A. No compensation shall be allowed for the first seven days after the employee has suffered disablement unless such disablement continues for a period of more than four weeks after the disablement occurs, or in any case, unless the employer is notified thereof within the period specified in Section 52-3-16 NMSA 1978.
B. After disablement and continuing so long as medical and surgical attention 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.
C. 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.
D. After the expiration of the initial sixty-day period set forth in Subsection C 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. The director shall adopt rules and regulations governing forms, which employers shall post in conspicuous places, to enable this notice to be promptly and efficiently provided. This notice may be filed on or after the fiftieth day of the sixty-day period set forth in Subsection C of this section.
E. If a party objects to the choice of health care provider made pursuant to Subsection D of this section, then he shall file an objection to that choice pursuant to Subsection F of this section with a workers' compensation judge within three days from receiving the notice. He shall also provide notice of that objection to the other party. If the employer does not file his objection within the three-day period, then he shall be liable for the cost of treatment provided by the worker's health care provider until the employer does file his objection and the workers' compensation judge has rendered his decision as set forth in Subsection G of this section. If the worker does not file his objection within the three-day period, then the employer shall only be liable for the cost of treatment from the health care provider selected by the employer, subject to the provisions of Subsections F, G and H of this section. Nothing in this section shall remove the employer's obligation to provide reasonable and necessary health care services to the worker so long as the worker complies with the provisions of this section.
F. If the worker or employer disagrees with the choice of the health care provider of the other party at any time, including the initial sixty-day period, and they cannot otherwise agree, then he shall submit a request for a change of health care provider to a workers' compensation judge. The director shall adopt rules and regulations governing forms, which employers shall post in conspicuous places, to submit to a workers' compensation judge a request for a change of a health care provider.
G. The request shall state the reasons for the request and may state the applicant's choice for a different health care provider. The applicant shall bear the burden of proving to the workers' compensation judge that the care being received is not reasonable. The workers' compensation judge shall render his decision within seven days from the date the request was submitted. If the workers' compensation judge grants the request, he shall designate either the applicant's choice of health care provider or a different health care provider.
H. If the worker continues to receive treatment or services from a health care provider rejected by the employer and not in compliance with the workers' compensation judge's ruling, then the employer is not required to pay for any of the additional treatment or services provided to that worker by that health care provider.
I. In all cases where the disablement is such as to permit the use of artificial members, including teeth and eyes, the employer shall pay for such artificial members.
History: 1941 Comp., § 57-1114a, enacted by Laws 1951, ch. 184, § 2; 1953 Comp., § 59-11-15; Laws 1965, ch. 299, § 3; 1971, ch. 261, § 9; 1973, ch. 239, § 6; 1977, ch. 276, § 3; 1987, ch. 235, § 37; 1990 (2nd S.S.), ch. 2, § 36.
ANNOTATIONSThe 1990 (2nd S.S.) amendment, effective January 1, 1991, inserted "selection of health care provider" in the catchline, substituted "or" for "nor" in Subsection A, rewrote Subsections B and C, added Subsections D to H, and redesignated former Subsection D as Subsection I, substituting "pay for" for "furnish" therein.
Lump-sum payment and release agreement effective as waiver of statutory rights. — Lump-sum payment and release agreement which stated, among other things, that claimant would be treated by present physician or his referral for life was a binding contract, and constituted a waiver of employer's right under this section to designate a change in claimant's primary care provider. Ramirez v. Johnny's Roofing, Inc., 1999-NMCA-038, 127 N.M. 83, 977 P.2d 348.
In absence of evidence of wages, earnings or disability percentile, and in light of plaintiff's admission at oral argument that there was no proof of a percentage of disability and her failure to refute court's conclusion, the court's judgment denying recovery was not erroneous even though the act authorizes payment for partial disability. Ojinaga v. Dressman, 1972-NMCA-017, 83 N.M. 508, 494 P.2d 170.
Expert testimony. — The standard for admitting expert testimony established by Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as adopted in New Mexico by State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, does not apply to the testimony of a health care provider pursuant to Section 52-1-28(B) or 52-3-32 NMSA 1978. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014.