Editors Note: Frontera NorteSur continues with our series by New Mexico State University student writers. Todays contribution examines the continued legal wrangling over a 2011 ruling by New Mexico State District Court Judge Valerie Huling that the exclusion of ranch and farm laborers from the state workers comp system is unconstitutional. The author of the article, Marianne L. Bowers, recently graduated from New Mexico State with a masters degree in government. She also holds a J.D. January 12, 2015 NMSU Student Series Why Do Farmworkers Still Lack Workers Comp? It has been more than three years since the New Mexico workers compensation law’s exclusion for farm and ranch workers was declared unconstitutional by New Mexico District Court Judge Valerie Huling in a lawsuit filed by the New Mexico Center on Law and Poverty (NMCLP) against the New Mexico Workers’ Compensation Administration (WCA). The WCA is the state agency tasked with enforcing the New Mexico’s Workers’ Compensation Act. According to the WCA Guidebook for Employers, 2014 edition, posted on the WCA website: “The Workers’ Compensation Administration was created to assure the timely delivery of benefits to injured workers at a reasonable cost to employers. Workers’ compensation is a system of insurance that protects workers and employers from some of the losses caused by on-the-job accidents and job-related illnesses.” Job-related accidents and illnesses are abundant among New Mexico farm and ranch workers. A 2012 survey of New Mexican field and dairy Workers conducted by the NMCLP, in which 60 New Mexico dairy workers and 193 New Mexico field workers were surveyed, found that 47% of the field workers reported having experienced at least one pesticide-related health problem and 53% of the dairy workers surveyed reported that they have been injured while working on a dairy in New Mexico. Gail Evans, NMCLP director, recently told FNS that the WCA is still violating Judge Huling’s ruling three years later. According to Evans, the WCA has not informed its entire staff around the state that the farm and ranch exclusion has been ruled unconstitutional. Whats more, she added, the WCA continues to issue statements that imply it is appealing the issue of the constitutionality of the exception. It is not. The WCA has never challenged the district court’s ruling that the exclusion was unconstitutional, according to the New Mexico Court of Appeals, the second highest court in New Mexico. The Court of Appeals noted that Judge Huling’s decision “stands” and the WCA is “bound” by it. Yet the WCA has not taken any definitive measures to implement the judge’s ruling, and instead has sent mixed messages to employers. In the WCA Guidebook for Employers, 2014 edition posted on its website, the WCA still tells employers that “coverage is not required for farm and ranch laborers,” but suggests ag industry employers take out workers compensation coverage. A statement on the WCA website reads as follows: A District Court in Bernalillo County has declared the farm and ranch exclusion unconstitutional. Cases are pending before the Court of Appeals that should determine how the District Court’s ruling applies to employers of farm and ranch laborers throughout the state. All employers, including employers of farm and ranch laborers, are strongly encouraged to get workers compensation coverage for their employees. In an effort to force the WCA to comply with the District Court ruling, the NMCLP sought and obtained an injunction against the WCA last July. The injunction, issued by Judge Huling, prohibits the agency from taking any position contrary to her ruling and threatens sanctions against the agency if it continues to ignore her ruling. That was six months ago. Meanwhile, the Employers’ Guidebook and website remain unchanged. “We will consider requesting monetary sanctions if [the WCA] continue[s] to violate the law, Evans said. FNS contacted the WCA seeking clarification of the agency’s position and received this response from Diana Sandoval-Tapia, WCA Public Information Officer: “Since the WCA posted its update on the farm and ranch statutory exclusion, several developments have occurred in the District Court and Court of Appeals. Two cases are currently pending appeal before the Court of Appeals, Noe Rodriguez and Maria Aguirre, that should clarify employers’ right to raise the farm and ranch exclusion as a defense to a workers’ compensation claim. The farm and ranch industry has filed an amicus brief in the Rodriguez appeal. The WCA is not a party to either Rodriguez or Aguirre, but the Uninsured Employers’ Fund is a party to the Rodriguez appeal. On October 17, 2014, a District Court in Bernalillo County issued a supplemental order ruling that the WCA is bound by the District Court’s determination that the farm and ranch exclusion is unconstitutional, but the District Court also ruled that its determination is not binding on workers’ compensation judges or the Uninsured Employers’ Fund. Plaintiffs to the District Court action have appealed the supplemental order to the Court of Appeals. The WCA hopes and anticipates that all three cases will provide clarity from appellate courts on the obligation of farm, ranches, and dairies statewide to procure workers’ compensation insurance coverage.” The Uninsured Employers Fund is administered by the WCA. The two cases pending before the Court of Appeals, besides the one to which the WCA is a party, are workers’ compensation claims filed by injured farm and dairy workers. In both cases, the workers employers contend that they are not bound by Judge Huling’s order. Noe Rodriquez is the worker in the first case seeking workers’ compensation benefits. He was employed as a dairy worker at Brand West Dairy in Lovington, New Mexico, when he was pushed up against a metal door by a cow and head-butted, causing him to fall face first into the concrete. Consequently, he suffered severe injuries to his head, resulting in neurological damage. He was hospitalized for eight days, two of which were spent in a coma. Rodriguez remains paralyzed on one side of his face and has significantly decreased sight in one of his eyes. Farmworker Maria Aguirre is the claimant in the second case. She tripped while picking chile for M.A. & Sons Chili Products in southern New Mexicos Hatch Valley and felt intense pain in her arm. Aguirres left wrist was fractured, and she was forced to undergo surgery and open reduction internal fixation of the left distal radius. To this day, Aguirre still suffers the effects of her injury and is not able to perform farm work like she did prior to the injury. A friend-of- the-court brief has been filed by the New Mexico Cattle Growers Association, the New Mexico Farm and Livestock Bureau, Dairy Producers of New Mexico and Dairy Farmers of New Mexico in the Rodriquez case in which their attorney argues that the farm and ranch worker exclusion is constitutional because it is rationally related to legitimate government purposes. According to the brief: “Farm and ranch workers are often seasonal and, as such, inherently transient. Moreover, some farm and ranch workers . . . are undocumented. Undocumented workers are often difficult to locate and, because they are undocumented, they often avoid contact with governmental authorities. Thus, administering their workers’ compensation claims presents a challenge.” The industry organizations and their lawyer also argue that broader economic benefits come from the farm and ranch worker exclusion. The farm and ranch labor exception is founded on the Legislature’s determination that lowering the costs of producing farm, agricultural and ranch products translates into decreased costs to the public for the products, fruits, vegetables, meat, etc. produced by New Mexico’s farms, ranches and dairies,” the brief states. On the other hand, Judge Huling earlier noted the economic costs to society related to the workers comp exclusion. “According to the State of New Mexico, the more workers included in workers’ compensation coverage, the better, because coverage is generally positive, Huling wrote. The district court judge continued: Also according to the State, there are negative impacts on society at large by not having all workers covered by workers’ compensation. These include a negative impact on the health system since there are more uninsured patients, a negative impact on tax payers who ultimately must cover the costs, and a negative impact on society since uncovered injured workers cannot return to work as quickly as those with coverage. There is a negative impact on injured workers and their families since those without coverage do not have the same access to health care as those with coverage, and those without coverage rely on public benefits more than those with coverage.” The WCA has taken no direct position in the lawsuits pending in the Court of Appeals despite its direct involvement with the entities that deal with the issue. In addition to its involvement with the Uninsured Employers’ Fund, the Director of the WCA appoints the workers’ compensation judges and is responsible for reviewing aspects of their performance. The WCA argued to Judge Huling, and Judge Huling agreed, that the Fund was not specifically named as a party in the lawsuit filed by the NMCLP and, therefore, it is not bound by Judge Huling’s decision. Despite the close relationship between the WCA and the workers’ compensation judges, Judge Huling declined to extend her ruling to the judges. The NMCLP is appealing Huling’s ruling that the Fund and the workers’ compensation judges are not bound by her decision that the exclusion is unconstitutional. By taking no affirmative action on Judge Huling’s decision that the exclusion is unconstitutional, and by stating that the issue still requires clarity, farm and ranch labor legal advocate Evans maintained that the WCA is acting against the interests of the workers and supporting the position taken by employers and the farm and ranch industry in the pending workers’ compensation claims. On this score, the Workers Compensation Act provides that the rights and interests of the employer are not to be favored over those of the employee. FNS asked the WCA whether it has communicated with the New Mexico Cattle Growers Association, the New Mexico Farm and Livestock Bureau, Dairy Producers of New Mexico or the Dairy Farmers of New Mexico since Judge Huling declared the exclusion unconstitutional. WCA Public Information Officer Diana Sandoval-Tapia replied that WCA staff has, in fact, communicated by phone and by email with staff of the Cattle Growers Association regarding the farm and ranch issue. In order to obtain copies of the emails, FNS was told to submit a formal Inspection of Public Records Act (IPRA) request. FNS has submitted the IPRA request. Despite the claim by the WCA that the issue is complicated, the WCA acknowledges that it is bound by the District Court’s determination that the farm and ranch exclusion is unconstitutional. The Rodriquez and Aguirre lawsuits have been consolidated for oral argument before the Court of Appeals. A court date is scheduled for Thursday, February 19, 2015 at 10:00 a.m. in the Albuquerque Court of Appeals Pamela B. Minzner Law Center. The NMCLP expects a decision from the Court of Appeals a few months after oral argument. The WCA should stop violating Judge Huling’s order and abide by her decision. The website and Employers guide should be updated to show that the farm and ranch exclusion is unconstitutional, insisted the NMCLPs Gail Evans. The WCA staff should be formally advised that the exclusion is unconstitutional. Three years of refusing to follow the law is enough. -Marianne L. Bowers For an earlier FNS story that gives background to Judge Hulings ruling: fnsnews.nmsu.edu/100-years-of-no-workers-comp/ Frontera NorteSur: on-line, U.S.-Mexico border news Center for Latin American and Border Studies New Mexico State University Las Cruces, New Mexico
Posted on: Mon, 12 Jan 2015 20:43:14 +0000