A lot of people are working from home and often under less than ideal circumstances. Using a laptop on the kitchen counter. No ergonomic desk or chair or keyboard. It’s not healthy.
This can lead to sore necks, shoulders, backs, etc. Or, it can lead to more serious and long lasting injuries.
Even if you’re working from home, I think that employers should provide you a safe workplace and that includes a desk, chair and ergonomically correct computer set up. If you think that your work area at home is not ergonomically correct, you must notify your supervisor immediately.
If you think that working at home is hurting you or you are having symptoms and/or pain, you must tell your supervisor immediately. You have to ask to file a an injury You have to ask what healthcare provider you should see about your injuries and then you should ask for an ergonomically correct setup at your work station. Please see my previous posts about what to do if you think you’ve been injured at work.
If you feel that you’re not getting the correct response from your employer, call me or another workers’ compensation lawyer.
My last post talked about workers’ compensation money benefits, also know as indemnity benefits, eventually ending or being reduced. That usually happens at maximum medical improvement, also know as MMI.
I’ve mentioned MMI generally in past postings, but I don’t think I’ve ever defined it for anyone reading my blog.
The New Mexico Workers’ Compensation Act defines MMI as the “date after which further recovery from or lasting improvement to an injury can no longer be reasonably anticipated based upon reasonable medical probability as determined by a health care provider defined in Subsection C, E or G of Section 52-4-1 NMSA 1978.” § 52-1-24.1.
In regular language, MMI is the time when a worker’s injury stabilizes and recovery has leveled off or plateaued. Unfortunately, it usually doesn’t mean a full or complete recovery. Most injured workers at MMI still have some symptoms, complaints, and/or disabilities from the work accident.
MMI is also when an injured worker’s permanent physical impairment rating is determined. The impairment rating is used, in part, to calculate the worker’s money benefits after MMI. I will explain that process in a future post. It’s important but a little technical.
Money benefits and medical treatment usually are reduced or terminated at MMI. This reflects the fact that the injured worker’s recovery has leveled off.
In a lot of workers’ compensation cases, MMI is when injured workers try to return to work.
I usually discourage my clients from asking their doctors about MMI because sometimes doctors interpret the questions as a request to place the worker at MMI. Generally, a premature MMI date does not help the injured worker because it reduces money and medical benefits. I usually tell my clients to focus on their treatment and doing whatever else they can to increase their chances of returning to work in the future. Most doctors who treat injured workers know about MMI and will address it when the time is right.
The lesson here is that MMI is coming and it will, in most cases, reduce your money and medical benefits. In some cases, one or both may stop. The other lesson is to be prepared for MMI and the reduction in benefits before you hit MMI.
On another note, COVID19 is still with us. If you’re working, great. But, please be aware that if you are working you’re at risk for getting the virus and need to follow all of the precautions to avoid infection. If you think you’ve been infected at work, please make sure you tell your employer immediately and then contact an attorney. I am reviewing COVID19 cases.
As always, do what you can to be kind to others in this stressful time of COVID19. We can only get through this if we support each other as much as we can.
My phone is 505 292-8836. You can email me at firstname.lastname@example.org.
I took this during one of our recent smoky days. Smoke is annoying and dangerous, but it makes for some great sunsets. Stay safe.
New Mexico Workers’ Compensation Basics #4: Your benefits will stop or be reduced. Start planning now for that.
Why the old cars? Well I like old cars, and I saw these recently in the Sandias on a Sunday morning. Second, old cars can be like a workers’ compensation case, something always goes wrong eventually. The fuel pump stops working; the insurer … for some reason … refuses to authorize your medication after approving it fifty times before. It’s inevitable.
So, you’ve read my prior posts and have done all the right things and you’re getting your workers’ compensation benefits. These include money (also called indemnity) benefits and medical benefits.
Your life is is not normal because you’re hurt and you’re probably not working. But you and your family are persevering. You’re focusing on your medical treatment, maybe you are back at work, probably light duty, and you’re doing your best to get better.
This is the time to start thinking about what can go wrong and try to be prepared for them. What are you going to do if you can’t get your medications for a few days? What are you going to do if your check is late? Sometimes, there isn’t a good answer, but it’s always worthwhile to try to do some planning.
The best thing you, as an injured worker, can do is to realize that your money benefits will be reduced (for some workers they will stop) sometime in the near future. That could be six months or three years depending on how badly you’ve been injured. Depending on how quickly you recover from your injury, money benefits will be reduced or stop once you reach maximum medical improvement (MMI). I will go into MMI in a later post. However, for now we’ll define it as the time when there is no further treatment available for the worker.
So, at MMI, money and medical benefits will decrease and, in some cases, stop.
Depending on the facts of your case, you can expect MMI beginning as soon as six months after the work injury. The more serious the injury, the longer it takes to get to MMI.
Here is why I’m writing this post: INJURED WORKERS MUST PLAN FOR THE DAY WORKERS’ COMPENSATION BENEFITS ARE REDUCED OR STOP!!!. Just like you’ve got to prepare for something to go wrong on your old car.
The sooner you start planning the better. The last thing an injured worker wants is for the money benefits to stop without warning (and that does happen unfortunately).
Each case is different, but here are some things you should start looking at soon after the work injury:
What are the realistic chances that you will be able to return to the job you were doing when you were hurt? If it’s not realistic, you need to start planning on how to get a different job you will be able to do once you’re done with your treatment. If you need to training for a new job, start planning on how to get that training.
Is this a good time to retire? If you’re close to retirement age and the chances of returning to work are low, then maybe it’s the time to retire. If so, do you have enough money to retire? If not, what is the plan to bridge the financial gap?
If the chances of returning to work is good, do you have enough money to make it through your treatment and then return to work?
If the chances of returning to work are not good and you’re not able to retire, what is your plan? Can you go back to school? Can you borrow money until you’re able to find a job? Can you qualify for unemployment? Can your spouse or significant other support you and your family in the interim?
If you can’t return to work, how will you get medical insurance for you and your family? Medicaid and Obamacare are probably the most likely sources. In either case, you need to start planning on applying for and, perhaps, paying for medical insurance until you can find another job.
In many cases, workers’ compensation medical benefits become an issue and there can be lengthy delays and even complete denials of continued medical treatment. Often, there is only so much a worker’s lawyer can do and the medical treatment stops.
The New Mexico Workers’ Compensation Act provides for “lifetime” medical benefits. Injured workers have to understand, however, that in most cases medical benefits and medical treatment stops. If that happens and you want continued treatment, you will most likely have to find another way to get that treatment.
Injured workers must understand that workers’ compensation benefits in New Mexico are in most cases TEMPORARY even though your injuries may not be. Therefore, the sooner you start planning for the day they are reduced or stop, the better.
On another note, unfortunately, COVID-19 is here to stay, and we must keep our physical distance from others and also wear our masks. We can only beat the virus if we work together and take care of each other.
At least the bees seem to be doing well.
If you have a legal question, please call me at 505 292-8836 or email me at email@example.com
It’s clear that COVID-19 is surging in New Mexico. It’s also clear that COVID-19 is negatively affecting working people, including employers firing workers because of COVID-19.
The law is playing catchup with COVID-19. But, I think you should contact me if your employer threatens to fire or fires you because you’ve been exposed to COVID-19 or been infected by the virus or because you’ve complained about your employer’s failure to follow the public health order. To read the public health order go to this website: https://cv.nmhealth.org/public-health-orders-and-executive-orders/ .
If COVID-19 becomes an issue at work, you should first do what you can to work out the dispute with your employer. It’s better to keep your current job if you can, because finding another is going to be difficult.
If you can’t resolve the dispute with your employer, it is usually better not to resign or quit, especially if the employer wants you to sign a release or “separation agreement.” If the employer offers a payment to encourage you to resign or quit, then you’ll have to decide if the money is enough to quit and have to find a new job.
Releases or separation agreements always favor the employer. You must read the release or separation agreement carefully. Almost all of them force the worker or employee to give up all of their legal rights against the employer for any alleged violations related to your employment and/or the termination, including unemployment benefits which most newly fired employees (and their families) desperately need.
It is extremely difficult to get unemployment benefits if you quit. Therefore, you must do what you can to have the employer terminate you of you want a chance at getting unemployment benefits. This is important, because you probably won’t qualify for any future COVID-19 Federal supplements to unemployment if you don’t qualify for New Mexico State unemployment benefits.
If you are considering resigning in exchange for a payment from the employer and you’re also considering signing a release or “separation agreement,” then you should carefully consider the following:
What are your chances of getting a similar paying job soon?
In the next two to three months do you think you will need to apply for unemployment benefits?
How long will the payment from the employer tide you over until you are able to find a new job?
Do you think you might want to file a discrimination, retaliation, ADA, FMLA, wrongful termination or other type of employment case against the Employer?
Are there COVID-19 laws that protect your job?
If you decide not to resign or quit, then you should give written notice to the employer that you are not going to quit. You want to ensure you have some written proof that you did not quit. You should also ask in the letter or email when you can return to work and ask for a specific date and time. This will put the onus on the employer to either put you back to work or to terminate you.
If you get written notice of termination or believe you have been terminated, you should apply for unemployment ASAP.
These are difficult times for everyone and it’s a shame that working people have to also worry about their jobs.
Like choosing any professional, choosing an attorney is like picking a competent plumber or painter. The best way to find a good one is by a referral. So, if you need to speak to an attorney ask around.
Start with your family and friends. If you know an attorney ask that person. Maybe he or she is can help you. If not, the attorney should be able to refer you to another attorney who can help you.
If you know what kind of case you have and there is a specific agency or organization that deals with those cases, they will often have a referral list of attorneys. Here’s a list:
Workers’ compensation cases, contact the New Mexico Workers’ Compensation Administration;
Employment discrimination cases, contact the New Mexico Human Rights Bureau and/or the EEOC;
Sometimes local State District Court will have a referral list. I’d check with the court clerk’s office.
You may ask: “What about lawyers who advertise?” Many years ago, lawyers who advertised, perhaps unfairly, were judged to be no better than used car dealers. However, now most lawyers do some kind of advertising, usually through a website, but also on television and the sides of buses. So, don’t be turned off by a lawyer who advertises. Just make sure that you do your research on the lawyer. Confirm the lawyers experience and years in service. Ask for copies of any written reviews by past clients.
If you don’t feel comfortable with that person and/or his or her office and staff after doing your research, move on. There’s lots more lawyers who will be willing to represent you.
No matter who you choose, always, Always, ALWAYS ask if the lawyer has malpractice insurance. They must tell you if they have insurance and how much coverage they have. You should not choose a lawyer who is uninsured.
So, there are lots of ways to find an attorney. The best way is by a referral from a trusted source. If that is not available, do your research.
Remember: try to be kind to one another and wear that mask. We can make beat COVID-19, but we have to work together.
Here are some pictures from a recent hike I tool up La Luz trail. There were lots of lizards.
Your relationship with your attorney is often like your relationship with other people in your life. There are good times and there are rocky times. If the relationship is strong, it will survive the rocky times.
But, there are a couple of big differences.
Your lawyer has specialized knowledge and experience, which is the reason you retained her.
When the case is over, it is likely you will pay your lawyer for the legal work she has done. If you don’t listen to her advice, then it’s probably wasted money.
This assumes that you have chosen an ethical, honest and competent lawyer. If you haven’t then you’ve got other issues. (I’ll address how to choose a lawyer in a future post.)
If you have chosen an ethical, honest and competent lawyer, then you should trust her legal advice, even if the advice is not what you want to hear.
If you have questions about the advice, you must talk with your lawyer about the advice. It’s critical that the lawyer explains why she is advising you to do or not to do something. If you don’t understand the reasons, then the lawyer probably isn’t communicating effectively, and you should insist she explain it to you effectively.
You obviously don’t have to follow the lawyer’s advice. But if you do understand it, and the lawyer is ethical, honest and competent, you should probably follow the advice, even if you don’t like it.
Here’s something completely different I saw in my backyard recently:
Hopefully, you know where you are supposed to go for treatment if you get hurt at work. See “Basics #2”.
If you’re hurt at work, get medical care as soon as possible.
If you’re able to, notify your supervisor or some other manager that you’ve been hurt at work. If you can’t, do it as soon as possible after you get treatment. If necessary, have your spouse, family member or friend, contact your employer to notify them that you were hurt at work.
Don’t try to work through the work injury; don’t go home and take a hot bath; don’t get a massage; don’t get a chiropractic adjustment. GET MEDICAL TREATMENT ASAP.
IF THE EMPLOYER DESIGNATED A SPECIFIC MEDICAL PROVIDER TO SEE IF YOU GOT HURT AT WORK, GO TO THAT MEDICAL PROVIDER. (SEE BASICS #2)
IF THE EMPLOYER TOLD YOU TO GO TO A MEDICAL PROVIDER OF YOUR CHOICE, YOU ALREADY HAVE A DOCTOR CHOSEN. (SEE BASICS #2) GO TO THAT DOCTOR AS SOON AS POSSIBLE.
If you haven’t chosen a doctor, you could go to your primary care doctor. You could also try to contact a lawyer who represents injured workers for a list of possible treating doctors.
If you are seriously injured, GO TO THE NEAREST EMERGENCY ROOM.
IF YOU NEED AN AMBULANCE, CALL ONE. IF YOU CAN’T, HAVE A CO-WORKER CALL ONE.
I won’t write a list of “serious injuries” because you and/or your co-workers will know.
If there’s any doubt, GO TO THE NEAREST EMERGENCY ROOM.
WORKERS’ COMPENSATION BASICS #3: IF YOU ARE INJURED AT WORK, GET MEDICAL CARE ASAP AND GO TO THE DESIGNATED HEALTH CARE PROVIDER.
After posting New Mexico Workers’ Compensation Basics #1, I remembered something.
Sometimes, when a worker gets hurt on the job, the employer will tell the worker that the employer will “take care of him or her”.
This usually means that the worker has to pay for the medical treatment and hope the employer will reimburse the worker for the cost of the treatment.
It sometimes means that the employer will also pay the worker some form of money benefit, often in the form of continued wages.
This usually happens when the employer has no workers’ compensation insurance. Strangely enough, it sometimes happens when the employer does have workers’ compensation insurance.
This usually ends up badly for the injured worker because most employers cannot pay for the worker’s medical treatment let alone the worker’s wages when the worker is not working.
Once again, BEFORE YOU GET HURT, find out if your employer has workers’ compensation insurance. It’s much better to know this before you get hurt and have to figure out a way to pay for an MRI of your back.
If there is no workers’ compensation insurance, it’s probably time to try and find a new job, unless the employer will get workers’ compensation inurance.
If you get hurt on the job or at work and the employer promises to “take care of you,” ask if there is workers’ compensation insurance. If there is, demand that the employer file the claim with the workers’ compensation insurer. If the employer refuses, call me or another workers’ compensation attorney. You can also call the New Mexico Workers’ Compensation Administration, 505 841-6000, and ask to speak to an ombudsman, who is a WC Administration employee who is supposed to help injured workers file workers’ compensation claims.
If you get hurt and there is no workers’ compensation insurance, then call an ombudsman at the New Mexico Workers’ Compensation Administration and tell that person you want to file a claim against the State of New Mexico Uninsured Employers’ Fund and that you want report an employer who does not have workers’ compensation insurance. The fund has limited money to pay injured workers’ money benefits and medical benefits. It’s not as good as regular workers’ compensation insurance, but it’s better than no benefits at all.
My recommendation is not to accept help from your insurer if you are hurt at work, especially if the employer has workers’ compensation insurance.
Before you are hurt at work, find out where you are supposed to get treatment if you are hurt at work or hurt on the job.
Obviously, if you need emergency medical treatment, your employer should call an ambulance immediately to take you to the nearest emergency room.
For non-emergency work injuries, it is important that you know, BEFORE YOU ARE HURT, where you should go for medical treatment.
Often, an injured workers’ case becomes complicated because he or she did not go to the correct medical provider for treatment of their work injuries.
I recommend that you ask your supervisor. If he or she does not know, then I recommend that you contact your human resources department or the department that handles workers’ compensation cases for the employer and ask where you should go for medical treatment if you are injured at work.
In most cases, employers have a specific medical provider that injured workers are supposed to see for treatment of their work injuries. Alternatively, the employer will tell the worker to go to the medical provider of their choice.
THIS IS IMPORTANT: the employer must tell you one or the other. It is the law.
If the employer tells you to choose your own doctor, find one before you get hurt. The time to try to find a doctor IS NOT WHEN YOU ARE INJURED AT WORK.
If you need a list of possible workers’ compensation doctors, contact me.
SO BASIC #2: FIND OUT WHERE YOU ARE SUPPOSED TO GET TREATMENT IF YOU ARE INJURED AT WORK BEFORE YOU GET HURT AT WORK.
It’s been awhile since I wrote about the basics of New Mexico workers’ compensation. This is especially important now that businesses are reopening after the COVID-19 shut down.
I’ll do a new posting every few days on workers’ compensation basics.
The first thing all workers should do is to check that their employer has workers’ compensation insurance. If your applying for a new job, you should check that the prospective employer has workers’ compensation insurance.
You must know if there is workers’ compensation that will provide money benefits and medical benefits to you BEFORE you are hurt at work.
The law requires workers’ compensation insurance for all employers with three or more workers. All construction and building trades companies are required to have workers’ compensation insurance even if there is only one employee.
It’s easy to confirm if an employer has workers’ compensation insurance.
You can ask your employer, but it could cause problems, especially if there is no workers’ compensation insurance.
The New Mexico Workers’ Compensation Administration has a page to check for coverage.
It is https://workerscomp.nm.gov/WCA-eServices. There is a link on that page that will take you to another page to start the process. You will need the employer’s name and the date for when you want to check for workers’ compensation insurance.
If there is workers’ compensation insurance then you should be covered if you are injured at work. You should periodically check to make sure the workers’ compensation insurance is still in place.
If there is no workers’ compensation insurance then you have a more difficult situation. If you feel comfortable with your employer, you can talk to your supervisor about the lack of workers’ compensation insurance, and ask that the employer get workers’ compensation insurance. However, that could come back on you.
If the employer refuses to get workers’ compensation insurance, then you should think about finding a new job. If you are hurt on the job and there is no workers’ compensation insurance, then it is likely that you will be out of work without pay until you recover from your injuries, and you will have to find a way to pay the medical bills to treat your work injuries.
If you have a family who is depending on your pay and you cannot work, then this could be a nightmare for you and your family, especially if you do not have an emergency fund.
One of the New Mexico Workers’ Compensation Administration many duties is to ensure that employers have workers’ compensation insurance to protect their workers and the workers’ families.
On the New Mexico Workers’ Compensation Administration website at https://workerscomp.nm.gov/about you can see that increasing the number of insured businesses is a strategic goal. The Enforcement Bureau’s main job is to ensure that employers have workers’ compensation insurance and can penalize employers who don’t have workers’ compensation insurance.
You are within your rights to report employers who do not have workers’ compensation insurance. You can call 505 841-6000 and tell the person who answers that you want to report an employer who does not have workers’ compensation insurance. I believe you can make an anonymous report so the employer does not who made the report.
SO, BASIC #1: CONFIRM IF YOUR EMPLOYER HAS WORKERS’ COMPENSATION INSURANCE.