Current through Register Vol. 35, No. 18, September 24, 2024
A. The
WCA may contract with a an independent adjusting company for the adjusting of
those claims that are determined to be eligible for payment by the fund,
purchase a loss portfolio transfer covering some or all of the liabilities of
the fund, or may purchase a policy of commercial insurance to cover the
liabilities of the fund upon a finding by the director that such purchases are
in the best interests of the workers eligible to receive benefits from the fund
and the entities paying assessment to support the fund.
(1) The fund, in conjunction with the
independent adjusting company, if any, shall pay, or oppose, claims on their
merits, and shall be treated for purposes of mediation and adjudication of
disputes as a party with all rights and responsibilities applicable under
law.
(2) With approval of the
director, the independent adjusting company may engage outside counsel for
representation when necessary.
(3)
The fund or the independent adjusting company may solicit information
concerning the average weekly wage of the worker from the employer. Provision
of such information to the fund or the independent adjusting company shall not
constitute an admission that the worker was an employee. In the event that the
employer does not respond to the request for wage information, the employer
will be informed, in writing, at the last known address of the employer, or by
any means authorized by the director or his designee, that wages are in dispute
and that the worker's evidence concerning wages shall be used to calculate
average weekly wage. In the event that the employer does not respond within a
reasonable time from the date the letter described in this paragraph, an
affidavit from the worker concerning the wages earned while employed by the
uninsured employer shall be deemed sufficient evidence upon which to pay
benefits. Any suspected fraudulent reporting of wages by any party shall be
reported to the enforcement bureau for investigation.
(4) In the event of a dispute concerning the
wage basis for benefits, or in the event of other disputed benefits, the fund
and the independent adjusting company may pay indemnity or other benefits,
under reservation of rights, to the worker based upon available wage or other
claim information.
B.
With respect to any complaint filed with the WCA arising from a dispute about
the provision of any benefit due on any claim eligible for payment by the fund,
the fund and the employer at the time of injury or last injurious exposure
shall be named as parties.
C. The
independent adjusting company shall regularly report to the WCA on expenditures
made to and on behalf of workers from the fund.
(1) The independent adjusting company shall
file the first report of injury or illness (E1.2) with the WCA within 10 days
of the eligibility determination and provide a copy of the E1.2 to the
worker.
(2) The independent
adjusting company shall file all payment reports required by law.
(3) The independent adjusting company shall
maintain records sufficient to allow the WCA director or his designee to audit
the administration of claims and shall provide those records upon request to
the WCA. The independent adjusting company shall be subject to audit by the WCA
or its contractor with respect to the administration of claims against the
fund.
(4) The independent adjusting
company shall actively support the WCA in its efforts to provide information to
the public concerning the fund and to prosecute penalty collection proceedings
against an uninsured employer pursuant to this rule.
D. The fund shall have the right to
subrogation as provided by Section
52-1-9.1 NMSA 1978.
(1) The independent adjusting company may
pursue subrogation rights on behalf of, and at the direction of, the
fund.
(2) The independent adjusting
company shall be entitled to retain reimbursement for reasonable legal fees and
expenses plus ten percent of the sum recovered in subrogation net of legal fees
and expenses. The remainder of the subrogation recovery shall be paid to the
fund.
E. The fund shall
be liable only for those benefits that are due under the Workers' Compensation
Act or Occupational Disease Disablement Law.
(1) The fund shall be entitled to the
protections of the exclusive remedy provisions of the Workers' Compensation Act
or Occupational Disease Disablement Law to the same extent it would if it were
the insured employer of any worker who is eligible for benefits against the
fund.
(2) The fund shall not be
subject to claims for payments of a judgment obtained in a third party lawsuit,
nor for payment of a judgment obtained in a tort action against an uninsured
employer.
F. Duplicate
recovery of workers' compensation benefits is strictly prohibited.
(1) The fund shall immediately cease payments
to or on behalf of any worker who is receiving workers' compensation payments
from another source for the same injury and arising out of the same
accident.
(2) The fund shall have
the right of first reimbursement for workers' compensation benefit payments
made that duplicate any payments received by the injured worker from another
source and may offset subsequent payments, institute collection proceedings,
request criminal investigation or seek any other lawful remedy to recover
duplicate payments of workers' compensation benefits.
G. Payments under the fund shall not
constitute payments by the employer for purposes of the exclusive remedy
provisions of the Act. The fund shall be entitled to assert all defenses and
subrogation rights that would be available to an insured employer.
