Work can be a dangerous place. According to the Bureau of Labor Statistics, there were 5071 fatal work-related injuries in 2008. Non-fatal injuries occur at a rate of about 4% of the workforce. In other words, 4 of every 100 workers will suffer work-related injuries. In 2008, there were an additional 3.7 million non-fatal work-related injuries.
Workers Compensation Laws in New Mexico
Most work-related injuries will fall strictly under workers’ compensation laws. Under state workers’ compensation statutes, these laws limit the injured employees’ recovery to recovery in cases of serious injuries or injuries and damages. A New Mexico work injury lawyer can help you navigate the often complicated maze of laws and their application.
Unfortunately, the worker’s compensation limits are strict unless the accident resulted from highly reckless conduct on the employer’s part. The standard is shallow for employers under the workers’ compensation acts, so that behavior has to be outrageous, with almost certain injuries to the worker resulting from the conduct. Workers’ compensation laws were written to protect the employer from catastrophic lawsuits. The result has been that workers have borne the costs of negligent employers.
Personal Injury Claims for Work Injuries
Due to the protections afforded by employers by workers’ compensation laws, an injured employee will rarely have a claim directly against their employer beyond the limits of the workers’ compensation laws. However, many work-related injuries result from the negligence of third parties other than the employer. These claims have no limits and are treated like any other personal injury claim.
Third-party personal injury lawsuits for work-related injuries can arise in various cases. A high percentage of work-related injuries occur in the construction, agricultural, mining, manufacturing, and transportation industries. Each of these industries involves many other parties on the job site. In the case of a vehicle, workers driving in the transportation industry or conjunction with their jobs in other industries face the same driving risks as any other driver. The lawsuit is treated like simple, defective third-party equipment, supplies, or products in these cases. There may also be negligent contractors, sub-contractors, or their employees.
Must Identify Third Party Responsibility for Accident
If your work injuries resulted from the negligence of a third party, then you will have personal injury claims against those third parties for your injuries and damages. As such, you must determine the cause and source of your injuries. Many workers injured on the job assume they have no recourse but workers’ compensation when a closer look at the facts surrounding their injuries reveals third parties’ liability.
Under New Mexico law, injured workers are limited to recovery by the exclusive remedy provision of the Workers’ Compensation Act. Though the worker is entitled to medical care (for life if necessary), the Act falls far short of fully compensating them for all their 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 cannot continue to work in their chosen field due to the damages. 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 severe injury or death.
Because of the gross deficiencies of the Workers Compensation Act, it is essential to determine whether the case might fall outside the Act. There are a couple of ways this might be the case. First, the issue might come under the Delgado exception derived from Delgado v. Phelps Dodge. Exceptions under Delgado are infrequent. Delgado requires that the employer 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 inevitable. In short, it is doubtful 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 by a third party, not by the employer or working conditions. 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 imperative to identify possible third-party liability. Third-party liability will give rise to a personal injury claim. Without a third-party claim, the worker will almost always be bound by the inadequate recovery allowable under the Workers Compensation Act.
If unsure whether you have a third-party claim, consult an experienced personal injury attorney immediately. It may make the difference between a full recovery from your injuries and losses and an inadequate recovery that can leave you in your family in dire financial condition for years to come.
Workers Compensation Attorneys Describe a Third Party Liability Work Injury Claim and Why is it Important?
Injured workers often face 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 damages is limited to the remedies under the Act.
In cases involving severe personal injuries, these remedies are grossly inadequate to compensate a worker for their injuries fairly.
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 negligent and that negligence is the sole cause of the worker’s injuries.
If you or a loved one has suffered severe 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 essential for fair compensation.
Third-Party Liability Claims for New Mexico Work Injuries
Third-party liability allows 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 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 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 individual injury case would proceed like any other such claim, even though it was a work-related injury. This means the worker is entitled to recover all recoverable damages outlined 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 wrongful death, compensation for deceased workers and their families borders on the offensive.
Because workers (or the surviving spouse or children) are so limited in recovery under the Workers Compensation Act, it is vital to identify third-party liability. In other words, were there other causes of the accident beyond the employer’s negligence?
Third-Party Claims for Work Injuries are Fairly Common
Third-party liability comes up reasonably 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 like any innocent driver. The same rationale applies to workers injured on the premises of customers, contractors, associates, and the like.
One area where third-party claims are common is accidents on construction sites due to the sheer number of contractors, 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 widespread due to many different actors on a construction site.
In many cases, 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 arise where the employer has created unsafe working conditions with the third party’s negligence combined with those dangerous conditions to cause an injury.
In short, there are countless ways that third-party liability might arise. It is crucial to determine if there is a third-party liability. It is no exaggeration to say that third-party liability may mean the difference between a full recovery from a worker’s injuries and financial ruin.
New Mexico Employers Not Protected from Work Injury Lawsuits in the Absence of Worker‘s Compensation Insurance
In New Mexico, the Worker‘s Compensation Act was purportedly enacted to protect workers from the job injuries. The Act provides certainty to an injured worker who can obtain needed medical care and lost wages for work-related injuries. This is partly true.
The Act does provide for medical coverage and a portion of lost wages for injured workers. The lost wages are limited in both time and amount. The allowable recovery for lost wages typically leaves the wounded worker largely uncompensated. At the rates provided under the Act, lost wages will often leave injured worker and their family in severe financial hardship.
Unfortunately for most injured workers, no matter how serious or how the injury was caused, recovery for personal injuries is limited to medical expenses and lost wages as set forth by the Act. This means that workers, except under scarce circumstances, cannot sue their employer for personal injuries even if the employer caused them.
However, to obtain protection under the Workers Compensation Act, the employer must carry workers’ compensation insurance as mandated under the Act. As a result, those employers who do not comply with the insurance coverage requirements under the Act are fully exposed to personal injury lawsuits for injuries to their workers.
In short, if you are injured on the job and your employer does not have workers’ compensation insurance, you may use the employer in tort for personal injuries. Because the uninsured employer is not protected under the Act, the employer is fully liable for all damages recoverable in a personal injury lawsuit.
You should immediately make a worker’s compensation claim if you or a loved one have been injured. We do not handle worker‘s compensation claims at Collins & Collins, P.C. There are very short and critical deadlines for worker‘s compensation claims. Therefore, you should immediately contact a worker‘s compensation attorney if you have any questions. Several excellent worker‘s compensation attorneys exist in Albuquerque and elsewhere throughout New Mexico.
If your employer does not have worker‘s compensation insurance and the accident was caused by unsafe working conditions or other negligent actions of your employer. You should contact an experienced personal injury attorney to evaluate your claims. In the absence of worker‘s compensation insurance, you may be able to recover through a personal injury lawsuit. Depending on the circumstances, your recovery may be far more significant in a personal injury lawsuit than it would have been through worker‘s compensation.
Work Injuries, Contractors, and Personal Injury Lawsuits in New Mexico
As with all work injuries, the employees of contractors injured on the job will be limited in their claims against their employer. Under New Mexico law, the injured worker is limited to workers’ compensation benefits under the New Mexico Workers’ Compensation Act’s exclusive remedy provisions.
As with any work injury, it is essential to identify parties other than the employer responsible for the accident. This will bypass the Workers’ Compensation Act’s limitations and allow a full recovery. This is frequently possible with construction accidents.
Many Contractors on Construction Sites – Third-Party Negligence Abounds
One may not have to look far to find those third-party actors responsible for the accident on a construction site. There are generally numerous contractors at any given time, and on large construction sites, a considerable number of contractors can work on various aspects of construction.
The types of contractors and activities will run the gamut of the construction and building process. For instance, there may be carpenters, masons, plumbers, electricians, crane operators, hauling, cement pouring, steel workers, etc. These contractors may be employed for various activities, from new construction, maintenance, additions, alterations, repair, etc.
Many Possible Work Accidents Involving Contractors
Looking at this abbreviated list of possible contractors and contractor activities, more imagination is needed to see the many potential mishaps on a construction site. Because of construction and construction site circumstances, the injuries are often severe or fatal.
In those cases where a worker is seriously injured or killed due to a contractor other than their employer, the worker may sue the contractor for personal injuries. In many cases, the injured worker would sue more than one contractor as the negligence of several contractors may combine to create the hazard that caused the accident.
Personal Injury Claims on Behalf of and Against Contractor Employees
The status of contractors is interesting concerning limitations on personal injury claims under the New Mexico Workers’ Compensation Act. The contractor is typically an employee, if not self-employed. It may be too obvious to state, but the worker is also a contractor.
Consequently, the injured worker faces the same issues as other injured workers regarding the Workers’ Compensation limitations. At the same time, many more possible third-party actors may be held liable that are not typically found on a work site.
Employer Contractors on Both Sides of Workers’ Compensation Protections
Employers face the same issues from the other side of the coin. The Workers’ Compensation Act does not protect employers from injuries caused by their negligence or the negligence of their employees and agents.
On a construction site, this might come up in various ways. Another worker may be injured simply under the negligent performance of the contractor’s duties. Construction is unique in that workers often interact with other workers from other contractors.
For instance, they may lend a hand to another worker simply out of courtesy or custom. Accidents often occur under these circumstances. In that case, the worker who caused the injury will bring liability to the employer.
Seek Guidance from a Workers’ Compensation Lawyer
Injuries in the settings above can be complicated. Figuring out who caused the accident may alone be an enormous challenge. This is particularly the case where a combination of factors and actors led to the accident.
Auto accidents at work are pretty standard. Work-related auto accidents can create 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.
The New Mexico Workers’ Compensation Act’s narrow exception to the exclusive remedy provision is called the Delgado exception. This exception is infrequent 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 is numerous possible source of insurance that should be examined.
In car accident cases, a couple of possible avenues exist to recover damages for your 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. Your work 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 Claims that Occur During Work and Your Employer’s Auto Insurance
This brings us to the more interesting point: 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, putting your employees at unnecessary risk of financial ruin.
Remember that any claims brought against the uninsured and underinsured coverage of the employer are strictly insurance claims. It is not a personal injury claim. In other words, there is no allegation of negligence on the employer’s part, 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 against the employer’s uninsured and underinsured coverage. Therefore, it is vital to determine whether the employer has 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 critical. 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: the stacking of coverage. This issue must be addressed in your own personal uninsured and underinsured coverage and 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 five 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 primarily dictated by the available insurance. So if you are injured in a work-related car accident, the first challenge is identifying 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.
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 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 to be as fully and fairly compensated for your injuries as possible.
When An Attorney Is (and Isn‘t) Necessary in a Work-Related Injury Claim
According to the Bureau of Labor Statistics, 3.1 million nonfatal workplace injuries and illnesses were reported in 2010. A preliminary total of 4,547 fatal workplace injuries were reported for the same year.
Most companies and employers in New Mexico are responsive to laws concerning job-related injuries. However, stories of how companies have refused to pay worker‘s compensation benefits are constantly surfacing in the news. It is natural for individuals injured in a work-related accident to wonder if their employers have done everything they can and are required to do by law.
Under the New Mexico Workers Compensation Act (Act), if a personal injury or death occurred while an employee was performing a work-related duty, the employee is entitled to worker‘s compensation benefits for his or her injuries.
Worker‘s compensation in New Mexico covers medical, indemnity, and funeral benefits. Medical benefits include physical care and therapy, hospitalization costs, psychiatric care, counseling, chiropractic treatment, medication, and prescribed medical equipment.
Depending on the extent of injury, New Mexico Worker‘s Compensation is meant to cover a portion of income while the disability lasts. The types of benefits available are total disability (TTD), permanent partial disability (PPD), and permanent total disability (PTD).
However, the Act limits the amount an employee is able to recover for a personal injury or death that occurred on the job. In fact, in cases of serious injury or death, the benefits allowable under worker‘s compensation are sorely inadequate. For injuries suffered on the job, the benefits allowable under the Act are the exclusive remedy for those employers that are in compliance with the provisions of the Act.
Having said this, there may be several reasons to contact an experienced personal injury attorney for injury or death arising from a work-related accident. In some cases, employers fail to live up to their responsibilities under the Act. If the employer has failed to obtain worker‘s compensation insurance, then the employer will not be protected by the Act. Without the protection of the Act, the injured employee may sue the employer for all recoverable damages just like any other defendant.
In other cases, there may be a third party involved in the work-related injury. Third parties can be part of a work related injury in many ways. For example, there may be several different contractors working on a construction site where an employee is injured. For workers whose jobs involve transportation, the negligent acts of another driver or passenger may injure them. In yet another case, a worker may be injured on the job by a defective product manufactured by a third party. In all of these cases and many others, an employee may have a personal injury or wrongful death suit against a third party above and beyond their worker‘s compensation claim.
Generally, if an employer is complying with the Worker‘s Compensation Act, an employee may not bring a worker‘s compensation claim against the employer. Nor can an employee sue to the employer in personal injury. If, however, the employer is not complying with the Act, or there is a third party involved, the injured employee may have a valid personal injury claim. In these cases, it is important to contact a personal injury attorney immediately.
Immigrants suffer significantly higher rates of on the job injuries and death. There are a number of reasons for this which will discussed below. Unfortunately, many immigrants do not know their legal rights when a work injury or death occurs.
Immigrants Work in Dangerous Industries
Immigrants, especially undocumented immigrants, tend to gravitate toward dangerous jobs. This is because the jobs are hard to fill and these immigrants are the only workers willing to take the positions. Immigrant workers are heavily represented in construction, manufacturing, restaurants and day labor, all of which have higher than average accident rates.
Little Safety Training and Equipment Provided to Immigrants
Immigrants often receive little if any safety training. Far too often the training is conducted in English only so that the immigrants understand very little of what training is provided. Worse still, employers of immigrants often refuse or otherwise fail to provide immigrants with proper safety equipment and apparel. The lack of safety equipment and apparel can turn an otherwise innocuous accident into a very serious accident.
The lack of effective training, equipment and apparel coupled with the dangerousness of the jobs worked by immigrants result if a disproportionate number of injuries and deaths to immigrant workers.
Immigrant Workers’ Lack of Knowledge of Legal Rights
On top of all of the above, immigrant workers typically lack knowledge of their rights in the case of a work injury or death. This is in part due to limited English skills. However, much of it is by design. Employers of immigrants, especially undocumented workers, are too often not inclined to inform immigrant workers of their rights following an accident. There are some employers that prey on immigrants, again especially undocumented workers. As a consequence, many immigrant workers do not think they have any rights at all. This is not true.
Immigrant Worker Rights Following Work Accidents
Immigrant workers have all the same rights as any other worker. They have the right to workers compensation. They also have the same rights as others under law of torts (i.e. accident, injury and wrongful death laws). Most immigrant workers would be very surprised to hear this.
Immigrant Workers’ Fear of Pursuing Legal Rights for Work Injuries or Death
Immigrant fears of pursuing legal rights has always been a problem. This is true both in civil matters as well as criminal matters. It is common knowledge that many immigrants will not report crimes against them due to the fear of deportation or other immigration consequences. This is also true of the pursuit of legal rights in cases of personal injury and wrongful death, including those suffered at work.
It’s easy as a lawyer to say that your immigration rights should not be affected by your immigration status. Legally that is true. In practice however, particularly in today’s political climate, there are far too many law enforcement officials of all stripes that could care less about the law protecting immigrants. This is also true of employers and even some insurance adjusters.
In the case of law enforcement indifference to legal rights, there is very little consolation that I can provide right now. These are long legal battles lasting years which matters little to the affected immigrant. To a certain degree, the same can be said of employers and insurance adjusters. On the other hand, consequences to an employer or insurance adjuster playing the undocumented immigrant card against an injured worker can be quite severe for both the employer and the insurance adjuster. This is particularly so for insurance companies who can face very serious and costly bad faith claims for such behavior.
Balancing of Immigration Status with Legal Rights Following a Work Accident
It is no doubt an extremely difficult decision for an immigrant to decide to pursue legal action in today’s climate. In cases of minor injuries, it is perfectly understandable that an immigrant would choose not to pursue his or her rights. In cases involving catastrophic injury or death, the decision to move forward may be easier particularly when there is no other option due to the magnitude of injuries and damages suffered by the immigrant and the immigrant’s family.
These are hard decisions and should not be made alone. They should not be made without the advice of an experienced attorney. If you or a loved one has suffered a grave injury or death while at work, give Collins & Collins, P.C. a call at 505.242.5958. The consultation is free and you will not pay any fees or costs unless we win your case.
There are many questions that workers may have regarding legal claims for work injuries. We have addressed a few on our FAQ Work Injuries page.
The failure of an employer to provide fall protection is the number one OSHA violation. There is no question regarding the duty of employers of all stripes to provide fall protection. Likewise, OSHA standards on fall protection are clear and well-established. The question becomes what happens when the standards are violated, and someone is harmed?
The answer will come down to who that person is and how he or she is related to the employer.
General Requirements for Fall Protection
The standards are very specific and detailed. However, at the risk over-simplification, the gist of the requirements is that employers provide safe walkways and work areas. Included in this requirement is a requirement for necessary “guardrail systems, safety net systems, or personal fall arrest systems.”
The requirements are broadly applied but in part are dictated by the work environment and the type of work performed. The burden is on the employer to show why a deviation from these standards was appropriate and excluded from the requirements.
Recourse for Employees Harmed in Falls in Violation of OSHA
The OSHA standards are written for the protection of workers, most of which are employees. The problem for employees in New Mexico is the New Mexico Workers’ Compensation Act. The Workers’ Compensation Act in New Mexico, like most states, is purportedly written to protect workers. However, this is anything but true.
In fact, the Workers’ Comp Act is written for the protection of employers when it comes to negligence, which a violation of OSHA would most assuredly be. In cases of injury to employee workers injured as a result of the negligent violation of OSHA, the worker is prevented from suing the employer for personal injuries under the Workers’ Comp exclusive remedy provisions.
The exclusive remedy provisions mean that an employee worker is limited to workers’ compensation benefits for any injuries suffered on the job. This covers everything from trivial injuries to death. It covers routine accidents to accidents caused by the gross negligence of the employer. In New Mexico, exceptions to the exclusive remedy provision are extremely rare; basically requiring deliberate and willful acts of the employer with virtual certainty of injuries or death.
This is a near impossible standard for an employee to overcome. The result is that in cases of serious injuries or wrongful death, the worker receives a mere pittance for his injuries no matter how negligent the employer.
Recourse for Independent Contractors or Other Non-Employees
The outcome is far different in cases involving independent contractors or any other non-employee including guests, vendors, inspectors and so on. The employer in these cases receives no protection under the Workers’ Compensation Act.
In these cases, the non-employee has every available remedy under personal injury and wrongful death law. In these cases, violations of OSHA rules regarding fall protection would be very important in the determination of liability (financial responsibility) of the employer/business who failed to abide by those standard.
Serious, ongoing or repeated violations might also go to damages. In these cases, there might be a very good argument for punitive damages. Punitive damages awarded are typically multiples of actual compensatory damages. Punitive damages are meant to deter bad behavior and many times the money involved is all that prevents future similar violations by the same employer, employers in the industry and employers generally.
Work Injury Claims are Complex – Experienced Legal Guidance is a Must
There are a number of complexities and complications that come with work injury claims. Rest assured, the first response from the employer/business will be flat denial of wrongdoing and liability. In cases of serious injury or death, it is important to seek answers. Part of this means determining the application of the Workers’ Compensation Act and safety standards that apply to the particular situation.
The good news for workers is that the overall fatality rate for Bureau of Labor Statistics, there are a number of areas where work injuries are most likely to occur. Likewise, there might be certain industries that have higher rates of injury and fatalities than others. The types of work injuries and work fatalities most common to work environments are much like those that might occur in other settings. The following numbers from the Bureau of Labor Statistics involve fatalities. However, the patterns for serious personal injury would be expected to follow similar trends.
Workers’ Compensation v. Personal Injury Claims
It should be noted that Workers’ Comp claims are very different than personal injury claims. Claims under the New Mexico Workers’ Compensation Act are very limited. In cases of serious personal injury or personal injury lawsuit except in very limited situations. These exceptions to exclusive remedy provisions will be discussed below. If the worker can avoid the exclusive remedy provisions, there is a much better chance of full and fair compensation.
Transportation/Motor Vehicle Related Accidents
Transportation accidents accounted for a full 40% of fatal work accidents (1789 of the total 4383 fatalities). Most of these (around 58%) were road or highway incidents such as car or trucking accidents. In addition to road and highway incidents, there were many non-roadway accidents involving heavy and farming equipment. Many of the fatalities (around 16%) included pedestrians who were struck by vehicles or equipment. Surprisingly, only about 20% of these pedestrian fatalities occurred in work zones.
It might come as a surprise that workplace violence is the second leading cause of work related fatalities. Workplace related violence accounted for about 16% of work related fatalities. These included both homicide and suicide. All work related injuries and wrongful deaths pose challenges for personal injury lawsuits, which will be addressed below. These types of claims create an additional layer of challenges related to duty and foreseeability.
Slip and Fall Accidents
Slip and fall accidents accounted for 668 fatalities, or about 15% of the total. Falls involving fatalities typically included falls to a lower level. These falls represented 81% of the total fatalities. Surprisingly, among these, 25% involved falls of 10 feet or less. Like all work related injuries, the challenge is to get past Workers’ Comp exclusive remedy provisions by identifying a third party other than the employer who is at least partly responsible for the accident. In slip and fall work injuries, it is not uncommon at all that the fall was the result of third party negligence.
Contact with Objects or Equipment
Fatalities caused by contact with objects or equipment accounted for 509 work related deaths, at 11.5% of the total. These fatalities resulted primarily from falling objects. These accounted for about 45% of the total deaths in this area. Other fatalities were caused by contact with vehicles or mobile equipment not in normal operation. Many of these types of accidents would involve third parties. Such as a sub-contractor dropping tools, material or negligently operating equipment and vehicles.
Obstacles to Work-Related Claims and Ways Around Them
There are some challenges facing employees injured or killed in a work accident. As mentioned several times above, the most onerous is the New Mexico Workers’ Compensation Act’s exclusive remedy provision which prevents an employee from suing the employer in a personal injury lawsuit. However, there are several possible routes around these restrictions. First, if a third party unrelated to the employer caused the accident, the Workers’ Comp restrictions do not protect that person or company. Second, if the employer does not comply with the Workers’ Compensation Insurance requirements, they are not protected. This would be made evident upon filing a Workers’ Compensation Claim. Finally, and most rare, an employer is not protected for wanton or reckless conduct under the Delgado doctrine. This is a minimal exception and rarely applies since even gross negligence is insufficient under Delgado.
Seek Legal Guidance – These Claims Can be Complex
Most all personal injury or wrongful death claims come with challenges. Work-related injuries are particularly challenging due to the Workers’ Compensation Act’s exclusive remedy provision. It is essential to contact an experienced personal injury attorney right away to determine if there are ways around these restrictions and how best to proceed to ensure fair and complete compensation. Sadly, in cases of severe personal injury or wrongful death, Workers’ Compensation benefits are woefully lacking and do not come close to full payment for a worker’s injuries and damages. Getting around the Workers’ Compensation Act is the only way to achieve total compensation in these cases.
This is a ubiquitous question. The answer is almost always, “No, you cannot sue your employer for injuries at work.” However, there are several rules and issues that you should understand to fully protect your rights to compensation for work-related injuries.
Workers’ Compensation covers most Workplace Injuries
There are several things to keep in mind. First, the question and answer presume that you are talking about a personal injury lawsuit, not a worker’s compensation claim. If so, the answer above stands.
To be clear, you will have a workers’ compensation claim if you are injured at work. 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 commonly, 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 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, and the employer was negligent, even in cases where the employer was grossly negligent.
Employer Failure to Comply with Workers’ Compensation Act Requirements
There are few protections for workers injured on the job in New Mexico. The New Mexico Workers’ Compensation Act presumably protects workers and 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.
Failure to maintain insurance is the primary basis for waiving protections under the Act.
However, the Workers’ Compensation Act protections are limited to those employers that comply. What does this mean? 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. Failure to maintain insurance is the primary basis for waiving protections under the Act.
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 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 that the employer sends the employee into a hazardous and unnecessary situation where serious harm or death is virtually inevitable. In short, it is a tough 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 essential to determine whether there is a possible third-party liability. Without it, you will soon find the Worker’s Compensation Act benefits 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’ Compensation Act is anything but friendly to injured workers. In cases of severe 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.
Several different damages may be recovered in a personal injury lawsuit. Damages refer to the injuries and losses you have suffered due to the accident.
Lost wages are among the damages that may be recovered. Recovery of damages means you are compensated for the damages you have suffered. Just as lost wages are recoverable, so too is lost overtime pay. After all, overtime pay is simply an element of wages.
Like any lost wages claim, the loss of overtime must be proven
Like any lost wages claim, the loss of overtime must be established. In other words, you must prove to the insurance company that you suffered a loss of overtime pay.
With any lost wage claim, you must document your wages. Typically, you must document your wage history for at least 3 months before the accident. It is helpful to provide longer wage histories if you can so there is no dispute over the history and consistency of your wages.
The same would hold for overtime. To show a loss of overtime pay, you must show that the overtime pay was reasonably expected. Like any lost wage claim, this would require a history or pattern of overtime pay.
This may be problematic in case of new or recent employment. In other words, there may be no history of wages or overtime due to the brevity of jobs. The same would hold true if a new project was started with your current employer with the anticipation of overtime pay.
A history of overtime pay is helpful but not necessary
The lack of an overtime history will not bar your claim for loss of overtime pay. It will simply require additional documentation.
In case of an absence of overtime history due to recent employment, you must prove that you would have been earning overtime pay if not for the accident. You would also need to prove the expected duration of overtime pay.
When you have an established history of overtime, it may be reasonably expected to continue indefinitely. Without such a history, this will be slightly more challenging.
In this case, you would need to establish that overtime pay would have been earned regularly following the accident due to the nature of the employment or industry. In other words, there are jobs where overtime is expected and it does not matter whether you are a longtime or brand-new employee.
There may be other cases where your employer has begun a new project, which will require overtime from the workers. In this case, proving lost overtime should not be too difficult. You would need to prove the existence of the project, your assignment to the project, and the duration of the project. This could readily be done through your employer.
As with all personal injury claims, or any other legal issue, there will be countless and sometimes unexpected variations on these issues. Proving damages is extremely important. After all, if you cannot prove that you have suffered injuries or damages, you will not be entitled to recover your claims.
If you have suffered severe personal injuries with significant damages, you should seek the guidance of an experienced personal injury attorney. Documenting and proving your damages is a rather simple concept, like many legal issues, because vastly more complex in practice.