New Mexico Injury Attorney Blog

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.

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

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?

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

There were 11,773 DWI deaths nationally in 2008. These numbers are alarming. It is absolutely unacceptable to allow drivers to endanger the safety of others. A drunk driving death has enormous consequences causing severe and irreparable damages for the family, the children, the friends and loved ones that survive. Those that cause these harms, or even threaten these harms, must be stopped at all costs. And when they do cause harm, they must be held fully accountable in every way. Personal responsibility is the foundation of democracy. Agreed?

Contrast these numbers, the outrage associated with these tragedies and the policies to address them with the myth of the medical malpractice crisis. The Hippocratic Oath states, "FIRST, DO NO HARM." It is hard to explain how this Oath justifies the rabid opposition to compensation of victims of medical negligence. The National Academy of Sciences Institute of Medicine estimates that up to 98,000 people die every year as a result of medical negligence. That is almost 9 times the number of DWI related deaths. Where is the outrage?

When viewed against this backdrop, the Hippocratic Oath is rendered meaningless. It is difficult to explain or justify until you realize what is really behind Tort Reform. There is another and overriding oath decreed by the Insurance Industry, the Hypocritic Oath, which states, "FIRST, SEE NO HARM." This explains why Tort Reformers can continue to rant about the mythical medical malpractice lawsuit crisis while denying the true crisis completely. The Hypocritic Oath explains why worker's compensation laws in every state provide pennies on the dollars for damages suffered by injured or killed workers. It explains why worker's compensation laws are drafted and enacted under the pretext of protecting workers when it is really to protect employers against responsibility from their own negligence, and sometimes recklessness, that leads to the injury or death of workers. It explains why these arguments can be made in the face of the reality that there are well over 5000 work related deaths a year according to the Bureau of Labor Statistics, while thousands more suffer permanent and crippling non-fatal injuries, many of which are the result of unsafe working environments or conditions. It explains how Transocean can fight for liability limits of $27 million for its negligence in the BP spill while collecting hundreds of millions of dollars to compensate for its own losses from the very same spill. And on it goes. The Hypocritic Oath is everywhere you find the insurance industry.

The Hypocritic Oath dictates that the insurance industry, purportedly on behalf o their client corporations, doctors and employers should spend millions upon millions every year on Tort Reform to dodge their responsibilities to individuals and society. It dictates that taxpayers pick up the costs for their harms with Medicaid, Medicare, Social Security, bank bailouts, TARP, disaster relief and assistance, liability caps and limits and countless other governmental measures made necessary by the Hypocritic Oath. Tort reform is not about protecting doctors. It certainly is not about protecting patients, workers, families or society. It is about protecting profits, plain and simple.

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

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.

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

The New Mexico Court of Appeals addressed for the first time in under New Mexico law whether modifications to a product by the user provides a complete defense to a product liability claim. The court in Chairez v. James Hamilton Construction Co. held that it did not and that a seller could be held strictly liable under product liability law for injuries caused by the product when the modifications to the product were foreseeable.

The case involved the modification of a rock crushing machine. The user, the deceased plaintiff's employer, had removed a metal plate covering a flywheel to facilitate removing debris and obstructions in the machine that occurred during operation. The metal plate was a safety feature designed to prevent users from being caught in the flywheel and crushed by the machine. This is in fact what happened to the deceased plaintiff. In addition, the deceased had been removing a jam while the machine was operational despite clear warnings in the user's manual against such behavior.

The plaintiff was prevented from bringing a claim against the clearly negligent employer due to the exclusive worker's compensation remedy under New Mexico law. The plaintiff did bring an action against the defendant manufacturer under a product liability theory. The defendant argued that the modifications to the machine provided a complete defense to the product liability claim. The defendant filed a motion for summary judgment on this ground. The district court granted the defendant's motion and dismissed the claims.

A number of states do indeed hold that alteration or modification of a product by an end user does provide a complete defense. However, as noted by the Court in Chairez, "Most states will not absolve a manufacturer or seller from liability as the result of an alteration or modification that was reasonably foreseeable." The court stated that New Mexico would follow the majority position.

The defendant had further argued that the modification was not foreseeable as a matter of law The court again disagreed holding that the issue of the foreseeability of the modification was an issue that should be left to the jury. The New Mexico Court of Appeals therefore reversed the district court's grant of summary judgment. The court was careful to add that it was by no means suggesting that the modification was foreseeable. Instead, the court reiterated that this was a question of fact best determined by a jury.

Likewise, the issue of the comparative negligence of the employer would need to be addressed by the jury. Assuming the jury did award damages to the plaintiff, the total amount of the award would then be reduced by the percentage of fault attributed to the employer. Unfortunately, the deceased plaintiff would be out of luck for this portion of the damage award due to the exclusive workers compensation remedy against the employer.

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

It was announced last week that there has been a $657.5 million settlement to compensate around 10,000 workers harmed during the cleanup of Ground Zero in the 911 Terrorist Attack. Two obvious questions arise: Is it a fair settlement for the injured workers? Why the delay in settlement when the workers were obviously harmed during the cleanup?

The injured workers individual compensation will vary greatly depending on their injuries. Some will receive thousands while others may receive in excess of $1 million. Many of the injured workers have suffered severe and permanent physical injuries. Most of the injuries are respiratory in nature, the most common being asthma. Others have suffered from a variety of cancers, some of which have proven fatal.

There has never any doubt that these workers were injured as a result of the Ground Zero cleanup activities. In fact, the federal government set up a $1.1 billion dollar fund which was and remains available to handle these claims. So why did it take so long to settle these claims?

Plaintiff's trial lawyers get knocked around a lot in the media. They are an easy and popular target for politicians of every stripe. But what about the defense trial attorneys? It takes 2 to tango as they say.

The New York Times reported that the insurance company for the City of New York handling these claims, the WTC Captive Insurance Company, paid attorneys $200 million in legal fees to defend against these claims. The plaintiff's trial attorneys are already taking heat for their fees and the judge is looking at knocking them down by 50% or more. No such movement is afoot to reduce the $200 million paid to the insurance defense firm.

The plaintiff's firm was working purely on contingency, taking huge risks, with huge financial investment, and huge commitments of time with the possibility that they get nothing in case of a loss at trial. By contrast, the defense firm was able to accumulate $200 million in legal fees defending the indefensible knowing full well that the case would settle prior to trial. All this, while there was a $1.1 billion fund available to settle these claims.

So, again, why the delay in settlement of these obviously meritorious claims? Perhaps, as they say, the case was not ripe for settlement. It takes a long time to run up $200 million in defense attorney fees.

Is the settlement fair? Let's see. There were 10,000 injured workers. This would allow for about $65,700 per worker assuming the settlement is spread evenly among the workers which it is not. However, the settlement may be reduced to $575 million if more than 95% of the workers do not consent to the settlement. That knocks it down to $57,500 per worker. The defense attorneys will take $200 million for successfully dragging out the litigation for years. The $1.1 billion insurance fund is left with $442.5 million. The workers will continue to suffer from their injuries for the remainder of their lives.

In the coming weeks and months as the debate rages over the fairness of the suit, rest assured the focus of the debate for many will not be on the unjust denial and delay of the workers rightful claims, or the under-compensation of many of the more seriously injured workers, it will be on the fees earned by the plaintiffs' trial attorneys. When the debate arises, and it will, I hope some thoughtful commentators in their attack on plaintiff trial attorneys, will also consider the fact that the defense of the indefensible claim is often at the root of litigation. And most importantly, the question will be asked whether these workers can rest in knowing that they and their families will be justly compensated and their future medical needs will be met.

www.CollinsAttorneys.com

Work related injuries in New Mexico, as in most states, typically leave the injured workers grossly under-compensated in cases of serious or permanent injuries or wrongful death. With on the job injuries, the worker is typically limited to recovery under the Workers Compensation Act.

There are exceptions. An injured worker can recover damages beyond the limits of the workers compensation statutes when a third party has caused the injuries by suing that third party. In addition, in the case of on the job auto accidents in work vehicles, the injured worker may obtain additional relief under the employer's uninsured/underinsured motorist coverage.

The recent case of Marckstadt v. Lockheed Martin (consolidated with Federated Service Insurance v. Martinez) forcefully reiterates the right to recovery under an employer's uninsured/underinsured motorist coverage. In these consolidated cases, employees had been injured in auto accidents while driving their work vehicles. In both cases, the other driver was underinsured. Likewise, in both cases, the injured worker made claims against the employer's uninsured/underinsured coverage on the vehicles.

Naturally, the insurance companies in both cases denied coverage. In both cases, the insurance companies argued that it was the intent of the insured employers to reject uninsured/underinsured coverage. However, there was no written rejection of uninsured/uninsured motorist coverage (UM/UIM). In the case of Lockheed Martin, there was an X on a form indicating that UM/UIM had been rejected. However, it was not clear who put the X on the form and only after the accident did Lockheed Martin actually sign a written rejection. Neither was there a signed written rejection in the Federated case though it was clear that the insured employer intended to reject coverage.

The Court ruled that though an actual signature was not required to reject coverage,and the rejection did not have to be attached to the policy, the rejection did have to be in writing no matter what the intentions of the parties. The Court recognized that the requirement of a writing was set forth in NMAC §13.12.3.9. The Court also recognized the problems with interpreting unwritten intentions, the possibility of fraud on the injured worker in these cases to avoid underinsured/uninsured coverage, and the litigation that would ensue if the writing requirement were not in place.

If you are injured on the job in a work vehicle as a result of negligence other than your own negligence, you may be entitled to recovery of damages beyond those limitations set forth in the workers compensation act. If the other party lacks insurance or is underinsured, and you have suffered serious or permanent injuries, then you should determine the availability of uninsured/underinsured coverage on your employer's vehicle(s). Due to the severe limitations of workers compensation, and the lack of insurance with the other driver, this may be the only way to recover fully on your injuries and other damages.

www.CollinsAttorneys.com