Workers’ comp bill aims to reset the balance

The workers’ compensation system is full of temptations for people to behave badly. In response, many provisions of the law are attempts to create incentives so that people will behave constructively.

That is the simplest possible summary of the amendment passed (and signed, not vetoed) this year. The bill, SB 155, was sponsored by Sen. Jacob Candelaria (D.-Albuquerque) and was endorsed by the Workers’ Compensation Advisory Council.

The amendment moves the system back a few steps toward a principle previously established in our state’s law: it is best for everybody when injured workers return to work.

Under this amendment, if you are an employee temporarily disabled by a work-related injury, and your employer offers you a job that accommodates your temporary disability, you have to take the job or you won’t get disability (called temporary total) benefits. If you are working under these conditions and you get fired for good cause, your disability benefits will not be restored.

The law recognizes that some employers play dirty tricks with bogus or unreasonable job offers, or rehire an injured worker and then make up excuses for firing, to get out of paying benefits (the benefits are paid by the employer’s insurance company, but insurance premiums will increase). So the amendment says if the employer and worker disagree about reasonableness, they can take the dispute to the workers’ comp court. Employers caught playing dirty tricks can be fined.

Return to work is critical to the workers’ comp system. It’s been proven over and over that injured workers who return to work, even if they don’t want to, generally do better in both the short and long term than workers who stay home collecting checks. Workers who stay home too long tend to become depressed, isolated, and subject to all kinds of social ills that their families and society end up paying for.

SB 155 was a response to two decisions of the New Mexico Court of Appeals.

In one case the worker was rehired during her disability period, with accommodations for her injury, and was fired for cause. In the other, the worker was offered a job by his former employer but turned it down because he wanted to retire. In both cases, the court said disability benefits had to be restored.

These two cases are among a series of Court of Appeals decisions that have been moving the workers’ comp system away from the incentives I mentioned earlier. Those incentives were built into the law in 1990, under a major reform that was a historic cooperative agreement between business and labor.

There’s a story behind the story, expressed in another bill this year, SB 122, which got nowhere. That bill, also sponsored by Candelaria, proposed the radical idea of creating an appellate division – an alternative Court of Appeals – inside the Workers’ Compensation Administration.

SB 122 was a cry of frustration from many of the participants in the workers’ comp system.

The Court of Appeals has not quite grasped the idea that workers’ comp is inherently different from tort liability law. On one hand, injured workers have rights like any other litigants. On the other hand, the purpose of workers’ comp is, in most cases, to provide benefits as a temporary bridge to returning injured workers to work. So employers are given financial incentives to provide jobs with accommodations, and workers are given financial incentives to take the jobs.

But a lawyer’s task is to get his client whatever the law entitles him to. An injured worker who hires a lawyer is more likely to be hoping for cash benefits than a chance to go back to work.

There is an inherent tension between the design of the system and the right to litigate. That’s why the 1990 reform also had incentives to reduce litigation, not to make litigation easier. But almost everyone has forgotten that part.

Triple Spaced Again, © New Mexico News Services 2017

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