Workers Compensation--What are "Average Wages" When Wages Overlap?

The New Mexico Court of Appeals recently addressed how to calculate an employee's average weekly wages for purposes of workers' compensation, when the employee was injured on one job but worked two unrelated, overlapping jobs of unequal duration.  See Vinyard v. Palo Alto, Inc. d/b/a Pizza Hut, 2013-NMCA-001.

NM Workers Comp Tidbits

As a labor/employment mediator, arbitrator and ALJ, I strive to keep abreast of--and inform my readers of noteworthy labor and employment cases.  Although the Workers Comp Administration in New Mexico maintains its own stable of mediators and ALJs, I like to keep up with this area of law also, mostly because the issues that arise are so darn interesting.  Two recent cases highlight that.

Recent Employment Law Decisions--Fees Shifting, Exhaustion and Preclusion

My arbitration, mediation and ALJ practice is booming these days, as is my guardian ad litem (GAL) practice.  As a result, I am woefully behind on my blogs, with a pile of items to review and write up.  I'm not sure how the really prolific--or even moderately prolific--bloggers do it, once their practice picks up.  In any event, here is a belated summary of recent New Mexico employment law cases.

Workers Comp and Tribal Immunity Revisited--What a Tangled Web

As discussed in a previous blog, in 2010, the New Mexico Court of Appeals concluded that the Workers Compensation Administration does not have jurisdiction where a Worker is injured in the course of employment at a business  wholly owned and operated by a federally recognized Indian tribe, if the Tribe has not expressly waived sovereign immunity.  See Antonio v. Inn of the Mountain Gods Resort and Casino, 2010-NMCA-077, cert. den.  

However, recent cases highlight that there can be quite a bit of parsing between tribal business entities, and as to whether which if any have waived tribal immunity

Workers Comp—Travelers v. Mere Commuters Covered

In a recent New Mexico workers compensation case, the State Supreme Court addresses an exception to the state Act, NMSA §§ 52-1-1 et al., that permits compensation for injuries incurred in travel by employees when those injuries “aris[e] out of and in the course of employment.“  Pete Rodriguez et al v. Permian Drilling Corp. et al, 2011-NMSC-032.

Workers Comp - Claim of Self-Injury Reviewed in Light of Delgado

A critical threshold issue for workers compensation cases can be whether the claim is for an “accidental injury,” as opposed to the result of intentional misconduct.  See NMSA § 52-1-28.  This is significant because where an injury is not accidental, it falls outside of the scope of workers’ compensation law, including its exclusivity provisions.  See  NMSA §§ 52-1-6(E) and 52-1-9.  Depending on who was willful--the employer or employee--it can result in the application of ordinary tort remedies, meaning without capped damages, or a complete bar to any sort of recovery at all.

In a recent case, Pearson v. Johnson Controls, 2011-NMCA-034, cert. den., the New Mexico Court of Appeals has held “that the standard of willfulness required to deny workers’ compensation benefits to an employee for self injury is the same as applied to employers’ misconduct under Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 1, 131 NM 272.”  See Pearson at ¶ 1.

Worker's Comp and Immigration Status

In Gonzalez v. Performance Painting, Inc. et al., 2011-NMCA-025, cert. granted, the New Mexico Court of Appeals recently considered (and rejected) the applicability of workers' compensation "modifier" benefit provisions to undocumented immigrant workers.

NM Workers’ Compensation Law Update – 2010

The Workers' Compensation Administration issued a number of interesting opinions that were appealed this year, dealing with the combining of impairments; the analysis for determining whether alcohol use results in a diminution or complete bar to recovery; several cases concerning the extent of and limitation on the WCA's "exclusive remedy;" and WCA jurisdiction over claims arising on property wholly owned and operated by an Indian Tribe.