Failure to provide fall protection is the number 1 OSHA violation on work sites. As it happens, falls are leading cause of death on work sites.
Clearly there is a very real hazard to worker safety as well as a duty to protect workers from falls. The real question is what is a worker’s or the surviving family’s recourse in case of injury or death resulting from a breach of that duty by the employer. Unfortunately, the news is not good at lease for New Mexico Workers.
Workers Compensation Act exclusive remedy provision severely limits workers rights to compensation. The New Mexico Workers Compensation Act is presumably for the protection of workers. However, in cases of serious work injuries or wrongful death suffered on the job, it is anything but helpful to workers or their families. This is so even where an employer is grossly negligent!
The New Mexico Workers Compensation Act’s exclusive remedy provision is very difficult to overcome essentially meaning that a worker cannot sue an employer for personal injuries and wrongful death. The sole recourse in these cases is a workers compensation claim. This means the worker/family is limited to what in cases of serious injury or wrongful death pretty trivial compensation from an employer, even a grossly negligent employer.Workers’ Compensation Act applies only when employer/employee relationship and only where employer is in compliance with the Act. Keep in mind that the Act does not apply in all cases of work injuries.
First, there must be an employer/employee relationship. This means that vendors, visitors, sub-contractors and so on are not bound by the limitations of the Act.
Second, the employer have workers compensation insurance. Employers must participate in Workers Compensation by obtaining and maintaining workers compensation insurance. If they do not, they do not get the protection of the exclusive remedy provision which means the worker can sue just like anyone else injured by the employer’s negligence.
If the worker is injured on the job with an employer covered by the Act, the worker and/or family facing must look elsewhere for full and fair compensation for their injuries. This means looking to third parties other than the employer who may bear responsibility for the accident.
Third party liability may be the only recourse. Third party liability is frequently present in a jobsite injury. This is particularly so in construction accidents with all the activity, contractors, sub-contractors, vendors, delivery vehicles and so on present on a construction site.
If one or more of these parties contributed to the accident, then for any shot and compensation, the worker/family must file claims against those third parties responsible for the accident.
Sifting out liability and identifying all of the responsible parties can be quite complicated. It is essential to seek the guidance of an experienced work injury attorney. The Albuquerque attorneys at Collins & Collins, P.C. can be reached at (505) 242-5958