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!

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

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

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

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

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

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.

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