Current through Register Vol. 35, No. 18, September 24, 2024
A. Assignment
of judge:
(1) Upon receipt of a timely
rejection of a recommended resolution, an application to judge or petition for
lump sum payment, the clerk shall assign a judge to the case and shall serve
notice on all parties. Pro se parties shall be served by certified mail unless
registered with the WCA electronic filing system. This notice shall be
considered the initial notice of judge assignment.
(2) Each party shall have the right to
disqualify a judge by filing a notice of disqualification of judge no later
than 10 days from the date of filing of the notice of assignment of judge. The
clerk shall assign a new judge to the case and notify all registered parties. A
party who has not exercised the right of disqualification may do so no later
than 10 days from the filing of the notice of reassignment of judge.
(3) No action may be taken by any judge on a
case until the expiration of the time for all parties to exercise the
peremptory right to disqualify a judge. To expedite the adjudication process,
the parties may file a joint waiver of the right to disqualify a judge. Such
waiver shall forever bar the parties' right to disqualify a judge in that
case.
(4) Disputes related to the
assignment, re-assignment, or disqualification of a judge shall be raised by
written application to the director, which shall be filed with the
clerk.
(5) The director may
designate an on-call judge for the limited purpose of reviewing and approving
lump sum payment petitions on a voluntary walk-in basis. The director shall
provide notice to the public about the schedule for any on-call judge
availability. Such designation shall not be considered a judge assignment or
reassignment under this section if further adjudication action is
needed.
B. Application to
judge:
(1) Unless otherwise provided, all
claims under the act shall be initiated by filing a complaint form, and the
clerk shall schedule the claim for mediation. A party may file an application
to judge, and the clerk shall assign the case to a judge to adjudicate the
following limited forms of relief only:
(a)
physical examination pursuant to Section
52-1-51 NMSA 1978;
(b) independent medical examination pursuant
to Section
52-1-51 NMSA 1978;
(c) determination of bad faith, unfair claims
processing, fraud or retaliation;
(d) supplemental compensation
order;
(e) award of attorney
fees;
(f) stipulated reimbursement
agreement pursuant to Section
52-5-17 NMSA 1978;
(g) consolidation of payments into quarterly
payments (not a lump sum under Section
52-5-12 NMSA 1978);
(h) approval of limited discovery where no
complaint is pending before the agency, including but not limited to approval
of a communication to a treating health care provider when the parties cannot
otherwise agree on the form or content; or
(i) request for release of medical
records.
(2) If any claim
not enumerated above is raised on an application to judge, the application
shall be deemed a complaint and the clerk shall refer it for
mediation.
(3) For an application
seeking relief under subparagraphs (a) (b) (c) (d) (h) or (i) of Paragraph 1 of
Subsection A of
11.4.4.13 NMAC above, an
application to judge may not be filed if a complaint has been filed in the same
case and the time period for acceptance or rejection of the recommended
resolution has not yet expired. Any other claim for relief arising during that
time period shall be raised in the mediation process.
(4) Following the rejection of a recommended
resolution and during the pendency of a complaint, those claims for forms of
relief set forth above shall be sought through motion rather than an
application.
(5) Responses to an
application to a judge, if any, shall be filed within 15 days of service. A
response to application to judge may not raise new claims or issues.
(6) All applications to a judge shall be
accompanied by a summons, if one has not previously been issued in the case,
and a request for setting. Hearings as necessary may be scheduled by the
assigned judge.
C.
Petition for lump sum payment:
(1) Parties may
request approval of a lump sum payment by filing the WCA mandatory petition
form, which shall be signed and verified by the worker or the worker's
dependents.
(2) Petitions under
Subsection D of Section
52-5-12 NMSA 1978 shall also be
signed by the employer or its representative or, where applicable, the
UEF.
(3) Parties to lump sum
payment petitions filed pursuant to Subsection D of Section
52-5-12 NMSA 1978 shall attend a
lump sum payment approval hearing for a determination that the agreement is
voluntary, that the worker understands the terms, conditions and consequences
of the settlement agreement or any release, and that the settlement is fair,
equitable and provides substantial justice to the parties. For all other joint
lump sum payment petitions, a hearing may be held at the discretion of a judge
pursuant to Sections
52-5-12 and
52-5-13 NMSA 1978.
(4) Any lump sum payment petition filed
pursuant to this rule shall comply with Section
52-1-54 NMSA 1978 and counsel for
the parties may concurrently seek approval or award of attorney fees, if
appropriate, to be heard in the context of the lump sum payment
hearing.
(5) Written responses to
the petition, if any, shall be filed within 10 days of service of a
petition.
(6) All petitions shall
be accompanied by a request for setting, and a summons, if one has not
previously been issued in the case. Such hearings will be promptly scheduled by
the assigned judge.
D.
The adjudication process for complaints shall commence upon the clerk's receipt
of a timely rejection of a recommended resolution. An answer to complaint shall
be filed within 20 days of the filing of the initial notice of assignment of
judge unless already filed in lieu of the informal response. The answer shall
admit or deny each claim asserted in the complaint. Any affirmative defenses to
the complaint shall be stated in the answer.
E. Amended complaints may be filed during the
adjudication process only by leave of the assigned judge or by written consent
of the adverse party. Leave shall be freely given when justice so requires.
Amended complaints filed during the adjudication process shall not be referred
back to the mediation process nor shall a new recommended resolution be
issued.
F. The judge may hold
pre-trial conferences as necessary, establish appropriate deadlines, mandate
evidentiary disclosures between the parties, approve formal discovery, and
otherwise control all other aspects of the adjudication process in order to
enable the prompt adjudication of the case.
G. Discovery: Authorized interrogatories,
requests for production or inspection, requests for admissions, depositions,
and subpoenas shall be governed by the rules of civil procedure of the district
courts of New Mexico.
H.
Depositions: Upon the filing of a complaint and by written stipulation of the
parties, good cause is presumed and depositions may be taken of the worker,
employer representative, authorized HCP, and any provider of an independent
medical examination.
(1) Reasonable notice
shall be deemed to be not less than five days prior to the date set for the
deposition.
(2) The original
deposition transcript shall be kept by the party who noticed the
deposition.
(3) The parties shall
make a good faith effort to obtain a completed and signed form letter to HCP
prior to setting the deposition of the HCP.
(4) Deposition testimony of authorized HCPs
shall be admissible in lieu of live testimony.
(5) Depositions of other witnesses identified
by the parties may be admissible, if noticed for use at trial, provided that
nothing prohibits either party from issuing a subpoena to order the deposed
witness to testify at trial.
(6) A
party intending to use a deposition shall notify the other party of the
intended use at least 10 days prior to trial. Any objection to the use of the
deposition shall be determined at the adjudication hearing.
(7) The party that notices a deposition may
request the return of the original transcript after final disposition of the
case. The clerk may return a transcript or any exhibits tendered to the
submitting party or its attorney. If no request for the deposition or exhibits
is received, the deposition or exhibits will be destroyed. Notice of intent to
destroy exhibits is published in the New Mexico bar bulletin.
I. Subpoenas: The clerk may issue
a subpoena, signed but otherwise blank, to a party requesting it, who shall
complete it before service. An attorney authorized to practice law in New
Mexico who represents a party before the WCA may also issue and sign a subpoena
as an officer of the court on behalf of the WCA.
J. Appointment of interpreter:
(1) It is the responsibility of the parties
to determine if interpretive services are necessary.
(2) An interpreter may be appointed by the
judge, director, or mediator. The interpreter shall be court-certified, except
that a non-certified interpreter may serve at mediation conferences.
(3) The employer shall be responsible for the
cost and arrangement of a qualified interpreter for the hearing or mediation
conference. This responsibility may fall to the uninsured employers' fund when
named as a party.
K.
Motions: All motions, except those made in open court, shall be written and
comply with the New Mexico district court rules of civil procedure.
L. Settlement/pre-trial conferences: The
judge shall have discretion to schedule settlement conferences. A settlement
conference facilitated by the assigned judge shall require the consent of all
parties either on the record or in writing.
M. Orders: Proposed orders or other documents
requiring a judge's signature shall not be filed with the clerk but shall be
submitted directly to the judge.
N.
Admissibility of evidence:
(1) Live medical
testimony shall not be permitted, except by an order of the judge.
(2) A judge may admit evidence, including
hearsay evidence, provided that the evidence is relevant, has sufficient
indicia of reliability and authenticity, and will assist the judge in
determining a fact or issue in dispute, including, but not limited to:
(a) personnel records, payroll records, or
other employment files for worker;
(b) pre-injury medical records of treatment
received for a period of 10 years prior to the date of injury through the time
of hearing on the merits;
(c) form
letters approved by the WCA;
(d)
records of authorized health care providers and their referrals, including
functional capacity evaluations;
(e) reports of independent medical
examinations ("IMEs") performed pursuant to the act or as otherwise agreed by
the parties;
(f) toxicology or drug
and alcohol test reports;
(g)
records of the office of medical examiner, including autopsy and toxicology
reports; or
(h) records of the New
Mexico board of pharmacy prescription monitoring program.
O. Continuance of hearing: A judge
may continue an adjudication hearing for good cause shown. All discovery,
disclosure, and exchange deadlines shall be extended by a continuance unless
otherwise ordered.
P. Trials and
other hearings:
(1) Parties shall appear
personally at the adjudication hearing, without the necessity of a subpoena.
Parties shall appear personally or through their legal representatives at all
other hearings properly noticed, unless excused by a judge.
(2) Failure to appear at a hearing after
proper notice and without good cause may result in the imposition of
sanctions.
(3) The employer shall
make all necessary arrangements and pay all costs incurred for telephonic
conference calls. The director or judge may appear telephonically for the
conference call.
(4) All hearings
shall be recorded by audio tape recording or by any other method approved by
the director.
(5) Prior to
commencement of the adjudication hearing, the parties shall confer with the
court monitor to ensure that all exhibits are properly marked. Any exhibit to
be jointly tendered shall be marked and offered as a joint exhibit. All other
exhibits shall be marked by party and exhibit number or letter. Depositions
shall be marked as exhibits.
(6)
Under exceptional circumstances and in the interest of justice, a judge has
discretion to direct or allow supplementation of evidence within 10 days of the
close of the adjudication hearing.
Q. Consolidated cases:
(1) A judge may order the consolidation of
cases when the issues or facts in dispute in the cases are common or when
consolidation will expedite resolution of the issues or facts in
dispute.
(2) A party may request an
order for consolidation of cases by filing a motion requesting consolidation in
each case sought to be consolidated and serving each party and their counsel,
if any, for each case sought to be consolidated.
(3) Motions to consolidate cases will be
adjudicated by the final judge assigned to the case with the lowest case
number.
(4) A judge's order of
consolidation shall be filed in each consolidated case.
(5) After consolidation, all pleadings shall
only be filed in the case with the lowest case number and the case number of
each consolidated case shall appear in the caption of all pleadings. The
caption of the lowest case number shall appear on all pleadings.
(6) All parties of record and their counsel
shall have access to view the filed pleadings for each case.
(7) In the event of an appeal, the notice of
appeal shall include the case number for each consolidated case and shall be
filed in the case with the lowest case number. The record proper on appeal
shall include all pleadings in each of the consolidated cases.
R. Release of medical records:
(1) A judge shall decide medical record
disputes. If no judge has been assigned, the clerk shall appoint a judge upon a
party filing an application to judge for release of medical records.
(2) An application to judge for the release
of medical records shall be allowed notwithstanding the provisions of any other
rule, and shall be disposed of separate and apart from all rule provisions and
procedures pertaining to resolution of other disputes arising from a claim for
benefits.
(3) The judge will
determine whether the protected health information in controversy is material
to the resolution of any matter presently at issue or likely to be at issue in
the administration of the claim and shall order the release of protected health
information upon agreement of the parties or a finding of materiality by a
preponderance of evidence.
(4) A
bench order or formal order of release of medical records shall have the force
of law with respect to the parties and to the HCP or medical
facility.
(5) If an HCP or medical
facility fails to provide records after a judge has ordered the release of
records pursuant to this rule, then the party to receive the records may notify
the HCP or medical facility through My E-File of the obligation to produce the
records and an endorsed copy of the order. If the records are not produced
within five days of service of the notice, the payer's obligation to timely pay
shall be tolled until the actual production of the records.
(6) If any judge involved in the adjudication
of the case finds that the withholding of records of health information after
an order to produce has obstructed the efficient administration or adjudication
of a case, then the judge may schedule a hearing to determine if the
withholding of records was unreasonable. If the judge finds after notice and an
opportunity to be heard that the withholding of records by the HCP or medical
facility is unreasonable, the director may find the HCP or medical facility in
violation of this rule and assess a penalty pursuant to Section
52-1-61 NMSA 1978
(1990).