underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
HOUSE BILL 66
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Pamelya Herndon
AN ACT
RELATING TO WORKERS' COMPENSATION; INCREASING THE AMOUNT OF
MONEY THAT CAN BE ADVANCED BY EMPLOYERS FOR DISCOVERY COSTS;
INCREASING THE MAXIMUM AMOUNT OF ATTORNEY FEES THAT CAN BE
COLLECTED IN A WORKERS' COMPENSATION CASE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 52-1-54 NMSA 1978 (being Laws 1987,
Chapter 235, Section 24, as amended) is amended to read:
"52-1-54. FEE RESTRICTIONS--APPOINTMENT OF ATTORNEYS BY
THE DIRECTOR OR WORKERS' COMPENSATION JUDGE--DISCOVERY COSTS--
OFFER OF JUDGMENT--PENALTY FOR VIOLATIONS.--
A. It is unlawful for any person to receive or
agree to receive any fees or payment directly or indirectly in
connection with any claim for compensation under the Workers'
Compensation Act except as provided in this section.
.229089.2 underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
B. In all cases where the jurisdiction of the
workers' compensation administration is invoked to approve a
settlement of a compensation claim under the Workers'
Compensation Act, the director or workers' compensation judge,
unless the claimant is represented by an attorney, may in the
director's or judge's discretion appoint an attorney to aid the
workers' compensation judge in determining whether the
settlement should be approved and, in the event of an
appointment, a reasonable fee for the services of the attorney
shall be fixed by the workers' compensation judge, subject to
the limitation of Subsection I of this section.
C. In all cases where the jurisdiction of the
workers' compensation administration is invoked to approve a
settlement of a compensation claim under the Workers'
Compensation Act and the claimant is represented by an
attorney, the total amount paid or to be paid by the employer
in settlement of the claim shall be stated in the settlement
papers. The workers' compensation judge shall determine and
fix a reasonable fee for the claimant's attorney, taking into
account any sum previously paid, and the fee fixed by the
workers' compensation judge shall be the limit of the fee
received or to be received by the attorney in connection with
the claim, subject to the limitation of Subsection I of this
section.
D. The cost of discovery shall be borne by the
.229089.2
- 2 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
party who requests it. If, however, the claimant requests any
discovery, the employer shall advance the cost of paying for
discovery up to a limit of [three thousand dollars ($3,000) ]
six thousand dollars ($6,000) . If the claimant substantially
prevails on the claim, as determined by a workers' compensation
judge, any discovery cost advanced by the employer shall be
paid by that employer. If the claimant does not substantially
prevail on the claim, as determined by a workers' compensation
judge, the employer shall be reimbursed for discovery costs
advanced according to a schedule for reimbursement approved by
a workers' compensation judge.
E. In all cases where compensation to which any
person is entitled under the provisions of the Workers'
Compensation Act is refused and the claimant thereafter
collects compensation through proceedings before the workers'
compensation administration or courts in an amount in excess of
the amount offered in writing by an employer five business days
or more prior to the informal hearing before the
administration, the compensation to be paid the attorney for
the claimant shall be fixed by the workers' compensation judge
hearing the claim or the courts upon appeal in the amount the
workers' compensation judge or courts deem reasonable and
proper, subject to the limitation of Subsection I of this
section. In determining and fixing a reasonable fee, the
workers' compensation judge or courts shall take into
.229089.2
- 3 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
consideration:
(1) the sum, if any, offered by the employer:
(a) before the worker's attorney was
employed;
(b) after the attorney's employment but
before proceedings were commenced; and
(c) in writing five business days or
more prior to the informal hearing;
(2) the present value of the award made in the
worker's favor; and
(3) any failure of a party to participate in a
good-faith manner in informal claim resolution methods adopted
by the director.
F. After a recommended resolution has been issued
and rejected, but more than ten days before a trial begins, the
employer or claimant may serve upon the opposing party an offer
to allow a compensation order to be taken against the employer
or claimant for the money or property or to the effect
specified in the offer, with costs then accrued, subject to the
following:
(1) if, within ten days after the service of
the offer, the opposing party serves written notice that the
offer is accepted, either party may then file the offer and
notice of acceptance together with proof of service thereof,
and thereupon that compensation order may be entered as the
.229089.2
- 4 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
workers' compensation judge may direct. An offer not accepted
shall be deemed withdrawn, and evidence thereof is not
admissible except in a proceeding to determine costs. If the
compensation order finally obtained by the party is not more
favorable than the offer, that party shall pay the costs
incurred by the opposing party after the making of the offer.
The fact that an offer has been made but not accepted does not
preclude a subsequent offer;
(2) when the liability of one party to another
has been determined by a compensation order, but the amount or
extent of the liability remains to be determined by further
proceedings, the party adjudged liable may make an offer, which
shall have the same effect as an offer made before trial if it
is served within a reasonable time not less than ten days prior
to the commencement of hearings to determine the amount or
extent of liability;
(3) if the employer's offer was greater than
the amount awarded by the compensation order, the employer
shall not be liable for the employer's fifty percent share of
the attorney fees to be paid the worker's attorney and the
worker shall pay one hundred percent of the attorney fees due
to the worker's attorney; and
(4) if the worker's offer was less than the
amount awarded by the compensation order, the employer shall
pay one hundred percent of the attorney fees to be paid the
.229089.2
- 5 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
worker's attorney, and the worker shall be relieved from any
responsibility for paying any portion of the worker's attorney
fees.
G. In all actions arising under the provisions of
Section 52-1-56 NMSA 1978 where the jurisdiction of the
workers' compensation administration is invoked to determine
the question whether the claimant's disability has increased or
diminished and the claimant is represented by an attorney, the
workers' compensation judge or courts upon appeal shall
determine and fix a reasonable fee for the services of the
claimant's attorney only if the claimant is successful in
establishing that the claimant's disability has increased or if
the employer is unsuccessful in establishing that the
claimant's disability has diminished. The fee when fixed by
the workers' compensation judge or courts upon appeal shall be
the limit of the fee received or to be received by the attorney
for services in the action, subject to the limitation of
Subsection I of this section.
H. In determining reasonable attorney fees for a
claimant, the workers' compensation judge shall consider only
those benefits to the worker that the attorney is responsible
for securing. The value of future medical benefits shall not
be considered in determining attorney fees.
I. Attorney fees, including, but not limited to,
the costs of paralegal services, legal clerk services and any
.229089.2
- 6 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
other related legal services costs on behalf of a claimant or
an employer for a single accidental injury claim, including
representation before the workers' compensation administration
and the courts on appeal, shall not exceed [twenty-two thousand
five hundred dollars ($22,500) ] thirty thousand dollars
($30,000) in calendar year 2025. After 2025, the maximum
allowable attorney fees shall be adjusted annually by the
consumer price index. This limitation applies whether the
claimant or employer has one or more attorneys representing the
claimant or employer and applies as a cumulative limitation on
compensation for all legal services rendered in all proceedings
and other matters directly related to a single accidental
injury to a claimant. The workers' compensation judge may
exceed the maximum amount stated in this subsection in awarding
a reasonable attorney fee if the judge finds that a claimant,
an insurer or an employer acted in bad faith with regard to
handling the injured worker's claim and the injured worker or
employer has suffered economic loss as a result. However, in
no case shall this additional amount exceed five thousand
dollars ($5,000). As used in this subsection, "bad faith"
means conduct by the claimant, insurer or employer in the
handling of a claim that amounts to fraud, malice, oppression
or willful, wanton or reckless disregard of the rights of the
worker or employer. Any determination of bad faith shall be
made by the workers' compensation judge through a separate
.229089.2
- 7 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
fact-finding proceeding. Notwithstanding the provisions of
Subsection J of this section, the party found to have acted in
bad faith shall pay one hundred percent of the additional fees
awarded for representation of the prevailing party in a bad
faith action.
J. Except as provided in Paragraphs (3) and (4) of
Subsection F of this section, the payment of a claimant's
attorney fees determined under this section shall be shared
equally by the worker and the employer.
K. It is unlawful for any person except a licensed
attorney to receive or agree to receive any fee or payment for
legal services in connection with any claim for compensation
under the Workers' Compensation Act.
L. Nothing in this section applies to agents,
excluding attorneys, representing employers, insurance carriers
or the subsequent injury fund in any matter arising from a
claim under the Workers' Compensation Act.
M. No attorney fees shall be paid until the claim
has been settled or adjudged.
N. Every person violating the provisions of this
section is guilty of a misdemeanor and upon conviction shall be
fined not less than fifty dollars ($50.00) or more than five
hundred dollars ($500), to which may be added imprisonment in
the county jail for a term not exceeding ninety days.
O. Nothing in this section shall restrict a
.229089.2
- 8 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
claimant from being represented before the workers'
compensation administration by a nonattorney as long as that
nonattorney receives no compensation for that representation
from the claimant."
- 9 -
.229089.2