The workers' compensation and employers liability policy and the general principles of no-fault benefits and exclusive remedy are covered in the national Workers' Compensation guide. This guide covers the New Mexico Workers' Compensation Act (NMSA 1978, Chapter 52, Article 1): which employers must insure, who can opt out, the benefit rules and the deadlines. New Mexico is not a monopolistic state, so employers buy coverage from private insurers or qualify to self-insure.

Who administers it

The Workers' Compensation Administration runs the system. Its director is appointed by the governor, with the Senate's consent, for a five-year term (NMSA 1978, 52-5-2). Occupational diseases fall under a companion law, the New Mexico Occupational Disease Disablement Law (NMSA 1978, 52-3-1).

Which employers must insure

• The Act applies to employers of three or more workers (NMSA 1978, 52-1-6(A)).
• Employers in work that requires a license under the Construction Industries Licensing Act are covered regardless of how many employees they have.
• The Act doesn't apply to employers of private domestic servants or farm and ranch laborers, but those employers may elect coverage by filing an acceptance or proof of insurance with the director (NMSA 1978, 52-1-6(B)).
• Executive employees (officers who own at least 10% of the stock or LLC interest) and sole proprietors may elect not to be covered (NMSA 1978, 52-1-7). An executive who opts out still counts toward the three-worker threshold. Revoking the election takes effect 30 days after it's filed with the insurer and director.

Insurance requirements

• Every covered employer has its insurer file a certificate of coverage with the director (NMSA 1978, 52-1-4(A)).
• The policy makes the insurer or employer directly and primarily liable to the worker, and to dependents if the worker dies (NMSA 1978, 52-1-4(C)).
• If a policy is canceled, the insurer files notice with the director within 10 days (NMSA 1978, 52-1-4(D)).
• Uninsured employers can be enjoined from operating (NMSA 1978, 52-1-62). If sued by an injured worker, an uninsured employer loses the common-law defenses such as assumption of risk and fellow-servant negligence (NMSA 1978, 52-1-8). Violations can bring fines of $25 to $1,000 per occurrence (NMSA 1978, 52-1-61).

Exclusive remedy

A complying employer and its insurer can't be sued outside the Act for a covered injury (NMSA 1978, 52-1-6(E)). The worker keeps any claim against third parties other than the employer, co-employees and the employer's insurer. Injuries must arise out of and in the course of employment (NMSA 1978, 52-1-9). Injuries on the way to or from work that the employer's negligence didn't cause are excluded (NMSA 1978, 52-1-19), and so are injuries the worker willfully caused (NMSA 1978, 52-1-11).

Benefits

Safety devices. Compensation is cut 10% if the worker didn't use a provided safety device, and raised 10% if the employer failed to provide required devices. The employer pays the increase itself (NMSA 1978, 52-1-10).

Medical provider choice. Whoever makes the initial choice of health care provider (employer or worker) controls it for the first 60 days of treatment. After that, the other party may choose (NMSA 1978, 52-1-49).

Bad-faith penalty. A claimant may be awarded up to an extra 25% of the benefits ordered (NMSA 1978, 52-1-28.1(B)).

Deadlines

• Notice of the accident: written notice within 15 days after the worker knew or should have known of it, extended up to 60 days if the worker was prevented from giving it. No written notice is needed if the employer or a supervisor had actual knowledge (NMSA 1978, 52-1-29).
• Claim: within one year after the employer or insurer fails or refuses to pay. The period is tolled up to one year while the worker stays employed by the same employer (NMSA 1978, 52-1-31).

Guaranty fund protection

The New Mexico property and casualty guaranty association pays workers' compensation claims in full, without its usual $100,000 cap (NMSA 1978, 59A-43-4(C)).

Common exam traps

• Three or more workers, except construction-licensed employers, who are covered at any size.
• Domestic servants and farm and ranch laborers are outside the Act unless the employer elects in.
• 7-day threshold, 4-week look-back: disability over four weeks is paid from day one.
• 66 2/3% of wages, capped at 100% of the state average weekly wage.
• 15 days to give notice, extendable to 60. One year to file a claim after benefits are refused.
• Plus or minus 10% for safety device violations.