New Mexico Injury Attorney Blog

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.

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

The oil and gas industry has proven time and again that it is among the most dangerous industries for workers. Those that work in the oil and gas industry are subjected to some of the most hazardous industrial workplace condition in the United States. Yet in 2006 more than a half million workers were employed in the oil and gas industry alone, and the gas extraction industry employed another 400,000 workers on offshore drilling, land drilling and workover rigs.

Many of the oil and gas industry injuries that occur happen as a result of drilling accidents, improper construction and maintenance, pipeline transportation accidents, storage problems and salt dome accidents. Studies have shown that when an oil and gas worker is injured the injuries are generally more severe than those sustained by workers in other industries, and in many instances the recovery from such severe injuries takes twice as long.

Some of the most common causes for oil and gas accidents include:

1. Delays in equipment maintenance and repair.


2. Failure to provide proper training to new employees and ongoing training for existing employees.


3. Failure to properly implement and update safety procedures.


4. Failure to properly communicate.


5. Careless and reckless behavior at and around the work-site.


6. An what may be surprising to many, highway and traffic accidents which are leading cause of death in the industry.

As the oil and gas industry has experienced significant growth over the last several years, likewise there has been an increase in the rate of fatal occupational injuries for these workers. The statistics on oil and gas fatalities are alarming. From 2003 to 2008, 648 workers have been fatally injured nationwide. This is a fatality rate eight times higher than the average for all other occupations. Studies conducted by the Department of Labor have found that the most common cause of death for an oil and gas worker, other than traffic accidents, is caused by what they have classified as "struck by" accidents. Death caused by a "struck by" occurs when a worker is by struck by equipment or other heavy object that is sent flying when something goes wrong with a well where gas and oil comes up at high pressure.

In 2008, the National Occupational Research Agenda (NORA), a government and industry safety organization, sought to find reasons behind the high death rate and how it could be reduced. During their research NORA uncovered a variety of conditions that have been described as creating a recipe for danger. These conditions are common in the oil and gas industry and include the fact that drilling operations often run 24 hours a day 7 days a week and in all types of weather conditions. The workers frequently work 12 hours a day often for more than a week or two at a time without a day off.

Even getting to the work-site is dangerous because of the remote location of many of the rigs. This means that workers are often traveling on dirt and gravel roads that run for miles out to the rigs. Fatal accidents on the way to and from the work-site contribute to the growing number of fatalities among these workers.

When an injury or death occurs compensation for the worker and his or her family is often a complicated issue. For instance, in New Mexico, the Worker Compensation Act exclusivity provisions protects employers against personal injury claims. However, there may be other sources of recovery for personal injuries such as third party liability. This could occur in a number of manners. First an most obvious, there may be recovery from other negligent drivers. This issue alone could bring up a host of possible insurance coverage such as the worker and/or the employer's underinsured motorist coverage.

If you or a loved one has been harmed in an oil and gas industry related accident, it is important to consult with an experienced attorney to insure that your rights are protected. These types of accidents have many issues that are not necessarily present in other accidents which must be addressed in order to determine possible avenues for recovery.

Related Reading:
When An Attorney Is (and Isn't) Necessary in a Work-Related Injury Claim
Third Party Liability for Work Related Injuries
Employers Protected from Liability for Gross Negligence Toward Employee Safety

Collins & Collins, P.C.
Albuquerque Attorneys

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.

Related Reading:
Third Party Liability for Work Related Injuries
Employers Protected from Liability for Gross Negligence Toward Employee Safety
Employer Responsibility for Worker Safety? No, But Thanks for Playing.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Bureau of Labor Statistics 3.1 million nonfatal workplace injuries and illnesses were reported in 2010. A preliminary total of 4,547 fatal workplace injuries were reported for the same year. Most companies and employers in New Mexico are responsive to laws concerning job-related injuries. However, stories of how companies have refused to pay worker's compensation benefits are constantly surfacing in the news. It is natural for individuals injured in a work-related accident to wonder if their employers have done everything they can and are required to do by law.

Under the New Mexico Workers Compensation Act (Act), if a personal injury or death occurred while an employee was performing a work-related duty, the employee is entitled to worker's compensation benefits for his or her injuries. Worker's compensation in New Mexico covers medical, indemnity, and funeral benefits. Medical benefits include physical care and therapy, hospitalization costs, psychiatric care, counseling, chiropractic treatment, medication, and prescribed medical equipment.

Depending on the extent of injury, New Mexico Worker's Compensation is meant to cover a portion of income while the disability lasts. The types of benefits available are total disability (TTD), permanent partial disability (PPD), and permanent total disability (PTD).

However, the Act limits the amount an employee is able to recover for a personal injury or death that occurred on the job. In fact, in cases of serious injury or death, the benefits allowable under worker's compensation are sorely inadequate. For injuries suffered on the job, the benefits allowable under the Act are the exclusive remedy for those employers that are in compliance with the provisions of the Act.

Having said this, there may be several reasons to contact an experienced personal injury attorney for injury or death arising from a work-related accident. In some cases, employers fail to live up to their responsibilities under the Act. If the employer has failed to obtain worker's compensation insurance, then the employer will not be protected by the Act. Without the protection of the Act, the injured employee may sue the employer for all recoverable damages just like any other defendant.

In other cases, there may be a third party involved in the work-related injury. Third parties can be part of a work related injury in many ways. For example, there may be several different contractors working on a construction site where an employee is injured. For workers whose jobs involve transportation, the negligent acts of another driver or passenger may injure them. In yet another case, a worker may be injured on the job by a defective product manufactured by a third party. In all of these cases and many others, an employee may have a personal injury or wrongful death suit against a third party above and beyond their worker's compensation claim.

Generally, if an employer is complying with the Worker's Compensation Act, an employee may not bring a worker's compensation claim against the employer. Nor can an employee sue to the employer in personal injury. If, however, the employer is not complying with the Act, or there is a third party involved, the injured employee may have a valid personal injury claim. In these cases, it is important to contact a personal injury attorney immediately.

Collins & Collins, P.C.
Albuquerque Attorneys

Personal injury cases, especially those involving large insurance companies, can become extremely antagonistic. Sometimes, defendants will go to great lengths to avoid paying a personal injury claim. Many insurance companies conduct what has come to be called "disability video surveillance" in the hopes of proving that a plaintiff does not in fact suffer the injuries claimed.

While many individuals may consider being videotaped to be an obvious invasion of privacy, the law in New Mexico and other states allows insurance companies to videotape claimants without their knowledge and use it against them in court as long as they stay within certain limitations. Not only is it legal, it is allowable under the rules of discovery and admissible in court under the rules of evidence.

While private video surveillance of a person in their home or private place of business is not allowed under federal and New Mexico law, videotaping a person in public is perfectly legal. If a person works in a public place, like a restaurant or hotel, they can also be videotaped at work. Often times, plaintiffs are videotaped in their yard performing yard work, gardening or other physical activities. If in a public place, the person being videotaped does not have to be aware of being videotaped and does not have to consent to being videotaped.

However, if the videotape is going to be used in court, the New Mexico and federal rules of evidence place several requirements and limitations to its use. First, a videotape of a plaintiff is admissible in court if it is relevant to the case at hand. Evidence is relevant when it tends to make the facts of a case more or less likely. A video recording of a plaintiff can be relevant if it shows the extent of their injuries, how the injuries impact the plaintiff's daily life, etc. Second, under the rules of evidence, a defendant cannot simply state that there is a video recording of the plaintiff, but must provide the actual recording as evidence. Third, under the "rule of completeness" a party cannot just submit into evidence an edited version of the recording, but must submit the entire recording upon the other party's request.

Keeping this in mind, it is important to be aware of certain issues. Insurance companies rarely do the actual videotaping and surveillance. Instead, they contract local private investigators who are more familiar with the area and with surveillance techniques. In Albuquerque and New Mexico there are a very large number of private investigators who name "insurance fraud surveillance" as one of their specialties. For this reason, persons involved in a personal injury claim are advised to assume that they are being videotaped any time they go out in public.

And keep in mind, the video will not be shown in the most favorable light to the plaintiff so that even seemingly innocuous activities such as carrying groceries may be distorted to make the plaintiff appear dishonest. This should not be taken to mean that one should not carry groceries, do yard work or anything else. It simply means do not say you can't due to your injuries when you can. Exaggerating injuries is never good for a claim.

According to some personal injury attorneys, there are times when a plaintiff is most likely to be videotaped. These include the days and weeks surrounding a requested independent medical examination and during the days and weeks surrounding an interview. Surveillance is also likely in the months before definitions of disability are set to change.

Even though it may seem unfair, the law is that if a plaintiff is in a public place an insurance company or any other type of defendant can place him or her under video surveillance. Keeping this in mind, it is important for personal injury claimants to be aware of their actions and surroundings at all times during this process. These are issues that should be discussed with a personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the Worker's Compensation Act was purportedly enacted to protect workers for on the job injuries. The Act it is said provides certainly to an injured worker who can obtain needed medical care and lost wages for work related injuries. This is partly true.

The Act does provide for medical coverage and a portion of lost wages for injured workers. The lost wages are limited in both time and amount. Typically, the allowable recovery for lost wages leaves the injured worker largely uncompensated. At the rates provided under the Act, lost wages will often leave an injured worker and his or her family in severe financial hardship.

Unfortunately for most injured workers, no matter how serious the injury or how the injury was caused, recovery for personal injuries is limited to medical expense and lost wages as set forth by the Act. This means that workers, except under very rarely circumstances, cannot sue their employer for personal injuries even if the employer caused the injuries.

However, in order to obtain protection under the Workers Compensation Act, the employer must carry workers compensation insurance as mandated under the Act. As a result, those employers who do not comply with the insurance coverage requirements under the Act are fully exposed to personal injury lawsuits for injuries to their workers.

In short, if you are injured on the job, and your employer does not have workers compensation insurance, then you may sue to the employer in tort for personal injuries. Because the uninsured employer is not protected under the Act, the employer is fully liable for all damages recoverable in a personal injury lawsuit.

If you or a loved one have been injured on the job, you should immediately make a worker's compensation claim. We do not handle worker's compensation claims at Collins & Collins, P.C. There are very short and critical deadlines for worker's compensation claims. Therefore you should contact a worker's compensation attorney immediately if you have any questions. There a number of very good worker's compensation attorneys Albuquerque and elsewhere throughout New Mexico.

If your employer does not have worker's compensation insurance and the accident was caused by unsafe working conditions or other negligent actions of your employer, then you should contact an experienced personal injury attorney to evaluate your claims. In the absence of worker's compensation insurance, you may be able to recover through a personal injury lawsuit. In fact, depending on the circumstances, your recovery may be far greater in a personal injury lawsuit than it would have been through worker's compensation.

Collins & Collins, P.C.
Albuquerque Attorneys

Many personal injury victims are surprised and/or shocked to learn that there are many different lien holders that are going to get a piece of their settlement. On occasion, these liens may prevent a case from settling. On other occasions, the liens and the difficulty settling these liens may deter many attorneys from taking smaller claims at all.

Depending on the nature of the medical care and medical insurance coverage, there could be all manners of medical liens on any recovery, settlement or verdict. The first and easiest to address is private medical insurance. This is often the one that upsets injured parties the most feeling that they should not have to repay medical costs covered by significant insurance premiums often paid for years prior to a claim. As much as it may pain the insured to repay his insurance company, it must be done.

Work related injuries typically will carry workers compensation insurance liens. A work related personal injury claim presumes a third party other than the employer caused the accident and resulting injuries and damages. The workers compensation insurance provider will want to and has every right to recover medical costs necessitated by the third party's negligence.

Private insurance and workers compensation insurance are relatively easy to address. The more difficult liens are those asserted by governmental programs such as Medicare, Medicaid, Indian Health and the Veterans Administration. The end result is often the same with liens being negotiated down on a number of different grounds. However, getting there can be a long, tedious and frustrating process for both the client and the attorney.

Like private medical insurance and workers compensation insurance, the medical costs associated with the accident must be identified. This is typically fairly straightforward, though time-consuming with private insurance and workers compensation insurance. It is a matter of collecting all the medical records and bills associated with the medical care associated with the accident. On occasion, there can be some complications determining what bills and records are associated with the accident and what is related to other treatment and/or prior medical conditions. One advantage of workers compensation insurance is that they generally have done this already as they monitor medical care pretty closely on work related injuries.

On the other hand, in accidents involving coverage under Medicare, Medicaid, Indian Health and the VA, obtaining the medical records and bills can seem like an impossible task. It can take months upon months to obtain the records. And obtaining the records is just the first step. The records and bills must then be closely reviewed to sort out what is and what is not related to the accident. Rest assured, the original records, bills and associated liens will include far more than is actually related to the accident.

Then comes the fun part which is trying to get somebody on the phone at one of these entities with authority to negotiate the bills and liens. This again can be challenging to put it lightly. Again, weeks and months can pass before getting the right person on the phone if you do not know who it is you need to contact. And even when you do, these folks are somewhat overwhelmed and it can be hard getting their attention. It can be equally hard keeping it.

As difficult as the government sometimes makes it to address these liens, they must be addressed. They must be addressed before final settlement. Failure to address these liens before final settlement can have disastrous financial consequences for the client, and the lawyer. The lien settlement process in fact can take as long or longer than the injury settlement process. In fact, the inability to settle these liens in a timely manner may force the filing of an otherwise unnecessary lawsuit to avoid the lapse of the statute of limitations.

If you have a claim with these types of issues involved, it is highly advisable to seek the guidance of an experience personal injury attorney. However, you should also know that these issues make the case much more difficult and time-consuming to resolve. The reality is that many attorneys will shy away from these claims unless there is a significant potential for recovery.

Collins & Collins, P.C.
Albuquerque Attorneys

In auto accidents cases, one might expect that the driving record of the negligent driver would be fully admissible at trial to help show that the person was at fault for the subject accident. Unfortunately, this is not always the case.

For instance, pre-accident driving records are not admissible to show the driver was negligent in the current accident. However, it may be admissible for other purposes such as a negligent entrustment claim. A negligent entrustment claim most often arises where an employer allows an employee with a bad driving record to drive a company vehicle. The company may then be held liable for any injuries or other damages caused by the employee under a negligent entrustment theory.

Post-accident driving records, no matter how bad, are often inadmissible at trial. Neither past driving behavior nor future driving behavior can be used to show the person was negligent in the current auto accident. Neither may future driving be used to prove a habit of bad driving under New Mexico law. Finally, unlike past driving behavior, future driving is not admissible on a negligent entrustment claim.

In order to show negligent entrustment, the company must have known of the employee's negligent driving habits. The company may be held to knowledge of the employee's prior driving behavior. This is the case even if the company does not have direct knowledge but could have discovered the driving history through background checks.

On the other hand, an employer cannot be imputed knowledge of bad driving habits based upon future driving behavior. Thus, without more, the employer will not be held liable under theories of negligent entrustment for the employee's actions in causing an auto accident. The employer may very well be liable on a number of other grounds, but not by way of negligent entrustment.

In short, though one might expect the driving behavior of a negligent driver to be most relevant evidence to prove fault, there are fairly strict limits on when and for what purpose driving behavior is admissible at trial in a car accident case. The injured person may simply have to rely on other evidence of fault than the driving history or driving habits of the other driver.

Collins & Collins, P.C.
Albuquerque Attorneys

People are often injured at work. In fact, in 2007 alone, there were almost 4 million work related injuries over 5000 of which were fatal. On many occasions, these injuries are caused by individuals outside the injured worker's employer.

The most immediate question that arises for an injured worker in this situation is who is responsible for his or her injuries. The answer is both the employer and the third party. However, this answer is qualified by the Worker's Compensation Act.

The employer is required by New Mexico law under the Worker's Compensation Act to carry worker's compensation insurance for all work related injuries. Therefore the injured worker can and should make a worker's compensation claim through the employer's insurance.

In return for compliance with the Worker's Compensation Act, the employer is sheltered from personal injury lawsuits by the employee in all but the rarest situations. In fact, the employer's gross negligence is not enough to waive the protections of the Worker's Compensation Act.

In short, the employer will not be liable in tort for any injuries suffered by the worker. The employer's liability and the worker's right to recover against the employer are both limited to recovery under the Worker's Compensation Act.

Unfortunately, the Worker's Compensation coverage is often grossly inadequate to cover the full spectrum of damages in cases of serious or catastrophic work related injuries. Though the Worker's Compensation Act limits the employer's liability, it does not limit the liability of third parties that caused the harm.

There are countless situations where the worker's injuries were caused by third parties. These include injuries caused by contractors, sub-contractors, vendors, customers, visitors, guests and others that come in contact with the worker during the course of a workday. Among the most common are auto accidents.

By way of example, in case of an auto accident, the worker would be limited to recovery against the employer under the Worker's Compensation Act even if the employer were partly responsible for the accident. This would be the case in virtually all cases unless the conduct of the employer met the very employer friendly standards set forth in Delgado v. Phelps Dodge. Though the worker may assert a worker's compensation claim in this case, the worker would be well advised to explore recovery from the other driver.

The same would hold true for any other work related injury caused by a third party. Due to the severe limitations on recovery under the Worker's Compensation Act, it may well be that full recovery for the worker's injuries and damages will come only through the third party.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals case of May v. DCP Midstream illustrates as clearly as anything the lack of worker's remedies for work injuries caused by their employer's negligence. The case shows the absolute disdain for worker safety embodied by the Worker's Compensation Act which is purportedly for the protection of workers.

In a nutshell, the Court granted the defendant summary judgment on May's personal injury claims because the evidence failed to meet the extraordinary requirements established by Delgado v. Phelps Dodge. The case is remarkable in its blunt statement of a worker's right to compensation for the negligence of his or her employer.

The case involved a gas pipeline that was altered for special maintenance procedures. Despite warnings from employees regarding danger to workers, the company failed to return the pipeline to its normal operational condition. The failure to return the pipeline to its normal condition created significant safety hazards to workers. The defendant admitted that the altered condition of the pipeline created an unnecessary and dangerous condition to employees. The defendant also admitted that it knew of the danger and should have returned the pipeline to its normal operational condition.

Mr. May was indeed badly injured while working on the pipeline. He filed suit for personal injuries caused by the gross negligence of his employer. The defendant moved for summary judgment on the basis of the Worker's Compensation exclusivity provisions under the Act which limit a worker's recovery to worker's compensation coverage. The remedies under the Worker's Compensation Act are generally grossly inadequate in cases of serious personal injuries. Specifically, no punitive damages are allowed no matter how egregious the employer's conduct.

Remarkably, the Court stated "there is little doubt that Defendants were negligent, perhaps even grossly negligent." However, gross negligence is not enough under New Mexico law. Under Delgado, the employer must have forced an employee "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." Thus, the Court despite the evidence showing that the employer knew of the danger and failed to correct it despite the ease with which it could be done and the warnings from employees, found that employer was safe from liability beyond the Worker's Compensation Act.

The degree to which the Courts will go to protect employer's against liability for their grossly negligent conduct is captured by the following language from the Court:

"An employer's disregard for safety requirements designed to help prevent injury and death on the job does not mean that an employer "specifically and willfully caused the employee to enter harm's way, facing virtually certain serious injury or death, as contemplated under Delgado."

Keep this language in mind the next time you hear the tired refrain that trial lawyers and greedy plaintiffs are a threat to business and the very American way of life.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The rights of workers in personal injury cases are extremely limited in New Mexico. Workers are typically limited to recovery through worker's compensation for work related injuries. It is amazing how far the courts will go to find the injuries to be work related to invoke workers' compensation exclusivity as indicated in seminal 1997 case of Espinosa v. Albuquerque Publishing.

In the Espinosa case, Larry Espinosa was struck by a vehicle driven by a fellow employee. All good so far as "work related" goes. However, Mr. Espinosa was not at work. He was walking to work. The incident occurred 30 minutes before his shift began and 2 miles from his place of employment.

The Court went to great lengths to classify the case as work related so as to invoke the exclusivity provisions of the Workers' Compensation Act. In short, the Court found that the injury was work related thereby barring Mr. Espinosa from a personal injury claim. Instead, he was limited to the meager recovery allowed under the Workers' Compensation Act.

For exclusivity of remedies under the Act, it must be shown that the injury arose "in the course of his employment." The Court was able to twist the facts to fit within the Act through a broad interpretation of the so-called "going-and-coming rule." Essentially, since Mr. Espinosa was en route to work and the accident was the result of the negligence of a fellow employee, he was barred from any recovery for his injuries outside the Act.

Under the Workers' Compensation Act, workers have few rights and even fewer remedies when they are injured on the job. Workers' Compensation Exclusivity is extremely hard to overcome. This case as good as any illustrates just how far the Courts will go to protect employers from personal injury liability for their negligence and the negligence of their workers. This is of course done at the expense of injured workers all under the pretense of protecting workers.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals addressed the exclusivity provisions of the Workers' Compensation Act in Sarah Quintero v. State of New Mexico Department of Transportation. The case presented an interesting issue of first impression of whether the New Mexico Workers' Compensation Act provides the exclusive remedy in the case of a worker employed by one agency of the State who was injured as a result of the negligence of another separate agency. The Court ruled that it did not.

The facts are pretty straightforward. Sarah Quintero worked for the Department of Public Safety. Her job required no travel. She used the State's public transportation system, provided by the Department of Transportation, for commuting to work. She was injured at a Park and Ride facility when she stepped into an unmarked, unlit, unprotected hole in the facility's parking lot. She suffered a compound fracture to her leg as a result of the accident. The Department of Public Safety terminated her employment and refused worker's compensation coverage for her injuries arguing that they were not work related.

This position did not stop the State from later arguing that workers' compensation was the exclusive remedy when Ms. Quintero sued the State of New Mexico and the Department of Transportation for personal injuries in a premises liability action. The State argued for dismissal of her claims on the basis of workers' compensation exclusivity. The case illustrates the lengths to which employers, including the State of New Mexico, will go to avoid the fair compensation of their employees by invoking the protection of the Workers' Compensation Act. This case is particularly egregious since the State denied workers' compensation on one end, and attempted to enlist its protection on the other. Fortunately, the Court of Appeals was not inclined to adopt their abusive and opportunistic position.

The ruling rested primarily on two grounds. First, there is a general exception to workers' compensation coverage for travel to and from work known at the "going and coming rule." In fact, the rule is regularly invoked by employers to avoid workers' compensation coverage for workers' injured in route to or from work. Clearly, in this case, Ms. Quintero was en route to work which served the basis for the initial finding by her employer that her injuries were not work related.

Perhaps more importantly, the Court addressed the unfairness of a rule that would deny rights to all state or municipal employees who suffer injuries en route to work as a result of the negligence of the transportation or transit systems on which they travel. Clearly, a clerical worker traveling to work by road, bus or train is not doing so as part of their employment any more than any other citizen. Moreover, allowing such a broad interpretation of workers' compensation exclusivity would lead to the complete denial of a state employee's rights when dealing with any state agency. The outcome would be both absurd and profoundly unjust.

However, there are cases in New Mexico which have come to precisely that conclusion. So it may be expected that the State will appeal this ruling to the New Mexico Supreme Court. The dissenting opinion in the case has lit the way. In light of the lengths to which the courts and the legislature will go to protect employers against their own negligence toward their employees, it will not be at all surprising if this case is reversed.

Related Reading:
Employers Generally Not Liable for After Hours Actions of Employees
Employer Responsibility for Worker Safety? No, But Thanks for Playing.
Protections of New Mexico Workers' Compensation Act Waived for Non-Compliant Employers

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of Ovecka v. Burlington Northern Santa Fe Railway Company, the New Mexico Court of Appeals addressed the issue of vicarious employer liability in the context of a wrongful death suffered in a DWI auto accident involving an employee of Burlington Northern. The central issue in the case was whether the drunken employee's actions could be imputed to Burlington Northern.

The employee, Kenneth Long, had a long history of DWI and alcoholism. His job duties carried him around a wide area of New Mexico. Due to the remote locations of the job sites, Burlington Northern employees were often provided lodging near job locations. Kenneth Long often took advantage of the lodging. He utilized his own vehicle in commuting to and from location. After work one day in Rio Puerco, Mr. Long headed to Grants where lodging was provided by the company. However, Mr. Long did not check in. Instead, he picked up a 12 pack of beer and headed to Gallup to visit estranged family members. Mr. Long became extremely intoxicated and headed back toward Grants. At 9:00 PM, well after leaving work that afternoon, he crossed the highway median colliding head-on and killing Angela Ovecka.

Ms. Ovecka's parents brought the suit on behalf of Angela alleging Burlington Northern's vicarious liability under respondeat superior for Mr. Long's actions. They further alleged negligent hiring and supervision. Burlington Northern moved for summary judgment which was granted by the district court and affirmed on appeal by the New Mexico Court of Appeals.

The court set forth well established principles of respondeat superior. In short, the court found that Mr. Long was not acting within the course and scope of employment at the time of the accident. The court stated that an "an employee enroute to, or returning from, his place of employment, using his own vehicle is not within the scope of his employment absent additional circumstances evidencing control by the employer at the time of the negligent act or omission of the employee." Under the facts, the court found that Mr. Long was returning home, well after business hours, and there was no other evidence suggesting control over Mr. Long at the time of the accident.

The court also refused the plaintiff's arguments regarding negligent hiring and supervision. The court stated that negligent hiring and supervision claims require both foreseeability of harm and a duty on the part of the employer. The court determined basically that an accident such as this was not a foreseeable harm arising from the hiring of Mr. Long. In the absence of foreseeability, there could be no duty to prevent the harm.

Naturally, Mr. Long was driving an uninsured vehicle at the time of the accident. The case did not address whether or not Ms. Ovecka carried uninsured/underinsured motorist coverage. In the absence of such coverage, Ms. Ovecka's tragic death likely would have gone completely uncompensated.

Related Reading:
Company Liability for Employee Negligence Under Respondeat Superior
Employer Responsibility for Worker Safety? No, But Thanks for Playing.
Trucking Accidents and Meth Usage: Respondeat Superior Still Applies in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The seminal New Mexico case addressing worker's compensation exclusivity is the 2001 New Mexico Supreme Court case of Delgado v. Phelps Dodge. The case, despite the leap in the protection of workers over prior law, clearly illustrates the marginal protection employees are afforded from the negligent acts of their employers.

The Delgado case involved a fatal incident at a smelting plant where a worker suffering a horrifying death. The term incident is used because it was no accident that Delgado was burned to death. Instead, the facts showed that the employer clearly expected that Delgado would be killed while performing a task that he was grossly unqualified to perform.

The Delgado case illustrates the disdain with which workers are treated under the Worker's Compensation Act. The good and the bad news is that as a result of Delgado, workers enjoy slightly greater protection than in the past. In the past, New Mexico followed the "actual intent test." Delgado set forth the purportedly higher standard of willful and intentional.

The "actual intent test" is most clearly illustrated by the district court's granting of the defendant's motion to dismiss for failure to state a claim. The complaint alleged that the defendants "acted intentionally, with the knowledge that Delgado would be seriously injured and killed as a result of their actions." The district court, following the actual intent requirement, ruled that even if it was true that defendants "did engage in a series of deliberate or intentional acts which they knew or should have known would almost certainly result in serious injury or death to Reynaldo Delgado...the complaint falls short of alleging that [they] actually intended to harm Reynaldo Delgado." In short, the only way an employer could be sued beyond the Worker's Compensation Act was basically if they murdered the worker. How else may this language be read?

The Court in Delgado took the enlightened view that this standard was unacceptable. However, the Court went only slightly further in protecting workers injured as a result of the acts of employers. The Court held instead employers would lose the protection of the Workers Compensation Act only where the "employer willfully or intentionally injures a worker." The Court defined willfulness as follows: "(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 injury to occur, or has utterly disregarded the consequences of the intentional act or omission; and (3) the intentional act or omission proximately causes the worker's injury."

The new standard is only slightly better than the old. In fact, employers continue to enjoy protection for gross negligence, and arguably for recklessness. Delgado still requires that the act reasonably be expected to lead to the injury of the worker. It further requires that the employer either totally disregarded the possible consequences or fully expected the injuries to occur. This is little better than the "actual intent test" and arguably mere word play. The result is the same, the employer must send a worker into a situation with a reasonable expectation that the worker will be injured or killed. Anything short of that and the employer is protected by the Worker's Compensation Act and the worker (or his survivors) is left to bear the burden of the employer's negligent behavior.

To be expected, the business community reacted with much the same repulsion to the Delgado ruling as did the defendant who warned the Court "that any deviation from the actual intent test will visit an undo hardship upon employers in this State and wreak havoc with New Mexico's workers' compensation system." It truly is tragic that employers can no longer send their employees to certain death. Honestly, what has New Mexico come to when we visit such injustice on our State's businesses?

Related Reading:
Company Liability for Employee Negligence Under Respondeat Superior
Employers Protected from Liability for Gross Negligence Toward Employee Safety
Protections of New Mexico Workers' Compensation Act Waived for Non-Compliant Employers

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals case, Chairez v. James Hamilton Construction Co., discussed in my prior post also addressed issues related to exclusive remedy of worker's compensation for employees injured on the job. Most states have statutes similar to New Mexico limiting an injured worker's claims against a negligent employer to worker's compensation. As was the case in Chairez, there are exceptions for injuries caused as the result of the negligence of a third party.

In Chairez, the deceased plaintiff's estate (plaintiff) sued the manufacturer for a defective rock crusher under product liability law. The defendant's motion for summary judgment due to modification of the equipment by the plaintiff's employer was denied. It was clear that the employer's modification of the rock crusher by removing a critical safety feature was negligent and contributed to the death of the plaintiff.

Due to New Mexico's exclusive worker's compensation remedy against the employer, plaintiff was unable to bring a claim against the employer despite the employer's obvious negligence, and arguable recklessness. The court cited the seminal 2001 New Mexico Supreme Court case on the issue of Delgado v. Phelps Dodge Chino in support of its discussion.

The Court laid out the requirements set forth in Delgado for the waiver of worker's compensation protection by an employer. Delgado holds that an employee can bring an action against the employer for work related injuries in very rare situations. The court in Chairez stated the Delgado factors as; "(1) he or she can establish that the employer engaged in an intentional act or omission without just cause that is reasonably expected to result in the injury to the worker; (2) the employer expected the intentional act or omission to result in the injury; and (3) the intentional act or omission proximately caused the injury."

Thus, the hurdle for getting past worker's compensation exclusivity is very high. In Chairez, the plaintiff was unable to clear this hurdle despite the obvious negligence of the employer in removing the safety features from the rock crusher.

Unfortunately, New Mexico like most states, provides far greater protection for the employer than the injured employee. The statute is drafted as if it is meant to protect employees. In reality, it is there to protect employers. The result is that countless workers each year in New Mexico and in other states are gravely injured or killed by the negligence and/or recklessness of their employers. The root of the behavior is often economic as in Chairez where the safety mechanism was removed so that the rock crusher could be cleaned faster to minimize down time.

Worse still, workers or their surviving families receive only nominal awards from for their damages. They receive pennies on the dollar for their lost wages which may be permanent and total. They receive only trivial awards for the rather cynically and miserly computation of their impairment ratings for permanent injuries. They do receive medical costs, past and future, associated with the injury. If the insurance companies can find a way around this, they do. The injured employee receives no other compensation for pain and suffering, loss of consortium, loss of enjoyment of life, loss of household services or any other losses.

In the end, society pays through Social Security, Medicaid, Medicare and other governmental programs. Thus, taxpayers are left to cover losses that should rightfully be paid by the businesses that caused them.

Related Reading:
Employer Responsibility for Worker Safety? No, But Thanks for Playing.
Employers Protected from Liability for Gross Negligence Toward Employee Safety
Third Party Liability for Work Related Injuries

Collins & Collins, P.C.
Albuquerque Attorneys