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