Returning to work after a work injury

One of the policy goals of the New Mexico Workers’ Compensation system is to try to return as many injured workers as possible back to gainful employment.

Section 52-1-50.1 of the Act is one way for an injured worker to return to work after a work injury. You can read Section 52-1-50.1 by going to From there you can go to the New Mexico Supreme Court website where you can search for Section 52-1-50.1 and read it.

In short, the employer of an injured worker has to re-hire the worker if he or she can meet the following exists:

  1. The employer is hiring;
  2. The worker’s pre-injury job is available or modified work is available, OR a job that pays less than the pre-injury job is available;
  3. The worker’s treating doctor certifies that the injured worker can do the available (a written statement is best);
  4. The injured worker applies for the job.

Unfortunately, injured workers do not take advantage of Section 52-1-50.1 as often as they should. Even when they do, employers will sometimes try to avoid having to comply. A Workers’ Compensation Judge can enforce Section 52-1-50.1 and order an employer to rehire an injured worker if he or she meets the requirements.

If you’re interested in trying to use this section of the Act to return to work, contact me. I may be able to help.

Do this if you are hurt at work!

It’s a new year. So, I thought I’d list, again, what you need to do right away if you hurt yourself at work.

  1. Get emergency care IMMEDIATELY if you need it.
  2. As soon as you can, tell your supervisor you hurt yourself at work and want to file a workers’ compensation claim.
  3. If your work injuries prevent from telling your employer of your work accident, ask a family member, co-worker, or friend to tell your employer. If you don’t properly tell your employer about your work accident and work injuries, you may lose your workers’ compensation benefits.
  4. Once you have told your employer about your work injury, ask your supervisor or the manager who handles workers’ compensation claims where you should go for medical treatment.
  5. Go to of your doctors’ appointments and follow your doctors’ directions.
  6. If you miss more than a week of work, you are entitled to workers’ compensation money benefits for your work injuries.
  7. If the workers’ compensation insurer refuses to pay money benefits or provide medical benefits, you should call a lawyer immediately.

The longer you wait to call a lawyer, the longer it will take to get your workers’ compensation benefits. My phone number is 505 292-8836.

Thinking of working at an Indian casino in New Mexico? Be careful!

If you’re considering working at an Indian casino in New Mexico or already working in a casino, you should check to see if it is under the New Mexico Workers’ Compensation Act. Pueblos and reservations are sovereign nations. Under the Gaming Compact, they can choose to waive their sovereignty and have their casino workers under the New Mexico Workers’ Compensation Act or they can set up their own system for their casino workers that is supposed to provide the same benefits that the New Mexico Workers’ Compensation Act provides to injured workers.

If the casino does not come under the New Mexico Workers’ Compensation Act, the system provided by the casino may not provide the same benefits. Additionally, if the casino disputes your work injury or your claim for workers’ compensation benefits, you will probably have to resolve the dispute in Tribal Court which often have no experience resolving workers’ compensation claims.

Casino jobs can be good jobs. However, it is smart with any job to find out the benefits available to you in case you get hurt.

Any questions, please call us. 505 292-8836.

I just got hurt at work. How do I get medical treatment?

It’s bad enough getting hurt at work. Any confusion or delay in seeing a doctor for medical treatment just adds to the misery. Getting medical care after a work injury is supposed to be easy. Unfortunately, for various reasons, it can be a challenge.

In the New Mexico Workers’ Compensation Act, Section 52-1-49 states, in part, the following:

A. After an injury to a worker and subject to the requirements of the Workers’ Compensation Act, and continuing as long as medical or related treatment is reasonably necessary, the employer shall, subject to the provisions of this section, provide the worker in a timely manner reasonable and necessary health care services from a health care provider.

B. The employer shall initially either select the health care provider for the injured worker or permit the injured worker to make the selection. Subject to the provisions of this section, that selection shall be in effect during the first sixty days from the date the worker receives treatment from the initially selected health care provider.

C. After the expiration of the initial sixty-day period set forth in Subsection B of this section, the party who did not make the initial selection may select a health care provider of his choice. Unless the worker and employer otherwise agree, the party seeking such a change shall file a notice of the name and address of his choice of health care provider with the other party at least ten days before treatment from that health care provider begins.

N.M. Stat. Ann. § 52-1-49 (West)
There is more to read in Section 52-1-49. Additionally, the New Mexico Workers’ Compensation Administration has written rules to flesh out the process. However, choosing a doctor or healthcare provider after a work injury is confusing. Worse, the confusion can delay treatment (which delays recovery and your return to work) and can delay payment of benefits.
Employers have the most power to resolve this problem because they get to choose the first doctor or healthcare provider after a work injury.
Once an employer hires a worker, the employer should tell the worker the following in case the worker is hurt on the job: how to get first aid, who to tell about the accident and injury, what doctor or healthcare provider to see for treatment, what notice forms to fill out and what light duty (if any) is available.
If employers did this for every new hire, I guarantee that an injured worker would have an easier time getting medical treatment and getting back to work sooner. There would also be a lot less litigation.
Unfortunately, in my experience, few employers do this.
What can you do BEFORE a work injury to smooth the workers’ compensation process in case you get hurt at work?
First, when you are hired ask if the employer has a procedure in place in case of a work injury. If the answer is yes, ask what the specific procedure is.
Second, ask what doctor or healthcare provider you should see in case you are injured at work and where the office is located. If the employer does not have a specific doctor or healthcare provider for its injured workers, then ask if you should go to the nearest emergency room or to your own doctor.
Third, ask who you should tell in case of a work injury. (If you are injured at work and don’t require emergency care, tell that person AS SOON AS POSSIBLE.) The New Mexico Workers’ Compensation Act requires that an injured worker give notice of a work injury to the employer within 15 days of knowing of a work injury. If you feel you’ve missed the deadline, don’t give up. Call a workers’ compensation attorney (like me) because whether an injured worker has given proper notice is not always black and white.
Fourth, ask what forms you need to fill out. (If you are injured at work and don’t require emergency care, fill out the form or forms AS SOON AS POSSIBLE.)
If you are injured at work, follow the process as best as you can. Of course, if the injury is serious and requires immediate treatment, GET TREATMENT FIRST. GO TO AN EMERGENCY ROOM IF NECESSARY.
If your injury does not require immediate care or emergency care, tell your supervisor or another supervisor or, at a minimum, a co-worker. The worst thing to do is not tell anybody about a work accident or work injury.
If you require emergency treatment, it can complicate the healthcare provider choice issue. If that is the case, I recommend contacting a

The New Mexico Legislature is in session

In case you haven’t caught it on the news, the New Mexico Legislature is back in session for 60 days. There are lots of proposed pieces of legislation that affect injured workers and employees in general. Many are not friendly to our cause. I encourage you to get involved to help protect your rights.

The New Mexico Workers’ Compensation Act and Life Time Medical Benefits

In a successful claim for a work injury, the New Mexico Workers’ Compensation Act provides lifetime medical benefits to injured workers. This can be a valuable benefit especially if the work injuries are chronic. However, to protect this benefit and minimize the chance that the workers’ compensation insurer will deny medical treatment in the future, an injured worker should see the treating doctor at least once per year. This has at least two benefits. First, it ensures that an injured worker gets the necessary treatment. Second, it demonstrates to the workers’ compensation insurer that the injured worker needs ongoing medical treatment for his or her work injuries and, more importantly, is getting that treatment.

So, make sure you see your workers’ compensation doctor at least once a year.

Fall in New Mexico. A good time to settle your case?

Fall has finally arrived in New Mexico!

For me this is the best time of year, not too hot, not too cold, great cycling weather. I rode my bike to work today, so the day started out well. I’m looking forward to more biking days in the near future.

Fall is often the time when workers’ compensation cases are resolved. Insurers like to close as many cases as possible before the end of the year. The New Mexico Workers’ Compensation Administration coincidentally has been setting aside the last week in October the past few years for “Settlement Week.” During that week, the Administration still functions, but the focus is on having the judges and mediators doing settlement conferences and getting cases settled. This year there are no trials set for that week as far as I know.

Each year, it’s my understanding, that “Settlement Week” has gotten more and more successful, which is good for injured workers, employers and insurers. It’s also good for the workers’ compensation system in New Mexico.

If you have an ongoing case at the Administration now or have one in the future, “Settlement Week” is something you should consider.

When should you settle? That is a very important and, often, complicated question. If you are considering settling your workers’ compensation case or any legal case, you should consult with and, hopefully, retain an attorney if you don’t have one already. A qualified attorney will be able to go through the pros and cons of settling your case and also educate on you on the different types of settlements available to you. So, the short answer to the question is: it depends on the individual case.

Now, try to get out and enjoy the great Fall weather.


Notice: critical to a successful workers’ compensation claim

Notice of a work injury or accident is critical. I’m often asked by injured workers when should they report a work injury? The answer is easy: as soon as you know you’ve had an accident or been injured at work.

That includes minor work injuries or minor work accidents.

I once represented a person who cut his leg and did not report the cut. It was a minor injury and the person thought it would heal. Unfortunately, it did not heal. In fact, the cut became infected, a staph infection. Eventually, the infection spread to the heart and brain.

The client eventually won his claim. However, the case took a lot more work because he did not give notice to the employer of the cut on his leg.

The notice section of the New Mexico Workers’ Compensation Act

Section 52-1-29A of the New Mexico Workers’ Compensation Act says the following:

Any worker claiming to be entitled to compensation from any employer shall give notice in writing to his employer of the accident within fifteen days after the worker knew, or should have known, of its occurrence, unless, by reason of his injury or some other cause beyond his control, the worker is prevented from giving notice within that time, in which case he shall give notice as soon as may reasonably be done and at all events not later than sixty days after the occurrence of the accident. No written notice is required to be given where the employer or any superintendent or foreman or other agent in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence.
N.M. Stat. Ann. § 52-1-29 (West)

It’s a lot of words, but the most important thing is that an injured worker must report an injury within 15 days of being injured or within 15 days of discovering an injury.

The section says the notice of a work injury should be “in writing.” Most employers have an accident or injury report form. You should ask your supervisor for the form. The New Mexico Workers’ Compensation Administration uses a “First Report of Accident” form. This may also be used. A copy of the form is here: e1.

Or go to this website:

If you fill out an accident report or are presented with a filled out accident form, you need to make sure that the information in the form is accurate. If you disagree with anything on the form, you probably shouldn’t sign it.

If your supervisor or a manager witnesses a work accident, then an accident form is probably not necessary. However, to be sure, it’s always good to fill out an accident report if you can. Just make sure to fill out the form accurately.

What if you don’t give proper notice?

The worst case is that you could completely lose your workers’ compensation claim. At a minimum, the claim will be delayed until a workers’ compensation judge decides the notice issue.

What is the purpose of notice?

  • So an injured worker can get medical treatment as soon as possible.
  • So an injured worker can get workers compensation money benefits as soon as possible.
  • So the employer can fix any unsafe conditions at the work site.
  • So the employer can notify its insurance company of a possible workers compensation claim.
  • So the employer can take start the process to get the injured worker back to work as soon as possible.

Conclusion: give notice of a work accident or injury as soon as possible.

Workers compensation & undocumented workers

New Mexico Workers Compensation Act and undocumented workers.

The New Mexico Supreme Court recently clarified when an undocumented injured worker is entitled to full workers compensation benefits in  Gonzalez v. Performance Painting, Inc., 2013 NMSC 021. A copy of the case can be located at

The opinion is important because it confirms for the first time that undocumented workers who are injured on the job are entitled to full workers’ compensation benefits if the workers meet the requirements outlined in the opinion. Additionally, the Court places responsibility on employers to take steps to avoid hiring undocumented workers.

The concurrences by Justice Chavez and Justice Daniels are especially good reads because they go further than the majority opinion. Additionally, the two Justices affirm the importance of undocumented workers in the history of New Mexico and the country in general as well as the dignity of all workers.

Before this case, workers compensation insurers and employers refused to pay full money benefits to undocumented workers. The employers argued that they could not legally rehire the injured workers because of their undocumented status. The Supreme Court decided that this was not proper especially when many of the employers knowingly hired undocumented workers.

The upshot is that undocumented workers are treated the same as documented workers under the New Mexico Workers’ Compensation Act.

Welcome to our new website. Also, a new workers’ compensation opinion.

Welcome to our new website. I hope that you find it useful. If you see anything that needs to be corrected or that could be improved, please email me at I’m sorry but I can’t change how I look in my picture.

One of our goals is to provide timely news about our areas of practice.

To that end, I’d like to bring to your attention a recent New Mexico Court of Appeals opinion, Gregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty,    N.M.    , No. 32,920 (5/19/2014). This is a workers’ compensation case that addresses the question of whether or not medical treatment using medical marijuana must be paid for by the workers’ compensation insurer. In summary, the Court held that medical marijuana could be used to treat a workers’ injuries under New Mexico workers’ compensation law as long as there was adequate proof that the treatment was reasonable and necessary.

So, if your treating doctor has offered medical marijuana as part of your treatment, it is now possible to get it as long as your doctor can show the treatment is reasonable and necessary. Unfortunately, you may have to wait until a workers’ compensation judge decides that such treatment is reasonable and necessary in your case before the workers’ compensation insurer will pay for the treatment.

The Court of Appeals has not posted the opinion yet, but is should be on this site soon if you’d like to see it: