N.M. Stat. Ann. § 52-1-28.1
History: Laws 1990 (2nd S.S.), ch. 2, § 29.
Effective dates. — Laws 1990 (2nd S.S.), ch. 2, § 153 Laws 1990 (2nd S.S.), ch. 2, § 29 effective January 1, 1991.
Jurisdiction to order Indian employer to rehire a worker. — Where the worker filed a claim for an occupational injury against a casino that was owned and operated by a tribal corporation; the tribal corporation waived sovereign immunity; the workers' compensation judge filed an opinion which awarded benefits to the worker; after the opinion of the workers' compensation judge was filed, a separate tribal commission revoked the gaming license that the worker was required to possess to perform the worker’s employment duties; the tribal commission was unwilling to reissue the gaming license resulting in the termination of the worker’s employment with the casino; the tribal commission did not waive sovereign immunity; and the workers' compensation judge determined that the worker had been wrongfully terminated in retaliation for filing the occupational injury claim, the workers' compensation judge had authority to order the tribal corporation to rehire the worker at a position of employment that was substantially equivalent to the position the worker formerly held in terms of pay and benefits. Martinez v. Cities of Gold Casino, 2009-NMCA-087, 146 N.M. 735, 215 P.3d 44, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
Section does not create new duty or right. — This section is not substantive in nature; it does not create a new duty, right, or obligation under the law. Instead, it proscribes a method of obtaining redress and is procedural or remedial; it should be applied retroactively to accrued cases not filed and pending at the time of enactment. Cruz v. Liberty Mut. Ins. Co., 1995-NMSC-006, 119 N.M. 301, 889 P.2d 1223.
Exclusivity of remedy. — This section's remedy for bad faith in processing a workers' compensation claim is exclusive. Martin-Martinez v. 6001, Inc., 1998-NMCA-179, 126 N.M. 319, 968 P.2d 1182, cert. denied, 126 N.M. 532, 972 P.2d 351.
Section provides adequate remedy. — This section provides an adequate remedy; although the penalty may not be a great amount when the amount of the claim is small, it provides sufficient deterrence to prevent an insurer from denying benefits in bad faith and enforces the public policy against the bad-faith handling of workers' compensation claims. Cruz v. Liberty Mut. Ins. Co., 1995-NMSC-006, 119 N.M. 301, 889 P.2d 1223.
Exclusive and adequate remedy. — By enacting 52-1-28.1 NMSA 1978, the legislature brought all workers’ bad faith claims under the Workers’ Compensation Act’s exclusivity provision and abrogated workers’ rights to file bad faith actions in district court, and the twenty-five percent penalty amount provides sufficient deterrence to prevent an insurer from denying benefits in bad faith and enforces the public policy against the bad faith handling of workers’ compensation claims. Worker’s claims were properly denied where he argued that he should be allowed a private right of action for bad faith in district court, that the benefit penalty allowed by this section is insufficient to deter bad faith, and that the cost of successfully pursuing such claims exceeds the available benefit penalty. Romero v. Laidlaw Transit Servs., Inc., 2015-NMCA-107, cert. granted, 2015-NMCERT-009.
The term "benefit amount" in Subsection B does not include the value of future medical benefits nor attorney fees. Meyers v. W. Auto, 2002-NMCA-089, 132 N.M. 675, 54 P.3d 79, cert. denied, 132 N.M. 551, 52 P.3d 411.
Claim for rehire. — There is no difference between a claim for benefits and a claim for rehire. Both are claims under the Workers' Compensation Act and both can be improperly handled, leading to a claim of unfair claims processing. Lucero v. City of Albuquerque, 2002-NMCA-034, 132 N.M. 1, 43 P.3d 352, cert. quashed, 133 N.M. 30, 59 P.3d 1262.
Worker failed to demonstrate that he was entitled to additional penalties for unfair claim processing and bad faith. — Where worker suffered a work-related injury when he fell while using a floor buffer to clean the inside of a moving truck, and where, after worker's indemnity benefits had been settled, worker filed an application for bad faith and unfair claim processing, alleging that his employer and insurer had committed thirty-three separate acts of unfair claim processing and bad faith in the course of handling worker's claims for benefits, the worker's compensation judge did not err in finding only one instance of unfair claim processing and one instance of bad faith and assessing awards in accordance with his findings, because worker failed to demonstrate that the unchallenged factual findings in this case would entitle him to additional penalties. Sanchez v. U-Haul Co. of N.M., 2026-NMCA-019, cert. denied.
Basis for calculating a benefit penalty. — Where worker suffered a work-related injury when he fell while using a floor buffer to clean the inside of a moving truck, and where, after worker's indemnity benefits had been settled, worker filed an application for bad faith and unfair claim processing, alleging that his employer and insurer had committed thirty-three separate acts of unfair claim processing and bad faith in the course of handling worker's claims for benefits, and where the worker's compensation judge found one instance of unfair claim processing and one instance of bad faith and assessed awards in accordance with his findings, the worker's compensation judge erred in calculating the benefit penalty amounts, because the plain language of NMSA 1978, § 52-1-28.1(B) indicates that benefits ordered in the WCJ's compensation order provide the basis for calculating a benefit penalty, and in this case the benefit penalties awarded were not based on benefits awarded in any compensation order. Sanchez v. U-Haul Co. of N.M., 2026-NMCA-019, cert. denied.
Law reviews. — For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).