45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO WORKERS' COMPENSATION; AMENDING SECTIONS OF THE WORKERS' COMPENSATION ADMINISTRATION ACT AND WORKERS' COMPENSATION ACT TO PROVIDE SUPERIOR EMPLOYER LIABILITY AND STRENGTHEN EXCLUSIVE REMEDY PROVISIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 52-1-10 NMSA 1978 (being Laws 1929, Chapter 113, Section 7, as amended) is amended to read:

"52-1-10. INCREASE OR REDUCTION IN COMPENSATION BASED ON FAILURE OF EMPLOYER TO PROVIDE OR FAILURE OF EMPLOYEE TO USE SAFETY DEVICES.--

A. In case an injury to, or death of, a worker results from his failure to observe statutory regulations appertaining to the safe conduct of his employment or from his failure to use a safety device provided by his employer, then the compensation otherwise payable [under] pursuant to the Workers' Compensation Act shall be reduced ten percent.

B. In case an injury to, or death of, a worker results from the failure of an employer to provide safety devices required by law or, in any industry in which safety devices are not prescribed by statute, if an injury to, or death of, a worker results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the worker, then the compensation otherwise payable [under] pursuant to the Workers' Compensation Act shall be increased ten percent.

C. In case the death of a worker results from the failure of an employer to provide safety devices required by law or, in any industry in which safety devices are not prescribed by statute, if the death of a worker results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the worker and the deceased worker leaves no eligible dependents [under] pursuant to the Workers' Compensation Act, in addition to the benefits provided for in Subsection A of Section 52-1-46 NMSA 1978, compensation in the amount of five thousand dollars ($5,000) shall be paid to the surviving father and mother of the deceased or, if either of them [be] is deceased, to the survivor of them. The surviving father and mother, or either of them, may file a claim for the five thousand dollars ($5,000) compensation, provided the father or mother has given notice in the manner and within the time required by Section 52-1-29 NMSA 1978 and the claim is filed within one year from the date of the worker's death. If there [be] is no surviving father or mother, then the five thousand dollars ($5,000) compensation provided for in this subsection shall not be payable.

D. In case an injury to, or death of, a worker results from a superior employer's failure to maintain a safe workplace or its failure to supervise or other negligent act, the compensation otherwise payable pursuant to the Workers' Compensation Act shall be increased ten percent. The increase shall be payable by that superior employer. As used in this section, "superior employer" means an employer that holds a contract to perform work and subcontracts all or part of that work to another employer and that may be the person, organization or entity that owns the project or the property where the injury occurs and is responsible for paying for the work performed under contract.

[D.] E. Any increased liability resulting from negligence on the part of the employer or superior employer shall be recoverable from the employer or superior employer only and not from the insurer, guarantor or surety of the employer or superior employer under the Workers' Compensation Act, except that this provision shall not be construed to prohibit an employer or superior employer from insuring against such increased liability, provided a superior employer may not enter into a contract requiring an employer who is performing work for the superior employer to hold the superior employer harmless for the additional compensation provided in Subsection D of this section.

[E.] F. No employee shall file a claim for increased compensation under the Workers' Compensation Act on the basis of an injury suffered because of the lack of a safety device nor shall a dependent of a deceased employee or the father or mother as provided in Subsection C of this section file a claim on the basis of the death of a worker suffered because of the lack of a safety device, unless the claim identifies the specific safety device [which] that it is claimed was not furnished by the employer. The employer is under a like duty to allege the specific safety device [which] that it is claimed an employee failed to use before the employer may claim a reduction of compensation as [herein] provided in Subsection A of this section."

Section 2. Section 52-1-22 NMSA 1978 (being Laws 1965, Chapter 295, Section 15, as amended) is amended to read:

"52-1-22. WORK NOT CASUAL EMPLOYMENT.--As used in the Workers' Compensation Act, unless the context otherwise requires, where any employer procures any work to be done wholly or in part for him by a contractor other than an independent contractor and the work so procured to be done is a part or process in the trade or business or undertaking of [such] the employer, then [such] the employer shall be liable to pay all compensation under the Workers' Compensation Act to the same extent as if the work were done without the intervention of such contractor. The work so procured to be done shall not be construed to be "casual employment", and any employer who procures any work to be done for him and who pays directly or indirectly for workers' compensation benefits pursuant to the Workers' Compensation Act for the work so procured is entitled to the protections provided by that act."

Section 3. Section 52-5-1 NMSA 1978 (being Laws 1987, Chapter 342, Section 30, as amended) is amended to read:

"52-5-l. PURPOSE.--It is the intent of the legislature in creating the workers' compensation administration that the laws administered by it to provide a workers' benefit system be interpreted to assure the quick and efficient delivery of indemnity and medical benefits to injured and disabled workers at a reasonable cost to the employers [who] that are subject to the provisions of the Workers' Compensation Act and the New Mexico Occupational Disease Disablement Law. It is the specific intent of the legislature that benefit claims cases be decided on their merits and that the common law rule of "liberal construction" based on the supposed "remedial" basis of workers' benefits legislation shall not apply in these cases. The workers' benefit system in New Mexico is based on a mutual renunciation of common-law rights and defenses by employers and employees alike. Accordingly, the legislature declares that the Workers' Compensation Act and the New Mexico Occupational Disease Disablement Law are not remedial in any sense and are not to be given a broad liberal construction in favor of the claimant or employee on the one hand, nor are the rights and interests of the employer to be favored over those of the employee on the other hand. An employer shall be subjected to only one cause of action for claims of accidental injury arising out of and in the course of employment, and no other sources of recovery from or paid for by the employer shall be allowed if workers' compensation benefits are recoverable."

Section 4. Section 52-5-17 NMSA 1978 (being Laws 1986, Chapter 22, Section 43, as amended) is amended to read:

"52-5-l7. SUBROGATION.--

A. The right of any worker or, in case of his death, of those entitled to receive payment or damages for injuries or disablement occasioned to him by the negligence or wrong of any person other than the employer or any other employee of the employer, including a management or supervisory employee, shall not be affected by the Workers' Compensation Act or the New Mexico Occupational Disease Disablement Law, but the claimant shall not be allowed to receive payment or recover damages for those injuries or disablement and also claim compensation from the employer except as provided in Subsection C of this section.

B. In a circumstance covered by Subsection A of this section, the receipt of compensation from the employer shall operate as an assignment to the employer or his insurer, guarantor or surety of any cause of action, to the extent of payment by the employer to or on behalf of the worker for compensation or any other benefits to which the worker was entitled [under] pursuant to the Workers' Compensation Act or the New Mexico Occupational Disease Disablement Law and that were occasioned by the injury or disablement, that the worker or his legal representative or others may have against any other party for the injury or disablement.

C. The worker or his legal representative may retain any compensation due [under] pursuant to the uninsured motorist coverage provided in Section 66-5-30l NMSA l978 if the worker paid the premium for that coverage. If the employer paid the premium [the worker or his legal representative may not retain any compensation due under Section 66-5-30l NMSA l978, and that amount shall be due to the employer] and the worker is eligible to recover workers' compensation benefits, any payments pursuant to Section 66-5-301 NMSA 1978 are barred to that worker with regard to the coverage paid for by the employer and, for the purpose of eligibility for recovery from other sources of that same compensation, the employer-paid coverage shall be deemed to have been exhausted. For the purposes of this section, the employer shall not be deemed to pay the premium for uninsured motorist coverage in a lease arrangement in which the employer pays the worker an expense or mileage reimbursement amount that may include as one factor an allowance for insurance coverage."