New Mexico § 52-1-9.1 - Uninsured employers' fund; workers' compensation administration; additional duties

§ 52-1-9.1. Uninsured employers' fund; workers' compensation administration; additional duties

A. The “uninsured employers' fund” is created in the state treasury. The fund shall be administered by the workers' compensation administration as a

separate account. The administration shall adopt rules to administer the fund pursuant to the provisions

of this section. B. The fund shall consist of thirty cents ($.30) per employee covered by the Workers'

Compensation Act on the last working day of each quarter for the fee assessed against

employers pursuant to Section 52-5-19 NMSA 1978 and all income derived from investment of the fund. The fund shall also consist of any other money appropriated, distributed or otherwise

allocated to the fund for the purpose of this section. C. Money in the fund is appropriated to the workers' compensation administration to

pay workers' compensation benefits to a person entitled to the benefits when that

person's employer has failed to maintain workers' compensation coverage because of

fraud, misconduct or other failure to insure or otherwise make compensation payments. For purposes of this subsection, a worker who has affirmatively elected not to accept

the provisions of the Workers' Compensation Act shall not be eligible for payment

of workers' compensation from the uninsured employers' fund. The director may pay reasonable costs of administering the uninsured employers'

fund from the fund, but money in the fund shall not be used for administrative costs

unrelated to the fund or any activity of the workers' compensation administration

other than as provided in this section. The superintendent of insurance shall examine and audit the fund pursuant to the

provisions of Chapter 59A, Article 4 NMSA 1978 . D. The director may authorize payments to a person from the uninsured employers' fund

if the injury or cause of incapacity occurs in New Mexico and would be compensable

under the Workers' Compensation Act. E. The uninsured employers' fund, by subrogation, has all the rights, powers and benefits

of the employee or the employee's dependents against the employer failing to make

the compensation payments. F. The uninsured employers' fund, subject to approval of the director, shall discharge

its obligations by contracting with an independent adjusting company that is licensed

and principally located in New Mexico as prescribed by Section 59A-13-11 NMSA 1978 or Chapter 59A, Article 12A NMSA 1978 . G. For the purpose of ensuring the health, safety and welfare of the public, the director

or a workers' compensation judge shall: (1) order the uninsured employer to reimburse the uninsured employers' fund for all

benefits paid to or on behalf of an injured employee by the uninsured employers' fund

along with interest, costs and attorney fees; and (2) impose a penalty against the uninsured employer of not less than fifteen percent

nor 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. H. The liability of the state, the workers' compensation administration and the state

treasurer, with respect to payment of any compensation benefits, expenses, fees or

disbursement properly chargeable against the uninsured employers' fund, is limited

to the assets in the uninsured employers' fund, and they are not otherwise liable

for any payment. I. The uninsured employers' fund shall be considered a payor of last resort within

the workers' compensation system. No other payor liable for payments under the Workers' Compensation Act shall have

its liabilities affected or discharged by payments from the uninsured employers' fund. Any payments to workers paid by the uninsured employers' fund shall be subject to

subrogation and apportionment to the same extent as payments to an injured worker

from a third party tortfeasor. J. In any claim against an employer by the uninsured employers' fund, or by or on

behalf of the employee to whom or to whose dependents compensation and other benefits

are paid or payable from the uninsured employers' fund, the burden of proof is on

the employer or other party in interest objecting to the claim. The claim is presumed to be valid up to the full amount of workers' compensation

benefits paid to the employee or the employee's dependents. This subsection applies whether the claim is filed in court or in an adjudicative

proceeding under the authority of the workers' compensation administration. K. Nothing in this section shall be construed to extend exclusive remedy protection

pursuant to Section 52-1-6 or 52-1-9 NMSA 1978 to any employer whose injured worker is paid by the uninsured employers' fund. L. Nothing in this section shall be construed to supersede Section 52-5-10 NMSA 1978 .