8.72 – Workers’ Compensation Benefits and Other Assistance

PART 1: PURPOSE

This Rule explains the workers’ compensation benefits made available by state law and the university assistance available to eligible employees as they transition back to work. It also explains the distinct roles and responsibilities of the injured worker, supervisory and management personnel, and the university’s Worker’s Compensation Specialist, as they relate to requirements of the New Mexico’s State Risk Management, Workers Compensation Division. The Rule also clarifies what happens in the event an employee is not able to return to work and perform the essential functions of the job, as well as clarifies that retaliation against a person who has utilized this benefit is prohibited.

PART 2: DEFINITIONS

1. Compensable Injury or Illness:  Compensable Injury or Illness means an on the job injury or illness compensable under the N.M. Workers’ Compensation Act.
2. MMI:  MMI means the maximum medical improvement reasonably medically expected to occur after a Compensable Injury or Illness.
3. Modified Duty Assignment:  Modified Duty Assignment is a temporary assignment to modified job duties that the employee is qualified to perform, to accommodate temporary medical restrictions caused by a Compensable Injury or Illness and is intended to help transition the employee back to work.
4. Qualified Employee:  Qualified Employee is any NMSU employee temporarily unable to perform the duties of the employee’s current job classification as a result of a Compensable Injury or Illness, and typically who has not yet reached MMI.

PART 3: WORKERS’ COMPENSATION BENEFITS, GENERALLY

1. Benefits Payable: The benefits payable to an employee with a Compensable Injury or Illness include payment for medical, surgical, and drug expenses, as well as weekly compensation after the first seven (7) days of disability or the first 40 hours of work. If the period of injury or illness lasts for more than four (4) weeks from the date of injury, compensation benefits will be allowed from that initial accident date.
2. Combined Workers Compensation and Accrued Leave Benefits: Employees may offset their weekly workers’ compensation benefit with their sick/annual leave. Total compensation, to include annual/sick leave and workers’ compensation benefits, may not exceed the employee’s regular rate of pay.
3. Maximum Leave of Absence Period: The university will place the employee on paid leave or leave without pay, as appropriate, during the period the employee is receiving payment from the Workers’ Compensation carrier up to a maximum of one (1) year.  The department may fill the position with a temporary employee, and is not required to hold the original position open permanently.
4. Continuing Benefits After All Leaves Exhausted: Once all accrued paid leaves have been exhausted, an injured employee unable to return to work may retain health and other insurances offered through NMSU by paying the total insurance premium(s) due, in accordance with HRS Rules governing Benefits.  Contact an HR – Benefits representative at 575-646-8000.
5. Consequences after One Year Leave of Absence or after three Months from reaching MMI:  The options available to the injured employee after one year, or after 3 months, if the employee has reached maximum medical improvement, are the following:   
   1. The employee may accept employment in a position for which the employee is qualified and able to perform the essential job functions, if a position is available.
   2. The employee may retire, if qualified, under the rules of the Educational Retirement Board.
   3. The employee may resign or be separated from service in accordance with the university’s procedures when an employee is not able to perform the essential functions of the job. In the event an involuntary separation from service is proposed, the university will notify the NM Risk Management Division, Workers Compensation Department before proposing such action to the employee.

PART 4: WORKERS COMPENSATION CLAIMS PROCESSING

1. Employee Reports any On-The-Job Accident, Injury or Occupational Disease: The employee must report all on-the-job accidents, injuries or exposures immediately to the employee’s supervisor by completing and submitting the Notice of Accident or Occupational Disease Disablement Form, whether or not medical care seems to be needed.
2. Supervisor or Workers Compensation Specialist Completes First Report of Injury or Illness:  The employee’s supervisor/or workers compensation specialist will complete the Employer’s First Report of Injury or Illness Form.
3. Injured or Ill Employee Completes Medical Release:  The employee will complete an Authorization to Release Medical Information and a Claims Explanation Form when the injury requires any form of medical treatment.
4. Supervisor Completes Required Forms: The employee’s supervisor must ensure the Employer’s First Report of Injury or Illness Form is completed and sent to the workers compensation specialist within 24 hours of the injury or illness, or as soon as practicable under the circumstances.  The supervisor most immediately responsible for the operation must complete the Supervisor Investigation Report, whether or not medical care is rendered.  The investigation shall be initiated as soon as possible, but within two working days.  A copy of the investigative report shall be furnished to the investigator’s immediate supervisor for signature and then submitted to Environmental Health Safety and Risk Management (EHS&RM).
5. Benefits in Event of Missed Work: When an employee is injured, the employee will be placed on sick leave or leave without pay if the injury is severe enough to cause a loss of work time. Pursuant to university rules, which are subject to change by the Board of Regents, sick leave is not required to be taken to visit the Aggie Health & Wellness Center, nor for the day of injury. Sick or other available accrued leave will be charged for all off-campus doctor visits and/or physical therapy. Leaves continue to accrue as long as the employee is on leave and receiving a paycheck.
6. Payment of Workers Compensation Benefits:  New Mexico Risk Management will send the Worker’s Compensation checks to the injured worker unless otherwise instructed by the Workers Compensation Specialist.  The employee will retain the compensation check, which is sixty-six and two thirds percent (66.6%) of the weekly wage at time of injury.
7. Investigative Follow Up Required:  Regardless of whether the injury or illness required medical care, supervisors must gather the facts relating to accident or incident as soon as possible, and generally should be within two business days.  The Supervisor Investigation Report form should be utilized and routed through the next level supervisor or Department Head to Environmental Health Safety and Risk Management.  EHS&RM will evaluate the adequacy of the actions taken to avoid reoccurrence of loss within thirty days from receipt.  When a more complex investigation will be required due to the nature or severity of the incident, the personnel investigating or the timelines may be extended by the Executive Director of EHS&RM in consultation with the Office of General Counsel.

PART 5: RETURN TO WORK; MODIFIED DUTY PROGRAM; REASONABLE ACCOMMODATION; AND INVOLUNTARY SEPARATION

1. Temporary Assignment to Modified Work Duties:  The university will assist Qualified Employees as they transition back into the workforce by providing a Modified Duty Assignment for a temporary period as may be feasible. Modified Duty Assignments may require job duties outside the employee’s usual job description or work unit.  This authorization to assign employees to modified job duties does not require nor authorize the creation of a distinct job classification.  Assignment to modify duty assignment will be done in coordination with the university’s Workers Compensation Specialist to ensure that sound claims management procedures have been accomplished, and that legal mandates have been met.  Vacant positions resulting from job related injuries or illnesses shall not be filled, except by temporary employment unless one of the two following situations exists:
   1. If there is a documented medical diagnosis or evidence that an employee with a job-related injury or illness has reached maximum medical improvement or that the employee’s impairment or condition is permanent and that the employee cannot perform the essential functions of the particular job. No employee will be terminated from employment because of a job-related injury or illness or physical circumstances resulting from a job-related injury or illness unless the university has provided advance notice to the state risk management division. 
   2. If there is a critical need and that need cannot be satisfied with temporary employment, and the employer has made a “good faith” effort to do so.
2. Determination of Availability of Modified Work Assignment within Home Department or Home Division: The Modified Duty Assignment will be determined by way of a coordinated effort between the Workers Compensation Specialist, the employee’s immediate supervisor, and the Dean, Vice President or equivalent or designee.
3. Determination of Availability of Modified Work Assignment Within NMSU System: If there is no modified duty opportunity within the home department or home division, the Workers Compensation Specialist will coordinate with the appropriate personnel in the offices of Human Resource Services and Institutional Equity to ascertain whether or not a Modified Duty Assignment or other reasonable accommodation is available outside the division, within the university system under the ADA Petition for Accommodation process.
4. Position Funding: The home department and/or division is responsible for continuing to fund the injured or ill employee’s job position while the employee is assigned to temporary modified duty, unless otherwise arranged by authorized university personnel.
5. Length of Modified Duty Assignment: Modified Duty Assignments generally will be of less than ninety (90) days duration, but may be extended with the approval of the university’s Workers’ Compensation Specialist, with concurrence of the appropriate supervisor and vice president, dean or equivalent administrator.  The fact that the university has provided a temporary assignment to modified job duties should not be construed as reasonable for purposes of a permanent accommodation under the ADA accommodation process.
6. Consequences for Declination of Offer of Modified Duty Assignment or Other Lack of Cooperation: An employee who declines an offer of a Modified Duty Assignment or otherwise fails to cooperate with reasonable requests or directives relating to the university’s efforts to accommodate the injury and assist the worker in transitioning back to work, may result in a loss of workers compensation benefits or in involuntary separation from employment based on inability to perform the essential functions of the job, in accordance with the university’ rules and subject to the requirement to provide advance notification to the New Mexico State Risk Management Division, Workers Compensation Division. See Part 4, H. 1. above.

PART 6: ROLES AND RESPONSIBILITIES

1. Employee Responsibilities:Employees subject to this rule shall:
   1. Demonstrate ethical and honest conduct with regard to a workers compensation claim and benefits, including following all procedures and complying with all reasonable requests and directives from NMSU officials.
   2. Follow all medical advice and treatment prescribed by the employee’s medical providers.
   3. Return to full time employment at the expiration of the period for the Modified Duty Assignment period, provided that the medical documentation supports a finding that the employee’s condition will permit the employee to perform the essential functions of the job, with or without reasonable accommodation.
   4. If the employee is not medically expected to be able to perform the essential functions of the job held prior to the Compensable Injury or Illness, the employee may at any time seek assistance from the Office of Institutional Equity to discuss options for a reasonable accommodation.
2. Employer Responsibilities: The employer NMSU entity of the injured or ill employee shall:
   1. Coordinate with the employee, the university’s workers’ compensation specialist, the employee’s health care provider and/or assigned Workers Compensation adjuster, in consultation with the Office of Human Resource Services, as necessary, to identify a suitable Modified Duty Assignment.
   2. Protect the privacy of the injured employee, including maintenance of confidentiality of any medical information and documentation.
   3. The employee’s supervisor will ensure that the employee’s leave records are computed accurately based on the amount of compensation paid, and will reconcile all leave records with the university’s Workers’ Compensation Specialist.
   4. Refrain from any action or failure to act that reasonably could be construed as retaliation against an employee who avails themselves of the workers compensation benefits provided by the university through the State. Also, any university supervisor or manager who reasonable suspects retaliation shall report it immediately to the university’s Worker’s Compensation Specialist.
   5. Communicate to and cooperate with the university’s Workers Compensation Specialist about all issues pertaining to employees who receive workers compensation benefits, including but not limited to monitoring the work performance of the employee assigned to modified duty to determine the continuing need for modified job duties.
   6. With the approval of the university’s Workers’ Compensation Specialist and concurrence from the appropriate vice president, dean or equivalent administrator, the supervisor may extend the Modified Duty Assignment by thirty (30) calendar days, or until next medical follow-up appointment, provided modified duty remains available.
3. Responsibilities of the Office of Workers’ Compensation Specialist:The Office of Workers’ Compensation Specialist shall:
   1. Serve as a coordinator between the NMSU entities, the injured or ill employee, and the state workers’ compensation insurance pool with regard to compensation, medical care, available Modified Duty Assignments and return to work issues.
   2. Protect the privacy of the injured employee, including maintenance of confidentiality of any medical information and documentation, sharing only with authorized university and NM State Risk Management personnel.
   3. Assist the employee qualified to return to work or modified duty with issues arising during the transition back to the work force, as well as with other issues such as including coordination with the employee’s supervisor regarding the amount of leave charged to supplement the employee’s paycheck, as well as the amount that may continue to accrue.
   4. If at the end of the Modified Duty Assignment and/or at upon the employee reaching MMI, if the employee cannot perform all functions of the regular job, the workers’ compensation benefits specialist will refer the employee to the Office of Institutional Equity for assistance with regard to filing for a reasonable accommodation under the ADA Petition for Accommodation process.
   5. In the event of a report of suspected retaliation against an employee who is accessing workers compensation benefits, shall immediately report to the Assistant Vice President of Human Resource Services for investigation and corrective action, as may be appropriate.