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					                                                                                   The
                                                                          Workers’ Compensation
                                                                               Handbook
                                                                            For New Mexico


                                                   Booklet B1:

        What to Do after an Accident

Summary checklist of things to do ..................................................................................... 2
Get emergency medical care first....................................................................................... 3
After the emergency room – Check before getting non-emergency medical care.................... 3
Accident reporting and follow-up: Notice of Accident (NOA) Form......................................... 5
OSHA Reporting Requirements .......................................................................................... 7
Selecting a doctor for a work-related injury ........................................................................ 8
Health care provider selection summary ........................................................................... 10
If the injury is not apparent at the time of the accident ..................................................... 11
When is an injury covered by workers' compensation?....................................................... 12
   A claim might be denied because:................................................................................................. 13
   Is this worker an employee?......................................................................................................... 13
   If the worker has changed jobs .................................................................................................... 14
   Causation .................................................................................................................................... 14
   Drugs or alcohol (§52-1-12 and §52-1-12.1 NMSA) ........................................................................ 15
   Special causation issues: hernia, heart attack, mental conditions, etc............................................. 15
   Don’ts for Workers....................................................................................................................... 16
   Occupational Disease and Repetitive Motion Injury ........................................................................ 16
   Workers' compensation or health insurance? ................................................................................. 17
   Employer is required to report all claims........................................................................................ 18
   Suspicious claims ......................................................................................................................... 18
Who pays the worker’s benefits? ..................................................................................... 19
Is this claim covered under New Mexico law? ................................................................... 19
   Federal Government Employees.................................................................................................... 19
   Indian Sovereignty Issues ............................................................................................................ 19
   Interstate Workers....................................................................................................................... 20
Employer’s First Report of Injury or Illness – Form E1 ....................................................... 20
   Two or three stages of filing Employer’s First Report...................................................................... 21
   E1 and OSHA 301 forms............................................................................................................... 22
   Worker must be given a copy of the E1......................................................................................... 22
   What does “File a Claim” mean? ................................................................................................... 23
Can this worker stay at work? ......................................................................................... 23
Don’ts for Employers ...................................................................................................... 25
   Workers' Compensation Handbook List of Booklets ........................................................................ 26
   Help from the Workers' Compensation Administration .................................................................... 27
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 2
                  __________________________________________________________


     This booklet describes what employer, worker and supervisor should do after an
accident on the job.


Summary checklist of things to do
(Detailed explanation of checklist items follows in the text.)
          Get emergency medical care if needed.
          IF Employer has a drug and alcohol testing policy, get worker tested.
          If necessary, notify worker’s family or emergency contact person.
          Document the accident.
          Worker fills out Notice of Accident form. Form must be signed and dated by
          worker and employer or supervisor.

          Employer notifies insurer or self-insurance program within 72 hours, using
          insurer’s preferred method. (If employer knows about the accident, do not wait
          for Notice of Accident before doing this.)

          OSHA Documentation: Employer records accident in OSHA 300 log; for a
          catastrophic event (fatality or 3 or more employees hospitalized), notify OHSB
          within 8 hours.
          Employer informs worker of health care provider selection. (Preferably, this
          should have been done in advance as an announced company policy.)

          Employer provides worker with name of insurer or self-insurance program
          and contact information for claim representative. (This information should
          also be available on a posted WCA poster.)

          BEST PRACTICE:
          Employer provides worker with a written job description to take to the doctor,
          so that doctor can make a recommendation about the earliest possible
          medically safe return to work.
          Worker starts medical care, following employer’s instructions on health care
          provider selection.

          Worker provides employer with report from health care provider, including
          doctor’s recommendation on return to work.
          Employer reviews insurer or self-insurance program’s recommended steps for
          accident investigation and reporting and follows up as appropriate.
          If possible, worker STAYS AT WORK, returning to regular or temporarily
          modified work with little or no lost time.
          If it appears that the claim might be long or complicated, provide worker with
          WCA publications and tell worker about WCA ombudsman program. Begin
          employer plan to support worker through claim process.




                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                             2007 Edition
Booklet B1: What to Do After an Accident                                                       page 3
                     __________________________________________________________

Get emergency medical care first
     Emergency medical care is the first concern after an accident and should always be
provided first. The worker should not be limited to any particular medical facility,
although it is OK to use a preferred facility if it is convenient.

     The law concerning health care provider selection, explained later, does not apply
to emergencies. The emergency exception is in the Rules of the WCA, NMAC 11.4.4.11
(C(1)) 1 .

     If the worker is out-of-state when emergency care is needed, treatment at an out-of-
state facility is authorized.

    After emergency medical needs have been taken care of, the worker and employer
should follow workers’ compensation procedures described here.

      If no emergency medical care is needed, follow health care provider selection
procedure before worker goes to any doctor. See the section entitled “Selecting a doctor
for a work-related injury” below.

Drug and Alcohol Testing
     Follow your own company drug and alcohol testing policy. If you have a policy in
place that requires drug and alcohol testing after accidents, get the test administered as
soon as possible. See Booklet A2 for more information about drug and alcohol testing.


After the emergency room – Check before
getting non-emergency medical care
     The emergency room doctor will probably give the injured worker an instruction
about follow-up medical care. Often, the emergency doctor will tell the worker to go to
a particular doctor and might even schedule an appointment.

Worker:
     DO NOT go to the doctor referred by the emergency room until you have
instructions from your employer.

    Has your employer given you formal written instructions to go to a particular
doctor or medical facility? If so, you should go where your employer told you, NOT
where the emergency room doctor told you.



1In 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..11. 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 calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 4
                  __________________________________________________________

    Has your employer given you instructions to select your own doctor? If so, you
may choose to go to the doctor recommended by the emergency room, or to another
doctor if you prefer.

     If your employer has not given you any instructions, it is best to ask before you go
to any doctor. This can affect your rights later.

     Whatever instructions your employer gave you, keep a copy of the written
instructions. If the instructions were not in writing, make a note of exactly what you
were told, who told you, and the date and time.

    If the emergency room staff made an appointment for you and you are not going to
keep it, remember to call and cancel the appointment.

Employer:
     Emergency care is limited to the initial visit or hospital stay. If follow-up care is
needed, a selection of health care provider is necessary. If you do not specify whether
you are going to direct the care or allow the worker to select, then by default the follow
up care will be deemed to be your selection.

Best Practice for employer: Instructions from your insurer or self-
insurance program
     Your insurer or self-insurance program may have provided you with instructions
and recommendations on other steps to take after an accident. For example, the insurer
or self-insurance program may have provided recommendations regarding health care
provider selection, which is explained below. Or you may find instructions about how
to document the accident, obtaining statements from witnesses and similar matters.

     Find the policy packet your insurer or self-insurance program sent you and look for
these recommendations. They may save you time and prevent misunderstanding later
in the claim process.

Best practice for workers: Use the WCA ombudsman program and the
Workbook for Injured Workers

What’s an ombudsman?
     When the worker or employer does not understand something about a workers’
compensation claim, they can call an “ombudsman” at the WCA. Any person may
contact an ombudsman with any question about workers’ compensation (unless you are
represented by a lawyer).

     “Ombudsman” means a government official who investigates problems and helps
resolve them, without taking one side or another.

     The ombudsmen are experts in workers' compensation claims. Without taking
sides, they can explain how the system works and can also help to prevent or resolve

                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                               2007 Edition
Booklet B1: What to Do After an Accident                                                         page 5
                     __________________________________________________________

some kinds of disputes, especially if the dispute is mostly a problem of communication.
See more about the ombudsman program in Booklet C1.

     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
all WCA offices. Call the office most convenient to you or call the WCA HELPLine at 1-
866-WORKOMP or 1-866-967-5667. Some ombudsmen speak Spanish.

The Workbook for Injured Workers
     The Workbook for Injured Workers is a book published by the Workers' Compensation
Administration (WCA). Some of the information in that book is the same as information
in these booklets.

     In the back of the Workbook are forms that were created just for you. These forms
help you to keep track of everything about your injury and your claim, so that you will
have a good record of everything that happened. You can also find these forms on the
WCA web site at www.workerscomp.state.nm.us.


Accident reporting and follow-up: Notice of
Accident (NOA) Form
    The worker who has had an accident should fill out a Notice of Accident (NOA)
form (§52-1-29 NMSA 2 ). These forms should be posted at the workplace. See Booklet
A2.

     The NOA is a report by the worker notifying the employer that an accident has
taken place at work, the date and a general description of the accident.

     The NOA is a two-part carbonless form. The forms are printed by the WCA. They
should be provided to employers by the insurer or self-insurance program, or can be
obtained free of charge from the WCA.

     In case of a dispute, the NOA form provides evidence that the worker reported an
accident. The notice is not legal proof that the accident occurred. The notice also may
notify the employer of a safety hazard that should be fixed.

    If the employer or a supervisor witnessed the accident, the NOA may not be legally
necessary, but even in this case it is best to use the form to provide written
documentation.




2 In this booklet are references to specific paragraphs of the workers' compensation law. These references
are in a standard form. §52-1-29 NMSA means Chapter 52, Article 1, Paragraph 29 of the New Mexico
Statutes Annotated (NMSA).

                                     ____________________________
         Published by the New Mexico Workers' Compensation Administration, a state agency.
      Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                      or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                       2007 Edition
Booklet B1: What to Do After an Accident                                                 page 6
                   __________________________________________________________

     At the end of this booklet is an article giving details of the court decisions on the
use of Notice of Accident forms.

Employer:
     When a worker presents a NOA form to you (or a supervisor), you are required to
sign it on the date it is presented to you by the worker (Rules of the WCA, NMAC
11.4.3.12.B (3)). Supervisors should have been instructed that when a worker presents a
NOA form, the supervisor should sign the form, take one copy and give one copy back
to the worker.

    You are responsible for providing a supply of NOA forms in an accessible location,
such as an employee bulletin board, near your Workers' Compensation Act poster. See
Booklet A2.

     The company should have a procedure for filing NOA forms. Management or the
company safety committee should follow up on every report of accident to determine if
there is a safety hazard that could be fixed.

Worker:
    Use the NOA form to report any accident on the job, even if you don’t think you
were injured. If the accident did result in an injury, you are responsible for making sure
your employer knows about your injury.

     Fill out the form as soon as you can -- no later than 15 days after the accident. Make
a note of anyone who witnessed your accident. The NOA form should be signed and
dated by you and a supervisor. Take one signed copy and keep it in a safe place. You
might want to keep it at home.

     The NOA is very important to establishing your right to workers' compensation
benefits. The 15-day deadline can be extended, however, if for good reason you could
not fill it out.

     If you know your employer’s procedures, follow them. If you don’t know, find out
by contacting someone in authority.

QUESTION:
Q.      I was injured at work. I could not find a Notice of Accident form anywhere and my
supervisor refused to accept any information from me about my accident. What should I do?

A.       Talk to another person in authority, such as a human resources specialist, if you can. If
no one will accept your report, call an ombudsman at the WCA. The ombudsman will help you
talk to your employer or contact your employer’s insurer or self-insurance program so that you
can make a claim. If you have to file a complaint, the ombudsman can explain the process to you
and help you with the paperwork.
         Your employer might be committing an unfair claims practice by refusing to accept any
report from you.


                                 ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                     2007 Edition
Booklet B1: What to Do After an Accident                                               page 7
                   __________________________________________________________

What if my company has a different reporting method?
    The use of Notice of Accident forms is required by law. Management may not
require workers to use another method of notification as a condition of receiving
workers' compensation benefits.

     If your company uses a different method for reporting accidents or injuries, and the
worker doesn’t report according to your company’s method, the company cannot deny
the claim based on the worker’s failure to report by that method.

     Some companies instruct employees to use an on-line reporting system or contact a
certain telephone number. In both of those cases, the worker does not receive a written
copy of his own report with a supervisor’s signature.

     One purpose of the posting requirement is to assure that the worker will have a
written document showing that he reported the claim. That is why the NOA form must
always be used.

Employer:
     It’s OK to use another method to supplement but not to replace the use of NOA
forms. For example, if management wants to instruct employees to call the human
resources office or to file an on-line report, that is all right, as long as it does not replace
the NOA forms and as long as it is not relied upon to verify the validity of the claim.

    Another alternative would be to train all workers to submit NOA forms to an
immediate supervisor or someone else nearby, and train the supervisors to file any
additional reports the company wants.

    DO NOT require the worker to sign any other forms as a condition of receiving
medical care or workers' compensation benefits.



OSHA Reporting Requirements
     Most employers have to keep records under the federal Occupational Safety and
Health Act (OSHA). This law is administered in New Mexico by the state Occupational
Health and Safety Bureau (OHSB), which is a bureau of the Environment Department.
The bureau is located in Santa Fe and can be reached at 476-8700 or, toll free, 1-877-610-
6742.

     The WCA does not administer the OSHA law but is providing this information to
help you comply with related requirements.

     The forms required by New Mexico OHSB are federally mandated.
            You can find OSHA forms online from the U.S. Department of Labor at
            www.osha.gov.



                                 ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 8
                  __________________________________________________________

             You can choose to select downloadable forms that you can print out and fill
             out by hand; or Excel spreadsheets that you can save and fill out on your
             computer.
             For information about New Mexico OHSB and the state OHSB poster, go the
             web site of the New Mexico Environment Department.

Employer:
    Most employers come under the OSHA 300 reporting requirements. If you come
under this requirement, record the accident on an OSHA 300 log. Within 7 calendar
days of the accident or the time you learn about the accident, you should fill out a
report. You can use either an OSHA Form 301 or a workers' compensation form called
an E1. Federal OSHA recognizes the E1 form as an acceptable substitute for the 301.

    The E1 form is explained later in this booklet in the section “Employer’s First
Report of Injury or Illness – Form E1.”

     Keep the OSHA information in your own files. Do not send it to OHSB unless they
ask you for it.

     If a catastrophic event has happened, you must notify OHSB within 8 hours. A
catastrophic event is an accident that results either in a fatality or at least three
employees hospitalized. Call OHSB at 476-8700 or, toll free, 1-877-610-6742. You can
leave a recorded message if it is after the normal business day.

     Employers who are required to keep OSHA 300 logs and reports are generally:
           those with more than 10 employees. If you had more than 10 employees at
           any time during the year, you are covered; AND
           those in higher risk industries. Lower-risk industries such as office and
           retail are generally not covered. Call the OHSB if you are not certain.
           OHSB can require any employer to comply with the reporting requirements.

    The requirement to notify OHSB about a catastrophic event applies to all
employers.


Selecting a doctor for a work-related injury
     The workers' compensation law (§52-1-49 NMSA) specifies that the employer has
the right to select the doctor (or other health care provider) who will provide medical
treatment to the injured worker at the beginning of the treatment period. Alternatively,
the employer has the right to allow the injured worker to choose the doctor at the
beginning. This right of selection applies after any emergency treatment.

     The employer has a duty to notify the worker of which procedure to follow. Either
the worker must be told to go to a particular doctor or health care facility, or the worker
must be told to select his own doctor. This instruction should be given in writing.



                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                       2007 Edition
Booklet B1: What to Do After an Accident                                                 page 9
                   __________________________________________________________

     Following these procedures can become very important if the injury is serious or
concerns arise about medical care later in the claim. By understanding and following
the procedures now you can avoid a possible dispute later.

Employer:
     You should have a plan for health care provider selection in advance, so that if an
injury occurs you know what to tell your employee. See Booklet A2. Have you
provided a general notice for all employees?

     If you have not given your employees written notice of your health care provider
selection plan, and a worker selects his own health care provider, you might not have
the right to require a change of provider later on (Rules of the WCA, NMAC
11.4.4.11C(2)(b)).

Worker:
    In an emergency, go and get the medical care you need wherever it is available. At
any other time, before you receive medical care, find out the proper procedure.

      If your employer has provided written instructions, follow the instructions. If your
employer or claims representative tells you which doctor to see, follow the instructions.
If an emergency room doctor advised you to go to another doctor for follow-up care,
you should check with your employer or claims representative before going to that
doctor.

     If the employer gives you no instructions, you can go to a doctor that you choose.

     If you have been instructed by your employer to go to one doctor and you go to a
different doctor, you could be responsible for paying for your own medical care.

     After you have started medical treatment, if you receive any letters or notices from
the claim representative regarding selection of the health care provider, or if you are
asked to sign any documents regarding a change of health care provider, you might
want to contact an ombudsman to find out more about what these documents mean.
Also, see Booklet B4.

QUESTION:
 Q:     My employer did not give me any information about where to go for medical care, even
though I asked. A few weeks later I received a letter from the claim representative, saying I had
chosen the health care provider. Is this correct?

A:      It may or may not be correct. You can challenge it. If you don’t have a lawyer, you can
contact an ombudsman for help.




                                  ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                    2007 Edition
Booklet B1: What to Do After an Accident                                              page 10
                  __________________________________________________________



Health care provider selection summary
1.     The employer is responsible for communicating with workers.

2.      Employer should provide instructions IN ADVANCE by establishing a policy that
applies to all employees. Either the employer tells workers that employer is selecting
the health care provider, or the employer tells workers to select their own health care
provider.

3.     If employer has not provided any instruction in advance, employer should
provide an instruction as soon as possible, BEFORE any non-emergency health care.

IF EMPLOYER SELECTS FIRST                           IF WORKER SELECTS FIRST

Employer instructs worker to use a specific         Employer instructs worker to select a
health care provider.                               health care provider of the worker’s own
                                                    choosing.
Worker must be treated by this health care          Worker will be treated by this health care
provider (and other providers referred by           provider (and other providers referred by
the treating provider) for 60 days.                 the treating provider) for 60 days.

4. After the initial 60-day period, the      4. After the initial 60-day period, the claim
worker will have the right to change to a    representative will be managing the claim
different health care provider.              at that time, and will have the right to
                                             require the worker to change to a different
                                             health care provider.
See Booklet B4 for the procedure regarding the change of health care provider.

BEST PRACTICE -- employer:
        Many health care providers report that workers don’t have the information they
need when they go to their first medical appointment.
        You can simplify the process and save administrative time by helping your
injured worker to have correct contact information about you and your insurer or self-
insurance program.
        Give your employees the name and telephone number of the human resources
specialist or other person who can be contacted by the doctor’s office to verify coverage,
as well the name and contact information of your insurer.

BEST PRACTICE -- worker:
Before you go to the doctor, write down the necessary information to give to the
doctor’s office staff:
         • the name, address and telephone of your employer,
         • the name and phone number of a person in authority at your employer’s
              workplace (such as your supervisor or the human resources specialist),
         • the name and address or phone number of your employer’s workers'
              compensation insurer or self-insurance program.
                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                     2007 Edition
Booklet B1: What to Do After an Accident                                               page 11
                   __________________________________________________________

        Take this information with you. The doctor’s office will probably want to contact
either your employer or insurer or self-insurance program to verify coverage.
        If there isn’t anyone you can ask, find the Workers' Compensation Act poster. If
your employer has filled in the information correctly, there should be an insurer name
and telephone number. Copy that information and take it to the doctor’s office.



If the injury is not apparent at the time of the
accident
    Sometimes an accident happens and it doesn’t seem that there was any injury.
Then the worker starts feeling pain or noticing other symptoms later.

   The Notice of Accident is the worker’s statement that an accident occurred and
when it occurred, even if there did not seem to be an injury at the time.

Worker:
      If you discover you were injured some time after an accident, you are responsible
for telling your employer. Otherwise the employer might not know that there is a claim
to pay. If you have not already filled out a Notice of Accident form, fill one out as soon
as you realize you have been injured.

QUESTION:
Q:       I hurt my back at work. I filled out the Notice of Accident form and stated that I had
fallen down, but I did not know I was hurt so I did not report the injury. My employer told me I
cannot make any workers' compensation claim now. Is that true?

A:       Your employer is probably not correct. But the timing is very important. As long as you
completed a Notice of Accident form within 15 days of the accident, you usually can make a claim
up to one year after the date you learned you were injured. If you have continued to work for the
same employer, the deadline might be longer.
         You might not receive payment to cover any medical expenses before you reported the
injury (except emergency expenses).
         Insist that your employer complete the proper forms and report the injury to the insurer
or self-insurance program. If the employer refuses, show the employer this booklet or call an
ombudsman at the WCA.
         This question shows how important it is to fill out the Notice of Accident form. The
claims representative has the right to look into your claim that the injury was work-related. If
you had not filled out the Notice of Accident, then you would not have evidence that you had an
accident at work that could have caused your injury.
         Once you report the injury, you should ask for instructions on future medical care for
your injury.




                                 ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 12
                  __________________________________________________________

When is an injury covered by workers'
compensation?
       New Mexico law says that any injury "by accident arising out of and in the course
of ... employment" is covered by workers' compensation.

   In a simple case, where a worker is injured while working for the employer on
company property during normal working hours, the injury is probably covered. But
many cases are more complicated.

    Here are a few general guidelines. You may always contact an ombudsman if you
have questions.

     If the injury occurred at the workplace, it is usually covered.

    Health conditions that build up over a period of time, such as carpal tunnel
syndrome of the wrists, or as a result of continued exposure to environmental
conditions, such as lung disease, may be classified as occupational injuries or
occupational diseases and may be covered if the condition was caused by work.

     Injuries that occur while going to or coming from work are usually not covered.
Injuries that occur while traveling for work purposes usually are covered.

    If the worker, employer and insurer all agree that a claim is covered and this
worker is entitled to benefits, the claim will be covered.

      If the employer or insurer does not agree that this worker’s claim is covered, the
worker might not receive any benefits. If this happens, and the worker believes he has
the right to make a workers' compensation claim, the worker will have to file a
complaint with the WCA. See Booklet C1, which explains how the dispute resolution
process works.




                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                    2007 Edition
Booklet B1: What to Do After an Accident                                              page 13
                    __________________________________________________________




A claim might be denied because:

An injury might not be covered under New Mexico workers'
compensation because the employer or insurer says one of these
things:
   •     This person was not an employee of the employer.

   •     This employee is not a New Mexico employee. In this case, the injury may be
         covered under the law of another state.

   •     The accident did not happen at work, or the worker’s injury or condition was not
         caused by work.

   •     The injury was self-inflicted or otherwise deliberately caused by the worker.

   •     This worker is in an exempt category and the employer has chosen not to cover
         employees in this category. The exempt categories are farm and ranch labor,
         real estate salespersons and domestic servants. Coverage is optional for these
         categories and also for “executive employees” (part owners of a business). See
         Booklet A3.

   •     The accident was caused by the worker’s intoxicated condition due to alcohol or
         illegal drugs (§52-1-11, §52-1-12). This applies ONLY if the worker’s intoxicated
         condition was the sole or major cause of the accident. See Booklet B2.




Is this worker an employee?
    Workers' compensation insurance coverage provides benefits only for the
employees of the covered employer – not for independent contractors or employees of
another business. For most workers, it is clear whether they are employees or
independent contractors.

    If you go to work for the same employer every day, if you receive regular
paychecks with payroll deductions such as withheld income tax, and if your work is
generally under the control of the employer or a supervisor, it’s clear that you are an
employee. If you are injured at work, you are entitled to benefits under your employer’s
workers' compensation insurance policy or self-insurance program.

     If you have your own established business, pay self-employment taxes and New
Mexico gross receipts tax, control your own hours and work processes and do work on
contract for other businesses, you may not be an employee. If you are injured while
doing work on contract, you are probably not covered by the workers' compensation
insurance policy of the business where the injury occurred.

                                 ____________________________
          Published by the New Mexico Workers' Compensation Administration, a state agency.
       Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                       or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                        2007 Edition
Booklet B1: What to Do After an Accident                                                  page 14
                    __________________________________________________________

    It is not always so clear. It is possible, for example, for a worker to be considered an
employee even if the worker has been hired for just a few days or if there is some other
questionable factor involved. See Booklet A3 for more information about this.

     Sometimes there can be a dispute about whether a worker is a covered employee or
not. The worker might have to file a complaint at the WCA to determine whether the
injury is covered by workers' compensation.

If the worker has changed jobs
    There are different possibilities in which the worker might have changed
employers. For example, it happens sometimes that a worker has had a previous
workers' compensation claim while working for a different employer and now has a
new injury to the same part of his body.

      In general, the worker should file the Notice of Accident with the current employer,
and that employer should notify the insurer or self-insurance program. If it turns out
that the new injury is a complication of an old injury, the former insurer or self-
insurance program might become responsible, but the claim should start with the
current employer. It is also possible and legal for the worker to file claims with both
employers.

QUESTION:
Q.      I changed jobs just last week. While working for my former employer I hurt myself but I
was able to keep working and didn’t get any medical care at the time. Now that injury is really
hurting and I need medical care. I have not had any new accident or injury that could have
caused this pain. What should I do?

A.       In this case, there was no accident while you were working for your new employer. The
former employer appears to be legally responsible but only if there is clear evidence of the accident
– for example, if you filed a Notice of Accident at the time. Go back to your old employer and file
the claim with that employer’s insurer or self-insurance program. Contact an ombudsman if you
need help.

Causation
     A connection between the work and the injury must be established by a health care
provider. A statement from the health care provider that the injury was caused by work
should be made in the health care provider’s first medical note to the insurer or self-
insurance program. See Booklet B4 for more information, or refer the doctor to the
Health Care Provider’s Guide to New Mexico Workers' Compensation.

Worker:
     In some cases it is not clear whether an accident was work-related or not. If you
think your accident was related to work, make a claim.

     If your employer or supervisor says you are not covered, you do not have to accept
that as the final authority. Your employer does not have the legal right to make that
decision. Call an ombudsman at the WCA for information.
                                  ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 15
                  __________________________________________________________


     Do not let the injury go until you have an old, complicated or serious problem
before you find out whether this injury is covered.

Drugs or alcohol (§52-1-12 and §52-1-12.1 NMSA)
    The employer can require you to take a drug test to determine whether you were
under the influence of drugs or alcohol at the time of the accident. For more information
on drug and alcohol testing, see Booklet A2.

     Denial of claim: If you were using illegal drugs or alcohol, and your condition
caused the accident, your claim can be denied completely. You will not be entitled to
any indemnity or medical benefits if this is proven.

     Ten percent penalty: If you were under the influence of alcohol or illegal drugs,
and that contributed to your accident, your compensation rate can be reduced by 10
percent. You will still be entitled to your full medical benefits.

Special causation issues: hernia, heart attack, mental
conditions, etc.

Hernia (§52-1-45 NMSA):
      A hernia may be covered if it is work-related, based on specific conditions in the
law. If a hernia that occurred at work, the claim could be a disputed case. Even though
it occurred at work, the insurer or self-insurance program might want medical evidence
that the hernia met the specific conditions.

Heart attack or stroke
     A heart attack or stroke may be covered if it was caused by work. Coverage for
heart attacks and strokes typically requires substantial medical evidence.

     Even if the heart attack or stroke occurred at work, it might have been due to
natural causes unless it was triggered by special circumstances. If special circumstances
existed, a heart attack or stroke might also be covered even if it occurred outside of the
workplace.

“Horseplay”
      “Horseplay” is a term used to describe actions by employees that are
unauthorized, inappropriate for the workplace, and not related to work. Injuries
resulting from horseplay by the injured worker may not be covered. The argument
against covering horseplay injuries tends to be stronger if the activity was clearly
reckless or hazardous and the employer has prohibited this activity or reprimanded
employees for it.

     If an employee who has not been participating in the horseplay is injured as a result
of the horseplay of others, the injury is probably covered.

                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 16
                  __________________________________________________________

Facial Disfigurement (§52-1-44)
      Serious and permanent facial disfigurement, such as scars to the face or head, may
entitle the worker to extra indemnity benefits up to $2,500. The worker may also receive
medical treatment or surgery for the disfiguring condition.

Mental or emotional conditions (§52-1-24 (B) and (C))
     New Mexico workers' compensation does not cover emotional stress resulting from
routine workplace stress, discipline, job action or being fired.

    The law recognizes two types of situations that might provide coverage for a
mental condition. In both types, a doctor’s diagnosis of mental illness is required for the
condition to qualify.

    “Primary mental impairment” is a mental illness resulting from a psychologically
traumatic event that is generally outside the worker’s usual experience. Primary mental
impairment occurs when there has been no physical injury.

    “Secondary mental impairment” occurs in connection with a physical injury that is
covered by workers' compensation. It is a mental illness resulting from the effects of the
physical injury.


Don’ts for Workers
     Here are a few things a worker should not do.

       Do not file a claim for workers' compensation if you know the claim is false.
       Your claim can be denied, and you can be prosecuted for criminal fraud.

       Do not file a claim for workers' compensation benefits if you know that your
       injury was not work-related. Your claim can be denied, and you can be
       prosecuted for criminal fraud.

       A “self-inflicted” injury is not an accident. It is not covered. Do not harm
       yourself in order to collect benefits (§52-1-11 NMSA).




Occupational Disease and Repetitive Motion Injury
    Most workers’ compensation injuries result from a specific accident causing
damage to the body. Occupational diseases and repetitive motion injuries are different
because they develop over time.

    An occupational disease (§52-3-33 NMSA) is a health problem resulting from
exposure to a condition of the job or the work environment. Occupational diseases are
covered in a separate portion of the workers' compensation law – Chapter 52, Article 3.


                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 17
                  __________________________________________________________

     “Repetitive motion” or ergonomic injuries may occur when a worker has been
doing a repetitive task that strains the same part of the body over time. Repetitive
motion injuries can be covered if they result primarily from activities at work. These
injuries are considered “injuries” for purposes of coverage under the workers'
compensation law.

    To be covered by workers' compensation, an occupational disease or repetitive
motion injury must be reported by the worker. It should be reported as soon as the
worker becomes aware of the condition and the possible or probable connection to
work.

   There are two major differences between these conditions and ordinary workers'
compensation claims:

         •   Since these conditions develop gradually over time, the requirement for a
             worker to notify the employer is based on a different standard compared to
             injuries resulting from a single accident.

         •   It is more difficult to prove that the environment at work caused a problem
             that may have taken several years to develop. Strict rules of proof must be
             followed before the insurer or self-insurance program is required to accept a
             claim for these types of injuries and diseases.

Worker:
     If you think you may have an occupational disease or a repetitive motion injury,
use the Notice of Accident form to report it to your employer as soon as you become
aware of it. File the Notice of Accident within 15 days of becoming aware of your
condition (for example, you might file the form immediately after you have visited your
doctor). On the “date” line of the form, write the date that you are making the report. If
you have questions, call an ombudsman at the WCA.

Employer:
    Accept a worker’s report of an occupational disease or repetitive motion injury the
same as you would any other accident report.

Workers' compensation or health insurance?

Worker:
     The treatment you receive for your work-related injury should not be billed to your
regular group health insurance. Tell the doctor and the doctor’s office staff that this was
a work-related injury and should be billed to your employer’s workers' compensation
insurer or self-insurance program.

     When you fill out forms at medical offices, there is usually a question on the form
asking whether the injury was work-related. If you believe it was, say so on the form.


                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 18
                  __________________________________________________________

     Generally, health insurance policies are written to exclude coverage for work-
related injuries. Your health insurance company is not required to pay these costs.
Workers' compensation covers these costs instead.

   It might seem simpler to use your health insurance and not make a workers'
compensation claim. However, your health insurance company could refuse to pay and
demand repayment of any medical bills that were paid for your work-related injury.

     Sometimes it is not clear whether a medical condition is work-related or not. In
that situation, it is OK to use your health insurance. If it turns out later that the
condition is covered by workers' compensation, your health insurer may want to be
repaid by the workers' compensation insurer.

Employer is required to report all claims
     The employer is required to report all claims, even small ones, to the insurer or self-
insurance program and let the insurer or self-insurance program manage the claim
(Rules, NMAC 11.4.3.12(B)).

     Some employers think it’s acceptable to pay the medical costs for minor injuries
themselves, without contacting the insurer or self-insurance program. This is a violation
of the Rules of the WCA. You can be subject to a fine or penalty for doing this.

     If you have a “high deductible” policy, let the insurer or self-insurance program
manage the claim and pay the bills. You will then reimburse the insurer or self-
insurance program for your deductible.

     Sometimes an injury that appears small and easily managed can turn into a much
more serious condition. If you prevent a claim from being established, you might be
depriving your injured employee of the benefit he is entitled to, and exposing yourself of
significant liability.


Suspicious claims
Employer:
     If you suspect that a claim filed by a worker is not genuine, file the report anyway.
You do not have the legal right to accept or deny a claim. Tell your insurer or self-
insurance program about your suspicions. The insurer or self-insurance program can
investigate the concerns you have raised.

    You may report any suspected fraudulent workers' compensation claim to the
WCA. The claim can be investigated for possible criminal prosecution. You can call an
ombudsman or report the claim online through the WCA web site. Look under
Enforcement for the fraud report form.

Undocumented workers


                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 19
                  __________________________________________________________

       An undocumented worker who is an employee has the same rights as any other
worker to benefits under New Mexico workers' compensation law. The law does not
discriminate.


Who pays the worker’s benefits?
    For workers employed by a private business or non-profit organization, your
benefits will be paid by an insurance company or a company that administers claims for
your employer’s insurer or self-insurance program.

     If you are a New Mexico state government employee, your benefits are paid by the
state, but NOT by the WCA. Your claim representative will be an employee of the State
of New Mexico Risk Management Division. Some other government agencies, such as
the University of New Mexico, are also covered through State Risk Management.

    Local government and public schools have separate insurance programs for paying
benefits.


Is this claim covered under New Mexico law?
Federal Government Employees
     Federal government employees are not covered under New Mexico law. They are
covered by a federal workers' compensation program through the U.S. Department of
Labor. Find information online at www.dol.gov, or call 1-866-4-USA-DOL. As of 2007,
New Mexico claims are managed from the Dallas, Texas, office, telephone number 972-
850-2330.

    If you have difficulty reaching the federal workers' compensation office, it is
sometimes helpful to ask for assistance from the constituent services staff of your
Congressional representative.

Indian Sovereignty Issues
     If the injury occurred on an Indian reservation, and there is any disagreement about
jurisdiction, it may be up to the tribal government whether New Mexico workers'
compensation law is applied or not.

     If the employer (whether a tribal government or a private business located on tribal
land) has New Mexico workers' compensation insurance, and the employer and worker
both agree to file a claim under New Mexico law, there is no dispute.

    Some tribal governments have chosen to have New Mexico workers' compensation
coverage for their tribal enterprises. Some tribes have chosen to require private
businesses located on their land to provide New Mexico workers' compensation
coverage.



                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 20
                  __________________________________________________________

    If a tribal enterprise is located on non-tribal land in New Mexico, New Mexico
coverage does apply, whether or not the worker is a tribal member.

Interstate Workers
     If the employer and the worker are connected to more than one state, the claim may
be covered under New Mexico law or the law of the other state (§52-1-14 and §52-1-64
through §52-1-68 NMSA). If both the employer and worker agree to file the claim under
New Mexico law, and the insurance includes coverage under New Mexico law, there is
no dispute. See Booklet A3 concerning coverage for interstate employers.

     A disagreement could occur if the employer wants to pay the claim under the law
of one state and the worker wants to make the claim under the law of a different state.
In determining which state’s law applies, some of the factors to be considered are:
         • In which state does the worker primarily work?
         • In which state is the employer’s major activity?
         • In which state was the worker hired?
         • In which state did the accident occur?

    For a worker who routinely travels in many states, the employer and worker may
have made a written agreement that specifies which state’s law will apply (§52-1-67(B)
NMSA).



Employer’s First Report of Injury or Illness –
Form E1
     The employer is responsible to notify the insurer or self-insurance program
promptly of any accident that may result in payments to the worker or medical bills.
Under the rules of the WCA (NMAC 11.4.3.12.B(4)), the employer must notify the
insurer or self-insurance program within 72 hours, after the employer learns that there
has been an accident that could possibly result in a claim.

     Many insurers and self-insurance programs require employers to use a reporting
form called the Employer's First Report of Injury or Illness. The current form as of 2007
is numbered E1.2. It is usually called an “E1” form. It’s up to your insurer or self-
insurance program whether to require the use of an E1, and whether the E1 is expected
as the initial report or a follow-up.




                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 21
                  __________________________________________________________


Two or three stages of filing Employer’s First Report

First:
Employer notifies insurer or self-insurance program.
Use method preferred by insurer or self-insurance program, as specified in the policy
packet you have received. This may be as simple as a phone call or e-mail message, or
it may be an E1 filing.

Notification deadline:
Within 72 hours of the time the employer was made aware that an accident has been
reported.

Second:
Employer may be required to file follow-up. If the initial report was a simple
notification, the insurer might require an E1 as a follow-up. Employer should follow
instructions from insurer or self-insurance program.

Deadline:
Per instructions from your insurer or self-insurance program.

Third:
Completed E1 is filed with the WCA. This is usually but not always done by the insurer
or self-insurance program.
Many insurers file these reports electronically in batches. If your insurer or self-
insurance program files electronically, the WCA prefers that you DO NOT send any paper
reports to the WCA. However, if your insurer or self-insurance program wants you to
file, you should use a paper E1 and mail or fax it to the WCA.

Deadline:
Within 10 days of the day or the accident or 10 days from the day the employer was
notified of the accident.
To enable the insurer to meet this filing deadline, the employer should meet the 72-hour
notification deadline and any required follow-up.

     By law, the employer or insurer is required to file an E1 with the WCA for every
work-related injury that causes the worker to be unable to go to work for more than 7
days (§52-1-58 NMSA). These claims are “indemnity claims,” meaning that the worker
will be entitled to indemnity payments. The days may be counted as one consecutive
week of lost time, or more than 7 non-consecutive days.

     The employer or insurer is also required to report to the WCA for every accident
that will result in $300 or more in medical costs, even if there is no lost time.

    The law (§52-1-60 NMSA) also requires the insurer or self-insurance program to
report the first payment of indemnity benefits to the WCA within 10 days of paying the
benefit.
                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                      2007 Edition
Booklet B1: What to Do After an Accident                                                page 22
                   __________________________________________________________


     The Rules of the WCA have added more reporting requirements (Rules of the
WCA, NMAC 11.4.3.12.B(4)). Employers must report all accidents to the insurer or self-
insurance program, even if the employer doubts the validity of the claim.

Employer:
     If you aren’t sure whether the accident will result in a claim or whether the injury
was work-related, you should file a report with your insurer or self-insurance program.
Filing is not an admission of responsibility.

QUESTION:
Q.       How do I know which filing I am responsible for – filing just with the insurer or self-
insurance program or also filing with the WCA?
A.       Look for instructions in the packet provided by your insurer or self-insurance program.
If you can’t find the information, ask your claim representative. If you have posted the WCA
poster correctly, you will find the telephone number on the poster posted at your workplace.

E1 and OSHA 301 forms
    If you fill out an E1, you do not have to fill out an OSHA 301 form. The E1 is the
New Mexico version of a standard form recognized and used by many states. It has
been reviewed by the U.S. Department of Labor and recognized as an acceptable
substitute for the 301, because it contains all the information required for the 301.

Forms and instructions for filing the E1
      The WCA provides a separate booklet containing an E1 form and detailed
instructions for filling it out. The booklet is called “Guide to Filing Paper E1’s and E6’s.”
(The E6 is a form that might be filed by the claim representative later in the claim
process.) This booklet is available in print or downloadable from the WCA web site.
You can also find the E1 form by itself on the web site. For printed copies of the E1 or
this booklet, contact any office of the WCA.

Worker must be given a copy of the E1
    The law requires that the worker must receive a copy of the E1 (§52-1-58(A)
NMSA). The employer should make sure that a copy of the report is furnished to the
worker.

      The E1 that is sent to the worker must include both the front and back pages of the
form (§52-5-1.4(E) NMSA). The back of the form contains information about the WCA
Ombudsman program (a service of the WCA), which the employer is required to
provide to the worker. If you don’t have the back page of the form, you can download
it from the WCA web site at www.workerscomp.state.nm.us.




                                 ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                         2007 Edition
Booklet B1: What to Do After an Accident                                                   page 23
                    __________________________________________________________

What does “File a Claim” mean?

The word “claim” and the phrase “file a claim” are used often about workers’
compensation and other insurance. These terms can be confusing.

Claim filed with employer
 When a worker “files a claim” with the employer, the employer contacts the claims
representative. This is the beginning of the procedure that results in coverage of the claim or
begins investigation of the claim by the insurer or self-insurance program.

Claim or complaint filed with WCA
The word “claim” is sometimes used for a legal action filed with the Workers’ Compensation
Administration if there is a disagreement between the worker and employer/insurer about the
claim.

This may also be called a “complaint,” since it is a legal document like a complaint in any other
court. This Handbook uses the word “complaint” for this action.

Filing a workers’ compensation complaint is similar to filing a lawsuit. Parties should file a
complaint only if there is a dispute that cannot be resolved through informal discussions or
through the help of an ombudsman. A complaint may be filed by the person himself (this is
called pro se) or through an attorney.

When a complaint is filed, it does not mean that the worker will begin receiving indemnity
benefits or that the dispute is resolved. It means that a process of dispute resolution will begin.
The dispute will be referred to the WCA mediation program. If mediation does not resolve the
dispute, it will be transferred to the WCA’s formal court process.

Insurance Claims
The word “claim” may be used for any of the forms used to document medical treatment for
payment. These forms often go directly from the doctor to claim representative (adjuster).



Can this worker stay at work?
    Booklet B3 of this Workers' Compensation Handbook for New Mexico series is titled
“Going Back to Work.” It discusses the issues of returning to work in detail. For
recommendations on return to work policies for employers, see the booklet “Stay at
Work / Return to Work Program Guide.”

    In almost all cases, the best outcome for the worker and the employer is for the
worker to return to work as quickly as it is medically safe to do so.

      If the worker can come right back to work, either at the worker’s regular job or at a
different job temporarily, usually that will lead to the best results for everyone. The
worker can go back to work only if the authorized health care provider approves that it
is medically safe.



                                  ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 24
                  __________________________________________________________

    If the worker is fully recovered, the worker should be able to return to work with
no problem. If the worker is not fully recovered, the employer may have to decide
whether the worker can come back to work at a modified job.

     An injured worker can return to work right away or at any time if:
        • the doctor says the worker is medically fit to do so, and;
        • there is work available that meets the worker’s temporary or permanent
            limitations.

    The employer does not have to return the worker to work if it could be reasonably
expected that the employee might harm himself or someone else.

    Employer and worker both have responsibilities under law. See Booklet B3, “Going
Back to Work,” and the “Stay at Work / Return to Work Program Guide.”




                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 25
                  __________________________________________________________



Don’ts for Employers
     Avoid unfair claims processing, bad faith (§52-1-28.1 NMSA) and retaliation (§52-1-
28.2 NMSA).
Employer:
If you commit unfair claims processing or bad faith, the results could be:
        The worker could receive an extra benefit of up 25% over the regular benefit.

       The WCA could impose a civil penalty, up to $1,000 per violation.
Examples of unfair claims processing or bad faith (§52-1-28.1 NMSA):
       DO NOT discourage the worker (or appear to discourage the worker) from filing
       a workers’ compensation claim. Do not refuse to sign a Notice of Accident form.

       DO NOT pay medical bills yourself and refuse to report the claim to your insurer.

       DO NOT require the worker to sign any forms as a condition of receiving
       workers' compensation benefits or medical care, EXCEPT a Notice of Accident if
       necessary and a WCA-approved form for release of certain medical information.
       This medical release form will probably be handled by your claim representative,
       not you. Any other release form is the worker’s choice. See Booklet B4 for more
       information.

       DO NOT refuse to tell the worker the name and contact information for your
       insurer or self-insurance program, or withhold other reasonable information,
       such as payroll information.

       Do not discourage the worker from hiring a lawyer. If the worker is represented
       by a lawyer, you probably should not discuss the case with the worker, but you
       may discuss other matters, unless your own lawyer tells you not to.

       DO NOT bring the worker back to work with the intention of firing him later just
       to cut off the worker’s benefits.
Retaliation (§52-1-28.2 NMSA):
       If you retaliate against a worker for filing a workers' compensation claim, the
       WCA could impose a civil penalty, up to $5,000 for each violation.

       Do not fire or threaten to fire a worker because the worker filed a workers'
       compensation claim. Do not retaliate against the worker in any other way. Firing
       a worker in retaliation can open the way for a worker to file a legal action
       outside the workers' compensation system.

       It is not considered retaliation to discharge a worker after an injury because the
       worker cannot perform any work that you have available.




                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                               2007 Edition
Booklet B1: What to Do After an Accident                                                         page 26
                      __________________________________________________________




           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   A1(E)    Workers’ Compensation Quick Facts- English
Booklet   A1(S)    Compensación A Los Trabajadores Informes Básicos ( Spanish)
Booklet   A2       Setting Up a Workers’ Compensation Program
Booklet   A3       The Workers' Compensation Coverage Guide for Employers and Insurance Agents
Booklet   A4       Uninsured Employers' Fund
Booklet   A5       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         Annual Safety Inspections
Booklet D2         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        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)
E4        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 calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 27
                  __________________________________________________________


Help from the Workers' Compensation Administration
(See the list of offices and telephone numbers at the end of this booklet)

For questions and concerns about CLAIMS

Personal contact

Contact an ombudsman. You can telephone or come in person to any WCA office
around the state. (If you want to come in person, it’s best to make an appointment.)
Some ombudsmen speak Spanish.

Use a local phone number or a FREE toll-free phone number.
An ombudsman will talk to you informally and give you information about your rights.
WCA publications

You can get publications from any office of the WCA. Go to an office or telephone to
request publications by mail.

Workbook for Injured Workers is a book written just for workers. It explains the
claims process in a relatively simple, easy to understand way, telling you your rights
and responsibilities. It contains forms that you can use to keep track of your claims.

Employer's Guide to New Mexico Workers' Compensation is written just for
employers and gives information addressed to the employer in a simplified format.

The Workers' Compensation Handbook for New Mexico (the booklets in this
series) are more detailed, containing more information than the Workbook for Injured
Workers.

The Stay at Work/Return to Work Program Guide is written for employers and
contains model policies and practices to help employers minimize the need for workers
to remain out of work.

Some WCA publications are available in Spanish.

WCA web site                         www.workerscomp.state.nm.us

Look under Booklets for copies of the booklets you can read, download and print.
Look under Workers or Employers for other information that might be useful for you.
You can print out copies of the forms from the Workbook for Injured Workers so you
will have extra copies.
Look under News and Announcements for any new changes that might affect you.




                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 28
                  __________________________________________________________


Case law commentary on Notice of Accident
By Judge Gregory Griego, Workers’ Compensation Judge

     The notice of the accident must be provided within 15 days of when worker knew
or should have known of the accident occurrence. A notice of an accident must be
provided to the employer, an employer’s agent, or another person acting within
supervisory capacity. Mosher v. Bituminous Ins. Co., 96 NM 674, 634 P.2d 696 (Ct. App.
1981).

     Actual notice of an accident by a supervisor can substitute for the written notice
required by the statute. Section 52-1-29 (A) NMSA. Actual notice may mean a number of
things -- possibly that the supervisor witnessed the accident or the consequences of the
accident.

     If the worker tells the health care provider, rather than the employer, that normally
will not constitute notice of an accident complying with the statute. Sanchez v. Azotea
Contractors, 84 NM 764, 508 P.2d 34 (Ct. App. 1973).

     Verbal notice to a supervisor may constitute actual notice, but only if it puts the
employer on notice regarding the time, place and circumstances of a work accident. Bell
v. Kenneth P. Thompson Co., 76 NM 420, 415 P.2d 546 (S. Ct. 1966). Verbal notice of an
accident can be given to a supervisor by someone other than the worker. For example, a
co-worker can inform a supervisor of the occurrence of a work accident.

     Mere knowledge of an injury, without relation to a work accident, is insufficient
notice within the requirements of the statute. Herndon v. Albuq. Publ. Sch., 92 NM 635,
593 P.2d 470 (Ct. App. 1978). For example, the statement, “My neck hurts,” would not
constitute notice of an accident. The statement, “My neck hurts since I lifted an engine
block yesterday,” would be sufficient as notice to an employer.

     Actual notice of an accident is subject to the same time limitations and
requirements as written notice. See Rohrer v. Eidal International, 79 NM 711, 449 P.2d 81
(Ct. App. 1968).

     The failure to give timely notice of an accident constitutes an absolute defense to a
claim for worker's compensation benefits. Geeslin v. Goodno, Inc., 75 NM 174, 402 P.2d
156 (S. Ct. 1965). The defense is considered to be an affirmative defense, which must be
raised by the employer. Mosher v. Bituminous Ins. Co., 96 NM 674, 634 P.2d 696 (Ct.
App. 1981). The practical effect of this is that notice is assumed to have been given
unless there is a specific denial of notice on the part of the employer. Employer bears the
burden of proof establishing a lack of notice.

     If an employer fails to comply with the statutory requirement regarding the posting
of the WCA poster and NOA forms, the time for providing notice by a worker of an
accident can extend up to 60 days from the accident. Section 52-1-29 (B) NMSA. Trial
decisions have held that the posting of the notice poster, without the notice forms, was
                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 29
                  __________________________________________________________

inadequate and the time for notice was extended to 60 days. A trial decision has held
that the placement of the poster and notice forms in a locked cabinet without ready
access was inadequate.

      Worker is expected to give notice of an accident when the worker knows or should
have known of a work related injury and seriousness of the accident and its resulting
injuries. In one case, the worker felt a minor neck pain at the time of the accident. The
worker later related serious arm pain to the work accident. The time for giving notice
began to run when the worker was aware of the relation between work and injury.
Garnsey v. Concrete, Inc., 1996-NMCA-081, 122 NM 195. It is not uncommon for a
worker to first become aware of the relation between a work incident and an injury
when they are informed of that by a health care provider. Even where there is a clear
relation between an accident and injury, the time for notice does not begin to run until a
reasonable worker would appreciate the seriousness of the injury. Gomez v. B. E.
Harvey Gin Co., 110 NM 100 (S. Ct. 1990).




                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 30
                  __________________________________________________________

                          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 calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.
The Workers' Compensation Handbook for New Mexico                                  2007 Edition
Booklet B1: What to Do After an Accident                                            page 31
                  __________________________________________________________




                                ____________________________
        Published by the New Mexico Workers' Compensation Administration, a state agency.
     Laws can change. Check for new information by calling1-866-WORKOMP or 1-866-967-5667
                     or look on the Internet at www.workerscomp.state.nm.us.

				
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