In the second year of Covid, we agree that we want to reward our heroes, right? We want to support the doctors and nurses, the grocery clerks and others who have risked their health to take care of the rest of us. So there is no question about passing a bill that assures access to workers’ compensation benefits.
Or is there?
Not so fast. We should only pass legislation that helps those workers without imposing unreasonable conditions. And what if those workers are already being covered, without legislation?
House Bill 268 proposes to create a “rebuttable presumption” to cover “essential” workers for COVID-19.
Workers’ comp – in New Mexico and everywhere else — only covers injuries and illnesses that occur at work or as a result of work. Infectious diseases are generally not covered because the exposure could have happened anywhere. But nothing stops a worker from making a claim if the worker can show the exposure happened at work.
The “rebuttable presumption” means it is presumed the worker contracted COVID-19 at work and so should be covered unless there is contradictory evidence.
I applaud the heroes and support that intention, as long as “essential” is limited to front line workers and clearly defined. I hear, unofficially, that local insurers are covering most of those workers now, without legislation.
But this bill throws the workers’ compensation system into chaos. And it fails to protect those workers.
The authors did not use the capabilities of existing workers’ compensation law. They made up new rules just for these cases, turning the tried and true rules upside down. Their rules are not just different from but in conflict with existing law, creating a mess that will force cases to be litigated.
If the bill passes, heaven forbid, before insurers pay medical bills or help those workers get well, they will be paying lawyers.
Workers’ compensation is a no-fault system. When a worker is injured or becomes sick from work, the claim is covered no matter whose mistake caused the injury. There is no litigation about who made the mistake.
But this bill provides coverage only if the employer did something wrong, and denies coverage if the worker did something wrong. That forces cases to be litigated. It’s the opposite of workers’ compensation. If the sponsors want workers to get compassionate and immediate coverage, they wrote the wrong bill.
The workers’ compensation system penalizes careless employers, not by finding fault, but by raising insurance premiums in future years. That is the only mechanism to “punish” the careless employer.
But this bill says the COVID-19 case may not be used against the employer to calculate future premiums. So costs will be shifted to everyone else. The careless employers get off free.
The workers’ compensation system is an elaborate bundle of compromises that have been worked out over decades – not just here but in every state and around the world. The purpose, as New Mexico’s law states, is to provide “the quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost to employers.”
New Mexico’s workers’ compensation reform happened in 1990. There are very few people still active who remember in detail how the various provisions interlink, how they achieve the balance of rights and obligations, what the law was intended to accomplish – and, just as important, what the law was intended to prevent.
If everybody forgets what the system is for, and people keep writing bad legislation, it will gradually fall apart and have to be reinvented after a lot of unnecessary hardship and expense. New Mexico lawmakers need a revival of education on the principles of workers’ compensation before they venture into legislation like HB 268.
Triple Spaced Again, © New Mexico News Services 2021