New Mexico incentivizes attorneys, doctors to take on workplace injury cases
A workers' compensation lawyer and bill expert told lawmakers there is a shortage of doctors in New Mexico who want to treat injured workers in part because they 'are not paid commensurate with doctors who do private insurance or are paid in other ways to treat workers.' (Photo via Getty Images)
Starting on June 20, a new state law may help workers in New Mexico who are hurt on the job have an easier time finding a lawyer to handle their workers' compensation claims.
State law previously capped the fees an attorney could collect for representing a worker making an accidental injury claim at $22,500.
New Mexico Gov. Michelle Lujan Grisham on March 21 signed into law House Bill 66, which raised the cap on attorney's fees in workers' compensation cases to $30,000, and will raise it again to $32,000 in 2027, and then $34,000 in 2029.
Ben Sherman, a workers' compensation attorney and an expert witness on HB66, told the House Labor, Veterans and Military Affairs Committee on Jan. 28 that many workers don't have attorneys and litigate their cases on their own.
Sherman said there is a 'huge shortage' of lawyers practicing workers' compensation in New Mexico, especially in rural areas.
'It can be almost impossible — if you're not in Albuquerque or Santa Fe — to find an attorney to represent you if you're injured on the job,' he said.
The new law also allows insurance companies to advance a greater share of the injured worker's legal costs for discovery, which is the process of gathering evidence in a case and could include testimony from the doctor who treated the injured worker.
Previously, the law capped this advance at $3,000. Workers only get the money back if they win, Sherman said.
HB66 increased the discovery cost advances to $3,500 and will raise it again to $4,000 in 2027, and then $4,500 in 2029.
Workers' Compensation Administration rules allow doctors and other health care providers to charge up to $400 for the first hour of being deposed; up to $360 per hour for the second and subsequent hours; up to $200 per hour for the first hour of preparing to be deposed and up to $120 per hour for the second hour of preparation and subsequent hours.
Sherman told the committee there is a shortage of doctors in New Mexico who want to treat injured workers in part because they 'are not paid commensurate with doctors who do private insurance or are paid in other ways to treat workers.'
He said some pending rules from the WCA would increase how much doctors can charge for their time preparing for and participating in depositions.
Stephanie Welch, workers' rights director with the New Mexico Center on Law and Poverty, told the committee that her organization supported the bill because workers' compensation offers a vital safety net that protects workers from the economic hardships created by medical bills and lost wages after they experience a workplace injury.
Welch said many workers who suffer workplace injuries, and who paid into the workers' compensation system, never obtain the benefits in part because of the lack of incentive for private attorneys to take their cases.
'This bill helps level the playing field between workers and employers, and offsets some of the advantage that employers often have because they have more financial resources,' Welch said. 'This bill is good for New Mexico's workers and ensures a more equitable workers compensation system.'
Lawmakers in 2023 asked the state Workers' Compensation Administration to create a task force to study attorney's fee caps.
Rep. Pamelya Herndon (D-Albuquerque) sponsored HB66 and the 2023 memorial that created the task force. Source NM left a voicemail for Herndon on Thursday seeking comment on the bill's enactment but had not heard back as of publication time.
Sherman, a member of the New Mexico Trial Lawyers Association and of the task force, told the committee that lawmakers last set the attorney fee cap at $22,500 in 2013. He said if the cap had followed inflation, it would be $32,750 today.
The new law also directs the Advisory Council on Workers' Compensation and Occupational Disease Disablement to review the caps and make recommendations to the Legislature in 2029.
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