Farmers are threatened

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Workers’ comp: Do you want it or not?

By Merilee Dannemann

New legal developments related to the workers’ compensation system are affecting two important New Mexico industries – in precisely opposite ways, for precisely opposite reasons.
Before this discussion continues, let me jump ahead to a conclusion, lest the reader assume I am a heartless, anti-worker lackey of management.
In America, people who get hurt at work should be well and compassionately taken care of, without anybody needing to sue anybody.
The question is whether workers’ compensation is the right delivery system.
Some farm workers want coverage.
An advocacy group, the Center on Law and Poverty, is determined to get rid of the exemption for farm and ranch workers (prior case law has already changed the meaning of this language, so some farms and ranches are already required to be covered, and this is a great cause of confusion.)
After several failed attempts at legislation, this group went to the courts. A case based on three injured dairy workers was heard at District Court in Albuquerque in 2011.
The judge ruled in November in their favor.
Before reading the decision I would have said this case will undoubtedly be appealed, but now I’m not sure. The defendant was not the industry but the state, represented by the attorney general, and the judicial decision was strange.
It appears the AG stipulated without argument to much of what the plaintiffs alleged, including, among other things, a historical pattern of abuse of workers by New Mexico farmers and ranchers.
If the decision is upheld, a few things are predictable. Workers’ compensation is expensive for industries that use physical labor.
Farms and ranches are under stress from drought, environmental regulations and other factors.
This additional cost will put some out of business; and some family operations will be forced to sell out to corporate agribusiness. I don’t see either of these outcomes as beneficial for New Mexico.
On the other hand, workers’ compensation may not be good enough for an injured film industry worker.
A recent copyrighted story in the Albuquerque Journal reports on a lawsuit filed by a worker severely injured working in the film “Cowboys and Aliens.”
The worker’s attorney, Leon Hunt of Santa Fe, told me the worker is covered and being taken care of through workers’ compensation.
The lawsuit is against companies that were not her employer:  DW Studios, Dreamworks Productions and Crane Services.
The workers’ compensation law does not prevent suits against such third parties, but it does require giving back some of the proceeds to the workers’ compensation insurer.
Hunt said the worker’s employer was a subsidiary of Dreamworks.
He expects that to be an issue in the lawsuit; entities related to the worker’s employer can claim the employer’s protection from non-work-comp injury claims.
The argument has been made that workers’ compensation is not fair to highly paid movie workers because the wage replacement benefits, capped by law, do not compensate them adequately for their wage loss.
So far this argument has received little sympathy from the influential Workers’ Comp Advisory Council. This is a reasonable but troublesome point. Workers who earn high wages receive more dollars but much smaller percentages of lost wages than lower wage workers  (the cap is $699 per week for a 2011 injury, $733 for 2012).
But if New Mexico gets too generous with injured movie workers, premiums will go up; since we are in fierce competition with other states, if these costs increase enough, it would be another blow to the industry we worked so hard to bring here.
I recently wrote about special protections enacted into law for the space industry.
It’s good to be in a glamour industry. Farming, not so much.

Merilee Dannemann
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News Services 2012