FAQs

Your employer should have the Workers’ Compensation Administration poster located in a place readily available to you. On it you should find your employer’s insurance information along with the Notice of Accident forms. If your employer does not have a poster, simply ask for the insurance information including a phone number of where you can reach the insurance adjuster.

Your employer is required to report the accident to their workers’ compensation insurance company within 72 hours after you notify your employer.

The law allows your employer to initially select which doctor you are to see, or the employer can allow you to pick your own doctor. Regardless, the employer should notify you promptly of its decision to select the doctor, or to allow you to do so. If you are initially treated in an emergency room and then referred for follow up medical care, you should first check with your employer about who is to select the doctor before continuing treatment.

If the employer selects the initial doctor, then you have the automatic right to change to a doctor of your own choosing after 60 days of treatment. Likewise, if you initially select the doctor, the employer can send you to a doctor of their choosing after 60 days of treatment. The party that institutes a change of doctors must notify the other party of the change by completing and sending to the other party a form called the “Notice of Change of Healthcare Provider.” Any further changes in doctor selection must happen through agreement of both parties or by court order of a workers’ compensation judge.

The employer and insurer will make that decision based on the information available, including any statements or information you have provided, as well as the opinions of the medical providers. You may direct any questions to the claims adjuster handling your case. In the event of a disagreement, you may contact an agency ombudsman to assist you by dialing 1-866-967-5667.

: If you are unable to work following your injury, workers’ compensation insurance may pay up to 66 2/3% of your average weekly wage, called Temporary Total Disability (TTD) Benefits. These benefits go into effect on the 8th day of non-work status, which do not have to occur consecutively. The first 7 days of non-work status are not payable unless you are off work more than 4 weeks.

TTD benefits will stop either when you reach Maximum Medical Improvement (MMI), when your employer offers you work at your pre-injury wage, or when you accept employment with a different employer at your pre-injury wage. MMI is that point in time the doctor feels you are as good as you are going to get from medical treatment. If the doctor believes you have some remaining disability after you reach MMI, you may then be eligible for Permanent Partial Disability (PPD) benefits for a specified period of time, depending on the type of your injury.

Your employer cannot fire you simply because you reported a workplace injury/accident. However, if you are unable to perform your job duties because of a workplace injury, your employer can replace you. Once you reach MMI and are released by the doctor to return to work, your employer may be required by law to offer to rehire you. There are certain conditions which you should know about. Please contact an ombudsman for more information.

Yes

Family members who are paid wages are considered employees. For clarification on your business’ situation, please call our employer compliance bureau to determine whether or not someone counts as an employee (505) 841-6851.

Yes, if the business is a corporation, limited liability company, or professional association. Under Section 52-1-7, “executive employees” are included in the headcount of three or more employees. An “executive employee” means the “chairman of the board, president, vice president, secretary, treasurer or other executive officer, if [he or she] owns 10 percent or more of the outstanding stock, of the professional or business corporation or a 10 percent ownership interest in the limited liability company.” A business owner would also be counted if the business is engaged in activities required to be licensed by the Construction Industries Division (CID), although a CID sole proprietor has the option to exempt themselves. Also, if the partnership is organized as a limited partnership, the partners would be counted as employees for purposes of determining if mandatory coverage is required.

Yes. While an owner or executive employee may opt for exclusion from coverage, he/she is still counted for purposes of determining whether the business employs three or more workers.

Any employer who does not meet the coverage requirements of the Workers’ Compensation Act will be referred to the Employer Compliance Bureau for enforcement action.

Every employer is required to display the WCA poster with Notice of Accident forms in a conspicuous place on its business premises stating the requirement that workers notify employers of accidents. Both the poster and forms are available from the WCA at no charge to the employer (see “forms” on this website).

You should report all work accidents to your insurer or self-insurance program within 72 hours after you receive notice of the accident or injury, regardless of whether you believe the accident or injury is compensable.

You have the right to select the doctor the worker will see, or to allow the worker to select a doctor. It is recommended that you check with your workers’ compensation insurance carrier beforehand to determine if the insurer has a preference. Your decision on doctor selection should be communicated to the worker in writing as quickly as possible.

If you initially select the doctor, the worker has the automatic right to change doctors after 60 days of treatment by sending a completed “Notice of Change of Healthcare Provider” form to you or to your insurance carrier. If the worker selects the doctor first, you have the automatic right after 60 days of treatment to change the worker to a doctor of your or your insurance carrier’s own choosing by completing the same form and sending it to the worker.

As the employer, you should consider whether you have work available for the worker within the medical restrictions recommended by the doctor. If so, you are encouraged to offer work within those restrictions. Doing so will likely maintain a positive employment relationship and save on your bottom line in the long run.

You are not required to hold a workers’ position open following a job accident and/or worker’s inability to return to work. You can replace the worker. However, once the worker reaches Maximum Medical Improvement and is released by the doctor to return to work, you are required by law to offer to rehire the worker if:

a. The worker requests re-employment;

b. You are hiring;

c. The treating doctor certifies the worker is fit to perform the pre-injury job or a modified duty job without significant risk of re-injury;

d. The job is available.

If you are hiring, you shall also offer to rehire the worker who applies for any job paying less than the pre-injury job, provided the worker is qualified for the job and the doctor certifies that the worker is fit to perform the job offered without significant risk of re-injury. Employers must treat injured workers in good faith and not punish them or terminate them solely because they were injured and thereafter seek workers’ compensation benefits.

All employers subject to the insurance coverage requirements of the Workers’ Compensation Act must pay a quarterly assessment fee of $4.30 for each covered employee working for their business on the last working day of each quarter ($2 is paid by the workers and $2.30 is paid by employers). The fee is submitted to the New Mexico Taxation and Revenue Department using the WC-1 form. Information about how to register for the assessment fee can be found on the Taxation and Revenue Department website, https://www.tax.newmexico.gov/Businesses/workers-compensation or you may contact them at (505) 841-6626.

You can report workers’ compensation fraud to the Enforcement Bureau at the WCA by calling 505-841-6832 or toll-free at 1-800-255-7965 or by completing a report form found on the Enforcement page of this website at https://workerscomp.nm.gov/Enforcement and then emailing the form to the Enforcement Bureau.

Yes

On pages 41-42 of the New Mexico Supreme Court’s opinion, the Court addressed “children or other family members performing farm and ranch duties or chores” suggesting that, under these circumstances, family members would be volunteers and not employees. However, if the family member is paid wages for services performed, they count as an employee for purposes of determining whether workers’ compensation coverage is required. For clarification on your business’ situation, please call our employer compliance bureau to determine whether or not someone counts as an employee (505) 841-6851.

On pages 41-42 of its opinion, the New Mexico Supreme Court, addressed the “culture of neighboring” (where “farmers and ranchers help perform work on their neighbors’ farms and ranches”). The court’s opinion suggests that, under these circumstances, those who perform work on their neighbors’ agricultural operation would be volunteers and not employees. However, just as with family members, if the neighbor is paid wages for services performed, the neighbor may be counted as an employee for purposes of determining whether workers’ compensation coverage is required.

Yes, if the business is a corporation, limited liability company, or professional association. Under Section 52-1-7, “executive employees” are included in the headcount of three or more employees. An “executive employee” means the “chairman of the board, president, vice president, secretary, treasurer or other executive officer, if [he or she] owns

10 percent or more of the outstanding stock, of the professional or business corporation or a 10 percent ownership interest in the limited liability company.”

Yes. Although an executive employee may elect to be excluded from coverage, they are still counted in determining whether the business employees three or more employees.

No. However business owners should verify that the independent contractor maintains required coverage before hiring such contractors.

Calling a worker an independent contractor, having workers sign contracts designating them as an “independent contractor,” or having them file a 1099 does not conclusively determine whether a worker is an independent contractor to be excluded from coverage requirements. There is no bright line test to distinguish an independent contractor from an employee. It is a case-by-case determination that depends upon the working relationship between the employer and the worker and is determined by who has the “right” to control the “work” and the degree that “right to control” extends to the details, means or methods of performance. If you are unsure how to classify workers employed by your business, you should consult an attorney.

The Workers’ Compensation Administration does not determine classification codes or premiums. Insurance classification codes and insurance premiums have already been determined by insurance company underwriters. Additional questions may be directed to your insurance agent or to the Office of the Superintendent of Insurance.

The provisions of the WC Act apply to employees working in the state of New Mexico. If the worker is hired in New Mexico but does work outside of New Mexico, where (s)he is injured, the worker can file a claim in New Mexico, or in the state where the injury occurred. If the employer is an out-of-state employer with three or more total employees but just one employee in New Mexico, the employer is required to obtain a New Mexico policy.

An insurance agent can assist you with obtaining a policy. If you do not have an insurance agent, you can contact the Independent Insurance Agents Association for a list of licensed insurance agents in your area.

Your business will be in violation of the mandatory insurance provisions of the Workers’ Compensation Act and you could be subject to damages in district court, including compensatory and punitive damages, and fees and costs.

A compliance officer with the WCA will work with you to allow your business sufficient time to obtain a policy. If your agricultural operation nonetheless fails to obtain a policy, the WCA may seek a temporary restraining order to prevent you from operating your business until a workers’ compensation policy has been obtained. Your business could also face penalties of up to $1,000 per day that the business is in violation of the mandatory insurance coverage requirements.

If one of your employees is injured when you do not have workers’ compensation coverage in place, the employee can file a claim with the Uninsured Employers’ Fund (UEF). If the Uninsured Employers’ Fund pays benefits to the injured employee on your behalf, your business will be ordered to reimburse the Uninsured Employers’ Fund for all benefits paid, plus penalty (between 15% and 50%), interest, and fees.

1. You can ask your insurance company to do it for you.
2. You can hire a third party safety company to inspect your business.
3. You can do it yourself using the basic check sheet found on our website.
4. You can ask us to do it.

Inspections done by the WCA are free of charge. Just get it scheduled. We will train a member of your staff on how to inspect, and will provide you with a check sheet.

Probably not. While there are pros and cons to each of the options listed in Q2, the last option comes with a training process so your internal safety person or members of your management team can be taught how to conduct inspections, then return back to their work locations and conduct them. Please remember that in order for your inspection to be complete, you need to inspect all of your facilities in New Mexico.

Please don’t. You can find an Affidavit just for this purpose on our website or call the safety program at 1-800-255-7965 and ask to speak with a safety consultant. Once you have completed the affidavit, attach a listing of all addresses to the affidavit and mail it in.

Only those businesses that pay an annual premium of $15,000 or more on their workers’ compensation insurance, or to their self-insured program or are an individual self-insured entity must comply with the inspection requirement. Nonetheless, all other companies are strongly urged to do this. For companies that are required to have an inspection, the program does come with a penalty for non-compliance. A hearing may be held to determine if the inspection was done and the Workers’ Compensation Administration was informed in a timely manner. If not, your business could face a penalty of up to $5,000.

If you pay $15,000 in annual workers’ compensation insurance premiums, or are self-insured or in a self-insurance pool, you are required to comply with safety inspections, and send us the affidavit of completion.

Call the Administration at 1-800-255-7965, and ask to speak to a safety consultant

The UEF Administrator is an employee of the WCA. The WCA Director has authority over the UEF and instructs the UEF to make payments for a worker’s claim. The UEF uses a third-party administrator (TPA) to help investigate claims involving the UEF. The TPA is responsible for making legally required indemnity and medical payments on behalf of the UEF.

The WCA employs two attorneys who represent the UEF when it is named as a party in a complaint filed with the WCA. The attorneys report to the UEF Administrator. The attorneys appear as needed before WCA judges and in other courts to protect the UEF’s legal interests.

Each calendar quarter, workers contribute $2.00 and employers contribute $2.30 per employee. These fees are submitted to the New Mexico Taxation and Revenue Department and are transferred to the WCA. These fees serve as funding for both the WCA and the UEF.

If the UEF is named in a complaint, the UEF will determine if the claim is subject to benefits. The UEF Administrator will review the claim with the assigned UEF attorney and the TPA to decide if the claim is eligible and compensable.

A claim is considered eligible when the uninsured employer was required to have workers’ compensation insurance and the worker was employed by that employer on the date of the injury.

A claim is considered compensible if the injury happened during work hours. The worker’s injury must be medically related to the workplace accident.

The UEF has the right to challenge claims if the injury happened outside the worker’s duties. Workers must give timely notice of an injury or it can be challenged. A worker’s

injury must be related to the workplace accident. These are examples of defenses the UEF may state as a reason to not pay benefits.

Yes, there is a maximum amount.

For injuries that happened on or after December 23, 2005, the limit is $40,000 for both medical and indemnity benefits.

For injuries that happened on or after July 1, 2023, the limit is $60,000 for both medical and indemnity benefits.

For injuries that happen on or after July 1, 2025, the limit is $75,000 for both medical and indemnity benefits.

The UEF will try to recover all money paid to the injured worker. Frequently, a reimbursement agreement will be signed by the employer and the UEF that lists payment details. If the employer does not make payments to the UEF, legal action may be taken against the employer to obtain the funds.

Parties are not required to have an attorney. Unrepresented parties will be held to the same standard as represented parties. UEF attorneys do not provide legal advice. It is recommended to seek legal representation. The WCA ombudsmen can help unrepresented parties involved in a workers’ compensation claim. Ombudsmen are not attorneys and cannot provide legal advice. They can answer basic questions and provide general information. Contact an ombudsman toll free at 1-866-967-5667.

The UEF may provide benefits to family members if a worker dies because of a workplace accident. The benefits paid are subject to the UEF maximum limit (see Q7). It is recommended that the parties seek representation in death cases.

Chapters, which are based on body parts such as “The Knee and Leg” or general conditions such as “Pain,” begin with a summary of the most common diagnosis and complaints followed by recommended treatments. Information about recommended time out of work is also included in this section, where applicable The most important part of each chapter is in the “Procedure Summary” section which contains a comprehensive list of treatments that could be performed for injuries to specific body parts or on general conditions as indicated by the chapter name. Each possible treatment procedure is listed as recommended, not recommended, or under study and all recommendations are based on an comprehensive and ongoing review of peer-reviewed scientific studies.

Also, part of the Treatment Guidelines is the UR Advisor and the Drug Formulary/NDC Advisor. The UR Advisor allows users to plug in the diagnosis and a procedure (by code or key words) to get the ODG Approval Status, along with other data like median number of visits or average costs. The Drug Formulary is where all of the medications found in ODG are indexed, and the NDC Advisor is a look-up tool for easy access to specific drugs by name or NDC. Information provided includes strength, trade name, ODG status (Y or N), as well as links to the Procedure Summaries where more information is available on adverse effects, dosage, and links to the medical evidence.

MCG Health publishes ODG. The ODG applies evidence-based medicine to improve outcomes. Visit MCG Health[https://www.mcg.com/] to learn more.

Contact MCG[https://www.mcg.com/odg/contact-us/sales-solution-inquiries/] for more information.

Yes. The free self-paced Web-based demo is on demand. Access the ODG workers’ compensation guidelines [https://www.mcg.com/odg/workers-comp-guidelines/]. Visit the MCG resources page [https://www.mcg.com/odg/resources/] for further training at no cost.

Contact Suzanne Swirsky at Suzanne.Swirsky@mcg.com of MCG Health.

The following section pertains to the FAQs from the workshop.

Who develops and writes the guidelines?

There is an Editorial Advisory Board whose members are health care professionals that develop, review and approve changes to the guidelines. There are about 100 members, most of whom are volunteers and some who are editorial writers who are compensated.

Are Doctors restricted to the guidelines?

Doctors are not bound to the guidelines. The guidelines create a presumption that treatments are reasonable and necessary. WCA rules say that treatment that is reasonable and necessary should be paid. That doesn’t mean the treatment is automatically approved.

What if the HCP decides the best reasonable and necessary treatment is outside of the ODG?

If it is determined by the health care provider that treatment for an injured worker outside of the ODG is necessary they can document the clinical reasons for these exceptions. ODG includes an Appendix D, “Documenting Exceptions to the Guidelines” that can assist in providing language and supporting documents to help in these cases. Eventually it is hoped that the use of ODG will simplify the authorization process but it is not intended to be an “end all” process.

Why do attorneys need access?

In a disputed claim an attorney will want to be able to ensure their clients are receiving reasonable care. In the case of conflicting opinions it could assist attorneys as another resource on medical issues.

If an injured worker’s treatment is recommended under ODG is there an automatic approval?

The presumption is that it is reasonable and necessary. Thus assuming the HCP is authorized and the care is related to the work injury, the care should be approved.

If not recommended by the ODG then is the treatment considered not reasonable and necessary?

No. The WCA has added a line to both rule changes to preclude this from occurring by adding, “…there is no presumption regarding any other treatment.”

You must be a participant in a case with a valid email address in order to access active case documents through ECF. See Q/A1 regarding how to generically register for ECF.

Registration is based on the representing individual/firm email address. Those within an office who need access to e-filing can log in using the individual/firm’s email address and password. Additional email addresses may be added to a registered party’s account for the purpose of e-file submissions and notices of filing.

To do so, log into ECF using the representing party’s email address and select the “My Info” tab (see page 5 of the ECF Reference Guide.) Under “My Account Info,” add email addresses in the large box at the bottom of the screen titled “Additional Notify Emails.” Be sure to separate multiple addresses with a semicolon.

The WCA Clerk of Court will serve initial pleadings through the ECF system for registered parties. Pro se workers or uninsured employers who have not registered with the ECF system, as outlined in (11.4.4.9 (C), NMAC,) will receive service by certified mail. For more specific information on process service, consult (Rule 4), accessible on the (WCA website.)

Proposed orders cannot be filed. Proposed orders should be emailed to the judge’s secretary, provided the judge assignment is finalized in the case, and the period to disqualify has expired. If the assigned judge is not final, refrain from emailing the order until the time period to disqualify has passed.

Email notices of filing will be sent immediately after the Clerk’s office accepts the submission for filing. Because the WCA’s server refreshes twice daily – at noon and again at 5 p.m. – filed pleadings may not be immediately viewable. To view a filed pleading, log in to the ECF system and select the “My Cases” tab (see page 9 of the ECF Reference Guide.) Again, please allow four to eight hours to view your filed pleading.

Mediation exhibits cannot be e-filed, but may be submitted electronically through the ECF system (see page 8 of the ECF Reference Guide.) Uploading exhibits as part of a pleading will result in exhibits becoming part of the official record, when only a judge can decide what evidence is admissible. Mediation lists can be e-filed as a separate pleading, but are not required. These optional lists should be filed electronically and unattached to other documents. Parties and party representatives have the option of mailing or delivering mediation exhibits in paper or CD format to the WCA.

ECF will allow parties to reschedule mediations online under the “My Mediations” tab. There are three reasons that this option may not be available:

1) the mediation is scheduled to occur within two days;

2) the mediation is scheduled 90 days past the filing date of the complaint and can no longer be extended; and

3) not all parties or party representatives have an email address on record and would not receive an electronic notice of the rescheduled mediation.

There are two options in which adjusters can view a case. First, individual adjusters can file a pleading into a case they are not party to by using their own ECF login information. Once they have done so, they will now begin to receive service of process for everything pertaining to that case.

The alternative option would be for someone in the insurer’s office to use the general delivery email address provided to the WCA for electronic filing purposes to create a generic registration into the ECF system. This generic registration will allow multiple individuals within that office to view documents pertaining to the case, up to and/or until that case has been assigned to a specific

adjuster or attorney. The agency will use an insurance carrier’s general delivery email address for service of process until an adjuster or attorney files a pleading notifying the agency they are a party representative for a case. At that time, they will receive service on behalf of the party being represented.

Yes. When initial pleadings are e-filed, upload each pleading separately following the options for the type of pleading, and use the appropriate mandatory form (see “Forms” page.) Using the correct form helps ensure a timely filing, and minimizes rejection of the submission. For example, uploading a summons and a complaint as one document will result in a rejection of the submission.

It may take up to four to eight hours for recently filed pleadings to be viewable on the website. Digital images for cases filed prior to 2006 may not be available to view online. Contact the Clerk of the Court for further information. If you receive an error message or a blank image, please contact the agency’s help desk for assistance, 1-866-967-5667.

Select the “Contact Us” link and provide the agency with updated contact information. To ensure continued access to case load information, the agency may contact you for further information prior to completing your request.

Select the “Forgot Password” link. You will be prompted to enter your user name (email address), phone number, and the required code provided. Click on “Submit” and a new password will be sent to your email address. See (page 4 of the ECF Reference Guide.)

Only hearings and mediations that are scheduled in the system can be displayed.

Attorneys and adjusters are linked to cases through their registered email address, and only cases associated with that email address are viewable. Offices with multiple attorneys or adjusters have the option of creating a single email address to be used by all individuals in the office in order to log in and utilize the ECF system. All party representatives shall promptly update the WCA on any changes to a registered email address.