2021 New Mexico Statutes
Chapter 52 - Workers' Compensation
Article 5 - Workers' Compensation Division
Section 52-5-5 - Claims; informal conferences.
A. When a dispute arises under the Workers' Compensation Act [Chapter 52, Article 1 NMSA 1978] or the New Mexico Occupational Disease Disablement Law [52-3-1 NMSA 1978], any party may file a claim with the director no sooner than thirty-one days from the date of injury or the occurrence of the disabling disease. The director shall assist workers and employees not represented by counsel in the preparation of the claim document.
B. The director shall prepare a form of claim, which shall be available to all parties. The claim shall state concisely in numbered paragraphs the questions at issue or in dispute that the claimant expects to be determined with sufficient particularity that the responding or opposing party may be notified adequately of the claim and its basis, including, if applicable, the specific benefit that is due and not paid.
C. Upon receipt, every claim shall be evaluated by the director or the director's designee, who shall then contact all parties and attempt to informally resolve the dispute. Within sixty days after receipt of the claim, the director shall issue recommendations for resolution and serve the parties with a copy. Within thirty days of receipt of the recommendation of the director, each party shall notify the director on a form provided by the director of the acceptance or rejection of the recommendation. A party failing to notify the director waives any right to reject the recommendation and is bound conclusively by the director's recommendation unless, upon application made to the director within thirty days after the foregoing deadline, the director finds that the party's failure to notify was the result of excusable neglect. If either party makes a timely rejection of the director's recommendation, the claim shall be assigned to a workers' compensation judge for hearing.
D. Each party to a dispute shall have a peremptory right to disqualify one workers' compensation judge; provided that:
(1) the employer and the employer's insurer shall constitute a single party for purposes of this subsection;
(2) this peremptory right to disqualify one worker's compensation judge shall not apply to the judge appointed pursuant to Section 52-1-49 NMSA 1978 to render a decision within seven days on a request for a different health care provider; and
(3) no party shall be required to disqualify a workers' compensation judge until a judge has been assigned to a case.
History: Laws 1986, ch. 22, § 31; 1987, ch. 235, § 47; 1989, ch. 263, § 74; 1993, ch. 193, § 10; 2013, ch. 134, § 7.
ANNOTATIONSThe 2013 amendment, effective July 1, 2013, allowed the workers' compensation administration to serve parties in formats in addition to certified mail; and in Subsection C, in the second sentence, after "resolution and", deleted "provide" and added "serve" and after "with a copy" deleted "by certified mail, return receipt requested".
The 1993 amendment, effective June 18, 1993, in Subsection D, added the Paragraph (1) designation and made a minor stylistic change in Paragraph (1), and added Paragraphs (2) and (3).
Modification of resolution. — A party may petition a workers' compensation judge to modify a binding recommended resolution within the two-year time period provided by statute, so long as the party's application is based on one of the statutorily enumerated grounds. Hidalgo v. Ribble Contracting, 2008-NMSC-028, 144 N.M. 117, 184 P.3d 429.
Jurisdiction over Indians. — Where worker was injured during the course of worker's employment by an Indian tribe at a ski run that was operated by the Indian tribe and the ski run was located on federal, not tribal land; the Indian tribe did not waive sovereign immunity by operating the ski run off tribal land, the location of the ski run off tribal land did not confer jurisdiction to the state, and the workers' compensation judge lacked subject matter jurisdiction of worker's claim. Antonio v. Inn of the Mountain Gods Resort & Casino, 2010-NMCA-077, 148 N.M. 858, 242 P.3d 425, cert. denied, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611.
Filing in improper venue. — The one-year statute of limitations under this section was satisfied by the diligent filing of the complaint, although it was in an improper venue. The statutory period was tolled during the pendency of the action, including the time consumed on appeal. Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155 (decided under prior law).
Time limit. — The language of Subsection C indicates a legislative intent that a time limit exist on the authority of the director to vacate or modify a recommended disposition, thus requiring (1) a showing of good cause, and (2) that the motion for reconsideration was made within 30 days following receipt by the parties of the hearing officer's proposed informal recommendation. Armijo v. Save 'N Gain, 1989-NMCA-014, 108 N.M. 281, 771 P.2d 989.
The division should not be deprived of administrative jurisdiction when the issuance of recommended resolutions are delayed beyond the prescribed statutory time limit. Armijo v. Save 'N Gain, 1989-NMCA-014, 108 N.M. 281, 771 P.2d 989.
Failure of the director to comply with the legislative time constraints imposed by Subsection C permits the parties to either waive any delay in the rendition of the informal resolution and await the recommended resolution or, if no informal resolution has been filed after the expiration of the 60-day period, to invoke its rights to a prompt hearing on the merits before a hearing officer without further delay and without the necessity of awaiting the issuance of an informal settlement recommendation. Armijo v. Save 'N Gain, 1989-NMCA-014, 108 N.M. 281, 771 P.2d 989.
Relief from mistake. — Subsection C of this section provides the exclusive procedure for obtaining relief from the binding effect of an accepted recommended resolution on the grounds of mistake. Medina v. Hunemuller Constr., Inc., 2005-NMCA-123, 138 N.M. 472, 122 P.3d 839.
Failure to timely respond to recommended resolution. — Examination of Subsection C of this section in context with the act as a whole indicates that the legislature intended that a party's failure to timely respond to a recommended resolution would preclude a later attempt to contest the recommended resolution for mistake, inadvertence, surprise or excusable neglect under Subsection B(2) of Section 52-5-9 NMSA 1978. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.
To the extent that the provisions of Section 52-5-5C and 52-5-9B(2) NMSA 1978 are conflicting, the former section is the more specific and governs. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.
Since respondents failed to notify the workers' compensation judge of excusable neglect within the time limit specified in Subsection C of this section, they could not subsequently file a rejection to the recommended resolution under the two-year time limit provided in Section 52-5-9 NMSA 1978. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.
Allowing a party up to two years to assert mistake or excusable neglect as a basis for filing a rejection to the recommended resolution would make a nullity of the time limits in Subsection C of this section. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.
Time limits for modifications. — A party who fails to file a response to a recommended resolution is governed by the time limits of Subsection C when seeking to modify compensation order based on mistake or excusable neglect; when considering other grounds for modification under Section 52-5-9 NMSA 1978, excluding mistake or excusable neglect, the two-year limitation period of Section 52-5-9 NMSA 1978 applies as with any other compensation order. Fasso v. Sierra Healthcare Ctr., 1994-NMCA-170, 119 N.M. 132, 888 P.2d 1014.
Since the worker sought to modify recommended worker's compensation resolution on the basis of her change in condition, the two-year provision in Section 52-5-9B NMSA 1978 applied and not the shorter limitations period in Subsection C. Fasso v. Sierra Healthcare Ctr., 1994-NMCA-170, 119 N.M. 132, 888 P.2d 1014.
Time limits for relief from recommended resolution. — Section 52-5-9 B(2) NMSA 1978 does not provide a basis for obtaining relief from a recommended resolution on the basis of mistake once the time limits of Subsection C of this section governing withdrawal of an acceptance have expired. Medina v. Hunemuller Constr., Inc., 2005-NMCA-123, 138 N.M. 472, 122 P.3d 839.
Worker's burden to establish entitlement to benefits. — Although an employer filed with the administration a petition to reduce benefits seeking a termination or reduction of temporary total disability benefits, it did not bear the burden of persuading the judge that the worker's benefits should be terminated or reduced. The burden was on the worker to establish entitlement to benefits. Gallegos v. City of Albuquerque, 1993-NMCA-050, 115 N.M. 461, 853 P.2d 163, cert. denied, 115 N.M. 535, 854 P.2d 362.
Initiation of claim by employer. — An employer had standing to initiate a worker's compensation action for death benefits on behalf of its employee. Eldridge v. Circle K Corp., 1997-NMCA-022, 123 N.M. 145, 934 P.2d 1074, cert. denied, 122 N.M. 808, 932 P.2d 498.
When an employer initiated a worker's compensation death claim on behalf of its employee, and the employee's estate filed an action in district court against the employer for intentional wrongful acts, action on the worker's compensation claim would be deferred until the estate's action for intentional tort was resolved. Eldridge v. Circle K Corp., 1997-NMCA-022, 123 N.M. 145, 934 P.2d 1074, cert. denied, 122 N.M. 808, 932 P.2d 498.
Modification of binding resolution. — A conclusively binding recommendation under this section, after the running of the time for contesting the recommendation, is synonymous with and constitutes an "award" within the meaning of Subsection A of Section 52-5-9 NMSA 1978. Thus, jurisdiction vests with the workers' compensation judge (W.C.J.) to modify a conclusively binding recommended resolution under Section 52-5-9 NMSA 1978, and the W.C.J. erred in concluding that a conclusively binding recommended resolution is not a "compensation order" as used in Section 52-5-9 NMSA 1978. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.
The grounds for modification listed in Subsection B of Section 52-5-9 NMSA 1978 do not permit a party to file a delayed response to a recommended resolution once the resolution has become final. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.
Disqualification of judge. — The formal hearing rule adopted by the worker's compensation administration was erroneously interpreted to require a worker to file a provisional challenge to an alternative worker's compensation judge within ten days of the initial notice of judge assignment, in anticipation of the possibility that the opposing party would challenge the first judge. The rule could be properly interpreted to permit each party to exercise a peremptory challenge within ten days of the initial notice of judge assignment or a subsequent notice of judge assignment, if the first judge is excused or recuses himself or herself. Wineman v. Kelly's Restaurant, 1991-NMCA-128, 113 N.M. 184, 824 P.2d 324.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation § 488 et seq.
100 C.J.S. Workmen's Compensation § 458 et seq.
Law reviews. — For note, "The District Court Should Make the Initial Determination of Jurisdiction in Workers' Compensation Cases Involving Intentional Tort Claims - Eldridge v. Circle K Corp.," see 28 N.M.L. Rev. 665 (1998).
