0001| SENATE BILL 120 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| DON KIDD | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO WORKERS' COMPENSATION; NARROWING THE DEFINITION OF | 0012| A CONTRACTOR; EXTENDING TEMPORARY TOTAL DISABILITY BENEFITS; | 0013| AMENDING AND REPEALING SECTIONS OF THE WORKERS' COMPENSATION | 0014| ACT. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. Section 52-1-22 NMSA 1978 (being Laws 1965, | 0018| Chapter 295, Section 15, as amended) is amended to read: | 0019| "52-1-22. WORK NOT CASUAL EMPLOYMENT.-- | 0020| A. As used in the Workers' Compensation Act, | 0021| except as provided in Subsection B of this section, or | 0022| unless the context otherwise requires, where any employer | 0023| procures any work to be done wholly or in part for him by a | 0024| contractor other than an independent contractor and the work | 0025| so procured to be done is a part or process in the trade or | - 1 - 0001| business or undertaking of ~~[such]~~ the employer, then | 0002| ~~[such]~~ the employer shall be liable to pay all | 0003| compensation under the Workers' Compensation Act to the same | 0004| extent as if the work were done without the intervention of | 0005| such contractor. The work so procured to be done shall not be | 0006| construed to be "casual employment". | 0007| B. When a contractor has contracted directly with | 0008| an owner or owner's agent, and the contractor procures a | 0009| subcontractor to perform any part of that contract whether | 0010| wholly or in part: | 0011| (1) the contractor shall be considered an | 0012| employer of the subcontractor's employees; | 0013| (2) the contractor shall have the immunity of | 0014| an employer provided by the Workers' Compensation Act; and | 0015| (3) unless the subcontractor has provided | 0016| compensation to his employees, the contractor shall be liable | 0017| for payment of compensation to the employees of the | 0018| subcontractor for the work performed. | 0019| C. The contractor or his insurer may recover the | 0020| amount of the compensation and the cost of expenses incurred | 0021| in the recovery from the subcontractor." | 0022| Section 2. Section 52-1-25.1 NMSA 1978 (being Laws 1990 | 0023| (2nd S.S.), Chapter 2, Section 10) is amended to read: | 0024| "52-l-25.l. TEMPORARY TOTAL DISABILITY--RETURN TO WORK.-- | 0025| A. As used in the Workers' Compensation Act, | - 2 - 0001| "temporary total disability" means the inability of ~~[the]~~ | 0002| a worker, by reason of accidental injury arising out of and | 0003| in the course of his employment, to perform his duties ~~[prior~~ | 0004| ~~to the date of his maximum medical improvement]~~ from the | 0005| date of injury until thirteen weeks following maximum medical | 0006| improvement. | 0007| B. If, ~~[prior to the date of maximum medical~~ | 0008| ~~improvement]~~ while temporarily totally disabled, an injured | 0009| worker's health care provider releases the worker to return to | 0010| work and the employer offers work at the worker's pre-injury | 0011| wage, the worker is not entitled to temporary total disability | 0012| benefits. | 0013| C. If, ~~[prior to the date of maximum medical~~ | 0014| ~~improvement]~~ while temporarily totally disabled, an injured | 0015| worker's health care provider releases the worker to return to | 0016| work and the employer offers work at less than the worker's | 0017| pre-injury wage, the worker is disabled and shall receive | 0018| temporary total disability compensation benefits equal to | 0019| sixty-six and two-thirds percent of the difference between the | 0020| worker's pre-injury wage and his post-injury wage. | 0021| D. For injuries occurring on or after January 1, | 0022| 1999, if on or after the initial date of maximum medical | 0023| improvement, the employer does not offer work to the injured | 0024| worker at ninety-six percent of his pre-injury wage within his | 0025| permanent physical restrictions from the work-related injury | - 3 - 0001| as determined by a designated health care provider, the worker | 0002| shall be eligible to receive bi-weekly temporary total | 0003| disability benefits for a period not to exceed thirteen weeks | 0004| for any one work-related injury. The worker shall not be | 0005| entitled to the additional temporary total disability benefits | 0006| if he is employed or if he refuses the employer's job offer. | 0007| ~~[D.]~~ E. If the worker returns to work pursuant | 0008| to the provisions of Subsection B of this section, the | 0009| employer shall continue to provide reasonable and necessary | 0010| medical care pursuant to Section 52-l-49 NMSA l978." | 0011| Section 3. Section 52-1-41 NMSA 1978 (being Laws 1959, | 0012| Chapter 67, Section 20, as amended) is amended to read: | 0013| "52-l-41. COMPENSATION BENEFITS--TOTAL DISABILITY.-- | 0014| A. For total disability, the worker shall receive, | 0015| during the period of that disability, sixty-six and two-thirds | 0016| percent of his average weekly wage, not to exceed a maximum | 0017| compensation of ninety dollars ($90.00) a week, effective July | 0018| 1, 1975; and not to exceed a maximum compensation of sixty-six | 0019| and two-thirds percent of the average weekly wage in the | 0020| state, a week, effective January l, 1976; and not to exceed a | 0021| maximum compensation of seventy-eight percent of the average | 0022| weekly wage in the state, a week, effective July l, 1976; and | 0023| not to exceed a maximum compensation of eighty-nine percent of | 0024| the average weekly wage in the state, a week, effective July | 0025| l, 1977; and not to exceed a maximum compensation of one | - 4 - 0001| hundred percent of the average weekly wage in the state, a | 0002| week, effective July l, 1978; and not to exceed a maximum | 0003| compensation of eighty-five percent of the average weekly wage | 0004| in the state, a week, effective July l, 1987; and not to | 0005| exceed a maximum compensation of one hundred percent of the | 0006| average weekly wage in the state, a week, effective January 1, | 0007| 1999; and to be not less than a minimum compensation of | 0008| thirty-six dollars ($36.00) a week. Except as provided in | 0009| Subsections B and C of this section, the worker shall receive | 0010| compensation benefits for the remainder of his life. | 0011| B. For disability resulting from primary mental | 0012| impairment, the maximum period of compensation is one hundred | 0013| weeks. For disability resulting in secondary mental | 0014| impairment, the maximum period of compensation is the maximum | 0015| period allowable for the disability produced by the physical | 0016| impairment or one hundred weeks, whichever is greater. | 0017| C. For the purpose of paying compensation benefits | 0018| for death, pursuant to Section 52-l-46 NMSA 1978, the worker's | 0019| maximum disability recovery shall be deemed to be seven | 0020| hundred weeks. | 0021| D. Where the worker's average weekly wage is less | 0022| than thirty-six dollars ($36.00) a week, the compensation to | 0023| be paid the worker shall be his full weekly wage. | 0024| E. For the purpose of the Workers' Compensation | 0025| Act, the average weekly wage in the state shall be determined | - 5 - 0001| by the employment security division of the labor department on | 0002| or before June 30 of each year ~~[and]~~. The average weekly | 0003| wage shall be computed from all wages reported to the | 0004| employment security division from employing units, including | 0005| reimbursable employers, in accordance with the regulations of | 0006| the division for the preceding calendar year, divided by the | 0007| total number of covered employees divided by fifty-two. | 0008| F. The average weekly wage in the state, | 0009| determined as provided in Subsection E of this section, shall | 0010| be applicable for the full period during which compensation is | 0011| payable when the date of the occurrence of an accidental | 0012| injury falls within the calendar year commencing January l | 0013| following the June 30 determination. | 0014| G. Unless the computation provided for in | 0015| Subsection E of this section results in an increase or | 0016| decrease of two dollars ($2.00) or more, raised to the next | 0017| whole dollar, the statewide average weekly wage determination | 0018| shall not be changed for any calendar year." | 0019| Section 4. Section 52-1-46 NMSA 1978 (being Laws 1959, | 0020| Chapter 67, Section 25, as amended) is amended to read: | 0021| "52-1-46. COMPENSATION BENEFITS FOR DEATH.--Subject to | 0022| the limitation of compensation payable under Subsection G of | 0023| this section, if an accidental injury sustained by a worker | 0024| proximately results in his death within the period of two | 0025| years following his accidental injury, compensation shall be | - 6 - 0001| paid in the amount and to the persons entitled thereto as | 0002| follows: | 0003| A. if there are no eligible dependents, except as | 0004| provided in Subsection C of Section 52-l-l0 NMSA 1978 of the | 0005| Workers' Compensation Act, the compensation shall be limited | 0006| to the funeral expenses, not to exceed ~~[three thousand~~ | 0007| ~~dollars ($3,000)]~~ five thousand dollars ($5,000), and the | 0008| expenses provided for medical and hospital services for the | 0009| deceased, together with all other sums which the deceased | 0010| should have been paid for compensation benefits up to the time | 0011| of his death; provided that, commencing January 1, 1999 and | 0012| continuing each year thereafter, the funeral expense benefit | 0013| shall be adjusted by an amount equal to the change in the | 0014| consumer price index during the most recent calendar year. | 0015| For the purpose of this section, "consumer price index" means | 0016| the average of the monthly consumer price indexes for a | 0017| calendar year for the entire United States for all items as | 0018| published by the United States department of labor; | 0019| B. if there are eligible dependents at the time of | 0020| the worker's death, payment shall consist of a sum not to | 0021| exceed ~~[three thousand dollars ($3,000)]~~ five thousand | 0022| dollars ($5,000) for funeral expenses and expenses provided | 0023| for medical and hospital services for the deceased, together | 0024| with such other sums as the deceased should have been paid for | 0025| compensation benefits up to the time of his death and | - 7 - 0001| compensation benefits to the eligible dependents as | 0002| hereinafter specified, subject to the limitations on maximum | 0003| periods of recovery provided in Sections 52-1-41 through | 0004| 52-1-43 and 52-1-47 NMSA 1978; provided that, commencing | 0005| January 1, 1999 and continuing each year thereafter the | 0006| funeral expense benefit shall be adjusted by an amount equal | 0007| to the change in the consumer price index for the most recent | 0008| calendar year; | 0009| C. if there are eligible dependents entitled | 0010| thereto, compensation shall be paid to the dependents or to | 0011| the person authorized by the director or appointed by the | 0012| court to receive the same for the benefit of the dependents in | 0013| such portions and amounts, to be computed and distributed as | 0014| follows: | 0015| (1) to the child or children, if there is no | 0016| widow or widower entitled to compensation, sixty-six and two- | 0017| thirds percent of the average weekly wage of the deceased; | 0018| (2) to the widow or widower, if there are no | 0019| children, sixty-six and two-thirds percent of the average | 0020| weekly wage of the deceased, until remarriage; or | 0021| (3) to the widow or widower, if there is a | 0022| child or children living with the widow or widower, forty-five | 0023| percent of the average weekly wage of the deceased, or forty | 0024| percent if such child is not or all such children are not | 0025| living with a widow or widower and, in addition thereto, | - 8 - 0001| compensation benefits for the child or children ~~[which]~~ | 0002| that shall make the total benefits for the widow or widower | 0003| and child or children sixty-six and two-thirds percent of the | 0004| average weekly wage of the deceased. When there are two or | 0005| more children, the compensation benefits payable on account of | 0006| such children shall be divided among such children, share and | 0007| share alike; and | 0008| (4) two years' compensation benefits in one | 0009| lump sum shall be payable to a widow or widower upon | 0010| remarriage; however, the total benefits shall not exceed the | 0011| maximum compensation benefit as provided in Subsection B of | 0012| this section; | 0013| D. if there is neither widow, widower nor | 0014| children, compensation may be paid to the father and mother or | 0015| the survivor of them, if dependent to any extent upon the | 0016| worker for support at the time of the worker's death, twenty- | 0017| five percent of the average weekly wage of the deceased, and | 0018| in no event shall the maximum compensation to such dependents | 0019| exceed the amounts contributed by the deceased worker for | 0020| their care; provided that if the father and mother or the | 0021| survivor of them was totally dependent upon such worker for | 0022| support at the time of the worker's death, he or they shall be | 0023| entitled to fifty percent of the average weekly wage of the | 0024| deceased; | 0025| E. if there is neither widow, widower nor children | - 9 - 0001| nor dependent parent, then to the brothers and sisters and | 0002| grandchildren if actually dependent to any extent upon the | 0003| deceased worker for support at the time of the worker's death, | 0004| thirty-five percent of the average weekly wage of the deceased | 0005| worker with fifteen percent additional for brothers and | 0006| sisters and grandchildren in excess of two, with a maximum of | 0007| sixty-six and two-thirds percent of the average weekly wage of | 0008| the deceased, and in no event shall the maximum compensation | 0009| to partial dependents exceed the respective amounts | 0010| contributed by the deceased worker for their care; | 0011| F. in the event of the death or remarriage of the | 0012| widow or widower entitled to compensation benefits as provided | 0013| in this section, the surviving children shall then be entitled | 0014| to compensation benefits computed and paid as provided in | 0015| Paragraph (1) of Subsection C of this section for the | 0016| remainder of the compensable period. In the event | 0017| compensation benefits payable to children as provided in this | 0018| section are terminated as provided in Subsection E of Section | 0019| 52-l-l7 NMSA l978, a surviving widow or widower shall then be | 0020| entitled to compensation benefits computed and paid as | 0021| provided in Paragraphs (2) and (4) of Subsection C of this | 0022| section for the remainder of the compensable period; and | 0023| G. no compensation benefits payable by reason of a | 0024| worker's death shall exceed the maximum weekly compensation | 0025| benefits as provided in Sections 52-1-41 through 52-1-43 and | - 10 - 0001| 52-1-47 NMSA l978, and no dependent or any class thereof, | 0002| other than a widow, widower or children, shall in any event be | 0003| paid total benefits in excess of seven thousand five hundred | 0004| dollars ($7,500) exclusive of funeral expenses and the | 0005| expenses provided for medical and hospital services for the | 0006| deceased paid for by the employer." | 0007| Section 5. Section 52-3-14 NMSA 1978 (being Laws 1945, | 0008| Chapter 135, Section 14, as amended) is amended to read: | 0009| "52-3-14. COMPENSATION--LIMITATIONS.-- | 0010| A. The compensation to which an employee who has | 0011| suffered disablement, or his dependents, shall be entitled | 0012| under the New Mexico Occupational Disease Disablement Law is | 0013| limited to the provisions of that law. No compensation shall | 0014| be due or payable under the New Mexico Occupational Disease | 0015| Disablement Law for any disablement which does not result in | 0016| either the temporary disablement of the employee lasting for | 0017| more than seven days or in his permanent disablement as herein | 0018| described or in death; provided, however, that if the period | 0019| of temporary disablement of the employee lasts for more than | 0020| four weeks from the date of the disablement, compensation | 0021| under the New Mexico Occupational Disease Disablement Law | 0022| shall be payable in addition to the amount hereinafter stated | 0023| in a like amount for the first seven days after the date of | 0024| disablement. But for any such disablement for which | 0025| compensation is payable under the New Mexico Occupational | - 11 - 0001| Disease Disablement Law, the employer shall in all proper | 0002| cases, as herein provided, pay to the disabled employee or to | 0003| some person authorized by the director to receive the same, | 0004| for the use and benefit of the beneficiaries entitled thereto, | 0005| compensation at regular intervals of no more than sixteen days | 0006| apart, in accordance with the following, less proper | 0007| deductions on account of default in failure to give notice of | 0008| such disablement as required in Section 52-3-19 NMSA 1978. | 0009| B. For total disablement, the employee shall | 0010| receive sixty-six and two-thirds percent of his average weekly | 0011| wage, not to exceed a maximum compensation of: | 0012| (1) ninety dollars ($90.00) a week, effective | 0013| July 1, 1975; | 0014| (2) sixty-six and two-thirds percent of the | 0015| average weekly wage in the state, a week, effective January 1, | 0016| 1976; | 0017| (3) seventy-eight percent of the average | 0018| weekly wage in the state, a week, effective July 1, 1976; | 0019| (4) eighty-nine percent of the average weekly | 0020| wage in the state, a week, effective July 1, 1977; | 0021| (5) one hundred percent of the average weekly | 0022| wage in the state, a week, effective July 1, 1978; ~~[and]~~ | 0023| (6) eighty-five percent of the average weekly | 0024| wage in the state, a week, effective July 1, 1987; and | 0025| (7) one hundred percent of the average weekly | - 12 - 0001| wage in the state, a week, effective January 1, 1999; | 0002| or to be less than a minimum compensation of thirty-six | 0003| dollars ($36.00) a week, during the period of such | 0004| disablement, but in no event to exceed a period of seven | 0005| hundred weeks; provided, however, that where his wages are | 0006| less than thirty-six dollars ($36.00) a week, then the | 0007| compensation to be paid such employee shall be the full amount | 0008| of such weekly wages; provided further that the benefits paid | 0009| or payable during a employee's entire period of disablement | 0010| shall be based on and limited to the benefits in effect on the | 0011| date of the occurrence of the disablement. | 0012| C. For partial disablement, the benefits shall be | 0013| a percentage of the benefits payable for total disablement | 0014| calculated under Subsection B of this section as that | 0015| percentage is determined pursuant to the provisions of Section | 0016| 52-3-4 NMSA 1978. In no event shall the duration of benefits | 0017| extend longer than five hundred weeks. | 0018| D. For the purpose of the New Mexico Occupational | 0019| Disease Disablement Law, the average weekly wage in the state | 0020| shall be determined by the employment security division of the | 0021| labor department on or before June 30 of each year and shall | 0022| be computed from all wages reported to the employment security | 0023| division from employing units, including reimbursable | 0024| employers, in accordance with the regulations of the | 0025| employment security division for the preceding calendar year, | - 13 - 0001| divided by the total number of covered employees divided by | 0002| fifty-two. The first such determination by the employment | 0003| security division of the average weekly wage in the state | 0004| shall be made on or before June 30, 1975 from reported wages | 0005| and covered employees for the calendar year ending December | 0006| 31, 1974. | 0007| E. The average weekly wage in the state, | 0008| determined as provided in Subsection D of this section, shall | 0009| be applicable for the full period during which compensation is | 0010| payable when the date of the occurrence of the disablement | 0011| falls within the calendar year commencing January 1 following | 0012| the June 30 determination. | 0013| F. Unless the computation provided for in | 0014| Subsection D of this section results in an increase or | 0015| decrease of two dollars ($2.00) or more, raised to the next | 0016| whole dollar, the statewide average weekly wage determination | 0017| shall not be changed for any calendar year. | 0018| G. In case death proximately results from the | 0019| disablement within the period of two years, compensation | 0020| benefits to be paid such employee shall be in the amounts and | 0021| to the persons as follows: | 0022| (1) if there are no dependents, the | 0023| compensation shall be limited to the funeral expenses not to | 0024| exceed ~~[three thousand dollars ($3,000)]~~ five thousand | 0025| dollars ($5,000) and the expenses provided for medical and | - 14 - 0001| hospital services for the deceased, together with such other | 0002| sums as the deceased may have been paid for disablement; | 0003| provided that, commencing January 1, 1999 and continuing each | 0004| year thereafter, the funeral expense benefit shall be adjusted | 0005| by an amount equal to the change in the consumer price index | 0006| during the calendar year most recently completed. For the | 0007| purpose of this section, "consumer price index" means the | 0008| average of the monthly consumer price indexes for a calendar | 0009| year for the entire United States for all items as published | 0010| by the United States department of labor; or | 0011| (2) if there are dependents at the time of | 0012| death, the payment shall consist of a sum not to exceed | 0013| ~~[three thousand dollars ($3,000)]~~ five thousand dollars | 0014| ($5,000) for funeral expenses and expenses provided for | 0015| medical and hospital services for the deceased, together with | 0016| such other sums as the deceased may have been paid for | 0017| disability, and a percentage ~~[hereinafter]~~ specified in | 0018| this paragraph for average weekly wages subject to the | 0019| limitations of the New Mexico Occupational Disease Disablement | 0020| Law to continue for the period of seven hundred weeks from the | 0021| date of death of such employee; provided that the total death | 0022| compensation, unless otherwise specified, payable in any of | 0023| the cases ~~[hereinafter]~~ mentioned in this section shall | 0024| not be less than the minimum weekly compensation provided in | 0025| Subsection B of this section or more than the maximum weekly | - 15 - 0001| compensation provided in Subsection B of this section and | 0002| shall be based on and limited to the benefits in effect on the | 0003| date of the occurrence of the disablement. If there are | 0004| dependents entitled thereto, compensation shall be paid to the | 0005| dependents or to the person authorized by the director or the | 0006| court to receive the same for the benefit of the dependents in | 0007| such portions and amounts as the director or the court, | 0008| bearing in mind the necessities of the case and the best | 0009| interests of the dependents and of the public, may determine, | 0010| to be computed on the following basis and distributed to the | 0011| following persons; provided that, commencing January 1, 1999 | 0012| and continuing each year thereafter the funeral expense | 0013| benefit shall be adjusted by an amount equal to the change in | 0014| the consumer price index: | 0015| (a) to the child or children, if there | 0016| is no widow or widower entitled to compensation, sixty-six and | 0017| two-thirds percent of the average weekly wage of the deceased; | 0018| (b) to the widow or widower, if there | 0019| are no children, sixty-six and two-thirds percent of the | 0020| average weekly wage of the deceased, until remarriage; | 0021| (c) to the widow or widower, if there | 0022| is a child or children living with the widow or widower, | 0023| forty-five percent of the average weekly wage of the deceased, | 0024| or forty percent, if such child is not or all such children | 0025| are not living with a widow or widower, and in addition | - 16 - 0001| thereto, compensation benefits for the child or children which | 0002| shall make the total benefits for the widow or widower and | 0003| child or children sixty-six and two-thirds percent of the | 0004| average weekly wage of the deceased. When there are two or | 0005| more children, the compensation benefits payable on account of | 0006| such children shall be divided among such children, share and | 0007| share alike; | 0008| (d) two years' compensation benefits in | 0009| one lump sum shall be payable to a widow or widower upon | 0010| remarriage; however, the total benefits shall not exceed the | 0011| maximum compensation benefits as provided in Paragraph (2) of | 0012| this subsection; | 0013| (e) if there is neither widow, widower | 0014| nor children, then to the father and mother or the survivor of | 0015| them if dependent to any extent upon the employee for support | 0016| at the time of his death, twenty-five percent of the average | 0017| weekly wage of the deceased; provided that if such father and | 0018| mother or the survivor of them was totally dependent upon such | 0019| employee for support at the time of his death, he or they | 0020| shall be entitled to fifty percent of the average weekly wage | 0021| of the deceased, subject to the maximum weekly compensation | 0022| provided for in Subsection B of this section; | 0023| (f) no disablement benefits payable by | 0024| reason of an employee's death shall exceed the maximum weekly | 0025| compensation provided for in Subsection B of this section, and | - 17 - 0001| no dependent or any class thereof other than a widow or | 0002| widower or children shall in any event be paid total benefits | 0003| in excess of seven thousand five hundred dollars ($7,500) | 0004| exclusive of funeral expenses and the expenses provided for | 0005| medical and hospital services for the deceased paid for by the | 0006| employer. | 0007| If there is neither widow, widower nor children nor | 0008| dependent parent, then to the brothers and sisters, if | 0009| actually dependent to any extent upon the deceased for support | 0010| at the time of his death, thirty-five percent of the average | 0011| weekly wage of the deceased, with fifteen percent additional | 0012| for brothers or sisters in excess of two, with a maximum of | 0013| sixty-six and two-thirds percent to be paid to their guardian; | 0014| provided that the maximum compensation to partial dependents | 0015| shall not exceed the respective amounts therefor contributed | 0016| by the deceased employee or the maximum weekly compensation | 0017| provided for in Subsection B of this section; and | 0018| (g) in the event of the death or | 0019| remarriage of the widow or widower entitled to compensation | 0020| under this subsection, the surviving children shall then be | 0021| entitled to compensation computed and paid as in Subparagraph | 0022| (a) of this paragraph for the remainder of the compensable | 0023| period, and in the event compensation benefits payable to | 0024| children as provided in this section are terminated as | 0025| provided in Paragraph (5) of Subsection A of Section 52-3-13 | - 18 - 0001| NMSA 1978, a surviving widow or widower shall then be entitled | 0002| to compensation benefits computed and paid as provided in | 0003| Subparagraphs (b) and (d) of this paragraph for the remainder | 0004| of the compensable period." | 0005| Section 6. Section 52-5-7 NMSA 1978 (being Laws 1986, | 0006| Chapter 22, Section 33, as amended) is amended to read: | 0007| "52-5-7. HEARING PROCEDURE.-- | 0008| A. It is the intent of the legislature that the | 0009| workers' compensation administration shall have original | 0010| jurisdiction to hear a claim alleging that the complaining | 0011| party suffered an injury that occurred while in the course and | 0012| scope of his employment and the person from whom recovery is | 0013| sought is the complaining party's employer. For the purpose | 0014| of determining jurisdiction, the allegation that the injury | 0015| occurred in the course and scope of employment may be made by | 0016| either the complaining party or the party from which benefits | 0017| are sought. | 0018| ~~[A.]~~ B. When matters in dispute cannot be | 0019| resolved by informal conference or other techniques, the | 0020| director shall transmit a copy of the claim to the other | 0021| parties with notice to respond by written answer. The other | 0022| parties shall respond with a written answer within twenty days | 0023| after receiving a notice or within such extension of that time | 0024| as the director may allow. If no timely answer is filed by a | 0025| party after notice, a workers' compensation judge may, if he | - 19 - 0001| determines it to be appropriate, grant the relief sought | 0002| against that party. However, if in order to enable the | 0003| workers' compensation judge to enter an order and carry out | 0004| its effect it is necessary to take an account, determine the | 0005| amount of benefits due, establish the truth of any claims by | 0006| evidence or make an investigation of any matter, the workers' | 0007| compensation judge may conduct such hearings as he deems | 0008| necessary and proper. | 0009| ~~[B.]~~ C. A hearing shall be held for | 0010| determining the questions at issue within sixty days of the | 0011| filing of the answer. All parties in interest shall be given | 0012| at least twenty days' notice of the hearing and of the issues | 0013| to be heard, served personally or by mail. Following the | 0014| presentation of the evidence, the workers' compensation judge | 0015| shall determine the questions at issue and file the decision | 0016| with the director within thirty days, unless the time for | 0017| filing the decision is extended by the mutual agreement of the | 0018| parties. At the time of filing, a certified copy of the | 0019| decision shall be sent by first class mail to all interested | 0020| parties at the last known address of each. The decision of | 0021| the workers' compensation judge shall be made in the form of a | 0022| compensation order, appropriately titled to show its purpose | 0023| and containing a report of the case, findings of fact and | 0024| conclusions of law and, if appropriate, an order for the | 0025| payment of benefits under the Workers' Compensation Act or the | - 20 - 0001| New Mexico Occupational Disease Disablement Law. | 0002| ~~[C.]~~ D. The decision of the workers' | 0003| compensation judge shall be final and conclusive as to all | 0004| matters adjudicated by him upon the expiration of the | 0005| thirtieth day after a copy of the decision has been mailed to | 0006| the parties, unless prior to that day a party in interest | 0007| seeks judicial review of the decision pursuant to Section 52- | 0008| 5-8 NMSA 1978. | 0009| ~~[D.]~~ E. All hearings before the workers' | 0010| compensation judge shall be open to the public. The director | 0011| shall by regulation provide for the preparation of a record of | 0012| each hearing. | 0013| ~~[E.]~~ F. The director may authorize a workers' | 0014| compensation judge or his duly authorized representative to | 0015| enter at any reasonable time the premises where an injury or | 0016| death has occurred and to make such examination of any tool, | 0017| appliance, process, machinery or environmental or other | 0018| condition as may be relevant to a determination of the cause | 0019| and circumstances of the injury, disablement or death. | 0020| ~~[F.]~~ G. The testimony of any witness may be | 0021| taken by deposition or interrogatories according to the rules | 0022| of civil procedure for the district courts and may be taken | 0023| before any workers' compensation judge or any person | 0024| authorized to take testimony, but discovery procedure shall be | 0025| conducted only upon the workers' compensation judge's findings | - 21 - 0001| that good cause exists. The cost and expense of any discovery | 0002| procedure allowed by the workers' compensation judge shall be | 0003| paid as provided in Section 52-1-54 NMSA 1978. No costs shall | 0004| be charged, taxed or collected by the workers' compensation | 0005| judge except fees for witnesses who testify under subpoena. | 0006| The witnesses shall be allowed the same fee for attendance and | 0007| mileage as is fixed by the law in civil actions, except that | 0008| the workers' compensation judge may assess against the | 0009| employer the fees allowed any expert witness, as provided in | 0010| Section 38-6-4 NMSA 1978, whose examination of the claimant, | 0011| report or hearing attendance the workers' compensation judge | 0012| deems necessary for resolution of matters at issue." | 0013| Section 7. Section 52-5-17 NMSA 1978 (being Laws 1986, | 0014| Chapter 22, Section 43, as amended) is amended to read: | 0015| "52-5-l7. SUBROGATION.-- | 0016| A. The right of any worker or, in case of his | 0017| death, of those entitled to receive payment or damages for | 0018| injuries or disablement occasioned to him by the negligence or | 0019| wrong of any person other than the employer or any other | 0020| employee of the employer, including a management or | 0021| supervisory employee, shall not be affected by the Workers' | 0022| Compensation Act or the New Mexico Occupational Disease | 0023| Disablement Law, but the claimant shall not be allowed to | 0024| receive payment or recover damages for those injuries or | 0025| disablement and also claim compensation from the employer | - 22 - 0001| except as provided in Subsection ~~[C]~~ D of this section. | 0002| B. In a circumstance covered by Subsection A of | 0003| this section, the receipt of compensation from the employer | 0004| shall operate as an assignment to the employer or his insurer, | 0005| guarantor or surety of any cause of action, to the extent of | 0006| payment by the employer to or on behalf of the worker for | 0007| compensation or any other benefits to which the worker was | 0008| entitled under the Workers' Compensation Act or the New Mexico | 0009| Occupational Disease Disablement Law and that were occasioned | 0010| by the injury or disablement, that the worker or his legal | 0011| representative or others may have against any other party for | 0012| the injury or disablement. | 0013| C. An employer, or his insurer, guarantor or | 0014| surety, who incurs compensation benefit costs in connection | 0015| with a workers' compensation claim resulting from an injury | 0016| caused by the negligence of a person other than the employer | 0017| or another employee, including a supervisory employee, may | 0018| pursue a civil action in his own name against the third party | 0019| to recover costs directly related to payment of the claim, | 0020| including legal fees, discovery and expert witness costs, | 0021| medical expenses and indemnity benefits. The claim of an | 0022| employer, or his insurer, guarantor or surety, for subrogation | 0023| recovery against an employee who has recovered against a third | 0024| party shall be reduced to the extent of the amount directly | 0025| recovered by the employer, or his insurer, guarantor or | - 23 - 0001| surety, from that third party. | 0002| ~~[C.]~~ D. The worker or his legal representative | 0003| may retain any compensation due under the uninsured motorist | 0004| coverage provided in Section 66-5-30l NMSA l978 if the worker | 0005| paid the premium for that coverage. If the employer paid the | 0006| premium, the worker or his legal representative may not retain | 0007| any compensation due under Section 66-5-30l NMSA l978, and | 0008| that amount shall be due to the employer. For the purposes of | 0009| this section, the employer shall not be deemed to pay the | 0010| premium for uninsured motorist coverage in a lease arrangement | 0011| in which the employer pays the worker an expense or mileage | 0012| reimbursement amount that may include as one factor an | 0013| allowance for insurance coverage." | 0014| Section 8. REPEAL.--Sections 52-1-4.1 and 52-3-9.1 NMSA | 0015| 1978 (being Laws 1979, Chapter 368, Section 2 and Laws 1980, | 0016| Chapter 88, Section 4, as amended) are repealed. | 0017| |