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Commuting case has no impact on workers’ compensation reform

By Merilee Dannemann

The New Mexico Court of Appeals ruled recently that a certain state employee is entitled to sue the state in district court instead of being restricted to workers’ compensation.

A friend of mine e-mailed:  “Seems like it unravels the whole (workers’ comp) reform.”

No, it doesn’t.

For those who may be alarmed, some explanation:

First, this case is not that big a deal, except to the parties directly involved.

Second, the plaintiff’s attorneys who are dancing around the maypole, hailing this as a victory, should pipe down.

It’s not that big a victory either, and they will embarrass themselves if they keep it up.  

Third, the issues raised in this case are not related to the famous New Mexico workers’ compensation reform.

The reform is in many ways unraveling, and that is a serious matter, but this case is about issues much more basic than the reform.  

The story is this: A state employee, commuting to work from Albuquerque to Santa Fe via the Park and Ride system, fell into an unmarked hole in a state-owned parking lot and broke her leg.

Did she have the right to sue the state because the hole was negligently left unmarked, or was she restricted to workers’ compensation?

Two Court of Appeals judges said she gets to sue.  The third judge on the panel disagreed.

If the parking lot had been owned by any entity other than her employer, this would have been clear. The  owner left an unmarked hole.

It’s a tort claim.

Workers’ compensation has a very complicated rule — not actually a rule but a pile of court decisions — called the Going and Coming rule, which attempts to set guidelines for when a worker is covered by workers’ compensation during commuting to work and when not.

Most commuting is not covered.

In this case, the parking lot was owned by the same entity that employed the plaintiff — the state of New Mexico (though it’s arguable whether the state or her specific agency should be considered her employer).

Imagine that it’s Saturday and a public school teacher gets hurt while playing tennis, purely for her own recreation, on a school tennis court that is open to the public.  

Should that injury be covered by work comp? No. She’s not working.

The fact that her employer owns the tennis court doesn’t change that status.  

There is another side of this story to consider.

For a tort claim to succeed, the plaintiff must show that the defendant was at fault — for example, by negligently failing to cordon off a pothole.

But workers’ compensation is a no-fault system.

If commuting accidents were within the boundaries of workers’ compensation, commuters would be covered for tripping over their own shoelaces.

Indeed, if workers get hurt tripping over their own shoelaces at work, they are covered — unless they did it on purpose, that is.

The no-fault principle — which some people find deeply unjust — is the tradeoff for the “exclusive remedy” doctrine that controls employers’ cost by limiting the amount of recovery — which many other people find deeply unjust.

The biggest lesson to be learned from this case is that this scenario is so improbable that it took until 2010 for a case to reach the Court of Appeals.

This case should not be the excuse for the next reform of the workers’ compensation law.

On the other hand, the law is so badly in need of a new round of reform that any excuse should suffice.

Dannemann is a columnist for New Mexico News Service.