Pregunta: ¿Los proveedores médicos que trabajan en las instalaciones correccionales del Departamento Correccional de Nuevo México (NMCD) tienen posibles reclamos legales por falta de preparación y respuesta al COVID-19?

Respuesta: Es posible, pero serían muy difíciles con una serie de desafíos.

Resumen: El personal médico, que generalmente trabaja bajo contrato con una empresa externa, se enfrenta a algunos desafíos relacionados: 1) la Ley de Compensación para Trabajadores de Nuevo México, 2) su empleador es el proveedor médico que debería haber respondido y debería seguir respondiendo a COVID-19, 3) gran cantidad de demandantes potenciales.

Respuesta Fallida de NMCD a COVID-19

Como he escrito en publicaciones anteriores, el NMCD falló y sigue sin tomar las medidas adecuadas para proteger a los reclusos y al personal penitenciario del COVID-19, incluidos los proveedores médicos que trabajan en las prisiones para el contratista médico Wexford. Sin embargo, Wexford tiene obligaciones contractuales para planificar y responder adecuadamente a los brotes de enfermedades infecciosas en las instalaciones del NMCD. COVID-19 es definitivamente una enfermedad infecciosa que estaría incluida en esos deberes contractuales. Las muchas fallas tanto del NMCD como de Wexford se describieron en las publicaciones anteriores y no se repetirán aquí:

Guardias y personal del NMCD: Reclamos legales por falta de preparación y respuesta al COVID-19

Departamento de Correcciones de Nuevo México No Apto para Manejar la Crisis de COVID-19

Absoluta Indiferencia e Incompetencia en el NMCD Pone en Peligro a los Nuevos Mexicanos

Las fallas para proteger a los reclusos y al personal del NMCD discutidas en estos artículos anteriores se aplican igualmente al personal médico, por lo que no se contarán aquí.

Desafíos a las Demandas de COVID-19 para Contratistas Médicos

El personal médico de Wexford enfrenta múltiples desafíos que podrían intentar entablar demandas por lesiones y daños por falta de preparación para el COVID-19 en las prisiones.

Ley de Compensación para Trabajadores de Nuevo México

En primer lugar, el personal médico no podrá demandar a Wexford, quien posiblemente tiene la responsabilidad principal sobre los brotes de enfermedades infecciosas en las cárceles. Esto se debe a la Ley de Compensación para Trabajadores de Nuevo México que limita drásticamente los derechos de los empleados de Nuevo México de demandar a sus empleadores, sin importar cuán atroz y negligente sea el empleador. De hecho, la negligencia grave no es suficiente. Se requiere imprudencia y los tribunales de Nuevo México han determinado que esto básicamente requiere que el empleador envíe a un empleado a un gran daño físico o muerte según Delgado v. Phelps Dodge, lo que se conoce como el estándar Delgado. Es muy poco probable que un tribunal considere que la respuesta fallida al COVID-19 cumpla con el estándar de Delgado.

La Responsabilidad de NMCD Podría estar Limitada por Contrato

El contrato entre Wexford y el NMCD, CONTRATO DE SERVICIOS PROFESIONALES # 20-770-1200-0043 ejecutado por Wexford y NMCD en octubre de 2019, coloca la responsabilidad del control de enfermedades infecciosas en Wexford como se describe en la publicación mencionada anteriormente. De hecho, el sentido común sugeriría que el control de las enfermedades infecciosas entra dentro de las responsabilidades médicas. Aunque el NMCD ha sido muy negligente en su preparación y respuesta de COVID-19, apuntará a Wexford. Los reclamos son posibles, pero serían extremadamente difíciles y costosos de realizar.

Una Montaña de Reclamaciones de COVID-19 en Contra de NMCD y Wexford

Es probable que haya todo tipo de reclamos diferentes contra el NMCD y Wexford relacionados con la preparación y respuesta por negligencia grave al COVID-19. Esto no excluye necesariamente los casos individuales. Sin embargo, debido a que las reclamaciones legales y las demandas relacionadas serán tan difíciles y costosas de llevar a cabo, es probable que deban presentarse como una demanda colectiva. El desafío aquí es encontrar abogados dispuestos a asumir una tarea tan enorme con lo que al final podría ser una propuesta perdida.

Posibilidad de Legislación que Prohíba Demandas Relacionadas con COVID-19

COVID-19 es una pandemia. Realmente está más allá del control de la sociedad, los científicos y la comunidad médica. El único control es sobre la tasa de aumento del brote, aplanando la curva como dicen. El aplanamiento de la curva no es tanto una función de prevenir la propagación sino de ralentizar la propagación para evitar abrumar al sistema de atención médica. El gobernador Lujan Grisham tomó medidas relativamente tempranas para responder al COVID-19. Desafortunadamente, el NMCD ha drogado sus pies en cada paso del camino, como generalmente lo hacen con todo lo relacionado con la salud y el bienestar de los reclusos. La poca acción que han tomado el NMCD y Wexford, a pesar de un milagro médico, es demasiado pequeña y demasiado tarde. En este caso, el NMCD y Wexford han puesto en peligro a muchos más que a los presos, han puesto en peligro a sus propios empleados y personal. El único recurso del personal médico puede ser buscar reformas para evitar situaciones futuras como la actual. Curiosamente, esta es una rara ocasión en la que los intereses de todos en las prisiones están obviamente alineados, incluidos los presos, los guardias, el personal y el personal médico. Personalmente, siempre he sentido desde que comencé a trabajar para los reclusos, los intereses siempre han estado algo alineados. Todos viven en la misma casa….

Protéjase y Busque Representación Legal

Como puede verse incluso desde una vista superficial de las noticias, el personal médico de todo el mundo tiene que descubrir cómo protegerse. Los desafíos se amplifican enormemente en las cárceles debido a las condiciones de las cárceles que hacen imposible mantener el distanciamiento social. El hecho de que el NMCD no proporcione a los reclusos los productos de limpieza adecuados hace que las otras precauciones sean imposibles de seguir por los reclusos. Dado que el personal médico está en el mismo experimento en placa de Petri con los prisioneros, es casi seguro que ellos también estarán expuestos y sufrirán las consecuencias.

El mejor recurso por ahora es buscar ayuda para obtener el equipo de protección, el equipo de protección personal y otros suministros para protegerse adecuadamente. Esto puede requerir de la participación de un abogado. Y podría lograrse mejor como grupo, de modo que ningún individuo asuma solo los costos legales. Aunque Collins y Collins, P.C. simpatiza enormemente con el personal médico y el personal del NMCD, nuestra firma no podría asumir este desafío debido a los conflictos de intereses asociados con las muchas demandas por negligencia médica Collins & Collins, P.C. ha presentado una demanda contra el NMCD y sus proveedores médicos. Esperamos que haya abogados y firmas que asuman el desafío de proteger a los trabajadores de salud de las prisiones como lo hemos hecho con los presos. Desafortunadamente, no conocemos ninguno en este momento, por lo que el personal médico deberá buscar un asesor legal por sí mismo. Y con todo lo relacionado con las prisiones, la primera discusión probablemente será una posible represalia por alzar la voz. De hecho, la represalia en sí misma puede ser el único reclamo legal viable que tienen los trabajadores médicos y esos también son extremadamente desafiantes e inciertos.

Original English Version

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.

Most of the discussion surrounding our broken prison system revolves around the abuse of the rights of inmates. Collins & Collins, P.C. has commented on these matters numerous times. More often than not, what is lost in the discussion is the systemic neglect, abuse and harm suffered by guards as a result of that same broken system. When the plight of guards is discussed, it is generally discussed by the institutional players in the prison system, both governmental and private, to frame the debate by pitting guards against inmates.

Framing the discussion in this way allows those institutional players to lobby for ever increasing budgets while perpetuating the harm to both inmates and guards. Guards and inmates both suffer at the hands of a system driven by money and power.

Lack of Basic New Mexico Prison Reform

Even basic reform of cruel, inhumane and completely ineffective practices hits roadblocks. The practice and abuse of solitary confinement helps to frame a the wider debate around prison and criminal justice reform in New Mexico.

Currently, there is a bill working its way through the New Mexico legislature to reform solitary confinement. The bill seeks to restrict the use of solitary confinement to prevent its use on children, pregnant women and the mentally ill. One might think, given the enormous amount of research showing the physical and psychological harm caused by extended periods of solitary confinement, that in a “blue state” in the “Land of Enchantment” and enlightenment, this bill would be a no brainer. Not so.

At one hearing on the bill on February 27, 2019, there was enormous opposition to the bill. The opposition came from the New Mexico Corrections Department (NMCD). More specifically, the opposition came from many NMCD guards who accompanied NMCD administrative officials to fight against the bill. Several of the guards gave very compelling testimony regarding threats to their own safety faced daily in the New Mexico prison system. Several discussed violent attacks that they personally suffered. Others discussed attacks on fellow guards.

There is no disputing that prison guards face extraordinary daily safety risks. However, the risks do not derive from solitary confinement. The risks derive from the broken New Mexico prison system. The greatest risks facing guards, one might argue as would I, is not from the inmates but from prison system itself, writ the guards’ employers. NMCD uses guard safety as a pawn in constant grasp for greater budgets and power.

Workers Rights at the Heart of Prison Reform

One speaker at the legislative hearing pointed out that the issue of solitary reform was a workers’ rights issue. This is partly true. The broken prison system is most definitely a workers’ rights issue. But again, the threat to prison workers derives largely from the system itself. The systemic abuse of the use of solitary is just one manifestation of the gross neglect of the rights of prison workers including the guards.

One need only follow the money to reach this conclusion. The New Mexico prison system is grossly understaffed with at least one prison operating with just 30% of American Correctional Association (ACA) guideline staffing levels. All New Mexico prisons are understaffed. The chronic and severe understaffing puts guards at risk in all areas of the prisons. The risks are most apparent in the general prison population given that there is 1 guard to every 100 prisoners in NMCD. Getting back to the reform of solitary confinement, one might ask why this is relevant?

The plain and simple truth is that NMCD uses solitary as a substitute for manpower. NMCD uses solitary as a substitute for rehabilitative programming. NMCD uses solitary as a substitute for mental health services. In doing so, NMCD and its corporate allies put inmates and guards at grave risk of harm. Ultimately, given that inmates are eventually released, NMCD puts the people and families of New Mexico at risk. And don’t get me started on the financial harm that the system causes New Mexico and its citizens.

Broken Prison System’s Toll on Correctional Staff

The toll on correctional officers and their families is extraordinary. Below are a a couple tidbits of shocking information regarding that toll:

Correctional officers suffer greater levels of PTSD than combat veterans. In fact, the rate of PTSD in correctional officers (34%) is more than double the level of military veterans (14%).

Correctional officers have a shockingly high and unacceptable rate of suicide, which is again greater than the rate for military veterans. The rate of suicide for correctional officers is 39% higher than all other professions combined.

Worse still, correctional guards typically get no help with these issues. Instead, they are ostracized and even punished for their PTSD. In fact, correctional officers suffering PTSD related to recent violent attacks on their person are forced back to work in short order to the same conditions and environment in which they were attacked.

Worker Rights, Human Rights, Civil Rights of the Forgotten

The working conditions of correctional officers are an affront to their worker rights, human rights and civil rights. These working conditions are imposed by a system driven entirely by money and power at the administrative levels. Its not just the inmates who are cast away and forgotten, it is also the guards and other prison personnel.

I can’t understand why the correctional workers union hasn’t filed class-action lawsuits filed on behalf of prison guards and staff. Further I do not understand the role of a corrections worker union if they are not to step up and protect the workers from whom they too profit. Its an absolute disgrace to New Mexico that this broken system continues to flourish unabated while inmates and guards alike suffer extreme physical and psychological harm related to its perpetuation of the status quo.  The status quo will change only when both guards and inmates are recognized for their humanity and society, writ NMCD, treats them as such.

Multiple sources have reported that Post-Traumatic Stress Disorder (PTSD) among correctional officers is double the rate found among military veterans and police officers.  Chronic and severe understaffing causing excessive hours and greater risk of violence to both correctional officers and inmates is perhaps the greatest contributor to the stressors of correctional work.  However, the officers often do not get proper training, support and stress management before and during employment.

In 2011, in an article entitled “U.S. Correctional Officers Killed or Injured on the Job” the National Institute of Health reported that they have one of the highest rates of injury on the job in the United States. The rate of work-related injuries or death is four times higher than experienced in the general workforce in the United States.  The problem has grown worse since and will likely get even worse in the future as private prison corporations put profits before safety.

All in all, the conditions of correctional guard employment create a state of hyper-vigilance to the threat of violence and its aftermath.  The results are high rates of mental health issues, including PTSD. Among the symptoms of Post-Traumatic Stress Disorder (PTSD) are;  re-living traumatic events, nightmares, self-medicating with drugs and\or alcohol, emotional numbness, tendency to isolate one’s self and problems with anger-management. Correctional Officers also suffer very high rates of suicide with suicide a very real and predictable threat to correctional officers and their families.

New Mexico’s Correctional Facilities Far Short of Staffing Standards

Albuquerque local news outlet KQRE ran a piece in March, 2017 called “Costly Crisis Behind Bars” which noted that there are multiple problems in the State of New Mexico’s correctional facilities. The American Corrections Association (ACA) notes that no facility should have a staff vacancy rate exceeding 10% during any eighteen month period. Only two of New Mexico’s prisons even come close to that measure with a number of facilities having staff vacancy rates which exceed one third.

In 2015, according to the source, 34% of positions at the facility in Los Lunas went unfilled. At the Western Facility in Grants over half the positions went unfilled while at the Springer Facility in the Northeastern part of the state an astounding 70% of the positions remained vacant.

Between 2012 and 2016, private correctional facilities paid almost six million dollars in fines for being under-staffed.  That New Mexico’s prison facilities are so woefully understaffed contributes to a wide-range of problems for those who work in our prisons and jails. Working in conditions that can be extremely dangerous and where the aftermath of violence is commonplace takes its toll on correctional staff. The impacts can be long-term, egregious and sometimes catastrophic.

In May, 2017 an article entitled “Life Behind Bars: Working as a Correctional Officer” appeared in the New Mexico News Port. The article interviewed correctional officers working in the State of New Mexico. Officers interviewed noted that the job took an extremely high toll on personal lives, specifically rates of divorce and suicide–noting that the latter is 39% higher than in any other profession.  Officers frequently work 70-80 hours per week and feel they do not have lives outside of the job. Currently, the attrition rate for correctional officers stands at 8%, the highest on record in the history of New Mexico.

Correctional Guards May Have Personal Injury Claims Against Prisons and Jails for PTSD

The law is not well-developed on legal claims related to personal injury lawsuits related to PTSD suffered by correctional guards.  The general rule is that if the injuries happened on the job, the injured employee is limited to benefits under the Workers Compensation Act.  This means that typically, a correctional officer would not be able to file a personal injury lawsuit but instead would be limited to Workers Compensation.   However, based upon prior law in a non-correctional setting, there may be personal claims depending upon the circumstances of the employment and the environment within the prison or jail.

The case that would most apply is the 2001 New Mexico Supreme Court case of Delgado v. Phelps Dodge.  The facts in that case are extreme but there was no indication that the ruling would be limited to the extremely callous and dangerous conduct of the employer in that case.  Delgado set out the requirements for a personal injury claim against an employer for an on the job injury as follows:

“[W]illfulness renders a worker’s injury non-accidental, and therefore outside the scope of the Act, when: (1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker or employer expects the intentional act or omission to result in the injury, or has utterly disregarded the consequences; and (3) the intentional act or omission proximately causes the injury.”

To be clear, this is a very high standard for the employee to meet but the work conditions in New Mexico jails and prisons  may well meet that standard.  On the other hand, if this standard can be met, it may be possible to make New Mexico jails and prisons safer for both correctional guards and inmates.  After all as they say, “money talks….”

Important Deadlines to PTSD Claims Against Jails and Prisons

There are two sets of deadlines depending upon whether the jail/prison is managed by the state, county or municipality, or it is managed by a private corrections company.

For governmentally managed jails and prisons, there are 2 very important deadlines:

  1. Tort Claims Notice:  there is a 90 day deadline for submitting a Tort Claims Notice to the appropriate governmental agency.  DIY Tort Claims Notice instructions and forms can be found on the New Mexico General Services website. 
  2. Statute of Limitations:  the statute of limitations is only 2 years on claims against a New Mexico governmental entity.

Missing either of these will bar your claims completely.

For private corrections company’s, there is simply a 3 year statute of limitations.

nih.govnih.gov

U.S. Correctional Officers Killed or Injured on the Job

U.S. Correctional Officers Killed or Injured on the Job In the U.S., approximately half a million correctional officers are responsible for supervising more than two million inmates. Correctional officers are exposed to unique workplace hazards within a controlled prison environment. Of all U.S. workers, correctional officers have one of the highest rates of nonfatal, work-related injuries.1 In 2011, correctional officers experienced 544 work-related injuries or illnesses per 10,000 full-time employees (FTEs), which were serious enough to require that they missed a day of work. This was more than four times greater than the rate for all workers who missed a day of work (117 cases per 10,000 FTEs).2 Also in 2011, correctional officers experienced 254 work-related injuries per 10,000 FTEs due to assaults and violent acts. This is considerably higher than the rate of injuries from assault and violent acts for all workers (seven per 10,000 FTEs).3

 

 Early detection is key to breast cancer survival.  With early detection, the survival rate is close to 90%.  Delays in detection can be deadly.

How does this play out within the VA medical care system?

Veteran Administration Position on Early Detection

The VA takes a strong and medically rational position on early detection. In a post on the VA’s website, VA National Leader in Providing Mammograms, the VA states:

“Two very important words can save lives:
Early detection.
Women Veterans are encouraged to keep those two words in mind every month, not just in October during Breast Cancer Awareness Month.”

The post goes on to state:

“ The value of early detection is borne out by the statistics: The overall five-year survival rate from breast cancer is nearly 90 percent. If the cancer is caught while it is still confined to the breast, the survival rate increases to nearly 99 percent.”

VA Position v. Practices

The stated policy is inconsistent with the many findings of deliberate delay in treatment, falsified medical records and wait times, falsified refusals of mammograms, continuing long wait times, and on and on.

These practices have undoubtedly impacted the health and lives of many female veterans. After all, “early detection…saves lives”.

The delays themselves even in the absence of deliberate wrongdoing may constitute medical malpractice.  Deliberate delays and falsifications of records despite knowledge of risks to the patient with resulting harm most assuredly would.

Delay or Failure to Diagnose and Medical Malpractice Claims

Breast cancer may have varying progression rates depending upon the patient. However, early detection remains key. A 6 to 9 month delay is the minimum delay required for many medical malpractice attorneys, including Collins & Collins, P.C.

The evaluation of a medical malpractice claim for delayed diagnoses or failure to diagnose will depend on the individual patient and the medical records.  These evaluations take time so it is important to be proactive with your claims.

Gather the Medical Records ASAP

The first and most important step so far as a medical malpractice claims is concerned is to obtain all medical records from each medical provider that might be even remotely connected to the breast cancer. This should be done immediately while the patient is still able to do this on her own. There a numerous good reasons to do this:

1) The case cannot be evaluated by an attorney without them.

2) The case will eventually need to be evaluated by a medical expert which can take time to accomplish,

3) The statute of limitations is only 2 years on Federal Tort Claims Cases and the clock is ticking.

4) Delays in getting the medical records may result in the inability to obtain an attorney to even evaluate the case. Most attorneys are very reluctant to take cases on very short deadlines.

If the situation looks dire, then the patient should get a medical power of attorney in place so that these medical records may be obtained by a loved one in the event the patient becomes incapacitated. It can prove exceedingly difficult to get medical records once a patient is incapacitated due to HIPPA laws. The medical power of attorney should avoid this.

Many times, this is learned too late to do much about it. Under New Mexico law, a surviving loved one can be appointed personal representative under the New Mexico Wrongful Death Act. In fact, this will be necessary at some point anyway in order to pursue a medical malpractice claim on behalf of the decedent’s estate.

Contact an Attorney Right Away!

Medical malpractice cases are generally very difficult and expensive. As such, most attorneys must screen these very carefully. This requires a number of levels of review beginning with the first call to a lawyer.

The great majority of experienced medical malpractice attorneys will not simply file suit without a thorough evaluation and an expert medical review. If an attorney is willing to look at a case further, it can take quite some time to get through the case evaluation. All the while, the clock is ticking.

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

Failure to Provide Fall Protection No. 1 Osha ViolationFailure to Provide Fall Protection is #1 Cited Osha Violation – Legal Outcome Depends on Existence of Employer/Employee Relationship

The failure of an employer to provide fall protections 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.

This can get a little bit tricky and confusing.  It is advisable to have an experienced attorney at your side.  The Albuquerque attorneys at Collins & Collins, P.C. can be reached at (505) 242-5958

Contractors are utilized in numerous industries and occupations.  In some situations, such as construction, the work site may be crawling with contractors and subcontractors.  When personal injuries occur with a contractor, there are many issues that will arise regarding liability.

Contractor Employees Work Injury Claims Against Own Employer

Construction Helmet CrackAs with all work injuries, the employees of contractors who are injured on the job will be limited in their claims against their own 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 who are responsible for the accident.  This will bypass the Workers’ Compensation Act’s limitations and allow a more full recovery.  This 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, there can be a very large number of contractors working 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 and so on.  These contractors may be employed for a range of activities from new construction, maintenance, additions, alterations, repair and so on.

Many Possible Work Accidents Involving Contractors 

Looking at this very abbreviated list of possible contractors and contractor activities, little imagination is required to see the many possible mishaps that might occur on a construction site.  Because of the circumstances of construction and construction sites, the injuries are often severe or fatal.

In those cases where a worker is seriously injured or killed as a result of a contractor other than his or her 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 with respect to 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 of other injured workers regarding the Workers’ Compensation limitations.  At the same time, there are many more possible third party actors that may be held liable that are not typically found on a work site.

Employer Contractors on Both Sides of Worker Compensation Protections

Employers face the same issues from the other side of the coin.  Employers are not protected by the Workers’ Compensation Act for injuries caused by its own negligence or the negligence of its employees and agents.

On a construction site, this might come up in a variety of ways.  Another worker may be injured simply by virtue of 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 his or her employer.

Seek Legal Guidance

Injuries in the settings above can be quite complicated.  Figuring out who caused the accident may alone be a very big challenge.  This is particularly the case where there was a combination of factors and actors that led to the accident.

It is important to seek the guidance of a personal injury attorney experienced in work injuries and construction related accidents.

The Oil Field Can Be Dangerous Place - Workers Need ProtectionsWork injuries occur far too often. New Mexico is no exception. Unfortunately, workers enjoy very little protection from the negligence of their employers by virtue of the exclusive remedy provisions of the New Mexico Workers’ Compensation Act.

The recent case of Sherman v. Cimarex from the New Mexico Court of Appeals addresses an interesting and not too uncommon situation where a subcontractor’s employee is harmed by the negligence of the contractor.

Workers are typically very limited in what they can recover under the New Mexico Workers’ Compensation Act.

Typically, work injuries come with some pretty bad news regarding limitations on recovery even in case of gross employer negligence. In this case, there is some promising news for injured workers. In those cases where an worker employed by a sub-contractor is harmed by the contractor, there may be some relief to the injured worker beyond the pittance allowed under the New Mexico Workers’ Compensation Act.

The facts in a nutshell are as follows. The plaintiff worked for a subcontractor of the defendant. The plaintiff was injured when he fell over a railing on a drilling rig. The plaintiff filed a negligence claim against the defendant contractor.

Specifically, the claim alleged that the defendant contractor was “negligent in failing to provide him a safe place to work, failing to keep a proper lookout for his safety, failing to allow him proper time for rest and recuperation and interrupting his sleep for unnecessary supervision…” In essence, the plaintiff alleged that the defendant had created a working environment that knowingly caused the plaintiff to work while fatigued which then led to the accident.

The contractor in response argued that there was no duty to the plaintiff since he was not an employee. The district court agreed dismissing the claim on summary judgment.

The basic issue at the New Mexico Court of Appeals was whether in fact the defendant did owe a duty to the plaintiff and whether that duty was breached. The Court found that there were issues of fact that needed to be resolved in the determination of the existence of a duty and therefore summary judgment was inappropriate.

The general rule is that contractors have no liability for injuries to subcontractor employees. There are exceptions related to “control” over the employee.

The Court began by stating that a contractor is not liable for injuries to the employees of subcontractors.
However, the Court further stated:

“As with any general rule, however, there are exceptions, including two scenarios: where the employer controls the premises on which the work is being performed or where the employer retains control over the independent contractor’s performance of its work.”

Interestingly, the Court of Appeals narrowed the issue at hand to the second aspect of the exception regarding “control” though the contractor certainly controlled the premises upon which the plaintiff was injured.

The Court thus restricted its analysis to the issue of “control” and the duties arising from it. In addressing the existence of control and the consequent duties to the employees of subcontractors, the Court relied heavily on the Restatement of Torts, Section 414 to arrive at its conclusion:

Contractor may be liable if it exercises control and is negligent in that supervision

“ (1) the employer owes a duty to an employee of an independent contractor if the employer has some kind of supervisory control over the independent contractor and, if the employer owes this duty, (2) it may be liable if it exercises its control in a negligent manner that causes injury to the independent contractor’s employee.”

The Court admitted that the case law did not specify how much control was necessary. Again relying on the Restatement of Torts, the Court addressed the scope of control necessary for liability. The Court took a pretty broad view seemingly in favor of workers stating that the issue was not whether the defendant had awareness of the plaintiff’s fatigue or whether the defendant created the work environment. Instead, the sole question for the Court was whether the defendant “ had any right of supervision” so that the plaintiff was not free to do his work in his own way.”

The Court found that the plaintiff had introduced sufficient evidence to raise a factual dispute as to the necessary control. Interestingly, the Court noted that the plaintiff had also presented evidence of the defendant’s knowledge of the plaintiff’s fatigued condition though “control” alone was the crucial factual issue.

Due to the outstanding factual issues, summary judgment was improper as factual issues are the domain of the jury not the judge. The case was therefore remanded to the district court for proceedings consistent with its findings.

This decision if it stands is a small but good step toward the protection of workers from unsafe work places and negligent employers. However, much more should be done to protect workers. Again, under the Workers’ Compensation Act’s exclusivity provisions, injured workers have no recourse for negligence or even gross negligence of their employers other than the very limited recovery allowed under the Act.

Related Reading:

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

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

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

A recent article from Forbes reported on the 10 deadliest jobs in America. The list includes Alaskan fishing, logging, iron and steel working, and electrical power line installers — to name just a few. These are not all that surprising. They just sound dangerous, and this fact is confirmed by cable television reality shows depicting the risks.

However, the greatest threat to worker safety is just good old-fashioned auto related accidents. Transportation accidents, as a whole, account for 41% of work related deaths. Of these, 58% are highway related.

This is important due to the possible alternatives to recovery available in auto accidents not otherwise available through Worker‘s Compensation benefits.

Worker‘s Compensation Act

Under the Worker‘s Compensation Act, an injured employee, including an employee killed on the job, will typically have only one remedy against the employer. The employee, or in the case of wrongful death, the estate of the deceased employee is limited to recovery against the employer under the Worker‘s Compensation Act.

The remedies under the Worker‘s Compensation Act are offensively insufficient to cover seriously injured workers. This is only worse with workers killed on the job. The Act is geared toward protecting employers no matter what the statutory language suggests. There is little true protection for those workers killed on the job.

Auto Accidents – Other Sources for Recovery

In light of the fact that auto accidents account for a very high percentage of work related deaths, it is important for those whose loved ones have been killed in such an accident understand that there may be other sources of recovery.

Third Party Claims

In case of an auto accident, there is typically another driver involved. If that other driver caused the accident, then the worker‘s estate will have a claim against that driver. Worker‘s Compensation laws do not prevent this recovery.

The same would hold true for claims against any other third parties that may have caused or contributed to the accident. These are far less common than third party negligent drivers but they do come up in a countless variety of ways. It is impossible to name all the possible causes of an auto accident; but perhaps the most common, other than negligent drivers, are defective road conditions and defective vehicles or vehicle parts.

Again, the worker‘s estate is free to pursue claims against any third party responsible for the accident. The limits on recovery under the Worker‘s Compensation Act will not affect recovery against these other parties.

Auto Insurance Issues

Auto insurance issues come up in a variety of ways in any auto accident, including work related accidents. Obviously, the auto liability policies of any negligent drivers would come into play. However, even in the absence of another negligent driver, the worker‘s estate may have potential coverage.

Underinsured and Uninsured Motorist Coverage

As with any auto accident, particularly in New Mexico, which has a very high percentage of uninsured and underinsured drivers, Uninsured/Underinsured Motorist coverage (UM/UIM) is extremely important. In work related auto accidents, there may be a couple of sources of UM/UIM. The estate of a deceased worker should identify each possible avenue for recovery.

The first possible option for UM/UIM will come through the deceased workers own UM/UIM coverage. Just because the worker is not driving his own vehicle does not preclude recovery under his own UM/UIM policies. The topic of UM/UIM coverage is discussed extensively here on this blog as well as on our website. It is important to understand this coverage. It may be all there is beyond the meager recovery allowed under the Worker‘s Compensation Act.

In addition to his own UM/UIM coverage, the worker may be covered under the UM/UIM of the employer. This coverage is not immune from recovery under the Worker‘s Compensation Act. The recovery against the employer‘s UM/UIM, assuming the employer carries this coverage, is limited only by the limits set by the policy.

One thing to keep in mind is that in New Mexico, unlike many other states, stacking of UM/UIM is allowed. This means that all UM/UIM coverage may be combined. For example, if the deceased worker and his family had multiple cars in the household, the coverage for each such vehicle would stack. The same will likely hold true in the absence of policy limitations for the employer‘s UM/UIM.

Explore All Possible Means for Recovery

Unfortunately, the family of a deceased worker will quickly learn that recovery under the Worker‘s Compensation Act is absurdly insufficient in cases of wrongful death. Though no amount of money can compensate a family for the loss of a loved one, there may be possible sources of recovery that can at least take some of the financial strain off of the family.

It is important to understand and identify each possible source. This will often require the assistance of an experienced personal injury attorney.

DISCLAIMER

Related Reading:
Protections of New Mexico Workers‘ Compensation Act Waived for Non-Compliant Employers
Third Party Liability for Work Related Injuries
Worker‘s Compensation Exclusivity for Injuries On the Way to Work!

It goes without saying that workplace safety often hinges on the maintenance of equipment. That is certainly true in the oil and gas industry.

One need only look at one of the worst oil and gas accidents in history, the 2010 Deepwater Horizon tragedy which apparently involved numerous equipment maintenance and failure issues. The explosion that occurred there killed 11 people and seriously injured 17 others. In addition to the injuries and fatalities there was also significant environmental damage along the Gulf Coast.

Unfortunately, this is not an isolated incident.

According to the Bureau of Labor Statistics, about 600 oil field and rig workers were fatally injured on the job between 2002 and 2007–many due to various mechanical problems. Perhaps even more alarming is that the statistics also show that these jobs are getting more dangerous all the time. From 2002 to 2006 the number of deaths per year increased by approximately 70%, from 72 deaths in 2002 to 125 in 2006. These workplaces are extremely dangerous. According to estimates, the fatality rate among oil and gas workers is nearly eight times that for all workers in the United States.

Efforts at improving workplace safety must focus on equipment maintenance. Proper maintenance keeps the oil rigs and other equipment working as they should, without the chance of one-time blowouts or malfunctions that hurt those working in the vicinity. When maintenance is done improperly, or not at all, oil and gas workers are put in serious danger.

Unfortunately, productivity often determines when and how maintenance is performed. Irregular or nonexistent maintenance saves the oil and gas companies money. Productivity decreases when the equipment is shut down for maintenance. The profit-motive therefore makes it more likely that the industry will not be proactive in its safety measures. All too often this means that problems are only addressed after a worker has been seriously injured or killed. Even then, the problems may persist.

Following these tragedies, those involved may be able to seek compensation for their losses. There are many complexities and challenges with these cases beyond the obvious technical challenges of figuring out how and why an accident occurred. In New Mexico, the Worker‘s Compensation Act places strict limits on claims by employees (and their estates) that are injured or killed on the job.

The New Mexico Worker‘s Compensation Act provides an exclusive remedy for employees injured or killed on the job. In short, the employee is prevented from suing the employer for personal injury or wrongful death in all but the most outrageous situations. In short, the employer must more or less send the employee to certain death before the exclusive remedy protection is waived by the employer.

In these types of cases, where the injuries (if the worker survives at all) are typically very serious. The Worker‘s Compensation benefits do not come close to fully compensating a worker for very serious personal injuries or wrongful death. As such, the worker must identify a third party who is responsible or shares responsibility for the accident. In these types of cases, there is often no shortage of parties who share the blame due to the large number of contractors, subcontractors, equipment providers, manufacturers and the like.

If you or a loved one has been injured or killed in an oil or gas accident, it is important to seek the guidance of an experienced personal injury attorney to ensure that your rights are protected. There are strict deadlines associated with these cases so it is important not to delay. Missing a deadline will bar your claim completely.

DISCLAIMER

Related Reading:
Oil and Gas Facilities Pose Significant Risks to the Public When Not Properly Maintained
The Oil and Gas Industry Can Be a Dangerous Place for Workers
Employers Protected from Liability for Gross Negligence Toward Employee Safety

Collins & Collins, P.C.
Albuquerque Attorneys