TITLE 13 INSURANCE
CHAPTER 17 WORKERS’
COMPENSATION INSURANCE
PART 2 WORKERS’
COMPENSATION APPEALS BOARD
13.17.2.1 ISSUING AGENCY: New Mexico
Public Regulation Commission, Insurance Division.
[7-1-97; 13.17.2.1 NMAC – Rn & A, 13 NMAC
17.2.1, 5-15-01]
13.17.2.2 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;
13.17.2.2 NMAC – Rn, 13 NMAC 17.2.2, 5-15-01]
13.17.2.3 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; 13.17.2.3 NMAC – Rn,
13 NMAC 17.2.3, 5-15-01]
13.17.2.4 DURATION: Permanent.
[7-1-97; 13.17.2.4 NMAC – Rn, 13 NMAC 17.2.4,
5-15-01]
13.17.2.5 EFFECTIVE DATE: January 1,
1993, unless a later date is cited at the end of a section.
[1-1-93, 7-1-97; 13.17.2.5 NMAC – Rn & A, 13
NMAC 17.2.5, 5-15-01]
13.17.2.6 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 13.17.2.2 NMAC.
[1-1-93; 13.17.2.6 NMAC – Rn,
13 NMAC 17.2.6, 5-15-01]
13.17.2.7 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.
[13.17.2.7 NMAC - N,
5-15-01]
13.17.2.8 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; 13.17.2.8 NMAC – Rn
& A, 13 NMAC 17.2.8, 5-15-01]
13.17.2.9 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 13.17.2.9 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 13.17.2.9 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
13.17.2.9 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; 13.17.2.9 NMAC – Rn
& A, 13 NMAC 17.2.9, 5-15-01]
13.17.2.10 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; 13.17.2.10 NMAC - Rn,
13 NMAC 17.2.10, 5-15-01]
13.17.2.11 VACANCIES: Vacancies on the Appeals Board
shall be filled for the remainder of the unexpired term pursuant to 13.17.2.9
NMAC. A newly appointed member shall be
from the same class as the retiring member.
[1-1-93; 13.17.2.11 NMAC – Rn
& A, 13 NMAC 17.2.11, 5-15-01]
13.17.2.12 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; 13.17.2.12 NMAC – Rn
& A, 13 NMAC 17.2.12, 5-15-01]
13.17.2.13 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; 13.17.2.13 NMAC - Rn,
13 NMAC 17.2.13, 5-15-01]
13.17.2.14 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; 13.17.2.14 NMAC – Rn
& A, 13 NMAC 17.2.14, 5-15-01]
13.17.2.15 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; 13.17.2.15 NMAC – Rn
& A, 13 NMAC 17.2.15, 5-15-01]
13.17.2.16 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; 13.17.2.16 NMAC – Rn,
13 NMAC 17.2.16, 5-15-01]
13.17.2.17 REVIEW:
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; 13.17.2.17 NMAC – Rn
& A, 13 NMAC 17.2.17, 5-15-01]
HISTORY OF 13.17.2 NMAC:
Pre-NMAC history.
SCC 92-5-IN, New Mexico Workers' Compensation
Appeals Board, filed 11-30-92.
History of repealed material.
NMAC history.
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.