Ambiguous policies affect workers’ comp

The workers’ compensation system, we sometimes observe, is a patchwork of contradictory and inconsistent rules that are hard to understand and even harder to live with. Our courts don’t make this any easier.

We were reminded of this recently at the annual conference of the New Mexico Workers’ Compensation Association, where we heard several recitations of the weirdness of workers’ compensation case law.

One presentation – by attorneys Jim Rawley and Kelly Genova – focused narrowly on issues related to return to work. When a worker is recovered from an injury, something is supposed to happen: he goes back to his old job, or he chooses not to go back to the job, or because of his injury he can no longer do the job, or a hundred other possibilities. Workers’ compensation is a statutorily micromanaged system; the law is supposed to provide explicit guidance about who is obligated to do what for whom. But reality plays tricks.

Do you know the TV show, “What Would You Do?” This column is like that game. Read and guess.

Usually (there are exceptions to everything) when a worker gets injured and can’t come right back to work, the worker is entitled to temporary total disability benefits or TTD. Many questions arise when TTD is supposed to be over.

The law says that if the employer doesn’t offer to rehire the worker, the worker is entitled to extra benefits after TTD.

Suppose the worker was an incompetent employee who repeatedly did dumb things and violated safety procedures. One day she did something really incompetent and got hurt.

There’s no doubt she is entitled to TTD benefits and medical care. This is indisputable; it is the essence of the no-fault principle that is basic to workers’ compensation. But she has been fired for violating safety procedures and the employer does not want her back. Is she entitled to the extra benefits after TTD? In one case decided by the New Mexico Court of Appeals, yes.

In another case, the worker was rehired after her injury and was even promoted. She then violated a company policy and was fired. The court said she was entitled to the same level of benefits as if she had never been rehired.

A different worker decided after his injury to start his own business instead of going back to his job. Since the employer had offered his job back, he was not entitled to the extra benefits.

How about an undocumented worker? The worker receives benefits, but now that the employer officially knows the worker is undocumented, the employer cannot legally rehire him. Does the worker get extra benefits? This might depend on whether the employer knew all along the worker was illegal or the worker previously lied in applying for employment.

Then there’s the worker who was injured, was rehired and was caught drinking on the job, and the worker who collected benefits while in prison. It would take a law school class to explain the court’s decisions in some of these cases.

In 1986 New Mexico created a special court to hear workers’ compensation cases, in part because the inconsistency of decisions from all the district courts made the system too unpredictable. The state wanted one small group of judges who would be specialists in this very complex area of law.

But decisions of the workers’ comp court are appealed to the state’s Court of Appeals judges and Supreme Court justices, who don’t have that specialized focus. So inconsistencies happen, anyplace where the language of the statute is not detailed enough.

Making these decisions by legislation would be preferable from a policy standpoint. Our legislators manage to deal with one or two issues every few years.   The more complex the existing law is, it seems, the harder it is to amend.

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2 Responses to Ambiguous policies affect workers’ comp

  1. Hilario Aguilar RN CCM says:

    Yes New Mexico has some very different views of WC. For example, if a person is doing drugs at work or is positive for drugs and are injured in an accident while at work, they get compensated but can also seek legal damages and get a windfall. Decreasing the amount by only 10 percent because they always find a way to say that wasn’t the sole contributing factor is not right. They should not be compensated and should be terminated for testing positive for drugs/ETOH. It might seem harsh but being involved in WC as a CM in Texas and New Mexico I have seen the abuse more in New Mexico than Texas. Any money you win in Texas is for future care, not so in New Mexico. The laws have to be changed.

    • merilee says:

      Thank you for submitting this comment. You are referring to the 10 percent provision of the work comp law, which has just been changed in this year’s legislative session; I plan to write about that in my next column. I believe your statement about “legal damages” is not correct — at least the worker cannot get legal damages from the employer and if the worker receives legal damages from another party related to the same accident, there is subrogation involved which means the employer’s insurance company would get reimbursed from that other lawsuit. If you have specific knowledge of cases in which something else happened, please let us know about them!

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