How Long Do I Have to Make a Workers' Comp Claim?
Thes state deadlines and details of work injuries in New MexicoBy S.M. Oliva | Last updated on January 29, 2023
Use these links to jump to different sections:
- Filing a Workers’ Compensation Claim
- Who Selects an Injured Worker’s Doctor?
- What Happens When an Employer Denies a Workers’ Compensation Claim?
Filing a Workers’ Compensation Claim
Workers’ compensation is a state-supervised insurance system designed to provide “no-fault” benefits to workers injured on the job or in the course of their employment. “No-fault” means the employee does not have to prove that the employer’s negligence caused the job-related injury. However, the employer is only required to pay workers’ compensation benefits if it is informed of the accident in a timely manner.
Under New Mexico state law, Section 52-1-29, an employee has 15 days from the date of injury to give “notice in writing” to his or her employer if they have suffered an injury covered by workers’ compensation. If the employee is physically unable to give notice “by reason of his injury or some other cause beyond his control,” the deadline can be extended up to 60 days. But written notice is not required at all if the employer or the employee’s supervisor, such as a foreman or superintendent, has “actual knowledge” of the employee’s accident.
However, according to Christopher Elmore, a workers’ compensation attorney at Elmore Law firm in Albuquerque, the deadlines are not always that simple. A 60-day deadline also may be granted if the employer has failed to post the proper workers’ compensation claim forms and notices in the workplace. Elmore says situations have also occurred in which the deadline is further extended beyond 60 days after the injury. “The time to give notice is from when the worker knew or should have known that they have a compensable accident,” Elmore says. For example, if the worker didn’t immediately realize that they were hurt or didn’t realize that an infection had set in. “It’s a little bit of a grey area, but 60 days is supposed to be the ultimate cap.”
Who Selects an Injured Worker’s Doctor?
An employer has 72 hours to report the incident to its workers’ compensation insurance carrier after being notified of a workplace accident. Your employer then has the right to select a doctor to treat your injuries or to allow you to select your own doctor at this stage. “Whoever picks (the healthcare provider) first is basically stuck with that choice and then after 60 days the other party gets to switch care for the remainder of the claim,” Elmore says.
If an employer fails to provide a written notice regarding the direction of the employee’s care, and the employee begins seeing a provider who accepts workers’ compensation, it is deemed that neither party selected the provider. At this point, Elmore says, “the employer can send the notice and the 60 day window will begin.”
In cases where the employer elects to make the initial selection, the employee has the right, under New Mexico workers’ compensation law, to request a change after 60 days of treatment. Similarly, if you select your doctor initially, the employer may demand a change after 60 days. Note this right, whether invoked by the employer or the employee, can only be used once. Any further changes in the employee’s treating doctor must be by mutual agreement or an order from a New Mexico workers’ compensation judge.
What Happens When an Employer Denies a Workers’ Compensation Claim?
The employer/insurer ultimately decide whether to pay workers’ compensation benefits. Typically, if the injured employee is unable to return to work for more than seven days, “temporary total disability benefits” of up to two-thirds of the employer’s prior weekly wages is payable starting on the eighth day. These benefits continue until the employee is able to return to work at his or her pre-injury wage, or a doctor certifies the employee has attained “maximum medical improvement.”
If an employer/insurer denies or ends workers’ comp benefits, the employee has the right to challenge that decision. “The employer/insurer in good faith, most of the time, will accept the claim initially and then they will perform and investigation,” Elmore says. However, he estimates around 75 percent of claims that are denied are denied on the grounds of causation, meaning, “The story doesn’t add up as to how the worker was injured or there’s subsequent witnesses who say no that didn’t happen.” Another grounds for ending benefits is if the employee is failing to actually seek treatment for the injury.
Challenging the denial requires filing a formal complaint with the New Mexico Workers Compensation Administration (WCA). The WCA will first attempt to mediate the dispute between the employee and employer. If that is unsuccessful, there will be a formal hearing before a workers compensation judge. Should the judge rule for the employer, the employee has 30 days to appeal an adverse decision to the New Mexico Court of Appeals.
An experienced workers’ compensation lawyer can help you with your workers’ compensation claim. To learn more about this area of law, see our overview on workers’ compensation law.
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