Suing Over a Work Injury in New Mexico

Generally no. When an employer is subject to the Workers' Compensation Act and has complied with it, including insurance, both employer and worker surrender all other causes of action for the worker's injury or death, and no suit outside the Act may be brought against the employer or its insurer; complying employers and their employees, including managers and supervisors, are not subject to any other liability. The exclusive remedy applies only when the employer has complied with the insurance requirements; in a negligence suit against an employer, the employer cannot use the defenses of assumption of risk, a co-worker's negligence, or the worker's own non-willful negligence.

Yes. The Act does not affect a worker's right to recover damages from someone other than the employer or a co-employee, but the worker cannot both recover those damages and keep compensation for the same injuries. Receiving compensation operates as an assignment to the employer or its insurer of the worker's claim against the third party, to the extent of compensation and benefits paid. The worker may keep uninsured motorist benefits only if the worker paid the premium for that coverage.

New Mexico's Uninsured Employers' Fund, run by the Workers' Compensation Administration, pays benefits to an injured worker whose employer failed to carry coverage, for injuries in New Mexico that would be compensable (workers who elected out of the Act are not eligible), and acts as payor of last resort. The fund is subrogated to the worker's rights against the employer, and the director or a judge must order the uninsured employer to reimburse the fund with interest, costs and attorney fees and pay a penalty of 15% to 50% of the total award. Because the exclusive-remedy protection applies only to employers that complied with the insurance requirements, an uninsured employer can also be sued in court, without the defenses of assumption of risk, co-worker negligence or the worker's non-willful negligence.