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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.