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The Workers' Compensation Handbook For New Mexico

When you need help with a workers' compensation claim
The WCA ombudsman program (§52-5-1.4 NMSA)........................................................................................ 1
Before you call an ombudsman ...............................................................................................................................2 Ombudsman calls are confidential ...........................................................................................................................2 The WCA does not pay benefits ..............................................................................................................................2 The Workbook for Injured Workers .........................................................................................................................3 Worker checklist for contacting an ombudsman ........................................................................................................4

Booklet C1:

Ombudsman or lawyer?................................................................................................................................ 5 If you must file a complaint .......................................................................................................................... 5
Time limits on filing complaints ...............................................................................................................................5 Employers and others can call the ombudsmen ........................................................................................................7

If you need a lawyer........................................................................................................................ 7
How lawyers are paid in workers' compensation ............................................................................................ 8
Can you get help from a non-lawyer? ......................................................................................................................9

The dispute resolution process...................................................................................................................... 9
Filing a complaint (lawsuit) .....................................................................................................................................9 FILING INFORMATION CHECKLIST........................................................................................................................ 10 Information you need to file a complaint................................................................................................................ 10 When the employer or insurer files a complaint ...................................................................................................... 12 Change of health care provider ............................................................................................................................. 12 Video Conference Hearings................................................................................................................................... 12 The Mediation Conference .................................................................................................................................... 13 If you need help with English................................................................................................................................ 13 Recommended resolution ..................................................................................................................................... 14 Deadline for replying to a recommended resolution ................................................................................................ 14 Time limits on mediation ...................................................................................................................................... 15 If you do not have a lawyer .................................................................................................................................. 15 Attorney fees when the case is resolved by mediation............................................................................................. 15 If you don't resolve the case at mediation.............................................................................................................. 15 When attorney fees are not 50-50......................................................................................................................... 15

Mediation .................................................................................................................................................. 13

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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Formal hearings by a workers' compensation judge ..................................................................................... 16 More about Attorney Fees .......................................................................................................................... 17
Discovery costs.................................................................................................................................................... 17 Extra attorney fees for bad faith............................................................................................................................ 18 Attorney fees in lump sum settlements (§52-5-12 NMSA) ........................................................................................ 18 Attorney fees in appeals and reopened cases ......................................................................................................... 19 Help from the Workers' Compensation Administration ............................................................................................. 20

Most WCA records are confidential .............................................................................................................. 19

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 1

This booklet is generally addressed to workers. It is to give you information about the different ways you can get help to understand the claims process or if you have a disagreement with your insurer or self-insurance program. The information in this booklet will also help to explain the process to employers and managers.

The WCA ombudsman program

(§52-5-1.4 NMSA) 1

The ombudsmen of the New Mexico Workers' Compensation Administration (WCA) are people who provide information and assistance to injured workers, and to anyone else who needs help understanding a workers' compensation claim. "Ombudsman" is a word from Europe. It means a government official who investigates problems and helps resolve them, without taking one side or another. The plural of ombudsman (spelled with an "a") is ombudsmen (spelled with an "e"). The ombudsmen are specialists in the workers' compensation claims process, who can explain how the system works. The ombudsmen can help to resolve some kinds of disputes, especially if the dispute is mostly a problem of communication. If you are having any problem with a workers' compensation claim, you can call the ombudsman program (unless you have a lawyer). Usually you can speak to an ombudsman on the telephone. You don't have to come in person. Ombudsmen are on staff at the state headquarters in Albuquerque and the six WCA regional offices, in Lovington, Las Cruces, Las Vegas, Farmington, Roswell and Santa Fe. You can call the office closest to where you live, or you can call the WCA HELPline at 1-866-WORKOMP / 1-866-967-5667. Some ombudsmen speak Spanish. If you need help in Spanish, you can call and ask in Spanish. See also Booklet B7, which is in Spanish. (Algunos ombudsmen hablan español. Si usted necesita ayuda en español, pida que habla con alguien en español. También véase Un Manual para los Trabajadores Lesionados en Nuevo México, que está escrito en español.) This service is free. You don't have to file any papers to ask for help. You may come in person if you wish. It is best to make an appointment so that you are sure an ombudsman is available to help you. The ombudsmen may be able to tell you what you can do, or they may contact the other party and attempt to resolve your problem. Many disputes are really

In this booklet are references to specific paragraphs of the workers' compensation law. These references are in a standard form. §52-5-1.4 NMSA means Chapter 52, Article 5, Paragraph 1.4 of the New Mexico Statutes Annotated (NMSA).

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Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 2

communication problems and an ombudsman can help to resolve them with a few phone calls. Ombudsmen do not take sides for you or against you. They do not decide whether you are right or wrong or whether the other party is right or wrong. They give out information about the workers' compensation law and the workers' compensation system, so that you can make up your own mind. In the past, a worker who needed help with a workers' compensation claim usually had to hire a lawyer. Since the WCA started the ombudsman program, hiring a lawyer is still necessary sometimes, but not as often.

Worker:

If you are having a problem with your claim, or if you do not know what to do, call the ombudsmen. The ombudsmen can give you information. They may be able to explain the cause of your problem, or they may be able to speak to the other parties involved in your claim and get the problem resolved. You don't have to have a "problem" to call the ombudsmen. If you just want information so you can understand better how the system is working in your case, you can call and ask.

Before you call an ombudsman
The ombudsman will be able to help you much faster if you have some information right in front of you when you make the phone call. Go to the "Worker Checklist" in this booklet and write down whatever information you have. If you do not know something, it's OK to leave it blank.

Ombudsman calls are confidential
The ombudsmen will contact another party about your case only if you give permission. The ombudsman will not discuss your call with any outside parties unless you give permission. If you wish, you can simply ask questions, and they will explain the system to you. The ombudsman will usually ask you for your name and other information. But if you want to just ask questions without giving your name, you can.

The WCA does not pay benefits
Workers' compensation benefit payments are paid by private insurance or selfinsurance programs. Indemnity and medical benefits are paid by the insurer or by an individual or group self-insurance program. The WCA does not pay benefits to anyone. (If you are a State of New Mexico employee, your benefits are paid by the State Risk Management Division.)
Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us
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2007 Edition page 3

When you contact an ombudsman, you will receive services to help resolve your dispute. You will not receive money from the WCA. If the ombudsman cannot help you resolve your dispute, your next step may be to file a complaint with the WCA. The ombudsman can provide the forms for you and help you fill them out.

QUESTION:
Q.

Can I call an ombudsman if I work for the state?

A. Yes. The WCA treats injured state employees the same as any other workers and treats representatives from the state Risk Management Division the same as any other claims representatives.

The Workbook for Injured Workers
Worker:
The WCA publishes a book entitled the Workbook for Injured Workers. This book contains some of the same information published in the booklets of The Workers' Compensation Handbook for New Mexico. The Workbook also contains blank forms that may be used by an injured worker to keep track of records related to the claim. You may obtain a copy of the Workbook free from any office of the WCA. The forms may help you track your claim and prepare for your case.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 4

Worker checklist for contacting an ombudsman
DO YOU HAVE AN ATTORNEY FOR YOUR CLAIM? If yes, the WCA ombudsman cannot help you. An ombudsman can only help people who are not represented. Please contact your attorney for help. IF YOU DO NOT HAVE AN ATTORNEY: Before you call an ombudsman to help you with a claim, write down the information on this form so that the ombudsman can answer your questions and help you faster.

Write down whatever you know. If you don't know something, it is OK to leave it blank.
1. Your name 2. Date of your accident 3. Your social security number 4. Your claim number 5. Part of body injured 6. Nature/Type of injury 7. Employer's (company) name 8. Name of your manager or supervisor 9. Name of employer's workers' compensation insurer 10. Name of adjuster (claims representative) handling your claim 11. Has the doctor taken you off work because of your injury? 12. If so, what dates were you off work? 13. Has the doctor released you to return to work? 14. If so, have you returned to work? 15. Have you been told by the doctor that you have reached maximum medical improvement? 16. If so, what date?

YES

NO

YES YES YES

NO NO NO

17. Have you been given an impairment rating?

YES

NO

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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2007 Edition page 5

Ombudsman or lawyer?
When should you call an ombudsman, and when should you look for a lawyer to represent you?

Reasons to call an ombudsman :
The ombudsman will give you information that might explain your issue and give you guidance as to the simplest way to solve your problem. If you have a problem that can be solved simply, without any formal legal process, the ombudsman will help you to do that. The ombudsman services are free of charge. If you hire a lawyer, the ombudsman will not be allowed to talk to you.

Reasons to contact a lawyer:
If a lawyer takes your case, the lawyer will interpret the law in the way that is most advantageous for you, and will work on your behalf. A lawyer can negotiate on your behalf with the insurer or self-insurance program. If you believe you have a legal right to benefits you are not receiving (medical or indemnity or both) or other serious dispute with your claims representative, a lawyer can act as your representative in resolving the issues. The lawyer is not allowed to take any money from you until your claim is resolved, except a small amount to cover expenses such as copying and mailing costs.

If you must file a complaint
A "complaint" is the first step in a formal legal action to resolve a dispute -- a workers' compensation lawsuit. Some people use the term "claim" to mean the same thing. In this series of booklets the term "complaint" is used for this purpose, and the term "claim" is generally used for documents filed with the insurance company.

Time limits on filing complaints
Worker:
It is important to file a complaint within a certain time limit. The general guideline for the time limit is within one year of the date that benefits were denied.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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2007 Edition page 6

If your employer refused to report your injury, or you never received any benefits, the deadline generally is one year from the day the first benefit should have been paid. Another way to count this is one year and 24 days from the date of your accident or injury (§52-1-31 NMSA). If you have continued to work for the same employer, you have one additional year. If you received benefits and they were stopped, the deadline is generally one year from the last payment. If you have continued to work for the same employer from the time of your injury to now, you have one additional year. If you believe you have a legitimate complaint, and the deadline is past, it might be a good idea to file the complaint anyway. There are special circumstances that extend the time limit in many cases. However, missing the deadline could cause you to lose the case.

QUESTIONS:

Q: If I have a problem with my insurance company and I call an ombudsman, will the ombudsman call the insurance company about my case? A: Only if you give permission. You can call and just talk over your case if you wish, or you can ask the ombudsman to help you with your problem by calling the insurance company. If your problem can be resolved by communication, the ombudsman will keep working on your case until it is cleared up or another course of action is chosen (unless you have a lawyer). Q. My lawyer gave me advice that did not sound right to me. I called an ombudsman to check whether it was right, but the ombudsman said she couldn't help. What can I do? A. An ombudsman cannot interfere between you and your lawyer. Your lawyer is the official person designated by you to advocate for your interests. It is presumed that your lawyer knows more about your case than anyone else, and that your lawyer understands the law and how the law applies to your case. You have the right to ask your lawyer to explain everything to you and to show you the paragraphs of the law that apply to your case. If you continue to have a lack of confidence in your lawyer, consider getting a different lawyer. Q: I spoke to an ombudsman after the insurance company denied my claim. The ombudsman didn't help me with my problem. He just said there was nothing he could do and that I had a right to hire a lawyer. So I contacted a lawyer. When I spoke to the lawyer, the lawyer said she would not take my case, and told me to call an ombudsman! It seems that nobody will help me. What should I do? A: This might be a situation where you think you have a valid dispute, but according to the law you might not. It is possible that there is something about the limits of the workers' compensation law that you do not understand. An ombudsman can investigate the reason why the insurance company denied your claim. If it appears that the denial was for a good reason, the ombudsman may explain to you the
Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us
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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 7

part of the law that the insurance company is applying to your case. But an ombudsman is not allowed to give you legal advice. A lawyer would not want to take your case if the lawyer believes you cannot win. If a judge decides that you are not entitled to benefits, the judge must decide that the lawyer was not entitled to any legal fees -- so the lawyer would not get paid for all his time and effort. If you find yourself in this situation, maybe you have been taking advice from friends who received benefits under an old workers' compensation law, and their advice does not apply to today's law. Or maybe you just did not find the right lawyer for you. You could go back to the lawyer and ask him to explain why he did not want to take your case. Also ask the insurance adjuster to explain why your claim was refused. You have the right to an explanation in writing, if you ask for it. If you still think your claim is justified, look for another lawyer. If you can't find one, you can file a complaint without a lawyer. Ask an ombudsman to help you fill out the papers.

Employers and others can call the ombudsmen
The ombudsmen of the WCA can receive calls and answer questions from any party in a workers' compensation matter. They can also answer general questions about workers' compensation claims. While most of their calls are from injured workers, they also help employers and other parties involved in workers' compensation matters. The ombudsmen can pass information on to other bureaus of the WCA. Some types of information that could be reported to other bureaus for appropriate action: · A business that you believe doesn't have workers' compensation coverage even though it is required to; An employer or insurance company that you believe may be engaging in unfair practices regarding workers' compensation claims or injured workers; A worker who you believe may be committing fraud by claiming workers' compensation benefits to which he is not entitled.

·

·

If you need help with any question about workers' compensation and do not know which bureau to call, you can call the ombudsmen first.

If you need a lawyer
If you cannot resolve your dispute with the help of an ombudsman, you might want to hire a lawyer. You may hire a lawyer at any time, and you may take your lawyer with you to a mediation conference. You may wish to call an ombudsman before you decide whether or not to hire a lawyer.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 8

To find a lawyer who specializes in workers' compensation, look in your telephone Yellow Pages under "Attorneys ­ Workers' Compensation." Or contact the State Bar of New Mexico for a list of lawyers who are certified workers' compensation specialists. Go to www.nmbar.org on the Internet or telephone (505)797-6000. This list includes some lawyers who usually represent workers and others who usually represent insurers. If your dispute is not resolved and you have to have a formal trial, you probably will need a lawyer at that time. Any lawyer you hire is working for you. You have a right to competent professional service and to clear, complete accounting of how your lawyer is managing your case. If you hire a lawyer, your lawyer is your "exclusive representative." Your lawyer may tell you not to discuss your case with certain people, and your employer may be told by the employer's lawyer not to discuss the case with you. The ombudsmen will not be allowed to discuss your case with you. These restrictions are based on the laws that protect the special relationship between lawyers and clients.

How lawyers are paid in workers' compensation (§52-1-54 NMSA)
The law strictly limits the amount of attorney fees that can be paid in workers' compensation cases. The workers' compensation judge sets the amount that the worker's lawyer may be paid, based on the judge's evaluation of the case. The maximum amount that can be paid to the lawyer for each side is set by law. The amount specified in the law was changed in 2003. · For cases in which the worker reached maximum medical improvement before July 1, 2003, and cases that had already been filed for dispute resolution before July 1, 2003, the maximum was $12,500. For cases where the date of maximum medical improvement was July 1, 2003, or later, and that had not been filed for dispute resolution prior to that date, the maximum fee is $16,500.

·

("Maximum medical improvement" is the point in your recovery at which the doctor has determined that you are either completely recovered or that you have recovered as much as you are likely to. See Booklet B2, "Benefits for Workers While They Cannot Work," for more information.) More information about attorney fees is found later in this booklet.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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2007 Edition page 9

Can you get help from a non-lawyer?
You may have help with your claim from someone who is not a lawyer, but that person is not allowed to act as your legal representative or to accept any money for helping you. For example, if you do not understand English very well you might get help from someone who can translate for you. If you are a union member, you might get help from a union business representative. That person would not have the same standing as a lawyer and might be regarded more like a helper than a representative. If someone other than a lawyer tries to act as your legal representative or get paid for helping you with a workers' compensation claim, that person could be charged with the unauthorized practice of law and be subject to penalties.

The dispute resolution process
Filing a complaint (lawsuit)
A complaint filed with the WCA is a type of lawsuit. It is a legal action against your employer and the insurance company. If you have a dispute about your workers' compensation claim and the parties cannot agree, you have the right to file a complaint. An ombudsman can help you fill out the paperwork if you do not have a lawyer. The ombudsman cannot represent you in court or give you legal advice. Complaint forms are available from any WCA office, and complaints may be submitted for filing at any WCA office (Albuquerque, Lovington, Las Cruces, Farmington, Las Vegas, Roswell, Santa Fe). The ombudsman can tell you what to do. Keep a copy of every paper you file. You are not required to have a lawyer to file a complaint, but you may choose to get a lawyer at any time. The benefits that you may receive in a workers' compensation complaint are limited under the workers' compensation law. Booklet B2, "Benefits for Workers While They Cannot Work," contains a general description of the benefits that may be awarded for serious or long-term injuries. The WCA has its own court to hear cases. The WCA provides the mediator, the judge, and the official court clerk who keeps records. In a complaint concerning benefits, the parties are required by law to have a mediation conference to try to resolve the dispute quickly and inexpensively. If the mediation does not resolve the dispute, a formal trial is scheduled. Mediation conferences and hearings may be held at the nearest office of the WCA, or in the county where the accident occurred, unless all the parties (including the mediator or judge) agree in advance to hold the hearing somewhere else (§52-5-6
Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us
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2007 Edition page 10

NMSA). Some conferences and hearings are held by video conference hookup, with parties able to see and talk to each other through a television screen though they are in different locations.

FILING INFORMATION CHECKLIST
This checklist can help you organize the information you will need to file a complaint. If you do not have a lawyer, an ombudsman can help you with the paperwork but cannot act as your representative. If you have been using the optional forms in the Workbook for Injured Workers, those forms will help you organize this information. These items are explained in the next section.

Your Injury or Illness and Medical Treatment
· · · · Form Letter to Health Care Provider, filled out by your doctor Copies of all medical records from all doctors who treated you for this injury Copies of any medical bills sent to you Copies of prescriptions

Payroll related information
· · Copies of 26 weeks of wage records (check stubs, etc.) Copies of information about any non-monetary wages received from the employer (lodging, fuel, etc.)

Workers' compensation benefit information
· Copy or record of each check, or check stub, received from the insurer or selfinsurance program (TTD, PPD)

Travel Expenses
If you · · · have traveled 15 or more miles each way for medical appointments: Record of mileage using your own car Public transportation costs ­tickets, receipts, itineraries Hotel receipts if you had to stay overnight

Information you need to file a complaint
Certain information must be provided in writing to be filed with your complaint. Detailed information is in the Rules of the WCA, the section titled "Claims Resolution," 11.4.4 NMAC. 2 The information needed includes the following:
2

In this booklet are references to the Rules of the Workers' Compensation Administration. These references are in a standard form based on the numbering system of the New Mexico Administrative Code (NMAC); for example, NMAC 11.4..4. This stands for Title 11, Labor and Workers' Compensation; Chapter 4, Workers' Compensation; and then the number of the section and exact paragraph.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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1. Information about your injury or illness For your claim to be covered by workers' compensation, you must have a report from a doctor showing that your condition was causally related to your work. The WCA has a form called "Form Letter to Health Care Providers and Physical Capacities Evaluation." If your doctor fills out this form completely, it will include the basic information you need. Make sure the doctor fills out the form completely! This is very important information. It will be difficult to resolve your case if the information is not complete. You or the doctor can find out more information about the Form Letter to Health Care Providers in the Health Care Provider Guide to New Mexico Workers' Compensation, published by the WCA. The book is available at all offices of the WCA or can be downloaded from the WCA web site at www.workerscomp.state.nm.us. The Form Letter itself is available in the book and on the web site and is attached to the Rules, 1.4.4.14 NMAC. Medical records are required from every doctor you have seen in connection with your condition. If necessary, go to the doctor's office and ask for a copy of your medical record. The doctor is allowed to charge you some money for filling out the Form Letter to Health Care Providers. The maximum amount the doctor can charge for copies or the report is set by the Rules of the WCA (NMAC 11.4.7.9 (G)(11)). You can call an ombudsman and ask for the current maximum charge. If the mediator finds that your injury or illness was work-related, the mediator can recommend that the insurer or self-insurance program pay you back for those expenses. If you are having trouble getting any doctor to provide information for you, you can call an ombudsman for information about your rights. You should also provide copies of all medical bills for treatment of your injury or illness. 2. Information about your wages The amount of indemnity benefits you receive depends in part on how much money you were earning before you were injured. Bring papers to show how much money you were earning -- for example, check stubs from your paychecks, bank deposit slips and records, or your most recent federal income tax return.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 12

If you were working at more than one job, bring the information from all of your jobs, not just the one where you were injured. If you were receiving certain kinds of non-cash payments, such as use of a car or a place to live, those payments could be counted as earnings to determine your benefit amount. 3. Information about benefits you have received If you have received any workers' compensation benefits, bring information about what you have received. 4. Travel expenses for medical care If you have had to travel 15 or more miles each way for medical care related to your injury, bring whatever records you have showing the miles you traveled and other expenses such as hotel and meals for an overnight stay. 5. Additional information required Forms are sent to you by the WCA Clerk of the Court with your copy of the "Notice of Mediation Conference." All the information requested on the forms is very important to your case.

When the employer or insurer files a complaint
The employer or insurer has the right to file a complaint against a worker. The employer or insurer might file a complaint if they believe the worker is fully or partially recovered from the injury and that indemnity benefits should be ended or decreased. Some insurers prefer to file a complaint and let a workers' compensation judge decide the issue, rather than cutting off the indemnity benefits, which might force the worker to file a complaint. The employer or insurer also might file a complaint if they believe the worker is harming himself in some way and preventing his injury from healing, or if they believe the worker does not have a valid claim. These issues were mentioned in Booklet B2, "Benefits for Workers While They Cannot Work."

Change of health care provider
If the only issue is a requested change of health care provider, the issue is not mediated. It goes straight to a judge within 7 days of the date it was filed with the WCA. See Booklet B4, "Medical Care in Workers' Compensation."

Video Conference Hearings
A hearing or mediation may be held by video conference. Every office of the WCA has a video conference connection to every other office.
Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us
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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 13

If the worker is in southeastern New Mexico, for example, and the claims representative is in Albuquerque, it might be easier to hold the mediation by video conference so that nobody has to travel a long distance. The worker can go to the Lovington or Roswell office of the WCA. The worker will be in a conference room with video conferencing equipment. The claims representative will be in a conference room in Albuquerque with the same type of equipment. The mediator will be in one of those two places. The parties can see and talk with each other on a television-like screen, just as if they were together in person.

Mediation
The law (§52-5-5 NMSA) requires that any complaint between an injured worker and the employer or insurer must be discussed in a mediation conference. If the dispute is settled in the mediation, the complaint does not have to go to a trial. This can save time, money and emotional stress for all the parties involved. Most of the complaints filed with the WCA are settled through the mediation process.

The Mediation Conference
A mediation is a conference. The participants in the conference are the worker, the claims representative and the mediator. The worker may have a lawyer. A representative of the employer, such as a supervisor or human resources manager, may attend. There may be a lawyer with the claims representative. The parties explain their positions. The mediator helps the parties discuss the issues and come to an agreement.

Worker:
You may take someone who is not a lawyer to a mediation conference, but that person is not your legal representative and may not accept any pay for helping you. For example, you may take a union representative or a family member. WCA ombudsmen are not permitted to act as legal advisers. Once a legal complaint has been filed, they may help you only as far as filling out forms and explaining the mediation process to you. You can explain your side of the dispute to the mediator, and the claims representative or lawyer will explain the other side. The mediation conference usually lasts about an hour. Usually only the parties and the mediator are present. Another person may be present if the mediator gives permission.

If you need help with English
If you need help with English or have any other special need and do not have a helper, notify your claims representative or the WCA Mediation Bureau before your conference is scheduled. The insurer or self-insurance program will provide a professional language interpreter if you request one.
Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us
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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 14

The interpreter's job is just to provide an accurate translation what is being said, so the parties can understand each other. Interpreters who work at the WCA usually are familiar with the legal language used in workers' compensation cases and so they are able to be helpful in making sure the worker understands. However, the interpreter does not represent the worker and cannot give the worker legal advice. If you need help with English and you only bring a family member, the family member might not be able to translate all the legal issues as well as an interpreter can. You can bring a family member and also ask for an interpreter.

Recommended resolution
Sometimes the parties come to an agreement right at the conference. Then the mediator writes a report on their agreement, and both parties formally accept the agreement. The report is called a recommended resolution. If the parties do not reach an agreement at the conference, the mediator studies the information and writes a different kind of recommended resolution. This kind of recommended resolution is the mediator's proposal of how the parties could resolve the case, based on the facts and the mediator's knowledge of workers' compensation law. The recommended resolution may be the mediator's estimate of what a judge would be likely to decide about this case after a formal hearing. The mediator sends the recommended resolution to the worker (or the worker's lawyer) and the claims representative or lawyer for the employer or insurer. Each party can decide to accept or reject the recommended resolution. If both parties accept it, it becomes a binding legal settlement, just as if it had been decided in court. No one is required to accept a recommended resolution.

Deadline for replying to a recommended resolution
Each party has 30 days to reply to the recommended resolution (§52-5-5(C) NMSA). The 30 days are counted including weekends and holidays, starting from the date when the party received the recommended resolution in the mail. If either party does not reply in time to the recommended resolution, the WCA legally must assume that the party who did not reply accepted it. If neither party officially rejects the resolution, it is assumed that both parties accepted it. It then becomes the official settlement of the case, and the parties are required to abide by it.

Worker:
You are not required to agree to the mediator's recommendation. You should accept it only if you believe it is in your best interest. If you do not agree with the recommended resolution, make sure you reply to the WCA within 30 days, or you will lose your right to a trial.
Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us
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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 15

Time limits on mediation
The law requires that the mediation process must be completed within 60 days from the date the complaint was filed. That means the conference must be scheduled and the mediator must issue the report (recommended resolution) within the 60-day time limit.

If you do not have a lawyer
Worker:
If you choose to file a complaint and go to mediation without a lawyer, you should carefully assemble all the information about your case and be prepared to represent yourself. The mediator is not allowed to take sides or act as your legal adviser. For example, the mediator cannot recommend whether you should accept a settlement offer. An ombudsman cannot advise you about this, either. You will have to decide for yourself.

Attorney fees when the case is resolved by mediation
Attorney fees paid to the worker's lawyer must be approved by a workers' compensation judge. The parties may agree on the amount, and the mediator may include this agreement in the recommended resolution. Or the parties may leave the issue of attorney fees for the judge to decide later.

If you don't resolve the case at mediation
If you cannot resolve your dispute at mediation, you can still keep on negotiating with the other party to try to reach an agreement so you don't have to have a trial.

When attorney fees are not 50-50
There is one situation in which a worker might have to pay all his or her own attorney fees, or the insurer might have to pay all of the worker's attorney fees (§52-154(F)(3) and §52-1-54(F)(4) NMSA). That is, if one side makes an "offer of judgment" to the other to settle a case, the other side refuses it, and then after a trial or other resolution the side that refused the offer ends up with a less favorable decision than the settlement would have been. An offer of judgment is something that might happen after the claim has been through the mediation process and the mediation was not successful. Then, if the worker or the claims representative offers a different solution to resolve the case, that is called an offer of judgment.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 16

Formal hearings by a workers' compensation judge
If the parties cannot agree on the settlement of a complaint through mediation, it may be necessary to have a formal trial to decide the issues. The WCA has its own court. In this special court system, workers' compensation cases are heard by judges who are specialists in this field of the law, and cases are decided without many of the long delays that sometimes happen in other courts. The WCA has rules setting out time limits on collecting information and some other aspects of preparing for a trial. But even so, in most cases it takes several months from the time a case is filed to the trial date. A workers' compensation trial is a formal court proceeding, and the parties are guaranteed "due process of law." Workers' compensation court follows procedures similar to those of a district court. Hearings are formal, persons are only allowed to speak at certain times, and recordings are made of all procedures. Formal rules of evidence are in effect. As in any formal court, the judge is only supposed to consider information presented according to the rules of evidence. Neither party is allowed to talk to the judge outside the formal setting. That means it is not appropriate to contact the judge in person or by telephone. This is called "ex parte communication." (You are permitted to speak to the judge's secretary, about scheduling or other administrative matters.) Ombudsmen are not allowed to be involved in any case at this level. By law, they may not give legal assistance to any party. Most of the cases filed with the workers' compensation court for trial are settled before a trial takes place. If the parties find a way to agree, they can settle a case at any time and save the expense, delay and difficulty of a trial. If a judge decides a case and one of the parties believes the judge is in error, there is a right of appeal to the New Mexico Court of Appeals. The appeal is governed strictly by the rules and deadlines of the Court of Appeals. An appeal is not a new trial about the facts of the case. The appeals judges may examine the legal procedures in the case to determine whether the judge in the lower court case made a technical error in conducting the trial or interpreting the law, or whether the evidence presented at trial was substantial enough to support the trial judge's decision. The appeals court could set aside a verdict. When verdicts are set aside, sometimes the party who lost at the trial court level then wins. Other times, the case is sent back to the trial court to be tried over again.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 17

More about Attorney Fees
Discovery costs
"Discovery" is a legal term for the process of gathering information in preparation for a trial. Discovery can involve expenses. For example, some cases require formal, recorded interviews with one or more health care providers. These interviews are called depositions. The health care providers are paid for the time they spend in depositions. The worker (or the worker's attorney) is entitled to an advance of a certain amount of money for pre-trial discovery costs, to be paid by the insurer or self-insurance program. The amount of the advance is set by law and was changed in 2003. · For cases in which the worker reached maximum medical improvement before July 1, 2003, and cases that had already been filed for dispute resolution before July 1, 2003, the maximum advance is $1,000. For cases in which the worker reached maximum medical improvement on July 1, 2003, or later, and that had not been filed for dispute resolution prior to that date, the maximum advance fee is $3,000 (§52-1-54 (D)).

·

If the worker is unsuccessful in the case, the worker might have to repay the discovery costs. The workers' compensation judge would approve a payment plan to allow the worker to repay this money over time.

Employer:
Your insurance company or self-insurance program is responsible for the full amount of the employer's attorney fees, up to the maximum allowed by law. The amount of the fee is negotiated privately between your insurance company and the lawyer, except that it is limited to the maximum. Your insurance also covers the portion of the worker's attorney fee that the employer is required to pay, up to the same maximum. Usually this is one-half of the fee. This is paid by your insurance company or self-insurance program as part of the claim. Your insurance company may be required to pay an advance for the worker's costs of pre-trial discovery. The maximums for these payments are the same as for workers' attorneys, in accordance with the 2003 law changes.

Worker:
If you receive an award of medical or indemnity benefits, you will usually be responsible for paying half of your lawyer's fee, and the employer's insurance will pay
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Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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2007 Edition page 18

the other half. The amount of the fee and your portion of it are set by the judge, limited to the maximum amount explained in the section above. Never pay a lawyer in advance for your workers' compensation case! You pay only amounts awarded by a judge, after the judge has told you. Your lawyer is permitted to ask you in advance for small sums to cover costs, such as copying expenses, and must account to you for those expenditures. You will be responsible for paying your share of the lawyer's fee after it has been awarded by the judge. Discuss these financial questions thoroughly with your lawyer at the beginning, so you know what to expect.

Extra attorney fees for bad faith
There is one situation in which a workers' compensation judge can award up to $2,500 more than the limit on attorney fees (§52-1-54(I)) . If one party has shown "bad faith" in the handling of the claim and the other party has suffered an economic loss as a result, the judge can award this extra amount of fees to the attorney representing the party who suffered the loss. The law says "bad faith" is conduct that amounts to "fraud, malice, oppression, or willful, wanton or reckless disregard of the rights" of the other party.

QUESTION:
Q. I hired a lawyer. Then I got my problem resolved without ever filing a complaint. How much do I pay my lawyer? A. Do not pay anything until you receive an order from a workers' compensation judge, except small sums to cover costs. Your lawyer is responsible for filing documentation with the workers' compensation court and must petition the court for an award of attorney fees. If the judge finds that the lawyer should receive a fee, then you will owe the lawyer some money, and the other party will usually owe the lawyer an equal amount of money. You are only required to pay what the judge tells you to pay. Usually that is half of your fees.

Attorney fees in lump sum settlements (§52-5-12 NMSA)
Worker:
There are two kinds of settlements in which you may receive a large sum of money all at once. These are called "return to work" lump sum settlements and partial lump sum settlements. They are permitted by workers' compensation judges only in very limited circumstances. See Booklet B2 for more information about lump sum settlements. In both cases, your lawyer may expect to be paid for your share of his services out of the settlement you receive.
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Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 19

Your lawyer could ask you to agree in advance that you will pay attorney fees out of any lump sum settlement you receive. You should only make such an agreement if you think it is in your best interest. Before you sign any agreement or contract, be sure you thoroughly understand the agreement and what it could mean for your future.

Attorney fees in appeals and reopened cases
The limit on attorney fees applies to the entire case. If the case is appealed to a higher court, or if the case has to be reopened because new issues arose after it was thought the case was finished, the attorney fees are still limited to the same maximum amount set by law

Most WCA records are confidential
Most records of the WCA are confidential. They are not open to the public. This is a requirement of the workers' compensation law (§52-5-21 NMSA). Records at the WCA become public if they are introduced as evidence in an administrative or judicial proceeding or filed with the clerk of the court as part of an enforcement or compliance proceeding. If either party in a workers' compensation dispute rejects the recommended resolution of the mediator, then the records of the judicial proceeding will be public. Records of the mediation (including the recommended resolution) will not become public. The law provides that once an accident or disablement occurs, any person who is a party to a claim upon that accident or disablement is entitled to access to all files relating to that accident or disablement, and to all files relating to any prior accident, injury or disablement of the same worker. In order to fulfill this requirement of the law, the WCA staff takes special precautions before giving out any information. If you need information about a case in which you are a party, contact the Clerk of the Court at the WCA state headquarters in Albuquerque for instructions. The WCA recommends that every person involved in a workers' compensation case should make copies of documents before filing the documents with the WCA. Hearings before the workers' compensation court are open to the public, as in most other courts.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 20

Help from the Workers' Compensation Administration
(See the list of offices and telephone numbers on the back page of this booklet) Information to help workers to resolve disputes informally or formally WCA publications
This booklet is one of the series called The Workers' Compensation Handbook for New Mexico. You can get all the rest of the booklets from any office of the WCA or online. The Workbook for Injured Workers is a book written just for injured workers, which explains the workers' compensation process in an orderly way. It contains forms that the worker can use to help organize information about the claim. You can get publications from any office of the WCA. Telephone to request publications by mail. For downloadable publications, see below.

Personal contact
The WCA ombudsmen can assist you with most matters related to the claim, unless you already have a lawyer. Call the Helpline number 1-866-WORKOMP / 1-866-9675667, or your nearest WCA office. The Clerk of the Court keeps court records and track of cases. In a workers' compensation complaint, documents are filed with the Clerk of the Court. WCA field offices can help you with filing if you are located near that office. Dispute Resolution Bureau is where the mediators and judges work. You may not speak directly to mediators or judges outside of mediations and hearings, but if you have a matter such as scheduling you may call their secretaries.

WCA web site

www.workerscomp.state.nm.us

You can download all the booklets in this series from the web site. You can download copies of the OPTIONAL FORMS from the Workbook for Injured Workers. The legal forms you need to file a complaint or any other legal action with the WCA court are on the web site under Forms. Talk to an ombudsman before using these forms, unless you have a lawyer.

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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The Workers' Compensation Handbook for New Mexico Booklet C1: When you need help with a claim _______________________________________

2007 Edition page 21

Workers' Compensation Handbook List of Booklets This list shows new titles and numbering system that will be in effect when the 2007 revision is completed. Some booklets are eliminated and others are renumbered. There are some changes from the pre-2007 editions of the booklets.
To get the information you need: Contact any office of the Workers' Compensation Administration for printed copies OR All booklets can be downloaded from the Workers' Compensation Administration web site at www.workerscomp.state.nm.us

Booklet Booklet Booklet Booklet Booklet Booklet

A1(E) A1(S) A2 A3 A4 A5

Workers' Compensation Quick Facts- English Compensación A Los Trabajadores Informes Básicos ( Spanish) Setting Up a Workers' Compensation Program The Workers' Compensation Coverage Guide for Employers and Insurance Agents Uninsured Employers' Fund Workers' Compensation Personnel Assessment Fee (WC-1)

Booklet B1 What to Do after an Accident Booklet B2 Benefits for Workers While They Cannot Work Booklet B3 Going Back to Work Booklet B4 Medical Care in Workers' Compensation (B5 and B6 will be discontinued) Booklet B7 Información del sistema compensativo para los empleados (Spanish) Booklet B8 Quick Facts for Health Care Providers Booklet C1 When you need help with a workers' compensation claim Booklet C2 What to Do In Response to "Bad Acts" (C3 through 5 will be discontinued) Booklet D1 Booklet D2 Annual Safety Inspections How to Develop a Safety Program (published by the Advisory Council on Workers' Compensation and Occupational Disease Disablement)

(On the web site, look under Employers)
E3 E4

Guide to Completing and Filing Paper Copy for Employers' First Report of Injury or Illness (Form E1.2) and Notice of Benefit Payment (Form E6.2) EDI Guide to Completing the Employers' First Report of Injury or Illness (Form E1.2) and Notice of Benefit Payment (Form E6.2) -- limited to certified electronic filers

Other publications

Health Care Provider Guide to New Mexico Workers' Compensation Guidebook for Employers in New Mexico (English and Spanish) Workbook for Injured Workers (English and Spanish) The Stay at Work/Return to Work Program Guide
Wcamjd 9/07

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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2007 Edition page 22

NEW MEXICO WORKERS' COMPENSATION ADMINISTRATION
STATE HEADQUARTERS Mailing Address: Workers' Compensation Administration PO Box 27198, Albuquerque NM 87125 Location: 2410 Centre Avenue SE (near Yale-Gibson intersection) In-state toll-free phone: 1-800-255-7965 Local phone 841-6000 REGIONAL OFFICES: Southeastern regional office at Lovington: 100 West Central, Lovington, NM 88260 Telephone: 575-396-3437 In-state toll-free phone: 1-800-934-2450 Southwestern regional office at Las Cruces: 1120 Commerce Drive, Suite B-1, Las Cruces, NM 88011 Telephone: 575-524-6246 In-state toll-free phone: 1-800-870-6826 Northwestern regional office at Farmington: 3535 East 30th Street, Farmington, NM 87401 Telephone: 505-599-9746 In-state toll-free phone: 1-800-568-7310 Northeastern regional office at Las Vegas : 2515-2 Ridge Runner Road, Las Vegas NM 87701 Moving in 2008 to: 32 New Mexico 65, Las Vegas NM 87701 Telephone: 505-454-9251 In-state toll-free phone: 1-800-281-7889 Roswell Office: Penn Plaza Bldg., 400 N. Pennsylvania Ave., Ste. 425, Roswell NM 88201 Telephone: 575-623-3781 In-state toll-free phone: 1-866-311-8587 Santa Fe Office: 810 West San Mateo, Suite A-2, Santa Fe, NM 87505 Telephone: 505-476-7381 Internet web site address: http://www.workerscomp.state.nm.us/ HELP & HOTLINE: 1-866-WORKOMP / 1-866-967-5667

mjdwca 1/08

Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667 or look on the Internet at www.workerscomp.state.nm.us

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