All Work, No Pay

Joseph Sorrentino April 24, 2013

Before a bull attacked him in 2008, Joe Griego had already suffered a broken wrist and fractured fingers; he’d been kicked in the knee by a cow and pinned against the fence in a milking pen. Despite the dangers of his job, an exception in New Mexico’s Workers’ Compensation Act excludes farmworkers like Griego—but a lawsuit could change that.

Joe Griego fig­ures the bull was done with him in about 10 sec­onds. It was the longest 10 sec­onds of his life.

On Nov. 22, 2008, he was fin­ish­ing his shift at Tres Her­manos Dairy in Veg­ui­ta, south of Albu­querque, when a recal­ci­trant bull refused to return to its pen. When Griego turned to ask a co-work­er to help, the bull took advantage.

They say bulls are cow­ards,” he says. They’ll attack when your back is turned.” The bull hit Griego at least three times, with the final blow stuff­ing him into the low­er gap in a pipe fence.

I heard all my bones break,” he says. I thought I was gone.”

The attack knocked out sev­er­al of his teeth and left him with eight bro­ken ribs, a frac­tured back, lung con­tu­sions and a dis­lo­cat­ed shoul­der. He spent about 10 days in the hos­pi­tal and hasn’t been able to work since. He says the dairy’s own­er gave him like two pay­checks” then said he couldn’t pay him any more. I told him, You do what you got­ta do, and I’ll do what I got­ta do,’” he says.

What he did was look for an attor­ney to take his case to the work­ers’ com­pen­sa­tion court, a court specif­i­cal­ly set up to hear cas­es in which injured work­ers are suing employ­ers for lost wages.

Work­ers’ comp is essen­tial­ly a no-fault insur­ance pro­gram designed to com­pen­sate work­ers for a por­tion of their lost wages and med­ical expens­es when they’re injured on the job. It shifts some of the bur­den of car­ing for injured work­ers from tax­pay­ers to pri­vate employers.

Typ­i­cal­ly, if you have three employ­ees or more, you’re required to have work­ers’ comp cov­er­age,” says Ned Fuller, the direc­tor of New Mexico’s Work­ers’ Com­pen­sa­tion Administration.

Work­ers’ comp require­ments for farm­work­ers vary wide­ly from state to state. Accord­ing to the Farm­work­er Jus­tice web­site, only 13 states require work­ers’ comp for farm­work­ers (the most recent data is from 2009). For the rest of the states, it’s either option­al or required but limited.

But it wasn’t until sev­er­al lawyers turned him down that Griego learned about a loop­hole in the work­ers’ comp law. At the time he was injured, dairy work­ers who worked direct­ly with ani­mals weren’t covered.

There’s an exemp­tion for farm and ranch labor­ers,” Fuller explains. Pro­cess­ing, book­keep­ing, those kinds of things” are cov­ered, he says. The idea is that if you’re inside, then you’re cov­ered by work­ers’ comp and if not, you’re not cov­ered.” Iron­i­cal­ly, that leaves the peo­ple most like­ly to be injured on the job — like Griego — out in the cold.

After the attack, Griego’s life slow­ly fell apart. Once a big, active man who played foot­ball in high school and helped coach his son’s team, he left the hos­pi­tal bare­ly able to walk and spent most of the next two months in a wheel­chair. Mount­ing bills and an inabil­i­ty to work took a toll on his home life.

My [wife] was work­ing three jobs to keep us above water,” he says. That didn’t last long, man. It was too hard on her.” They lost their cars and the home they’d recent­ly bought. Final­ly, she left him. The sep­a­ra­tion sent Griego into a down­ward spiral.

I actu­al­ly gave up,” he says. I was just so depressed. I didn’t want to be around anybody.”

Even­tu­al­ly, his life began to sta­bi­lize, and he con­nect­ed with Maria Mar­tinez Sanchez and Gail Evans, two attor­neys at the New Mex­i­co Cen­ter on Law and Pover­ty in Albu­querque. At the time, they were work­ing with the Leg­is­la­ture to expand work­ers’ comp. When that failed, they filed a case in dis­trict court, argu­ing that the worker’s comp law was uncon­sti­tu­tion­al because, by exclud­ing cer­tain work­ers, it vio­lates the state Constitution’s equal pro­tec­tion clause.

The the­o­ry behind equal pro­tec­tion is that sim­i­lar­ly sit­u­at­ed indi­vid­u­als shouldn’t be treat­ed dis­sim­i­lar­ly,” Mar­tinez Sanchez says. It’s essen­tial­ly anoth­er term for discrimination.”

The NMCLP filed the law­suit on behalf of Griego and two oth­er injured dairy work­ers in 2009. In Decem­ber 2011, a dis­trict court judge ruled that the farm­work­er excep­tion was, indeed, uncon­sti­tu­tion­al. Griego and his co-defen­dants’ cas­es were reopened and heard before the work­ers’ comp court; they recent­ly settled.

But the fight is far from over.

The WCA has appealed, say­ing that because it has its own courts, the dis­trict court had no right to rule on Griego’s case. The case is expect­ed to go before the Court of Appeals some­time this year.

But what hap­pens to farm and ranch work­ers injured since the 2011 ruling?

They’re not cov­ered,” Fuller says. That doesn’t mean it’s right. No ques­tion that they’re not covered.”

Evans, NMCLP’s lead attor­ney on the case, strong­ly dis­agrees. Giv­en the dis­trict court rul­ing, she says, the [work­ers’ comp] law is void, period.”

For Mar­tinez Sanchez, it isn’t some nuanced legal debate. 

To see where [Griego] was short­ly after his injury — which was phys­i­cal­ly hurt, but his fam­i­ly intact, liv­ing in his own home with his car and his chil­dren — to where he is now as a result of an injury at work…it’s infu­ri­at­ing,” she says. This man’s life has kind of crumbled.”

Mean­while, Griego is slow­ly pick­ing up the pieces. He plans to use the mon­ey from his set­tle­ment to buy a used trail­er and move two of his chil­dren in with him. He’s doing odd jobs but is find­ing it tough.

Some­thing that would take some­body else four, five hours takes me all day cause I got­ta stop,” he says. I got­ta sit down and rest…I wake up in pain…I try to deal with it.” Worse, though, is the pain of his divorce.

A house, a car, you can replace them,” he says. I was mar­ried for 20 years. I lost the most impor­tant thing in my life.” He admits to feel­ing some anger when he recalls how the Leg­is­la­ture con­sid­ered chang­ing the work­ers’ comp law in 2009.

I went to San­ta Fe with [Mar­tinez Sanchez], and they’d just turned down the work­ers’ comp [leg­is­la­tion],” he says. (The bill died in com­mit­tee.) Three days after they turned it down for me and oth­er peo­ple work­ing in agri­cul­ture, they passed three laws: one to take care of hors­es, one for dogs, and there was one oth­er. They pro­tect ani­mals more than they pro­tect us.”

Orig­i­nal­ly pub­lished in the San­ta Fe Reporter.

Joseph Sor­renti­no is a writer and pho­tog­ra­ph­er. He has been doc­u­ment­ing the lives of agri­cul­tur­al work­ers on both sides of the U.S./Mexico bor­der for 12 years.
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