New Mexico Administrative Code › Title 11 - LABOR AND WORKERS' COMPENSATION › Chapter 4 - WORKERS' COMPENSATION › Part 12 - UNINSURED EMPLOYERS' FUND › Section 11.4.12.12 - PENALTIES COLLECTED FROM UNINSURED EMPLOYERS

Current through Register Vol. 35, No. 13, July 16, 2024
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.