Get drunk, get hurt, get paid: NM lawmakers trying to fix compensation loophole


DRUNK ON THE JOB: In New Mexico, workers can test positive for drugs and alcohol but still qualify for workers’ comp if they injure themselves on the job.

By Rob Nikolewski │ New Mexico Watchdog

SANTA FE, N.M. — It sounds crazy, but thanks to a poorly worded law employees who hurt themselves or others while drunk or stoned on the job in New Mexico are often eligible to receive workers’ compensation benefits.

But with a 30-day legislative session around the corner, lawmakers will try to change that.

“I’m hopeful, let’s put it that way,” Rep. Dennis Roch, R-Texico, told New Mexico Watchdog on Monday. “It’s a personal responsibility issue.”

Roch plans to introduce a bill that will close a loophole in the state’s Workers’ Compensation Act, which an appellate court says is vaguely worded and, business leaders say, costs employers thousands of dollars in claims.

In some cases, New Mexico taxpayers get stuck with the tab.

For example, in 2006 a city sanitation employee in Las Cruces fell off a garbage truck and injured his head, wrists and a hip. Some three hours later the worker was found to have a blood-alcohol level of .12, well above the .08 legal limit in New Mexico.

But because of a lack of clarity in the Workers’ Compensation Act, an appeals court ruled the employee was entitled to 90 percent of his workman’s compensation claim, which cost taxpayers in Las Cruces about $90,000.

“The intent of the law called for a penalty to be built in if an employee showed up for work drunk and got into a car accident, but how the law is applied now, it’s very hard for that to go into effect,” said Darin Childers, director of the New Mexico Workers’ Compensation Advisory Council.

The court has called on the Legislature to clean it up, but Roch has been turned back in two prior attempts.

In last year’s 60-day session, Roch’s bill was tabled by the House Labor and Human Resources Committee on a party-line vote, with all five Democrats voting to table the bill and all four Republicans voting against it.

“It was kind of overbearing and punitive in terms of the worker,” Rep. Miguel Garcia, D-Albuquerque, told New Mexico Watchdog at the time. “You’re also dealing with issues of family members who are heirs to entitlements.”

“But what about the family of the employee who is injured on the job by a fellow employee who’s impaired?” Roch said. “If someone makes that decision (to drink or take drugs), they ought not be rewarded.”

The Builders Trust of New Mexico, a coalition of home builders and contractors, calls for tightening the law, citing statistics that show workers’ compensation claims are 20 percent higher in New Mexico than the national average, and workers’ comp insurance premiums are going up 4 percent in New Mexico while premiums are falling in 19 other states.

“In construction, unfortunately, we have problems with employees using drugs and alcohol,” said Jack Milarch, CEO of the Builders Trust. “Companies can literally be put out of business because these claims are terribly expensive.”

As worded, the statute allows denying compensation only if the worker’s drug or alcohol condition was the sole factor in causing an accident, which critics say makes it almost impossible to deny a claim.

“The statute needs to be fixed,” said Childers.”Whether it’s more favorable to the employer or more favorable to the employee isn’t really our call, but something needs to happen.”

The Builders Trust is striking all references to prescription medication.

“The powers that be didn’t seem to be willing to take that on” in previous sessions, Milarch said, “so we decided to avoid that. We want to focus on illegal drugs and alcohol this time.”

In a 30-day legislative session, any bill not involving appropriations or revenue needs a message from the governor — put “on the call” — for it to be debated in committee. New Mexico Watchdog asked the office of Gov. Susana Martinez whether a workers’ compensation bill would be included on the agenda, but our messages haven’t been returned.

“I have not received word yet, but it was put on the call before and I have no reason to think she won’t this year,” Roch said.

Contact Rob Nikolewski at and follow him on Twitter @robnikolewski

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