N.M. Admin. Code § 11.4.12.12 - PENALTIES COLLECTED FROM UNINSURED EMPLOYERS

If the WCA director or workers' compensation judge determines that an employer was obligated to pay workers' compensation benefits to or on behalf of a worker and has not done so due to its failure to obtain and keep in force a policy of workers' compensation insurance that is valid pursuant to the Workers' Compensation Act, the WCA director or the workers' compensation judge shall impose a penalty against the employer of not less than fifteen percent and not more than fifty percent of the value of the total award in connection with the claim that shall be paid into the uninsured employers' fund. The determination of the appropriate percentage of penalty imposed shall be treated as a statutorily authorized discretionary act by a state agency, for purposes of judicial review. This penalty is separate from, and in addition, to any penalty or remedy sought against an uninsured employer pursuant to Sections 52-1-61 or 52-1-62 NMSA 1978 for failure to have insurance when required to do so. This penalty is intended to protect the health, safety and welfare of the citizens of the state of New Mexico and shall be considered a governmental penalty for purposes of the dischargeability provisions of the federal bankruptcy code.

A. Any final compensation order addressing the compensability of the workers' claim shall not be subject to collateral attack.

B. The actual benefits provided to or on behalf of a worker or his dependents shall be presumed valid as the basis for the assessment of a penalty.

C. Billing and medical records in the possession of the UEF or the independent adjusting company shall be considered records of the WCA for purposes of authentication.

D. The UEF may use any legal process for collecting any imposed penalty, or collecting reimbursement from the employer for indemnity and medical benefits, costs, and attorneys' fees paid by UEF, including, but not limited to, reduction of the penalty to judgment in district court, seeking and obtaining writs of garnishment and execution, contempt citations or any other legal process in aid of collection and participating as a party in any bankruptcy action, including filing an involuntary petition in federal bankruptcy court to liquidate personal or business assets for the purpose of enforcing the penalty.

E. For the purposes of these actions, the UEF shall, at all times act pursuant to the commissions of its personnel as special assistant attorneys general. All proceedings before the WCA director for enforcement of the provisions of this section shall be conducted in accordance with 11.4.5 NMAC.

F. The fund may seek reimbursement of the costs and attorney fees of any legal action instituted in a proceeding to determine or collect a penalty or reimbursement pursuant to this subsection.

Notes

N.M. Admin. Code § 11.4.12.12

11.4.12.12 NMAC - Rn, 11.4.12.10 NMAC, 12/23/05; A, 12/31/11, Amended by New Mexico Register, Volume XXXIII, Issue 24, December 27, 2022, eff. 1/1/2023