New Mexico Attorney Blog
March 9th, 2010
The short answer is no, except in very rare circumstances.
The New Mexico Workers’ Compensation Act is a no fault system, designed to benefit both employees and employers. The primary benefit to this no fault system for the injured worker is that her or she does not have to prove negligence to receive compensation, as would be required in a typical personal injury claim. Generally, a worker injured in the course and scope of employment is entitled to benefits, regardless of whether the employer or the worker, or even another employee was negligent. Simply put, for the most part negligence is irrelevant in worker’s compensation.
The no fault system further provides a benefit to the worker because he or she does not have to prove up negligence. This allows for a more timely award of benefits to the worker.
The New Mexico Workers’ Compensation Act provides a very important benefit to the employer as well—that is, the employer can not be sued outside of workers’ compensation. In other words, the law does not require the worker to prove negligence, but as a tradeoff, it prohibits the workers from suing the employer outside of worker’s compensation.
Thus, for 99% of workers that means the worker cannot sue his or her employer, not even if your employer is negligent, or even grossly negligent.
I did mention there are rare situations in which a worker can sue an employer. This is known as a “Delgado Claim” named after the New Mexico case which first provided this right to workers. Without getting into the specifics of the case, and a complex analysis, I can simplify it with a simple example of what is required.
Assume there is a fire at work, and your employer demands that you rush into the burning fire or you will be fired. You refuse citing the obvious risks, and your employer again demands that you rush into the burning fire risking your life. You reluctantly agree, and are injured in doing so.
Okay, this is a bit of an exaggeration, but not much! While not exactly the standard for bringing a Delgado claim, this provides a helpful example as to the extremely high burden an injured worker must overcome to sue his or her employer. Another way of looking at it is that it must almost be intentional.
If you believe you have a situation that may rise to this level, please contact me and I will be happy to discuss your situation in more detail.
But as a general rule, assume you can’t sue your employer.
A couple quick side notes that must be mentioned while we are on this topic…you can potentially bring a claim outside of worker’s compensation if someone other than your employer or fellow employee caused your injury. The most common examples of this are negligent third party contractors or negligent drivers injuring you in a car accident while you are in the course and scope of employment. In this situation, you can potentially bring a worker’s compensation claim and a personal injury claim.
This is obviously meant to be a very quick overview of this area of the law, and is not intended to be a complete explanation. I will be happy to discuss the facts of your case if you need further information.
Tags: Attorney, new mexico, sue my employer, worker, Workers Comp, Workers Compensation
Posted in Personal Injury Law | No Comments »
March 7th, 2010
Injured workers often find their lives significantly impacted as a result of a work injury. In many cases, that impact affects the worker physically, emotionally, and financially among other areas.
In fact, many workers say the stress associated with the injury, and not the physical pain, presents the greatest difficulty for which he or she desires compensation.
However, most injured workers are surprised to learn that the New Mexico Workers’ Compensation system does not compensate injured workers for pain and suffering damages.
Pain and suffering damages, which are often associated with personal injury claims, are exactly what the name implies—damages awarded for the pain and stress that an injury has caused. This includes potential damages for the emotional impact of the injury, limitations on future activities the injury has caused, and future pain just to name a few. They are very subjective damages which differ from general damages such as lost wages and medical bills.
A hypothetical might help explain this better. For example, assume a worker, while in the course and scope of employment is driving and gets hit by a negligent driver causing injuries to worker which include pain and suffering. Worker is entitled to worker’s compensation benefits which include medical and indemnity (TTD and PPD) benefits. In other words, worker will get his medical bills covered, and will receive a portion of lost wages. However, Worker can also bring a personal injury claim resulting from the same accident against the responsible driver, in which he can claim damages for medical bills, lost wages (full amount), possible loss of earning capacity, and pain and suffering. *note that the worker’s compensation insurer would have a right to subrogation if worker recovers from third party as in this hypothetical.
As you can see, the benefits and damages available in a worker’s compensation claim are limited as compared to a typical personal injury claim—and this is in large part due to the absence of pain and suffering damages available in worker’s compensation.
Posted in Worker's Comp Law | No Comments »
March 3rd, 2010
Insurance can often seem excessively complicated and difficult to understand, but with state requirements for motorcyclists to be insured you need to understand how insurance works. Here are five commonly asked questions and answers regarding motorcycle insurance.
- Should I really submit a small claim to the insurance company, won’t it make my premium go up?
The answer to this is maybe. It depends on your particular situation. There are a number of different factors to take into account when deciding whether to file a claim. It helps if you have no or few claims filed previously. The biggest issue when determining if your rate will increase is fault. If you are at fault it is likely that your premium will increase. If you are not at fault, your rate will probably not increase.
Another factor to consider before you submit a claim is your deductible. If the damage to your bike is less than your deductible, then you probably don’t want to submit that claim.
Regardless of the amount of damage or fault, always tell your insurance carrier if you are involved in an incident that involves injuries to yourself or others.
- If I let my buddy drive my bike, does my insurance cover it?
Yes. This is based on the Permissive Use Policy. Basically, a rule of thumb is that insurance follows the bike, not just the driver. As long as your buddy has your permission to use the bike, it is covered.
You should still be cautious when you lend your bike to others. If they are in an accident you will have to file a claim against your insurance policy. The more claims you file, the more likely the insurance carrier will refuse to renew your policy, or to increase your premiums in the future. You should only lend your bike to a responsible, licensed motorcyclist.
- How does the insurance company decide how much my bike is worth?
Each bike is valued on an individual basis. Most adjusters start with N.A.D.A. guides or the Kelley Blue Book, but these are really just starting points. Since each bike is unique, a good adjuster must really focus on the specifics of your bike.
A good adjuster will consider the modifications you have made to your motorcycle, as well as other similar bikes in you area. This approach leads to a more precise and fair value for what your bike is really worth.
- Do I really need “accessory” coverage?
One of the most misunderstood parts of motorcycle insurance is accessory coverage. Many people simply don’t have sufficient accessory coverage to fully cover their motorcycle.
Accessory coverage covers anything that was not included as standard by the motorcycle manufacturer. This includes custom chrome, windshields, custom paint, performance modifications, saddle bags, and sometimes even your riding gear.
You must also include accessories that were added by the dealer or a previous owner before you purchased the bike. These items may make up a significant portion of the value of your bike. You don’t want to be underinsured. So, make sure you know what accessories you have and how much they are worth, before you decide how much accessory coverage to purchase.
- What’s up with “liability” coverage?
Liability is the coverage that you are required to have by the state. This covers losses that result from bodily injure to others or damage to the property of others for which you are liable.
Essentially, liability insurance covers damage you do to others, when riding your bike. This includes property damage, as well as bodily injury. It does not cover damage to your bike or your own bodily injuries.
Regardless of the amount or type of insurance coverage you own, if you or someone you know is or has been injured in a motorcycle accident, you need to consult with an attorney to fully understand your rights and remedies. Our attorneys are always waiting to serve you.
Tags: new mexico
Posted in Personal Injury Law | No Comments »
February 19th, 2010
1. In general, any medical malpractice action for injury or wrongful death must be brought within three years from the date when the alleged malpractice occurred. This is referred to as the Statute of Limitations. There are some instances when the Statute of Limitations is less than three years.
2. A claimant’s negligence will never bar recovery but, instead, will only reduce the claimant’s recovery in proportion to his comparative fault.
3. Claims of medical malpractice against a “qualified health care provider” are limited to a recovery of $600,000 which applies to all damages, with the exception of punitive damages and damages for medical expenses. Most doctors are “qualified health care providers” whereas most hospitals are not.
4. Generally the state and its political subdivisions have immunity from a tort action. Such immunity is inapplicable to medical malpractice actions if an employee of the state or any one of its political subdivisions was negligent while acting within the scope of his employment. Please note, New Mexico law requires that a Tort Claims Notice be filed with the appropriate state agency within ninety days of the alleged act. There are few exceptions to this requirement.
Tags: Medical Malpractice, new mexico
Posted in Medical Malpractice | No Comments »
February 16th, 2010
What is the Difference between Divorce and Legal Separation?
A divorce ends a marital relationship. Specifically, you file a Petition of Dissolution of Marriage and the court ultimately enters a Decree of Dissolution of Marriage which terminates the legal marital relationship. There is no such thing as a common law divorce in New Mexico. In order to get a divorce all you need are “irreconcilable differences” in the marriage. This is what is typically referred to as “no fault divorce.” Marital misconduct is generally not a factor unless it has an impact on the children or the equitable division of the marital estate. New Mexico also allows for a “fault” divorce which can be based on adultery, abandonment, and cruel and inhuman treatment.
A legal separation is the same in all respects to a divorce, with some exceptions. First, the marriage is not terminated. Second, the parties are not free to remarry. Third, the petition is called a “Verified Petition for Legal Separation.” Fourth, the decree is called a “Final Decree of Legal Separation.” Many people often get a legal separation versus a divorce for religious reasons or because they want their spouse to retain the rights to some form of benefits which they would loose in a divorce.
Call us today for more information regarding the differences in divorce versus a legal separation.
Tags: Divorce, Legal Separation, Paternity
Posted in Family Law | No Comments »
February 16th, 2010
We have started receiving correspondence for some of our Social Security disability clients that is from Social Security offices in Arkansas. When I received the first one, I figured there had to be some kind of mistake, or thought perhaps my client had moved and failed to tell me. When I called the office in Arkansas, the nice lady told me they are now helping process some of the claims in New Mexico due to the backlog of cases here.
I consider this very good news because it means someone is working the file and trying to keep it moving forward. Local Social Security offices all over the country are understaffed and as a result get behind on their caseload which translates in to delays for the claimants. I think it is a great idea for some of the offices that are not overloaded to help those that are.
Hopefully this trend will continue which will mean reduced time that it takes to receive a response at the various levels of appeal. I have no problem working with an office in Arkansas if it means my clients get their disability benefits sooner.
Tags: claims processing, disability, new mexico, Social Security
Posted in Social Security Law | No Comments »
February 8th, 2010
3) Get denied and fail to appeal.
I high percentage of people who have filed for SSI/Social Security disability benefits get denied at the initial application level as well as the reconsideration level. Unfortunately, often times people get denied and they do not pursue the case any further. That is a huge mistake because a denial at one of those two stages certainly does not mean that you cannot get disability benefits. Most of our success on disability claims is accomplished at the hearing level which comes after reconsideration. Unfortunately many people who are legitimately disabled never get to the hearing level because they do not appeal a denial.
4) Appeal a disability denial but do it more than 60 days after receiving the denial.
Many people who get denied disability benefits do not realize how important it is to remember that there is a 60 day deadline to file an appeal. If you miss the deadline then you more than likely will have to apply again, which could very well cost you some back pay. I often tell my clients that the most important thing on a denial decision is the date it was issued. When you get denied be very mindful of the 60 day deadline and be careful not to miss it.
Tags: claims processing, disability, new mexico, Social Security
Posted in Social Security Law | No Comments »
February 5th, 2010
Many of our clients often do not understand a legal claim for Medical Malpractice (Med. Mal.). Given the number of questions I constantly receive regarding this sometime elusive legal concept I decided to start a blog dedicated solely to this topic. Please note the information provided is just information only and does not constitute legal advise
Medical malpractice, also known as medical negligence, generally occurs when a health care provider breaches the professional standards of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include but are not limited to:
1. Failure to diagnose or misdiagnosis of a medical condition or an injury;
2. Failure to provide “medically appropriate” treatment for a medical condition; or
3. An unreasonable delay in treating a medical condition that the treating physician knows has been diagnosed.
Medical Malpractice lawsuits can be brought against any healthcare provider including doctors, hospitals, nurses, and nursing homes who have negligently cared for a patient. This first entry just “scratches the surface” and there is much more to talk about. Please do not hesitate to e-mail or call if you have any questions about medical malpractice lawsuits.
Tags: Medical Malpractice, new mexico
Posted in Medical Malpractice | No Comments »
February 1st, 2010
1) Delay filing for benefits
It is very important that you apply for benefits as soon as your medical condition worsens to the point where you can no longer work. For SSI benefits, if you are found disabled, your benefits can only go back to the date of your application. For example, if you became disabled and quit working in January 2009, but did not file an SSI application until July 2009, your disability benefits can start no earlier than July 2009. If you had filed an application immediately upon becoming disabled, you would have received an addition 6 months of back pay which could be a large amount of money.
For Social Security disability, your back pay, can go back 1 year from the date of the application. As a result you have more time to submit an SSD application before it starts having an impact on your benefits. However people still often make the mistake of waiting to file for SSD benefits for a year or two after they become disabled. Please do not make this mistake because it can significantly reduce the amount of your back pay.
2) Assume that you will quickly get on SSI/Social Security disability benefits
For many people the process of getting approved for SSI/Social Security disability benefits is a long process. It is not uncommon for it to take a year and a half to two years to get on disability benefits. As you start the process know that it will likely require a lot of patience and take a long time to get resolved.
Tags: claims processing, disability, new mexico, Social Security
Posted in Social Security Law | No Comments »
January 29th, 2010
In automobile accidents, it is often the case that a family member was at fault. This scenario is especially true when there are multiple occupants in a single-vehicle accident. Take a typical case, for example. Husband and wife go to a party. Husband is driving. He has maybe had a few too many drinks, and runs the car off the road, severely injuring wife. Wife should be entitled to recover for her injuries, right? The only problem is that if wife sues husband, she isn’t going to get any money that isn’t already hers, is she? So why should wife bother with suing husband, since in most cases, husband’s assets are commingled with wife’s assets?
In a case like the one just mentioned, attempting to make a money recovery from a family member or a loved one shouldn’t necessarily be dismissed off hand. Many times, when a family member injures another family member, the injured person feels as if she is unable to recover for her injuries. This is simply not the case. Often, the injured family member can recover from the insurance owned by the responsible family member. Some of these cases may require a lawsuit to enable recovery. So, just because you were injured by a family member doesn’t mean you can’t recover money for your injuries.
If you have been injured in an automobile accident, whether by a family member or not, you should act quickly, as you must file any legal action within a certain period of time to protect your claim. You may need to contact an attorney quickly, as your time may be running out. Our team of attorneys routinely handles automobile accident cases and is ready to serve you.
Tags: Attorney, new mexico, Personal Injury
Posted in Personal Injury Law | No Comments »
|
