Monday, March 17, 2014

Lack of clarity in North American policy leaves injured truckers in legal limbo

As predicted by observers over a decade ago, the lack of clarity in North American policy governing workplace injuries suffered by truckers who cross international borders under the NAFTA Trucking provisions has left injured truckers in legal limbo.  This legal limbo has empowered Mexican employers to attempt to utilize laws implementing the NAFTA and NAALC to argue that they need not comply with state workers' compensation laws once they cross into the United States, causing their employees uncertainty and lengthy delays in payment for medical treatment incurred in the US when they are injured.

Implementation of the NAFTA Trucking provisions by the US has been partial and highly contested.  After a number of starts and stops over the past two decades, in July 2011 the US Federal Motor Carrier Safety Administration (FMCSA) reissued regulations and implemented a pilot program allowing some Mexican trucking companies to begin long haul operation in US territory.  The Mexican National Chamber of Transporters, CANACAR, has filed a request for arbitration under the NAFTA in response to what it feels is inadequate compliance with NAFTA's trucking provisions.

Part of the confusion over workplace injuries arises from jurisdictional issues governing compensation for on-the-job injuries in the US and Canada.  While in Mexico, compensation for workplace injuries is a matter of federal jurisdiction, workers' compensation in the US and Canada is a matter of state and provincial jurisdiction.  FMCSA regulations are not crystal clear on the requirement that Mexican trucking companies operating in US territory obtain workers' compensation insurance, although the language of the regulations seems to strongly imply that obtaining state workers' compensation insurance is a requirement for entering US territory.  While each US state and Canadian province has its own workers' compensation statute, interstate motor carriers operating in the US can obtain workers' compensation policies that allow them to operate in a number of states.  As I argued in my article in 2006, however, federal border authorities must include workers' compensation coverage in their checklist when allowing Mexican trucks to enter US territory.

Earlier this year, the Arizona Court of Appeals issued a decision in a workers' compensation case that provides more clarity on the issue.  In its January 14, 2014 decision in Porteadores del Noroeste S.A. de C.V. v. Industrial Commission of Arizona/Valenzuela, the Arizona Court of Appeals held that the Mexican trucking company employer in question was required to obtain workers' compensation insurance as required by Arizona law and specifically rejected the employer's somewhat specious argument that the NAFTA and NAALC pre-empted the exercise by the State of Arizona of jurisdiction over Mexican trucking companies operating within Arizona territory.

In 2010, Adan Valenzuela, a Mexican citizen operating a long haul truck for a subcontractor of the Mexican trucking company Porteadores del Noroeste S.A. de C.V. was involved in a trucking accident in the State of Arizona.  While Mr. Valenzuela received wage and medical benefits from the Mexican Institute of Social Security as required by Mexican law, he also incurred tens of thousands of dollars worth of medical bills for emergency and other medical care in the US and Mexico.  Mr. Valenzuela's Mexico-based employer had not obtained workers' compensation insurance as required under Arizona law, so the Arizona Uninsured Workers' Fund paid some but not all of the medical bills incurred by Mr. Valenzuela as a result of his workplace injury.  Mr. Valenzuela and his attorney Wes Montrose filed a claim with the Arizona Workers Compensation Commission which was granted.  The Arizona Court of Appeals upheld the Commission's decision to award Mr. Valenzuela's claim based on fundamental public policies underlying the Arizona Workers' Compensation Act.

The Porteadores decision of the Arizona Court of Appeals is an important precedent emphasizing that Mexican and Canadian long haul trucking operators must obtain proper workers' compensation insurance policies while operating in US territory.  Nevertheless, it took almost 4 years for Mr. Valenzuela to be fully compensated for his injuries.  More clarity in regulatory and policy guidance from North American and federal authorities in Mexico, the US and Canada would prevent future injured workers from having to wait such a long time for full compensation in similar cases.