Free NEW A4 --- Uninsured Employer Fund - New Mexico


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The Workers' Compensation Handbook For New Mexico

Booklet A4:

Uninsured Employers' Fund
Rights of injured worker................................................................................................ 2 Rights of alleged employer............................................................................................ 3 Date of the injury or disability ....................................................................................... 3 1. UEF Claim only........................................................................................................ 4 2. Tort claim, with the option to file a UEF claim also ..................................................... 4 3. Workers' compensation claim against the uninsured employer.................................. 5 Deciding which option is best for you ............................................................................. 5

Legal Options for the Injured Worker ......................................................................4

How to make a claim for benefits from the Uninsured Employers' Fund .....................6 Change in procedure for 2008 claims ......................................................................6 Uninsured Employers' Fund Two-Step Process .........................................................8

Benefits paid under the UEF ................................................................................. 13
When does the worker start to receive benefits? ........................................................... 13 How much is paid to an injured worker under the UEF? ................................................. 13 What if the worker had medical costs but continued working and did not lose wages? ..... 13 Limit of benefits ......................................................................................................... 13 Summary of UEF benefit payments .............................................................................. 14 If the worker disagrees with the benefits paid .............................................................. 14 Posting of security...................................................................................................... 15

Getting started with a UEF claim.................................................................................... 9 Step 1: Eligibility --..................................................................................................... 9 Was the alleged employer required to have coverage? .................................................. 10 Review of eligibility..................................................................................................... 11 What if the employer was legally uninsured? ................................................................ 11 Step 2: Compensability ­ ........................................................................................... 11

Employer's responsibility if the claim is accepted by the UEF................................... 15

Death of a worker: family members who qualify ................................................... 16 Uninsured Employers' Fund Glossary of Terms ....................................................... 17 Uninsured Employers' Fund Forms ........................................................................ 18
Help from the Workers' Compensation Administration.................................................... 19 Workers' Compensation Handbook List of Booklets........................................................ 20

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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This special edition covers the procedure adopted for the interim rule, effective for April through September 2008. If you are reading this booklet after September 2008, the procedure might be changed. See page 6. Beginning in 2003, a new program covers workers injured on the job whose employers illegally did not have workers' compensation coverage. This program is called the Uninsured Employers' Fund or UEF. It is found in the New Mexico Statutes, Chapter 52, §52-1-9.1 NMSA. 1 The UEF program is part of the New Mexico Workers' Compensation Administration (WCA). This program is only for workers who were injured at work, who died as a result of a work-related accident, or who were disabled by an occupational disease, in New Mexico, and whose employers should have had workers' compensation insurance, according to the New Mexico workers' compensation law, but did not. If an injured worker receives benefits through this fund, the WCA will take legal action against the uninsured employer to collect all the costs paid to the worker or on behalf of the worker, plus additional money allowed by law. The money recovered will go back into the fund for future injured workers. If you are a worker who was injured while working for an uninsured employer, you can call an ombudsman at the WCA to get started. Call 1-866-WORKOMP / 1-866967-5667 or your nearest WCA office. See the list of offices at the end of this booklet. An OMBUDSMAN is an employee of the WCA who specializes in helping people with information about workers' compensation claims. See Booklet C1 for more information about the Ombudsman program. Some ombudsmen speak Spanish.

Rights of injured worker
If you were injured at work or became ill as a result of work, and your employer did not have insurance, you might qualify for this coverage. If you qualify, the UEF will pay your medical expenses plus indemnity benefits to you, the same as a workers' compensation insurer would pay if your employer had been insured, except that there is a limit on the total amount payable. If you qualify for benefits, your employer will have to reimburse the fund and pay penalties. Family members of a worker who died in a work-related accident may be able to make a claim on the fund.
In this booklet are references to specific paragraphs of the workers' compensation law. These references are in a standard form. §52-1-9.1 NMSA means Chapter 52, Article 1, Paragraph 9.1 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 calling 1-866-WORKOMP or 1-866-967-5667or look on the Internet at www.workerscomp.state.nm.us. 1

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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Rights of alleged employer
If you were the employer of a worker who qualifies for benefits from the UEF and you were illegally uninsured, you will have to pay a substantial amount of money to repay the full cost of the claim plus a penalty, and you will have to buy a workers' compensation insurance policy in order to remain in business. (See the section, "Employer's responsibility if the claim is accepted by the UEF.") If you were not this person's employer, you are not responsible. You will have the opportunity to challenge the worker's claim in several ways: · · · You can challenge the claim that you were the worker's employer (challenge to ELIGIBILITY). You can challenge the claim that you were illegally uninsured (challenge to ELIGIBILITY). You can challenge the claim that the worker was injured while working for you (challenge to COMPENSABILITY).

This booklet explains the procedures for challenging the worker's claim. If you need help understanding your rights under the UEF, you can call an ombudsman at the WCA. Call 1-866-WORKOMP / 1-866-967-5667 or your nearest WCA office. See the list of offices at the end of this booklet.

Date of the injury or disability
The Uninsured Employers' Fund law was enacted in 2003. A worker may be qualified for benefits through the fund only if the work-related accident, or disability resulting from a work-related accident or occupational disease, occurred on or after June 20, 2003. Normally, the worker must make a claim on the Uninsured Employers' Fund within one year and 31 days from the date of the accident or disability. However, if the employer had made payments of any kind (for example, paying some of the worker's medical bills) and then stopped, the worker has one year from the date of the last payment to make the claim.

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

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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Legal Options for the Injured Worker
A worker who was injured while working for an illegally uninsured employer does not have to file a claim with the UEF. The worker has three choices of how to recover benefits. These choices combine the availability of the UEF and other options established under previous law. These three options are explained in more detail on the next pages. The three options are: 1. UEF claim only file UEF claim with WCA; if you qualify, receive limited benefits from UEF 2. Tort claim (with the option to file file a lawsuit in district court; UEF claim also) file UEF claim also; if you win in district court, repay UEF; 3. Workers' compensation claim file workers' compensation complaint against employer; directly against uninsured employer if you win, benefits may be higher than the UEF limits

1. UEF Claim only
You can claim benefits from the UEF. If the UEF pays your claim, you will receive benefits under workers' compensation law the same way as any other injured worker, except that the benefits payable by the UEF are limited. They may not be as much as the benefits payable under a regular workers' compensation claim (see the section "Limit of Benefits").

2. Tort claim, with the op

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

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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attorney before deciding whether to do this. You can go ahead with your UEF claim in the meantime. The right to file a tort claim in district court is different for you than for any worker whose employer had workers' compensation coverage. The workers' compensation law protects employers from this type of lawsuit. But if your employer did not have legally required workers' compensation coverage, the employer is not protected.

3. Workers' compensation claim against the uninsured employer
You can file a workers' compensation complaint against your employer. This is a lawsuit filed at the WCA. In this type of case, you are trying to get full workers' compensation benefits directly from your uninsured employer. You are entitled to the same benefits under workers' compensation as any other injured worker. Workers' compensation benefits are explained in Booklets B1, B2, B3 and B4. As with a tort claim, you can successfully collect money from your employer only if your employer has money to pay. The UEF would not be involved in this case. If you file a workers' compensation claim against your employer, you will not be permitted to file a UEF claim also.

Deciding which option is best for you
You might want to talk to an attorney before you decide which choice is best for you. Here are some questions to consider: · · · · Does the employer have enough money to pay for your benefits and the cost of your medical care? Could you prove to a judge or jury that your employer was "at fault" in causing your accident? If a judge awards money to you from the employer, will it be likely that you can collect the money? If your injury was serious, is the cost of your benefits plus your medical care likely to be more than the limits of the UEF (see the section "Limit of Benefits")?

You do not need an attorney to file a claim with the UEF. However, there could be challenges to your claim. If there are any challenges, it will be advisable to have a lawyer at that time.

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

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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How to make a claim for benefits from the Uninsured Employers' Fund
(Rules of the WCA, NMAC 11.4.12) 2
A worker who makes a claim for benefits under the Uninsured Employers' Fund program must provide information to support two sets of facts. First, the worker must show that he was an employee of the uninsured employer at the time of the accident. This is called ELIGIBILITY. Second, the worker must show that he had a work-related accident. This is called COMPENSABILITY.

Change in procedure for 2008 claims
The WCA has changed its procedure for reviewing UEF claims, beginning with claims submitted on April 1, 2008. Under this procedure, all UEF claims will be filed for mediation through the WCA mediation process. This procedure is in effect for six months, through the end of September, 2008. At the end of that period the procedure will be reviewed. See the Rules of the WCA, Rule 11.4.12.8 NMAC, amended effective 4/1/2008. This change in procedure was adopted to simplify the process of determining who is entitled to benefits through the UEF. The worker, the alleged uninsured employer, and a representative of the UEF will meet in a mediation conference. Before the mediation conference takes place, a UEF staff member may talk to the worker and the alleged employer and get preliminary information that may help to clarify the basic issues of eligibility and compensability. At the mediation conference, the mediator will hear what each person says about whether this claim qualifies as a UEF claim. Other issues may also be discussed, such as the amount of benefits to which the worker might be entitled. If the parties do not come to an agreement at the mediation conference, the mediator will issue a "recommended resolution." The parties do not have to accept the mediator's recommendation, but can reject it and go on to a formal trial.

2

In 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 11.4.12. 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 calling 1-866-WORKOMP or 1-866-967-5667or look on the Internet at www.workerscomp.state.nm.us.

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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It is very important for both the worker and the alleged employer to come to the mediation conference fully prepared to discuss all the issues about the case. Both worker and alleged employer should gather documents to support their side of the case. Bring these documents to the mediation conference. It is important to have all necessary documents with you at the mediation so that you can support your position. If you are involved in a UEF case, you may wish to contact an attorney who will represent you in your case. If you do not want an attorney, you can work with a WCA ombudsman who can help you prepare the information you will need for the mediation conference. A WCA ombudsman cannot act as your representative and cannot go with you to the mediation conference. The WCA mediation and dispute resolution process is explained in Booklet C1, "If You Need Help with a Workers' Compensation

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

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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Uninsured Employers' Fund Two-Step Process
Step 1. ELIGIBILITY Worker files UEF claim. Is the worker eligible?

Was the worker employed by an illegally uninsured employer? WCA UEF Administrator investigates and makes a finding, which could be challenged for review by the worker or alleged employer.

If worker is found eligible, the claim moves forward to Step 2. If alleged employer files a Request for Review, Step 2 continues while the review process is going on.

If worker is found not eligible, the claim is denied and the process stops. Worker may disagree by filing a Request for Review within 14 days. Review hearing is conducted by a WCA hearing officer and could be appealed to a District Court.

Alleged Employer may disagree with eligibility by filing a Request for Review within 14 days. Review hearing is conducted by a WCA hearing officer and could be appealed to a District Court. This review could continue while Step 2 is taking place.

Step 2. COMPENSABILITY Is the claim compensable? Is the worker's injury or disability the result of a work-related accident that happened while worker was on the job working for this employer? UEF Third Party Administrator (TPA) investigates and makes a finding. Worker or alleged employer who disagrees with this finding can challenge by filing complaint with WCA court. If the claim is found compensable, UEF starts to pay benefits every two weeks. Employer may disagree If the claim is found not compensable, the claim is with compensability by filing a Complaint with the denied and the process WCA court, just like any stops. Worker may other workers' disagree by filing a compensation claim. WCA Complaint with the WCA decision can be appealed to court, just like any other the NM Court of Appeals. workers' compensation claim. WCA decision can be appealed to the NM Court of Appeals. IF CLAIM IS COMPENSABLE AFTER ALL LEGAL PROCESS IS DONE, then: UEF pays medical costs and past due weekly benefits; UEF seeks reimbursement of all costs plus penalty from employer.

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

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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Getting started with a UEF claim
(Rules of the WCA NMAC 11.4.12.8) Worker:
If you do not have a lawyer, it's a good idea to contact an ombudsman at the WCA for help. If you want to do this without help, get a copy of the UEF Rule, Section 11.4.12 of the WCA Rules. You can get this from the WCA web site or in person at any WCA office. You will need these forms: · Claim for Uninsured Employers' Fund Benefits; · WCA Medical Release Form; · Questions for Uninsured Employers' Fund Claimants. The forms are in the back of this booklet. The forms are up-to-date as of the date of this publication in 2006. If you are reading this booklet later, check for new or changed forms on the WCA web site, www.workerscomp.state.nm.us, or contact any office of the WCA. Fill out these forms completely. An ombudsman can help you fill out the forms. Take the completed forms to the WCA Court Clerk or any WCA field office, or mail them to the UEF Administrator at the WCA. The forms will be date-stamped by the person who receives them. See addresses and telephone numbers at the end of this booklet.

THESE PROCEDURES ARE TEMPORARILY SUSPENDED ­ SEE PAGE 6

Step 1: Eligibility -Were you employed by an illegally uninsured employer? Worker:
To be eligible for the UEF, you have to name a person or business who was your employer when you were injured. You have to be able to show: · this employer was required to have coverage under the New Mexico workers' compensation law, AND · you were an employee of that person or business when you were injured. The UEF Administrator will investigate the eligibility of your claim to see whether you were employed by the person or business you have named, and whether this person or business was required to have workers' compensation insurance. (The UEF Administrator is a professional employee of the WCA who is designated by the Director to administer the UEF program.)
__________________________________________________________ Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667or look on the Internet at www.workerscomp.state.nm.us.

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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The UEF Administrator will make a finding on eligibility within 15 days. You will be notified by certified mail. The alleged employer -- the person or business you named as employer -- will also be notified by certified mail. If the UEF Administrator finds you are NOT ELIGIBLE, you can request a review of that decision. Fill out the UEF Request for Review form and submit it within 14 days from the date you receive the Administrator's decision. The current form, as of the date of this publication, is in the back of this booklet. The most up-to-date form can be found on the WCA web site or at any office of the WCA.

Was the alleged employer required to have coverage?
(New Mexico Statutes, §52-1-6 NMSA)
Booklet A3 explains the coverage requirement in detail. If you think there might be a disagreement about whether this person or business is required to have workers' compensation insurance coverage, go to Booklet A3 and read the detailed information.

A simple summary of the coverage requirement is:
In most industries, all employers who employ three or more workers are required by law to have workers' compensation coverage. Coverage is not required for: private domestic servants (§52-1-6(A) NMSA); real estate salespersons ((§52-1-16) NMSA); or farm and ranch laborers (§52-1-6(A) NMSA). All employers in the construction industry must have coverage (§52-1-6(A) NMSA). For non-profit, charitable and religious organizations, the coverage requirement is the same as for for-profit businesses.

Alleged employer:
It is possible that the first time you learn about this claim will be through the certified letter you receive from the WCA. If you think the worker's claim is wrong or fraudulent, you can challenge the Administrator's finding. This is called a Review of Eligibility. You can claim: · that you were not the employer of this worker; AND/OR

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

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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that the worker was not injured while working for you, you will be able to make that challenge at a later time.

Review of eligibility
If either the worker or the alleged employer requests a review of the eligibility finding, a hearing will be held at the WCA. The hearing officer will be a person appointed by the Director of the WCA. At the hearing, the "burden of proof" is on the worker. That means the worker has to provide enough information to convince the hearing officer that this employer was required to have coverage under New Mexico workers' compensation law, and that the worker was an employee of that person or business when injured. The hearing officer will issue a decision. The losing party in that decision can challenge the decision by filing a complaint in a district court within 30 days. The losing party in the district court decision can appeal to the New Mexico Court of Appeals. If, at the end of the appeal process, the last decision is that the worker is not eligible, the claim is ended. Even if the worker is not eligible, if the alleged employer is found to be an illegally uninsured business, the business will be required to buy a workers' compensation insurance policy to continue to operate.

What if the employer was legally uninsured?
Some very small businesses and certain other businesses named by law are not required by law to have workers' compensation insurance. See Booklet A3 for complete information. If you were injured while employed by a business like this, you are not entitled to workers' compensation benefits. The UEF will not accept your claim. In this case, you can file a tort claim against your employer. To win your case you will have to show that the employer was at fault in contributing to the cause of your injury or disability.

THESE PROCEDURES ARE TEMPORARILY SUSPENDED ­ SEE PAGE 6

Step 2: Compensability ­
Did you have a covered work-related accident, or an illness that resulted from conditions at work? (Rules of the WCA, NMAC 11.4.12.9)
If the worker is ELIGIBLE, the next matter to be decided is whether the worker's injury or disabled condition was work-related and whether it occurred while the worker was employed by this employer. This is called COMPENSABILITY. Compensability is defined in the workers' compensation statute at §52-1-28 NMSA.
__________________________________________________________ Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667or look on the Internet at www.workerscomp.state.nm.us.

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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UEF claims are managed by a professional claims management company under a contract with the WCA. This company is called a Third Party Administrator or TPA. When a UEF claim is determined to be eligible, the claim is submitted to a claim representative employed by the TPA. The TPA claim representative decides whether the claim is compensable.

Worker:
The UEF uses the same standards as regular workers' compensation to determine whether your accident or disability is covered. Generally, any injury that came from an accident while working for your employer is covered. For more details, see Booklet B1. If the TPA claim representative decides that your claim is NOT COMPENSABLE and you disagree, you can then file a legal complaint in the WCA court, like any other injured worker whose claim is denied. The dispute resolution process is explained in Booklet C3. The legal forms are on the WCA web site at www.workerscomp.state.nm.us. You can ask an ombudsman for help filling out the forms, unless you are represented by a lawyer.

Employer:
If you were the employer, as decided in the ELIGIBILITY step, you can still challenge this claim if you believe this worker does not have a work-related injury as a result of working for you. The TPA will contact you before deciding whether or not to pay this claim. You will have a chance to tell your side of the story, explaining why you think the worker was not injured while working for you. If the TPA agrees with you, the TPA will decide the worker's claim is NOT COMPENSABLE. If the TPA disagrees with you and decides the claim is COMPENSABLE, you will have an opportunity to file a legal complaint in the WCA court. Your complaint will be handled under the ordinary dispute resolution process of the WCA. The dispute resolution process is explained in Booklet C3. The forms for filing a complaint are on the WCA web site at www.workerscomp.state.nm.us. If the WCA judge does not agree with you, you can appeal to the New Mexico Court of Appeals. If the WCA judge does agree with you, the worker can appeal to the Court of Appeals.

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

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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THESE PROCEDURES ARE TEMPORARILY ADJUSTED FOR THE INTERIM RULE ­ SEE PAGE 6

Benefits paid under the UEF
When does the worker start to receive benefits?
If the UEF Administrator has found the worker to be ELIGIBLE and the claim representative finds that the claim is COMPENSABLE, the claim is accepted and the UEF will start to pay the worker's indemnity benefits. The worker should receive the first check within 21 days of the date the claim was accepted. These findings are not final decisions under law. They can be overturned. The alleged employer has the right to challenge the claim for eligibility or compensability or both. It is possible that either the WCA court or a district court could find that the worker is not entitled to these benefits. Therefore, the UEF will wait until the legal process is completed to pay: · past indemnity benefits that might be due from the time before the claim was accepted, AND · medical costs.

How much is paid to an injured worker under the UEF?
A worker who receives benefits under the UEF program is entitled to the same indemnity and medical benefits as any other worker who receives workers' compensation benefits, except for the Limit of Benefits described in the next section. See Booklet B2 for the most detailed explanation of workers' compensation benefits.

What if the worker had medical costs but continued working and did not lose wages?
A worker under the UEF is entitled to indemnity benefits the same as any other worker under the workers' compensation law. Depending on what happened, the worker might qualify for temporary partial disability benefits, permanent partial disability benefits based on a physical impairment, scheduled injury benefits based on injury to a specific body part, or medical costs only. See Booklet B2.

Limit of benefits
(Rules of the WCA, NMAC 11.4.12.11)
Beginning with injuries that occurred on or after December 23, 2005, a claim paid by the UEF is limited to a maximum amount or cap.

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

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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The general limit is $40,000 for medical costs and $40,000 for indemnity benefits. If the indemnity benefits total less than $40,000 but the medical bills are greater than $40,000, the money reserved for indemnity can be applied to medical; but money reserved for medical bills cannot be applied to indemnity. If the worker's total claim is less than these limits, the claim will be covered just like a regular workers' compensation claim. If it is more, payments will end when the limits are reached.

Summary of UEF benefit payments
When paid:

Temporary benefits may be paid while the claim is pending, after worker is accepted as ELIGIBLE by UEF administrator and claim is accepted as COMPENSABLE by Third Party Administrator.
What is paid:

Indemnity benefits to worker, starting from date claim was determined to be COMPENSABLE.

Alleged employer has the right to challenge the claim through review and appeals process. This challenge could be continuing through the review and appeals while indemnity benefits are being paid.
If the alleged employer wins the challenge:

If the alleged employer does not challenge the claim:

Worker will receive past indemnity benefits starting from date of injury or disability. Medical bills will be paid to health care providers.
If the worker wins the challenge:

The claim is not valid and all benefits stop.

Worker will receive past indemnity benefits starting from date of injury or disability. Medical bills will be paid to health care providers.
Medical benefits paid to health care providers:

Indemnity benefits paid to worker:

Limited to $40,000.

Usually limited to $40,000. If indemnity benefits to worker are less than $40,000, the remainder may be used for additional medical costs.

If the worker disagrees with the benefits paid
Once a claim is established under the UEF, the TPA determines the worker's rights to indemnity benefits and medical care the same way any claim representative would in an ordinary workers' compensation case, except for the limit on UEF benefits. The worker has a right to disagree with the TPA, in the same way any worker may disagree with any claim representative.
__________________________________________________________ Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667or look on the Internet at www.workerscomp.state.nm.us.

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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Worker:
If you disagree with any aspect of the way your claim is being managed, including the amount of indemnity benefits, the selection of health care provider, other decisions regarding your medical care, or any other aspect of the claim, you have the same right as any other worker to file a complaint in the WCA. You also have the right to hire an attorney. In the WCA dispute resolution process, you will be treated the same as any other worker and the TPA will be treated the same as any claim representative from an insurer or self-insurance program. You do not have to pay an attorney in advance. See booklet C2 for more information about your rights when an attorney represents you. If your attorney wins more money or other benefits for you, a workers' compensation judge will decide how much money your attorney should be paid and how much you should pay. Usually you will pay half of that amount, and the UEF will pay the other half.

Employer's responsibility if the claim is accepted by the UEF
If the claim is accepted by the UEF after all challenges and appeals, the employer will be legally responsible to reimburse the UEF for all the costs of this workers' compensation claim, including medical expenses, indemnity benefits, attorney fees, interest and other fees. The employer will also be required to pay a penalty set by a workers' compensation judge or the Director of the Workers' Compensation Administration. The penalty may be between 15% and 50% of the total costs.

Posting of security
(Rules of the WCA, NMAC 11.4.12.11)
Under the law, the UEF pays benefits to injured workers and then seeks reimbursement (plus a penalty) from the employer. A WCA Rule requires that the employer provide a form of financial security to cover those costs. The employer can post an irrevocable letter of credit, a surety bond or other form of security approved by the Director. The security is required only after the claim has gone through both steps of the process and a legal determination has been made that there is a compensable claim against the UEF. The amount of security required will be based on an estimate of the probable cost of the worker's total benefits set by the UEF Administrator. The maximum amount will be
__________________________________________________________ Published by the New Mexico Workers' Compensation Administration, a state agency. Laws can change. Check for new information by calling 1-866-WORKOMP or 1-866-967-5667or look on the Internet at www.workerscomp.state.nm.us.

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

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$80,000. If the employer fails to post the security, the WCA may pursue the matter in the courts and could force the business to close.

Death of a worker: family members who qualify
(New Mexico Statutes, §52-1-17 NMSA)
If the worker died as a result of the eligible work-related accident, the UEF will pay benefits to certain family members. The family members who qualify include: · the spouse; · a former spouse who was legally entitled to alimony; · the worker's child or other dependent up to 18 years old; or under 23 years old and a full-time student; or an adult child who is not capable of supporting himself; · a parent or grandparent who was financially dependent on the worker; · a grandchild, brother or sister who was under 18 or financially dependent on the worker. Under the UEF rules, the maximum amount that might be paid to qualified family members would be $40,000. A formula in the law is used to determine how much money each of these family members may receive. In some cases where there are minor children, the WCA may appoint a guardian to supervise the use of the money. See Booklet B2 for more information on survivor benefits.
PUBICATION NOTE PREVIOUS BOOKLET A4: In past years, Booklet A4 of this series was titled "Subsequent Injury Fund." This booklet was discontinued due to the repeal of the Subsequent Injury Fund law in 1996 and the end of the Subsequent Injury Fund program in 1999. The Subsequent Injury law was Article 2 of Chapter 52 of the New Mexico Statutes. CASE LAW Wegner v. Hair Products of Texas, Court of Appeals, 2005 As of publication date in 2006, only one UEF case has been heard by the New Mexico Court of Appeals. This case concerns an attempt to make a claim on the UEF for an injury that occurred prior to the enactment of the UEF statute. The court rejected this claim.

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

The Workers' Compensation Handbook for New Mexico Special Edition, April through September 2008 Booklet A4: Uninsured Employers' Fund

page 17

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Uninsured Employers' Fund Glossary of Terms
Special language used in the Uninsured Employers' Fund program
Compensability: a claim is compensable under the UEF program based on the same considerations as a normal workers' compensation claim. Generally, any injury that came from an accident at work is covered. An occupational disease or an injury that came from repetitive motion over a long period of time might also be covered.

Eligibility: a worker is eligible for the UEF program if the worker was an employee of an illegally uninsured New Mexico employer. To prove eligibility, the worker must be able to show: this employer was required to have coverage under the New Mexico workers' compensation law, AND the worker was an employee of that person or business when the worker was injured.

Security: A financial document such as an irrevocable letter of credit or surety bond. Security is required to ensure that the uninsured employer will reimburse the Uninsured Employers' Fund once the full cost has been determined.

Third Party Administrator (TPA): a professional claims management company that manages UEF claims under a contract with the WCA. On any claim, the TPA makes the initial finding regarding compensability. When a claim is compensable, it is paid and managed by the TPA.

UEF Administrator: a professional employee of the WCA who is designated by the Director to administer the UEF program. On any claim, the UEF Administrator makes the initial finding regarding eligibility. For other workers' compensation terms, see the Glossary in the Workbook for Injured Workers and the Employer's Guide to New Mexico Workers' Compensation.

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

Uninsured Employers' Fund Forms
The forms used by Uninsured Employers' Fund filers are temporarily removed from this booklet for updating. You can find the current forms on the WCA web site at www.workerscomp.state.nm.us. Click on "Uninsured Employers' Fund." Scroll down to "how to apply for benefits. Then click on "download complaint form packet." Or ask a WCA ombudsman for help. Call 1-866-WORKOMP / 1-866-967-5667 for the Help Line or call any office of the WCA.

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

Help from the Workers' Compensation Administration
(See the list of offices and telephone numbers on the back page of this booklet) Information for workers employed by uninsured employers and for employers or alleged employers who have filings against them by the Uninsured Employers' Fund
Personal contact A worker who has had a work-related injury and whose employer does not have insurance, or who denies responsibility for any reason, can call an ombudsman. A business owner who has a claim against him from the Uninsured Employers' Fund, and who believes the claim is unfair, incorrect or fraudulent, can call an ombudsman. Contact your nearest WCA office or call 1-866-WORKOMP / 1-866-967-5667. Some ombudsmen speak Spanish. WCA publications You can get publications from any office of the WCA. Go to an office or telephone to request publications by mail. The Workers' Compensation Handbook for New Mexico (the booklets in this series) contains several booklets that could be helpful to a worker or alleged employer who might be affected by the Uninsured Employers' Fund. See Booklet A3 for information about the workers' compensation insurance coverage requirement and which employers are required to be covered. See Booklets B1 and B2 for information about workers' compensation claims and benefits. See Booklet C1, C2 and C3 for information about the ombudsmen, use of lawyers and the dispute resolution process. WCA web site www.workerscomp.state.nm.us Look under Booklets for copies of the booklets in this Handbook series, which you can read, download and print. Look under Uninsured Employers' Fund for current information about the Uninsured Employers' Fund program and for forms you can use to file a claim or a Request for Review.

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 Booklet Booklet Booklet Booklet Booklet

A1(E) A1(S) A2 A3 A4 A5

Workers' Compensation Quick Facts- English Compensación A Los Trabajadores Informes Básicos ( Spanish) Setting Up a Workers' Compensation Program The Workers' Compensation Coverage Guide for Employers and Insurance Agents Uninsured Employers' Fund 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 Booklet D2 Annual Safety Inspections 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 E4

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) 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
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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

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