gross negligence.  In fact, it was determined that the employer had behaved in a grossly negligent way.  Much of this was based upon the employer’s own admissions that it had altered a gas pipeline for maintenance and failed to return it to its normal operating condition despite knowledge that the altered condition created serious risk of injury to its workers.

The Court tossed the case on summary judgment under the Workers’ Compensation exclusive remedy provision and the Court of Appeals agreed.  In short, the Court of Appeals determined that despite the gross negligence, the case did not meet the requirements for a Delgado exception.

 Exceptions to Workers Compensation Act’s Exclusive Remedy

The employer must have been clearly aware of a substantial likelihood of injury or death under the Delgado rule.

One might reasonably ask at this point, “What would meet the requirements for the Delgado exception?”  The Court stated, “there is little doubt that Defendants were negligent, perhaps even grossly negligent.”  But this was not enough.  Instead, the Court stated that the employer must have forced the worker “to perform a task in a specific dangerous circumstance in which the employer should have been clearly aware of a substantial likelihood of injury or death.”

The Court stated that the employer must have acted “specifically and willfully” in causing the worker’s injuries or death.  What this means in practice and what occurred in Delgado was that the worker is sent into a situation where he or she will almost certainly suffer injuries or death.  This sounds a bit more like murder or manslaughter than just a work related accident.

Rare Exceptions Outside Third Party Liability – Seek Legal Guidance

In sum, do not count on the Delgado exception, no matter how grossly negligent the employer may have behaved.  Chances are, it is not enough. Instead, your best shot at full recovery is identifying third party liability for your injuries, which is much more common than might be expected.

This will typically require the guidance of a personal injury attorney experienced in work injuries, Workers’s Compensation law and third party liability.  The Albuquerque injury attorneys at Collins & Collins, P.C. can help.  Contact us online or give us a call at (505) 242-5958 .




Do I Have a Personal Injury Claim for a Car Accident That Occurred During Work?

Work Related Auto Accident Claims Present Unique Challenges

Auto accidents at work are quite common. Work related auto accidents can create some confusing insurance issues due to the limitations on worker personal injury claims under the New Mexico Workers’ Compensation Act.

Auto accidents are a fact of life.  Work is no exception.  They happen all the time in work settings.  The circumstances will dictate whether or not you have a personal injury claim for injuries suffered in the accident.

To begin, the New Mexico Workers’ Compensation Act’s exclusive remedy provision means that a worker is severely limited in bringing claims against the employer for work related injuries.  In short, there is a very narrow exception to the exclusive remedy provision called the Delgado exception.  This exception is extremely rare even barring cases involving gross negligence on the part of the employer.

Personal Injury Claims that Occur During Work Against Other Drivers

Identifying available insurance is critical to fair compensation. There are numerous possible source of insurance that should be examined.
In cases involving car accidents, there are a couple of possible avenues for recovery of damages for your personal injuries.  First, an auto accident is an auto accident.  If the other driver caused the accident, then you will have a claim against that driver just like any other person injured in a car accident.  The fact that you are working has no bearing on your rights to recovery against the other driver and his insurance.

Similarly, like any other auto accident, you may bring a claim against your own uninsured and underinsured motorist coverage.   Again, it does not matter that you were on the job at the time of the accident.  Your uninsured and underinsured coverage will follow you wherever you may be driving.  In New Mexico, this is extremely important due to the very high rate of uninsured and underinsured drivers in the state.  In short, if you are involved in an auto accident in New Mexico, there is a very good chance that the other driver will be grossly underinsured, if he or she has any coverage at all.

Personal Injury Claim that Occur During Work and Your Employer’s Auto Insurance

This brings us to the more interesting point which is whether you can bring claims against your employer’s auto insurance.  The answer is yes, you can bring a claim against your employer’s uninsured and underinsured policies.  However, this presumes that your employer has not waived this coverage, which for some odd reason some employers do.  The coverage is relatively inexpensive, so it is pure penny pinching to waive the coverage thereby putting your employees at unnecessary risk of financial ruin.

Keep in mind that any claims brought against the uninsured and underinsured coverage of the employer is strictly an insurance claim.  It is not a personal injury claim.  In other words, there is no allegation of negligence on the part of the employer, which is required in a personal injury claim.  Any such claim of negligence would fall on deaf ears in any event due to the Workers’ Compensation exclusive remedy provisions.

Instead, the claim is strictly against the employer’s uninsured and underinsured coverage.  Therefore, it is very important to determine whether the employer has the coverage and policy limits on such coverage.

Stacking Insurance Coverage for Car Accidents that Occurred During Work

In New Mexico, the other driver is likely to be uninsured or underinsured. Your underinsured coverage will likely be very important. Fortunately, in New Mexico, the laws on underinsured coverage are very consumer friendly including the allowance of stacking.
Finally, this determination gets to another important point which is the stacking of coverage.  This issue must be addressed in your own personal uninsured and underinsured coverage as well as that of your employer.  Stacking allows you to combine the uninsured and underinsured coverage of numerous vehicles under the same policy.  For example, if you have 5 vehicles, each with $25,000 in uninsured and underinsured coverage, your total coverage would be $125,000.  The same holds true for the employer’s policies

Like all auto accidents, the recovery of damages is largely dictated by the insurance that is available.  So if you are injured in a work related car accident, then the first challenge is to identify all possible coverage.  Though you are limited by the exclusive remedy provisions of the Workers’ Compensation Act, there are other ways to achieve recovery for your injuries and damages.

Insurance Issues Can Be Confusing – An Experienced Attorney Can Help

Auto insurance issues can be confusing in the best of circumstances. The issues can be particularly challenging in work related auto accidents. An experienced attorney can help your work through them.

Auto Insurance Issues Confusing – An Experienced Auto Accident Attorney Can Help

Auto insurance issues can often be confusing.  This is particularly so in the case of work related auto accidents due to the New Mexico Workers’ Compensation Act’s exclusive remedy provisions and the interplay of underinsured coverage and the issues that come with it.

The personal injury attorneys at Collins & Collins, P.C. have extensive experience and knowledge of auto insurance issues and can help you sort through them so that you can be as fully and fairly compensated for your injuries as possible.

Collins & Collins, P.C. can be reached at (505) 242-5958 .