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.\u00a0 So there is no question about passing a bill that assures access to workers\u2019 compensation benefits.<\/p>\n
Or is there?<\/p>\n
Not so fast.\u00a0 We should only pass legislation that helps those workers without imposing unreasonable conditions. And what if those workers are already being covered, without legislation?<\/p>\n
House Bill 268 proposes to create a \u201crebuttable presumption\u201d to cover \u201cessential\u201d workers for COVID-19.<\/p>\n
Workers\u2019 comp \u2013 in New Mexico and everywhere else — \u00a0only covers injuries and illnesses that occur at work or as a result of work.\u00a0 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.<\/p>\n
The \u201crebuttable presumption\u201d means it is presumed the worker contracted COVID-19 at work and so should be covered unless there is contradictory evidence.<\/p>\n
I applaud the heroes and support that intention, as long as \u201cessential\u201d is limited to front line workers and clearly defined.\u00a0 I hear, unofficially, that local insurers are covering most of those workers now, without legislation.<\/p>\n
But this bill throws the workers’ compensation system into chaos. And it fails to protect those workers.<\/p>\n
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.\u00a0 Their rules are not just different from but in conflict with existing law, creating a mess that will force cases to be litigated.<\/p>\n
If the bill passes, heaven forbid, before insurers pay medical bills or help those workers get well, they will be paying lawyers.<\/p>\n
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.<\/p>\n
But this bill provides coverage only if the employer did something wrong, and denies coverage if the worker did something wrong.\u00a0 That forces cases to be litigated. It\u2019s the opposite of workers’ compensation.\u00a0 If the sponsors want workers to get compassionate and immediate coverage, they wrote the wrong bill.<\/p>\n
The workers’ compensation system penalizes careless employers, not by finding fault, but by raising insurance premiums in future years.\u00a0 That is the only mechanism to \u201cpunish\u201d the careless employer.<\/p>\n
But this bill says the COVID-19 case may not be used against the employer to calculate future premiums.\u00a0 So costs will be shifted to everyone else. The careless employers get off free.<\/p>\n
The workers’ compensation system is an elaborate bundle of compromises that have been worked out over decades \u2013 not just here but in every state and around the world. The purpose, as New Mexico\u2019s law states, is to provide \u201cthe quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost to employers.\u201d<\/p>\n
New Mexico\u2019s workers’ compensation reform happened in 1990.\u00a0 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 \u2013 and, just as important, what the law was intended to prevent.<\/p>\n
If everybody forgets what the system is for, and people keep writing bad legislation, \u00a0it will gradually fall apart and have to be reinvented after a lot of unnecessary hardship and expense.\u00a0 New Mexico lawmakers need a revival of education on the principles of workers’ compensation before they venture into legislation like HB 268.<\/p>\n
Triple Spaced Again, \u00a9 New Mexico News Services 2021<\/p>\n
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