TITLE 13 INSURANCE
CHAPTER 17 WORKERS’ COMPENSATION INSURANCE
PART 2 WORKERS’ COMPENSATION APPEALS BOARD
126.96.36.199 ISSUING AGENCY: New Mexico Public Regulation Commission, Insurance Division.
[7-1-97; 188.8.131.52 NMAC – Rn & A, 13 NMAC 17.2.1, 5-15-01]
184.108.40.206 SCOPE: This rule applies to grievances relating to experience modification factors, classification assignments and manual rules which are to be heard by the New Mexico Workers' Compensation Appeals Board.
[1-1-93, 7-1-97; 220.127.116.11 NMAC – Rn, 13 NMAC 17.2.2, 5-15-01]
18.104.22.168 STATUTORY AUTHORITY: NMSA 1978 Sections 59A-2-9, 59A-3-6, 59A-17-5, 59A-17-8, 59A-17-19, 59A-17-27 and 59A-17-30.
[1-1-93; 22.214.171.124 NMAC – Rn, 13 NMAC 17.2.3, 5-15-01]
126.96.36.199 DURATION: Permanent.
[7-1-97; 188.8.131.52 NMAC – Rn, 13 NMAC 17.2.4, 5-15-01]
184.108.40.206 EFFECTIVE DATE: January 1, 1993, unless a later date is cited at the end of a section.
[1-1-93, 7-1-97; 220.127.116.11 NMAC – Rn & A, 13 NMAC 17.2.5, 5-15-01]
18.104.22.168 OBJECTIVE: The purpose of this rule is to establish a Workers’ Compensation Appeals Board to provide a mechanism by which aggrieved parties may obtain review of the application of the rules of the workers' compensation system to their individual workers' compensation policies, and to engage in other activities as more clearly set forth in 22.214.171.124 NMAC.
[1-1-93; 126.96.36.199 NMAC – Rn, 13 NMAC 17.2.6, 5-15-01]
188.8.131.52 DEFINITIONS: Workers’ Compensation Service Organization (WCSO) means either a rate service organization licensed in accordance with NMSA 1978 Section 59A-17-19 or an advisory organization licensed in accordance with NMSA 1978 Section 59A-17-24 that is designated by the Superintendent of Insurance as competent in workers’ compensation matters.
[184.108.40.206 NMAC - N, 5-15-01]
220.127.116.11 MEMBERS AND NON-VOTING ADVISOR: The Appeals Board shall consist of five (5) voting members and one non-voting advisor as follows:
A. One member shall be from the staff of the New Mexico Insurance Division.
B. One member shall be an employee of the WCSO.
C. Three (3) members shall be from the private sector and shall be referred to as public members.
(1) At least one public member shall be a private sector employer or a representative of a private sector employer located in New Mexico.
(2) At least one public member shall be affiliated with a local chamber of commerce, small business federation, or similar business association in New Mexico.
(3) Each public member shall be knowledgeable concerning workers' compensation insurance, rules, and classifications, and shall be familiar with the business environment and business community of New Mexico.
(4) No public member shall be, or be an employee of, an insurance company, insurance broker, insurance agent, law firm, actuary, or any association of any such entities; neither shall any such member be under contract to any such entity.
(5) No two public memberships shall be affiliated with the same business organization, affiliated group, business league, or labor organization.
(6) All public memberships shall be held in the name of the individual.
D. The non-voting advisor shall be an insurance company that writes workers' compensation insurance policies in New Mexico.
(1) The insurance company shall designate one salaried employee to represent it on the Appeals Board, and another salaried employee as an alternate.
(2) The company representative or alternate representative shall attend each meeting of the Appeals Board and shall serve as a technical and business resource. The representative will provide advice to the Appeals Board on issues relating to experience modification factors, classification assignments, and manual rules. The company representative may participate in the discussion but shall have no vote in determining the Appeals Board's decisions.
[1-1-93; 18.104.22.168 NMAC – Rn & A, 13 NMAC 17.2.8, 5-15-01]
22.214.171.124 SELECTION OF APPEALS BOARD MEMBERS: Members of the Appeals Board shall be selected as follows:
A. The member from the New Mexico Insurance Division shall be appointed by the New Mexico Superintendent of Insurance.
B. The members selected from the private sector (employers) shall be appointed by the New Mexico Superintendent of Insurance.
(1) The WCSO shall compile a list of nominees which the Superintendent is to consider when making such appointments. Nothing herein shall be construed as a requirement that the Superintendent appoint any of the nominees presented by the WCSO.
(2) The list of nominees compiled by the WCSO shall contain no fewer than nine (9) candidates. At least three (3) candidates must be qualified for each vacancy to be filled.
(3) The WCSO shall provide the list of nominees to the New Mexico Superintendent of Insurance thirty (30) days prior to the date the Superintendent is required to make the appointments.
(4) When an appointment is made, the Superintendent of Insurance shall immediately notify the WCSO regarding the identity of the public members so appointed.
C. The member selected from the WCSO shall be appointed by the president of the WCSO, or by some other senior officer designated by the president of the WCSO.
D. The non-voting advisor shall be appointed by the Superintendent of Insurance from a slate of five (5) nominees submitted by the WCSO. The five (5) nominees shall be selected from the WCSO member companies operating in New Mexico.
E. In the event that the Superintendent of Insurance declines to make any such appointment as is described in subsection B of 126.96.36.199 NMAC, the president of the WCSO shall appoint individual(s) from the private sector to fill the vacancy(ies). If the Superintendent of Insurance declines to make any such appointment as is described in subsection A of 188.8.131.52 NMAC, the president of the WCSO shall appoint a WCSO employee to fill such vacancy. If the Superintendent declines to make the appointment described in subsection D of 184.108.40.206 NMAC, the president of the WCSO shall appoint a company from the slate of nominees submitted by the WCSO to fill the vacancy.
[1-1-93; 220.127.116.11 NMAC – Rn & A, 13 NMAC 17.2.9, 5-15-01]
18.104.22.168 TERMS OF APPEALS BOARD MEMBERS:
A. Each member's term on the Appeals Board shall be for three years. The three public members shall serve staggered terms. For the first term, one public member shall be selected for a one-year term, one shall be selected for a two-year term, and one shall be selected for a three-year term. Their successors shall each be selected for three-year terms. No public member shall be permitted to serve a second consecutive three-year term although public members initially selected for a one- or two-year term may succeed themselves. There shall be no limitation on a non-public member's reappointment to serve successive terms.
B. The term of each Appeals Board shall commence on May 1 and expire on April 30 of the following year.
[1-1-93; 22.214.171.124 NMAC - Rn, 13 NMAC 17.2.10, 5-15-01]
126.96.36.199 VACANCIES: Vacancies on the Appeals Board shall be filled for the remainder of the unexpired term pursuant to 188.8.131.52 NMAC. A newly appointed member shall be from the same class as the retiring member.
[1-1-93; 184.108.40.206 NMAC – Rn & A, 13 NMAC 17.2.11, 5-15-01]
220.127.116.11 REIMBURSEMENT: The WCSO shall reimburse members for reasonable expenses connected with Appeals Board functions including, but not limited to, travel expenses, food and lodging. Such reimbursement may be provided as a per diem allowance. Members shall receive no other compensation for their participation.
[1-1-93; 18.104.22.168 NMAC – Rn & A, 13 NMAC 17.2.12, 5-15-01]
22.214.171.124 FORM OF MEETINGS: The Appeals Board shall meet either in person or by teleconference at the beginning of each term for purpose of electing a chair. The chair shall be responsible for organizing the agenda of each meeting and each hearing, arranging facilities, providing notice as required, and for the conduct of each hearing. The chair may appoint from among other members a secretary to which it may delegate any of its administrative functions.
[1-1-93; 126.96.36.199 NMAC - Rn, 13 NMAC 17.2.13, 5-15-01]
188.8.131.52 HEARING PROCEDURES: The Appeals Board shall meet as needed and in accordance with the provisions of state law.
A. Upon receipt of a grievance, the Appeals Board must schedule a hearing within sixty (60) days, unless state law mandates a shorter period.
B. The Appeals Board shall provide written notice of hearing to the appellant, the insurer and the WCSO within thirty (30) days after receipt of the grievance, but not less than ten (10) days prior to the hearing.
C. Hearings may not be held unless a quorum of the Appeals Board is present either in person or by teleconference. A quorum shall consist of a simple majority. The decision of the Appeals Board will be by majority vote of those members present at the hearing. A member's vote may be cast only by the member or, in the member's absence, by the member's alternate who has been designated in writing. Otherwise, proxy voting shall not be permitted.
[1-1-93; 184.108.40.206 NMAC – Rn & A, 13 NMAC 17.2.14, 5-15-01]
220.127.116.11 CONFLICTS OF INTEREST:
A. If an Appeals Board member has a conflict of interest with respect to a hearing scheduled before the Appeals Board, a substitute shall be appointed by the chair for purposes of that particular hearing. A substitute member shall be from the same class as the member being replaced.
B. A member will be deemed to have a conflict of interest if:
(1) the member is associated with either party to the appeal;
(2) the member is a direct competitor of either party;
(3) the member is part of an affiliated group, any member of which is a direct competitor of either party; or
(4) the member has any other material conflicting interest which would call into question that member's ability to render an unbiased decision.
C. A member is associated or affiliated with a party if they are involved in a common business enterprise or if they are members of a controlled group as that term is defined by section 851(c)(3) of the Internal Revenue Code. A member is associated with the party if there is any familial relationship between them.
D. The advisor will be deemed to have a conflict of interest only if it is one of the parties to the dispute.
E. A conflict of interest may be waived if, after full disclosure of the facts raising such a conflict, all parties to the appeal agree to such waiver.
F. Notwithstanding the provisions of subsection B of this section, neither the representative from the New Mexico Insurance Division nor the WCSO representative(s) on the Appeals Board shall be deemed to have a conflict of interest with respect to any appeal brought before the Appeals Board based solely upon the representative's affiliation with either the WCSO or the New Mexico Insurance Division.
[1-1-93; 18.104.22.168 NMAC – Rn & A, 13 NMAC 17.2.15, 5-15-01]
22.214.171.124 DECISIONS OF APPEALS BOARD:
A. Each decision shall be supported by a written memorandum stating the reason(s) for the decision, which memorandum shall be sent to both parties and to the Superintendent of Insurance.
B. The votes of each member shall not be recorded on this memorandum.
C. This memorandum shall be prepared by the Chair of the Appeals Board or by a member designated by the Chair.
[1-1-93; 126.96.36.199 NMAC – Rn, 13 NMAC 17.2.16, 5-15-01]
A. Review of decisions of the Appeals Board shall be accorded pursuant to NMSA 1978 Section 59A-17-30B. The chair of the Appeals Board shall advise each appellant in writing of his or her rights of appeal and the procedure to be followed.
B. The Appeals Board shall not be required to report to the Board of Directors or any committee of the WCSO. However, for information purposes, the chair of the Appeals Board shall monthly provide to the WCSO Underwriting Advisory Committee a copy of each memorandum of decision with the names of the parties deleted.
[1-1-93; 188.8.131.52 NMAC – Rn & A, 13 NMAC 17.2.17, 5-15-01]
HISTORY OF 13.17.2 NMAC:
SCC 92-5-IN, New Mexico Workers' Compensation Appeals Board, filed 11-30-92.
History of repealed material.
13 NMAC 17.2, Workers' Compensation Appeals Board, filed 5-27-97 was reformatted, renumbered as 13.17.2 NMAC, and amended effective 5-15-01.