Even though most employers are required to carry workers‘ compensation insurance, the truth is that a number of employers in New Mexico do not carry the required coverage. Considering the New Mexico Workers‘ Compensation Act (WCA), it is often a bad idea for employers to fail to carry this type of insurance.
On the other hand, the failure of the employer to carry workers compensation insurance can work to the advantage of an injured employee in the case of employer negligence.
When an employee suffers an work related injury and their employer does not carry worker‘s compensation insurance, the employee or family may sue the employer in civil court for personal injuries or wrongful death.
In New Mexico, if an employer fails to carry workers‘ compensation insurance, that employer will not be protected by the New Mexico Workers‘ Compensation Act, including its “exclusive remedy” protection. Failure to obtain coverage can result in heavy fines and a restraining order against the business or employer.
Under New Mexico law, any company with three or more employees must carry workers‘ compensation insurance. Construction employers must carry workers‘ compensation insurance regardless of the number of employees. Some jobs, like household employees and real estate salespeople are exempt from the WCA.
Under the WCA, employees that are injured on the job may recover the cost of medical expenses and depending on the extent of the injury, temporary or permanent disability benefits. Workers‘ compensation benefits are based on the amount the employee earned at the time of the accident. This compensation may be adequate in case of relatively minor injuries. In case of serious and/or permanent personal injuries, or wrongful death, the WCA does not come close to providing adequate recovery to the injured employee.
Though the WCA is couched in terms of protecting the injured employee, the reality is that the WCA is largely for the protection of employers. If an employer falls within the WCA and complies with all of its regulations, including carrying workers‘ compensation insurance, the employee will only have access to the remedies available under the WCA in case an employee suffers an injury or death. In other words, if an employer carries the required insurance and complies with the WCA, an injured worker or family member will not be able to bring a personal injury or wrongful death suit in civil court against the employer.
With the protections of the employer in mind, the WCA places several limits on how much a worker or family can recover. For example, in case of death, the family may only receive up to $7,500 for funeral expenses plus the cost of medical expenses and lost wages up to the time of death. Dependents are entitled to receive 2/3 of the deceased‘s worker‘s weekly wages for a maximum of 700 weeks (about 13 years). If the injury results in a worker‘s death and a safety device or training is required by law, the family of the deceased worker is eligible for an additional $5,000 provided they file within one year of the date of the worker‘s death.
If the worker was negligent in using or failed to use a provided safety device, the compensation allowable under the WCA will be reduced by 10%. If the employer was negligent in providing a safety device or training, the compensation allowable under the WCA will be increased by 10%, which is paid directly by the employer and not his workers‘ compensation insurance. However, the employer can obtain additional coverage for this kind of situation.
It is clear that the compensation available to employees under the WCA is much less than would be available in a personal injury or wrongful death suit in civil court. Workers‘ compensation benefits cover only medical and disability benefits, while a plaintiff in a personal injury suit can recover for these expenses as well as pain and suffering and in some cases even punitive damages.
If you or a family member were hurt in a work-related accident, it is important to contact an experienced personal injury attorney to determine what recovery might be available beyond the very limited recovery allowed under the WCA.
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