AN ACT
RELATING TO WORKERS' COMPENSATION;
AMENDING A CERTAIN DEFINITION; AMENDING THE RESIDUAL PHYSICAL CAPACITY TABLE;
PROVIDING FOR INCREASES IN ATTORNEY FEES AND ADVANCED DISCOVERY COSTS.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF NEW MEXICO:
Section 1. Section 52-1-25 NMSA 1978 (being Laws 1987,
Chapter 235, Section 11, as amended) is amended to read:
"52-1-25. PERMANENT TOTAL DISABILITY.--
A. As used in the Workers' Compensation Act,
"permanent total disability" means:
(1) the permanent and total loss or loss of use
of both hands or both arms or both feet or both legs or both eyes or any two of
them; or
(2) a brain injury resulting from a single
traumatic work-related injury that causes, exclusive of the contribution to the
impairment rating arising from any other impairment to any other body part, or
any preexisting impairments of any kind, a permanent impairment of thirty
percent or more as determined by the current American medical association guide
to the evaluation of permanent impairment.
B. In considering a claim for total disability,
a workers' compensation judge shall not receive or consider the testimony of a
vocational rehabilitation provider offered for the purpose of determining the
existence or extent of disability."
Section 2. Section 52-1-26.4 NMSA 1978 (being Laws 1990
(2nd S.S.), Chapter 2, Section 15) is amended to read:
"52-1-26.4. PARTIAL DISABILITY DETERMINATION--PHYSICAL
CAPACITY MODIFICATION.--
A. The range of the physical capacity
modification is one to eight.
B. The award of points to a worker shall be
based upon the difference between the physical capacity necessary to perform
the worker's usual and customary work and the worker's residual physical
capacity. The award of points shall be
based upon the following table:
RESIDUAL
PHYSICAL CAPACITY
S L M H
PRE-INJURY S 1 1 1 1
PHYSICAL CAPACITY L 3 1 1 1
(USUAL AND M 5 3 1 1
CUSTOMARY WORK) H 8 5 3 1.
C.
For the purposes of this section:
(1)
"H" or "heavy" means the ability to lift over fifty
pounds occasionally or up to fifty pounds frequently;
(2)
"M" or "medium" means the ability to lift up to
fifty pounds occasionally or up to twenty-five pounds frequently;
(3)
"L" or "light" means the ability to lift up to
twenty pounds occasionally or up to ten pounds frequently. Even though the weight lifted may be only a
negligible amount, a job is in this category when it requires walking or
standing to a significant degree or when it involves sitting most of the time
with a degree of pushing and pulling of arm or leg controls or both; and
(4)
"S" or "sedentary" means the ability to lift up to
ten pounds occasionally or up to five pounds frequently. Although a sedentary job is defined as one
that involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required only occasionally and other
sedentary criteria are met.
D.
The determination of a worker's residual physical capacity shall be made
by a health care provider defined in Subsection C, E or G of Section 52-4-1
NMSA 1978. If the worker or employer
disagrees on who shall make this determination, the dispute shall be resolved
in accordance with the provisions set forth in Section 52-1-51 NMSA 1978."
Section 3. Section 52-1-54 NMSA 1978 (being Laws 1987, Chapter
235, Section 24, as amended) is amended to read:
"52-1-54. FEE RESTRICTIONS--APPOINTMENT OF ATTORNEYS BY
THE DIRECTOR OR WORKERS' COMPENSATION JUDGE--DISCOVERY COSTS--OFFER OF
JUDGMENT--PENALTY FOR VIOLATIONS.--
A.
It is unlawful for any person to receive or agree to receive any fees or
payment directly or indirectly in connection with any claim for compensation
under the Workers' Compensation Act except as provided in this section.
B.
In all cases where the jurisdiction of the workers' compensation
administration is invoked to approve a settlement of a compensation claim under
the Workers' Compensation Act, the director or workers' compensation judge,
unless the claimant is represented by an attorney, may in his discretion
appoint an attorney to aid the workers' compensation judge in determining
whether the settlement should be approved and, in the event of an appointment,
a reasonable fee for the services of the attorney shall be fixed by the
workers' compensation judge, subject to the limitation of Subsection I of this
section.
C.
In all cases where the jurisdiction of the workers' compensation
administration is invoked to approve a settlement of a compensation claim under
the Workers' Compensation Act and the claimant is represented by an attorney,
the total amount paid or to be paid by the employer in settlement of the claim
shall be stated in the settlement papers.
The workers' compensation judge shall determine and fix a reasonable fee
for the claimant's attorney, taking into account any sum previously paid, and
the fee fixed by the workers' compensation judge shall be the limit of the fee
received or to be received by the attorney in connection with the claim,
subject to the limitation of Subsection I of this section.
D.
The cost of discovery shall be borne by the party who requests it. If, however, the claimant requests any
discovery, the employer shall advance the cost of paying for discovery up to a
limit of three thousand dollars ($3,000).
If the claimant substantially prevails on the claim, as determined by a
workers' compensation judge, any discovery cost advanced by the employer shall
be paid by that employer. If the
claimant does not substantially prevail on the claim, as determined by a
workers' compensation judge, the employer shall be reimbursed for discovery costs
advanced according to a schedule for reimbursement approved by a workers'
compensation judge.
E.
In all cases where compensation to which any person is entitled under
the provisions of the Workers' Compensation Act is refused and the claimant
thereafter collects compensation through proceedings before the workers'
compensation administration or courts in an amount in excess of the amount
offered in writing by an employer five business days or more prior to the
informal hearing before the administration, the compensation to be paid the
attorney for the claimant shall be fixed by the workers' compensation judge
hearing the claim or the courts upon appeal in the amount the workers'
compensation judge or courts deem reasonable and proper, subject to the
limitation of Subsection I of this section.
In determining and fixing a reasonable fee, the workers' compensation
judge or courts shall take into consideration:
(1)
the sum, if any, offered by the employer:
(a)
before the worker's attorney was employed;
(b)
after the attorney's employment but before proceedings were commenced;
and
(c)
in writing five business days or more prior to the informal hearing;
(2)
the present value of the award made in the worker's favor; and
(3)
any failure of a party to participate in a good-faith manner in informal
claim resolution methods adopted by the director.
F.
After a recommended resolution has been issued and rejected, but more
than ten days before a trial begins, the employer or claimant may serve upon
the opposing party an offer to allow a compensation order to be taken against
him for the money or property or to the effect specified in his offer, with
costs then accrued, subject to the following:
(1)
if, within ten days after the service of the offer, the opposing party
serves written notice that the offer is accepted, either party may then file
the offer and notice of acceptance together with proof of service thereof, and
thereupon that compensation order may be entered as the workers' compensation
judge may direct. An offer not accepted
shall be deemed withdrawn, and evidence thereof is not admissible except in a
proceeding to determine costs. If the
compensation order finally obtained by the party is not more favorable than the
offer, that party shall pay the costs incurred by the opposing party after the
making of the offer. The fact that an
offer has been made but not accepted does not preclude a subsequent offer;
(2)
when the liability of one party to another has been determined by a
compensation order, but the amount or extent of the liability remains to be
determined by further proceedings, the party adjudged liable may make an offer,
which shall have the same effect as an offer made before trial if it is served
within a reasonable time not less than ten days prior to the commencement of
hearings to determine the amount or extent of liability;
(3)
if the employer's offer was greater than the amount awarded by the
compensation order, the employer shall not be liable for his fifty percent
share of the attorney fees to be paid the worker's attorney and the worker
shall pay one hundred percent of the attorney fees due to the worker's
attorney; and
(4)
if the worker's offer was less than the amount awarded by the
compensation order, the employer shall pay one hundred percent of the attorney
fees to be paid the worker's attorney, and the worker shall be relieved from
any responsibility for paying any portion of the worker's attorney fees.
G.
In all actions arising under the provisions of Section 52-1-56 NMSA 1978
where the jurisdiction of the workers' compensation administration is invoked
to determine the question whether the claimant's disability has increased or
diminished and the claimant is represented by an attorney, the workers'
compensation judge or courts upon appeal shall determine and fix a reasonable
fee for the services of the claimant's attorney only if the claimant is
successful in establishing that his disability has increased or if the employer
is unsuccessful in establishing that the claimant's disability has
diminished. The fee when fixed by the
workers' compensation judge or courts upon appeal shall be the limit of the fee
received or to be received by the attorney for services in the action, subject
to the limitation of Subsection I of this section.
H.
In determining reasonable attorney fees for a claimant, the workers'
compensation judge shall consider only those benefits to the worker that the
attorney is responsible for securing.
The value of future medical benefits shall not be considered in
determining attorney fees.
I.
Attorney fees, including, but not limited to, the costs of paralegal
services, legal clerk services and any other related legal services costs on
behalf of a claimant or an employer for a single accidental injury claim,
including representation before the workers' compensation administration and
the courts on appeal, shall not exceed sixteen thousand five hundred dollars
($16,500). This limitation applies
whether the claimant or employer has one or more attorneys representing him and
applies as a cumulative limitation on compensation for all legal services
rendered in all proceedings and other matters directly related to a single
accidental injury to a claimant. The
workers' compensation judge may exceed the maximum amount stated in this
subsection in awarding a reasonable attorney fee if he finds that a claimant,
an insurer or an employer acted in bad faith with regard to handling the
injured worker's claim and the injured worker or employer has suffered economic
loss as a result. However, in no case
shall this additional amount exceed two thousand five hundred dollars ($2,500). As used in this subsection, "bad
faith" means conduct by the claimant, insurer or employer in the handling
of a claim that amounts to fraud, malice, oppression or willful, wanton or
reckless disregard of the rights of the worker or employer. Any determination of bad faith shall be made
by the workers' compensation judge through a separate fact-finding proceeding.
J.
Except as provided for in Paragraphs (3) and (4) of Subsection F of this
section, the payment of a claimant's attorney fees determined under this
section shall be shared equally by the worker and the employer.
K.
It is unlawful for any person except a licensed attorney to receive or
agree to receive any fee or payment for legal services in connection with any
claim for compensation under the Workers' Compensation Act.
L.
Nothing in this section applies to agents, excluding attorneys,
representing employers, insurance carriers or the subsequent injury fund in any
matter arising from a claim under the Workers' Compensation Act.
M.
No attorney fees shall be paid until the claim has been settled or
adjudged.
N.
Every person violating the provisions of this section is guilty of a
misdemeanor and upon conviction shall be fined not less than fifty dollars
($50.00) or more than five hundred dollars ($500), to which may be added
imprisonment in the county jail for a term not exceeding ninety days.
O.
Nothing in this section shall restrict a claimant from being represented
before the workers' compensation administration by a nonattorney as long as
that nonattorney receives no compensation for that representation from the
claimant."
Section 4. APPLICABILITY.--The provisions of this act
are effective for all injuries in which the worker reaches maximum medical
improvement on or after July 1, 2003.
HJC/HB 501,
506 & 613
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