New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 5 - OCCUPATIONAL HEALTH AND SAFETY
Part 5 - OCCUPATIONAL HEALTH AND SAFETY REVIEW COMMISSION PROCEDURES
Section 11.5.5.302 - NOTICE OF CONTEST

Universal Citation: 11 NM Admin Code 11.5.5.302

Current through Register Vol. 35, No. 6, March 26, 2024

A. Who may file: A notice of contest may be filed by any responsible employer.

B. Grounds: A notice of contest may be based upon any combination of:

(1) the existence or classification of any violation alleged in the citation;

(2) the amount of the penalty proposed for any violation; or

(3) the reasonableness of the abatement period for any violation alleged in the citation.

C. Deadline: A notice of contest shall be filed with the department within fifteen (15) working days after the employer's receipt of the citation.

D. Format: A notice of contest shall:

(1) substantially comply with the format illustrated in Section 1011[now 11.5.5.1011 NMAC];

(2) name the department as the complainant, and the responsible employer filing the notice as the respondent;

(3) for each citation contested, identify the items within that citation that are contested;

(4) for each item contested, state whether the contest relates to:
(a) the alleged violation itself (either the existence of the alleged conditions or that such conditions constitute a violation of the cited provision);

(b) the classification of the alleged violation;

(c) the proposed penalty;

(d) the abatement date; or

(e) a specified combination of any of the foregoing; and

(5) have attached to it:
(a) a copy of each citation to which the contest applies, with each such citation being marked as a separate exhibit; or

(b) if the contest applies only to certain items within the citation, a copy of each page on which any contested item appears, with each such item being marked as a separate exhibit (except that if two or more contested items appear on the same page, that page may be marked as a single exhibit).

E. Employee notification requirements:

(1) Upon filing of a notice of contest, except as provided in Paragraph 2 of this Subsection, the responsible employer shall post, at one or more locations reasonably accessible to the affected employees, a Notice to affected employees (contest of citation), as illustrated in Section 1004 [now 11.5.5.1004 NMAC], with an attached copy of the notice of contest (including all exhibits thereto, such notice shall remain posted until the earliest of the following events:
(a) the filing of a notice of withdrawal of contest by the respondent;

(b) the respondent's receipt of a copy of a notice of vacation of citation filed by the department;

(c) the posting of a notice to affected employees (informal administrative review);

(d) the posting of a notice to affected employees (pendency of hearing); or

(e) the respondent's receipt of any order of the commission dismissing the notice of contest or vacating all citations in the case.

(2) Posting of the notice specified in Paragraph 1 of this Subsection is not required if, at the time the notice of contest is filed, the responsible employer has no affected employees.

(3) The responsible employer shall file, with the notice of contest:
(a) an affidavit of posting in the format illustrated in Section 1009 [now 11.5.5.1009 NMAC], attesting to posting of the notice specified in Paragraph 1 of this Subsection; or

(b) under the circumstances specified in Paragraph 2 of this Subsection, an affidavit of explanation for non-posting in the format illustrated in Section 1010 [now 11.5.5.1010 NMAC].

F. Forwarding to commission secretary: The department shall forward the notice of contest, including all exhibits and accompanying documents, to the commission secretary within five (5) working days after receipt thereof. Any written document clearly stating an intention to contest any portion of an identifiable citation shall be forwarded as a notice of contest without regard to its timeliness or format.

G. Untimeliness; improper format:

(1) Any party alleging that a notice of contest is untimely may file a motion for dismissal of the contest on that ground.
(a) If the commission determines that such contest was filed later than fifteen (15) working days after receipt of the citation to which the notice of contest is directed, the commission shall dismiss the notice of contest unless the commission also finds that the untimeliness was caused by some action of the department.

(b) If the notice of contest includes a contest of any abatement period for which the time for filing a petition for modification of abatement period had not expired at the time the notice of contest was filed, the commission shall, in dismissing the notice of contest, grant leave for the filing of a petition for modification of abatement period within ten (10) days after dismissal of the notice of contest. If filed within that period, the petition shall be treated in all respects as timely as to any such abatement periods contested in the original notice.

(2) Any party alleging that a notice of contest is not substantially in the format required by this Section may file a motion seeking to require amendment of the notice of contest to conform with the requirements of this Section. If the hearing officer finds that the notice of contest does not substantially conform with the requirements of this Section, the hearing officer may order the respondent to file an amended notice of contest, conforming to the requirements of this Section, within ten (10) days after service of the order on the respondent. If the respondent fails to comply with such order, the commission may, upon subsequent motion of the same party, dismiss the respondent's notice of contest.

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