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 11.5.5.306 - INFORMAL ADMINISTRATIVE REVIEW
Universal Citation: 11 NM Admin Code 11.5.5.306
Current through Register Vol. 35, No. 18, September 24, 2024
A. General: The department shall initiate an informal administrative review promptly upon receipt of a notice of contest or a petition for modification of abatement period.
(1) Except as otherwise provided in this
Section, scheduling and conduct of the informal administrative review shall be
within the sole control of the department.
(2) When notifying the respondent in a case
initiated by a notice of contest, or the petitioner in a case initiated by a
petition for modification of abatement period, of any meeting or telephone
conference held as part of the informal administrative review, the department
shall include with such notification:
(a) a
form for the notice to affected employees (informal administrative review)
(Section 1006) [now 11.5.5.1006 NMAC] which the responsible employer may
complete as appropriate;
(b) a form
for the affidavit of posting (Section 1009) [now 11.5.5.1009 NMAC], including a
certificate of service (Section 1001) [now 11.5.5.1001 NMAC] if applicable,
which the responsible employer may complete as appropriate; and
(c) a brief explanation of how each form
should be completed and either posted, or served and filed, as
applicable.
B. Who may participate: In addition to the department and the respondent, any affected employee or representative of affected employees may participate as a party in the informal administrative review by intervening in accordance with Section 502.A.1 [now Paragraph (1) of Subsection A of 11.5.5.502 NMAC].
C. Employee notification requirements:
(1) At least five (5)
days prior to the date of any meeting or telephone conference scheduled as part
of the informal administrative review, except as provided in Paragraph 2 of
this Subsection, the respondent in a case initiated by a notice of aontest or
the petitioner in a case initiated by a petition for modification of abatement
period shall post, at one or more locations reasonably accessible to the
affected employees, a notice to affected employees (informal administrative
review) as illustrated in Section 1006 [now 11.5.5.1006 NMAC]. Such notice
shall remain posted until the earlier of the following events:
(a) the date of the meeting or telephone
conference; or
(b) receipt by the
respondent in a case initiated by a notice of contest, or the petitioner in a
case initiated by a petition for modification of abatement period, of any
notification by the department rescheduling the meeting or telephone
conference, at which time the notice shall be replaced by another notice
informing the affected employees of the rescheduled date.
(2) Posting of the notice specified in
Paragraph 1 of this Subsection is not required if, at the time posting
otherwise would be required:
(a) the case was
initiated by a notice of contest and the responsible employer has no affected
employees; or
(b) the case was
initiated by a petition for modification of abatement period filed by an
affected employee, and the responsible employer has no other affected
employees.
(3) The
person responsible for posting the notice specified in Paragraph 1 of this
Subsection shall submit to the department, within five (5) days after posting
or by the date of the scheduled meeting or telephone conference, whichever is
earlier:
(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.
(4) The
department shall file the affidavit of posting or the affidavit of explanation
for non-posting, as applicable, with the commission secretary within five (5)
working days after receipt.
D. Conclusion:
(1) Except as otherwise provided in
Subsection E of this Section or by order of the hearing officer, and unless a
settlement agreement disposing of all issues in the case has been filed:
(a) in a case initiated by a notice of
contest, the department shall file an administrative complaint with the
commission within ninety (90) days after docketing of the case; and
(b) in a case initiated by a petition for
modification of abatement period, the petitioner shall file a request for
hearing with the commission within twenty (20) days after docketing of the
case.
(2) The informal
administrative review shall be deemed concluded:
(a) if the case was initiated by a notice of
contest, upon the earlier of:
(i) the
respondent's receipt of the department's administrative complaint; or
(ii) three (3) days after expiration of the
deadline specified in Paragraph 1.a [now Subparagraph (a) of Paragraph (1) of
Subsection D of 11.5.5.306 NMAC] of this Subsection, or any extension of such
time granted by the hearing officer or automatically as provided by Subsection
E.2 [now Paragraph (2) of Subsection E of 11.5.5.306 NMAC] of this Section;
and
(b) if the case was
initiated by a petition for modification of abatement period, upon the earlier
of:
(i) filing of the petitioner's request for
hearing; or
(ii) expiration of the
deadline specified in Paragraph 1.b [now Subparagraph (b) of Paragraph (1) of
Subsection D of 11.5.5.306 NMAC] of this Subsection, or any extension of such
time granted by the hearing officer or automatically as provided by Subsection
E.2 [now Paragraph (2) of Subsection of 11.5.5.306 NMAC] of this
Section.
E. Automatic stay of time to file administrative complaint or request for hearing:
(1) The filing deadline otherwise specified
in Subsection D.1 [now Paragraph (1) of Subsection D of 11.5.5.306 NMAC] of
this Section automatically shall be stayed by the filing, prior to expiration
of the time otherwise provided by this Part or by any order, of any motion:
(a) seeking dismissal or other relief with
the effect of ultimately disposing of a case; or
(b) to require the filing of an amended
notice of contest or petition for modification of abatement period, as
applicable.
(2) If any
such motion is denied, the filing deadline otherwise specified in Subsection
D.1 [now Paragraph (1) of Subsection D of 11.5.5.306 NMAC] of this Section
automatically shall be extended for a period equal to the number of days
between filing of the motion and filing of the commission's order. If the
motion is one to require the filing of an amended notice of contest of petition
for modification of abatement period, and such motion is granted, the filing
deadline shall automatically be extended for a period equal to the number of
days between filing of the motion and filing of the amended pleading.
F. Failure to file timely administrative complaint or request for hearing:
(1) If the department fails to file a timely
administrative complaint in a case initiated by a notice of contest, the
respondent may file a motion seeking vacation of the citations.
(2) If the petitioner fails to file a timely
request for hearing in a case initiated by a petition for modification of
abatement period, any respondent or intervenor may file a motion seeking
dismissal of the petition.
(3) Upon
the filing of a motion authorized by Paragraph 1 or 2 of this Subsection, the
commission shall grant the relief sought unless the commission finds that:
(a) the pleading at issue was, in fact,
timely filed;
(b) the failure to
file a timely pleading was caused by some action of the respondent;
or
(c) there is other good cause
for the failure to file a timely pleading.
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