COVID-19 update: Report COVID-19 workplace safety violations to the NM Environment Dept.

To research if your employer is complying with COVID-19 workplace safety requirements got the N.M. Environment Department website: https://www.env.nm.gov

The Environment Department’s website appears to have a lot of information on COVID-19 workplace safety requirements.

There is a map that shows workplace COVID-19 complaints. It is available at: https://gis.web.env.nm.gov/oem/?map=egis .

To file a workplace complaint, email complaints.OSHA@state.nm.us or call 505-476-8700.

If you are planning on going back to work or are being required to go back to work, you should do a little research on your employer to ensure your safety.


Return to work and COVID-19 part 2

To follow up on my last post here’s a list of things you should do if you are returning to work or think you may be returning to work:

  1. If you think returning to work puts you at a specific risk, see your doctor ASAP and document it in writing. If the doctor thinks you should not return he or she needs to document that in writing and the reasons for the opinion;
  2. If you haven’t been tested for COVID-19 consider getting tested. If you are infected at work, you may qualify for workers’ compensation benefits. To qualify you have to prove you were infected at work. If you can document that you did not have COVID-19 before you returned to work through a previous test, then that is at least some evidence to support a workers’compensation claim.
  3. If you believe you have been infected by COVID-19 at work, please contact me ASAP or another workers’ compensation lawyer. If you wait too long to report the exposure, it could limit your benefits or even prevent you from pursuing workers’ compensation benefits.
  4. Confirm with your employer what steps will be taken to protect you and your co-workers.
  5. Confirm with your employer if it will be providing your safety equipment (masks, safety glasses, etc). If not do you have to pay for your own or will the employer reimburse you.
  6. If you think that the safety precautions are inadequate, consider contacting Workforce Solutions and the New Mexico Department of Health. I don’t know if they will accept anonymous complaints.

Obviously, we are all in uncharted waters. I know most employers will try to do the right thing. However, you need to be your own advocate to protect yourself and your family.


COVID-19 and return to work

Businesses are starting to reopen in New Mexico. If you’ve been off work because your employer shut down because of COVID-19, you may be called back to work soon.

If you’re receiving unemployment and are called back, you probably have to return to work even if your unemployment is more than your wage. If you have questions about unemployment, go to the New Mexico Workforce Solutions website at https://www.dws.state.nm.us/en-us for answers.

If you you have a medical condition, such as a compromised immune system, that puts you at risk if you are forced to return to work, you may be able to refuse the job offer and continue to receive unemployment benefits. However, you must get a note from your doctor stating that you should not return to work because of your medical condition and what the medical condition is. If you feel you are in this category, you need to get this documentation ASAP. Once again, start with the Workforce Solutions website if you have questions.

Businesses that are reopening must ensure a safe environment for their employees and their customers. If you are called back to work, you have a right to ask your employer how it will ensure your safety. If you are not satisfied with the answer, you have a right to raise your concerns with your employer in a civil and respectful way. If nothing changes, you have a difficult choice to make. I’m not sure what State agency is enforcing the safety requirements for the businesses that are reopening, but I would start with Workforce Solutions and the State Department of Health.

We all want to get back to our normal lives, but workers should not be asked to take unnecessary risks to do that.


What’s going on at the New Mexico Workers’ Compensation Administration because of COVID-19

It is my understanding that the New Mexico Workers’ Compensation Administration is operating on a very limited basis and that much of its staff is working from home. This is to comply with the social distancing requirements from the Governor and the New Mexico Supreme Court. This link https://workerscomp.nm.gov/Communications has up to date information about COVID-19 and the Administration.

The Administration’s limited operations, however, does not relieve you of the requirements associated with your case. If you have an existing case at the Workers’ Compensation Administration it is critical that you continue to monitor the case and do what is necessary to move it forward, including meeting all deadlines.

If you have a new injury and need to file a case at the Administration you can still do that and should do it as soon as possible. There’s usually no reason to wait to file a workers’ compensation claim, especially if there is a dispute about money and/or medical benefits.

If you have any questions about your workers’ compensation case, please call me at 505 292-8836 or email me at bob@bobscottlaw.com.


Coronavirus and your case

I know that the coronavirus has affected many of my clients’ cases both workers’ compensation and others.

Here’s a short summary of how the Coronavirus may affect your case:

  1. Medical treatment is being limited for all patients. This means that treatment for your work injury has probably been suspended. If you are unsure, call your doctor or provider to see if they are still open. Even if they are open, you will have to make a decision on whether your want to risk exposure by going to the provider’s office. I strongly recommend you stay home if you can. If you feel there is an emergency, call your doctor or provider first. Go to an emergency room or urgent care ONLY if it is ABSOLUTELY necessary. The priority, especially emergency care, is for those with the coronavirus. While your treatment is suspended, continue to follow your doctor’s instructions, including taking your medications and following your restrictions, as much as you can. If you’re doing physical therapy and can do the exercises safely at home, please continue to do the exercises at home. You want to do whatever you can to continue your recovery. However, you always want to be safe and avoid further injury.
  2.   The New Mexico Workers’ Compensation Administration is still open but most of the staff is working from home. All mediations, hearings, and trials will be done remotely for now. If your case is in litigation, I am committed to doing everything reasonably possible to move your case to resolution as soon as possible as long as it doesn’t put your case at risk. So, for example, for most cases I am recommending against video trials. The trial is your one chance to convince the judge that you are entitled to workers’ compensation benefits. The best way to do that is in person, face to face with the judge. If you are interested in a video trial, it’s something we can talk about, but that decision needs to be made carefully..
  3. All depositions will be done remotely, either by phone or video. In most cases, I will do depositions by phone or video because there is usually no risk to the case. If I feel there is a risk, I will probably wait to do the deposition in person. However, getting depositions done sooner often means resolving cases sooner.
  4. If your case is brand new or litigation has just started, you can expect a delay in resolving your case. Usually, a workers’ compensation case cannot be resolved until the worker has had substantial medical treatment. With the suspension of medical treatment because of the coronavirus, resolution of most new workers’ compensation cases will be delayed. I will do whatever I can to move the cases to resolution. However, without the required medical evidence it is very difficult to resolve a case fairly.
  5. The coronavirus may cause delays or interruptions in getting your workers’ compensation money benefits. Many of the workers’ compensation insurers’ employees are working from home causing disruptions to the workers’ compensation system. I know the money benefit is critical to injured workers and their families, and I will do whatever I can to ensure that any interruptions to money benefits are resolved as quickly as possible.
  6. If you have a case in any of the state or federal district courts, please know that the courts are either closed or doing almost everything remotely. This means that most litigation will be delayed for at least a couple of months.
  7. The EEOC and the N.M Human Rights Bureau are also working remotely which means that if you have a case at either agency getting a decision will take longer than usual.

I will continue to post updates periodically.

The coronavirus is serious. We all need to do our part to stop it. For most of us that means doing social distancing. So, please stay at home as much as possible. We also need to understand and accept that this will disrupt all of our lives for awhile. However, it will end, and I am confident that as long as we support and respect one another and follow the rules to stop the spread of this terrible virus, we will be okay in the end.


What a worker needs to know before they get hurt on the job.

Before you get hurt on the job, before you have a workers’ compensation claim, before you need to see a doctor for a work injury, you need to know, at a minimum, the answer to these questions:

  1. What doctor are you are supposed to go to for treatment if you are hurt the job?
  2. Who are you supposed to report a work injury to?
  3. What forms are you supposed to fill out and who do you give them to?
  4. After you’ve seen the doctor, who do you talk to about getting back to work?

If you’re currently employed, ask your supervisor or ask someone in human resources for the answers to these questions.

If you’re starting a new job, ask these questions during the training period. If you don’t get satisfactory answers, ask your supervisor or someone in human resources once you’re working.

Hopefully, you won’t ever get hurt on the job or have to file a workers’ compensation claim. However, if you know the answers to these questions before you are hurt on the job, it can make your workers’ compensation claim go a lot more smoothly and get you back to work sooner.


Calculating money benefits for injured workers in New Mexico

Money benefits after you’ve been injured at work or on the job are crucial for you and your family. But how are they calculated?

In New Mexico, it’s usually straight forward. First, you have to calculate your average weekly wage. The average weekly wage is calculated by averaging the 26 weeks of gross wages (before taxes) before the work accident or work injury. So, you need to gather your wage records for the 26 weeks before the work accident or work injury, add them together and divide the total by 26 weeks. It can be that simple.

Sometimes the wage history is not that simple. If you’ve missed work during the 26 weeks or had weeks of below average pay or above average pay, adjustments may need to be done to calculate a fair average weekly wage. If you earned tips, then it can become complicated.

Once you have calculated the average weekly wage, then you multiply that number by 2/3 or .667. That is your compensation rate and represents the maximum money benefit you would be entitled to after your work injury. The New Mexico Workers’ Compensation Act has a maximum compensation rate that varies from year to year. For 2018 the maximum money benefit is $796.96 per week. The table with these rates can be seen at https://workerscomp.nm.gov/sites/default/files/documents/publications/aww_table.pdf.

Calculating the average weekly wage and the compensation rate can be relatively simple, there are times when it can become complicated. At those times, it is best to consult with an lawyer to do those calculations and address any other issues in your workers’ compensation case. If the average weekly wage is too low, your workers’ compensation benefits will be too low and you will be losing money when you can least afford it after a work injury.

Give me a call. I’d love to talk to you.


Are you an employee? It matters if you’re injured while working.

Are you an employee?

It seems like a very simple question. Thirty years ago that may have been true. It’s not so clear today. Many companies are trying to limit their costs by “outsourcing” their workforce or by trying to classify their employees as “independent contractors” and paying them using a 1099 form.

In New Mexico an injured worker must be an employee in order to file a workers’ compensation claim under the New Mexico Workers’ Compensation Act against his or her employer. If you are an injured on the job and the “employer” can prove you were not its “employee”, you may not have recourse under the New Mexico Workers’ Compensation Act.

Therefore, employment status is critical to a workers’ compensation case. If you have any doubt about your employment status, you should confirm your employment status before you’re injured.

If you are hurt on the job and you’re not an employee, you may still be able to get relief from some other source.

In either case, if you are hurt while working, you should contact an attorney as soon as possible to protect yourself and your family.


Work restrictions and returning to work after a work injury

Many injured workers are confused about their ability to return to work after a work injury.

Generally, an injured worker can return to work with their original employer or for any other employer.

If you want to return to work after a work injury, first you must have your doctor’s WRITTEN work restrictions. This is often a form that lists what you can and can’t do. For example, it may say not lifting over 20 lbs. or no standing for longer than 30 minutes in a two hour period. If you do not understand your restrictions, have your doctor explain them to you.

Second, any work you obtain MUST NOT violate any of your restrictions. So if your restrictions say no lifting over 20 lbs. and the job requires lifting items that weigh 50 lbs. or more, you should not take that work.

If you are able to find a new job that is within your restrictions, that is great. However, you must listen to your body and if there is any indication you are worsening your injuries and/or re-injuring yourself, you should see your doctor immediately to notify him of your new symptoms and to see if you should stop that job.


The New Mexico Workers’ Compensation Administration

Many injured workers I meet do not know that there is a New Mexico State agency that administers the workers’ compensation system in New Mexico. It is called the New Mexico Workers’ Administration. The Administration’s website is http://www.workerscomp.state.nm.us .  Sometimes the injured workers I meet are familiar with the Administration, but mistakenly believe that it’s also the workers’ compensation insurer in their case, which it is not.

The main office is in Albuquerque, and there are satellite offices in Farmington, Santa Fe, Roswell, Las Cruces, Hobbs, and Las Vegas. Check the website for the exact locations.

The Administration has two sections. One section is devoted to resolving disputed claims between injured workers and the employer and its workers’ compensation insurer. I refer to this section as the workers’ compensation Court. The judges, mediators and their staff work in this section. They conduct mediations, settlement conferences, hearings and trial which are called “Formal Hearings”. Because this section handles all of the disputed workers’ compensation cases in New Mexico, it is very busy.

The other section is primarily administrative. It does important work, but does not usually directly interact with injured workers.

The Administration’s website has a lot of useful information for injured workers as well as employers. I advise injured workers to contact me or another workers’ compensation attorney as soon as possible after they are hurt at work. However, if you are waiting for a call back from an attorney or don’t want to retain one right away, then the Administration’s website is a good place to start for general information about the workers’ compensation system in New Mexico.

If you don’t have an attorney, you should probably contact the ombudsman at the Administration. The website states the following about the Administration’s ombudsman program:

The WCA’s Ombudsman Program provides a neutral source of information for workers, employers and other parties. The service is free of charge.

Ombudsmen explain how the workers’ compensation system works. They also help resolve disputes. Ombudsmen can be reached by phone, but you may also request to meet with one in person. Ombudsmen are available at all WCA offices, so you can contact one at the office nearest you. Some ombudsmen are bilingual in English and Spanish, so if help is needed in Spanish, you will be connected to a Spanish-speaking ombudsman.

Ombudsmen will explain your rights, responsibilities and options. They may contact the other party and attempt to resolve your problem. Ombudsmen are not advocates for any party, and cannot give legal advice. Communications with ombudsmen are confidential.

Ombudsmen cannot help any party represented by an attorney, nor can they help with any claim that is in the formal adjudication phase.

Contact an ombudsman toll free at 1-866-967-5667, Monday – Friday, 8 a.m. – 5 p.m.

I hope that his has been useful. If you’ve been injured at work or have questions about your workers’ compensation injury, please give us a call at 505 292-8836. Or, use the web contact on my website. Thanks.