In New Mexico and Workers' Comp, It's Deja vu All Over Again

22 Oct, 2018 Bob Wilson


Seriously, people, there are some things in workers’ comp that you would think, after 100 or more years, would have been settled by now. Yet we keep wasting time in court fighting the same battles. A story out of New Mexico last week shows that to be the case.

I understand that some court cases we see are unique for their times. Is a cap on attorney’s fees fair and constitutional? Do the AMA Guides to the Evaluation of Permanent Impairment 6th Edition fairly rate injured workers’ disabilities, or in the case of Pennsylvania’s Protz case, does the statutory language authorizing the 6th edition hold muster? But this case in New Mexico? It had to determine if a man who fell down and broke his arm while on the clock and at the worksite had a compensable injury. 

Not exactly precedent setting stuff. 

The New Mexico State Court of Appeals' issued a ruling last week overturning a workers' compensation judge's order that denied compensation for an “Intel contractor's maintenance technician who broke his arm from tripping while walking on a level, unobstructed hallway to reach a work site in a long building.” The judge had ruled that his “accident didn't arise out of his employment because his injury wasn't reasonably related to any job-related risks.”

The Court of Appeals disagreed and ruled that his injury did arise from his employment “because he was at work when injured and doing something requested by his employer.” 


He was at the worksite at the behest of his employer. He would not have been navigating that hallway had he not been required to be there. There are literally 100 years of precedent establishing compensability in cases such as this. Bad things happen in the course and scope of employment, and workers’ comp picks up the tab. That is the deal of the "Grand Bargain;" a deal that protects that employer (and in this case their client Intel) from potential negligence claims and even greater liability.

I’m not necessarily blaming the workers’ compensation judge for this decision. A judge can only issue rulings based on the quality of arguments and evidence brought before them. I have a little personal history in this area when it comes to New Mexico workers’ compensation judges. The Land of Enchantment, as you may know, was the home of the very first court directive ordering an employer to pay for medical marijuana. I was roundly critical of that decision at the time, only to find myself a year later sitting with that judge and his wife at a restaurant in Florida. We had a chance to discuss that case, and he made some excellent observations regarding it. As a judge, he can only make decisions based on the facts entered into evidence. If the case is poorly defended, it is not his job to step in and fill the void. He is not there to do the attorneys job. Without knowing the specifics of this current case, we can assume that it may be a similar situation.

Or the judge is a doofus. We simply do not know from the facts at hand. 

So, while the propensity would be to wonder what the judge was thinking, we have to recognize that the real problem is that someone likely had to contest this injury to begin with.  

Someone had to deny that claim in order to get it into the court system. Either they didn’t understand the premise of workers’ compensation or took a calculated risk that they could avoid any financial obligation in the case. Either option simply smears the industry and empowers its critics with legitimate fodder. And they’ve ended up losing on the gamble, likely increasing their costs through needless litigation. 

What a colossal waste of time and money. It’s a shame that it appears to be a lesson that some are destined never to learn despite 100 years or more of on the job education.



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