New Mexico Statutes
Article 5 - Workers' Compensation Division
Section 52-5-7 - Hearing procedure.

A. When matters in dispute cannot be resolved by informal conference or other techniques, the director shall transmit a copy of the claim to the other parties with notice to respond by written answer. The other parties shall respond with a written answer within twenty days after receiving a notice or within such extension of that time as the director may allow. If no timely answer is filed by a party after notice, a workers' compensation judge may, if he determines it to be appropriate, grant the relief sought against that party. However, if, in order to enable the workers' compensation judge to enter an order and carry out its effect, it is necessary to take an account, determine the amount of benefits due, establish the truth of any claims by evidence or make an investigation of any matter, the workers' compensation judge may conduct such hearings as he deems necessary and proper.
B. A hearing shall be held for determining the questions at issue within sixty days of the filing of the answer. All parties in interest shall be given at least twenty days' notice of the hearing and of the issues to be heard, served personally or by mail. Following the presentation of the evidence, the workers' compensation judge shall determine the questions at issue and file the decision with the director within thirty days, unless the time for filing the decision is extended by the mutual agreement of the parties. At the time of filing, a certified copy of the decision shall be sent by first class mail to all interested parties at the last known address of each. The decision of the workers' compensation judge shall be made in the form of a compensation order, appropriately titled to show its purpose and containing a report of the case, findings of fact and conclusions of law and, if appropriate, an order for the payment of benefits under the Workers' Compensation Act [Chapter 52, Article 1 NMSA 1978] or the New Mexico Occupational Disease Disablement Law [52-3-1 NMSA 1978].
C. The decision of the workers' compensation judge shall be final and conclusive as to all matters adjudicated by him upon the expiration of the thirtieth day after a copy of the decision has been mailed to the parties, unless prior to that day a party in interest seeks judicial review of the decision pursuant to Section 52-5-8 NMSA 1978.
D. All hearings before the workers' compensation judge shall be open to the public. The director shall by regulation provide for the preparation of a record of each hearing.
E. The director may authorize a workers' compensation judge or his duly authorized representative to enter at any reasonable time the premises where an injury or death has occurred and to make such examination of any tool, appliance, process, machinery or environmental or other condition as may be relevant to a determination of the cause and circumstances of the injury, disablement or death.
F. The testimony of any witness may be taken by deposition or interrogatories according to the rules of civil procedure for the district courts and may be taken before any workers' compensation judge or any person authorized to take testimony, but discovery procedure shall be conducted only upon the workers' compensation judge's findings that good cause exists. The cost and expense of any discovery procedure allowed by the workers' compensation judge shall be paid as provided in Section 52-1-54 NMSA 1978. No costs shall be charged, taxed or collected by the workers' compensation judge except fees for witnesses who testify under subpoena. The witnesses shall be allowed the same fee for attendance and mileage as is fixed by the law in civil actions, except that the workers' compensation judge may assess against the employer the fees allowed any expert witness, as provided in Section 38-6-4 NMSA 1978, whose examination of the claimant, report or hearing attendance the workers' compensation judge deems necessary for resolution of matters at issue.
History: Laws 1986, ch. 22, § 33; 1987, ch. 235, § 49; 1989, ch. 263, § 76; 1993, ch. 193, § 11.
The 1993 amendment, effective June 18, 1993, substituted "as provided in Section 52-1-54 NMSA 1978" for "by the employer, and in no event shall an unsuccessful claimant be responsible for the cost and expense of any discovery procedure" in the second sentence of Subsection F.
Attorney fees. — Nothing in the language of Section 52-5-7B NMSA 1978 indicates that it applies to subsequent orders awarding attorney fees. Trujillo v. Hilton of Santa Fe, 1993-NMCA-005, 115 N.M. 398, 851 P.2d 1065, rev'd on other grounds, 1993-NMSC-017, 115 N.M. 397, 851 P.2d 1064.
Discovery. — The statute directs that discovery shall be conducted only upon the hearing officer's findings that good cause exists. Cantrell v. W & C Contracting Co., 1991-NMCA-091, 112 N.M. 609, 817 P.2d 1251, cert. denied, 112 N.M. 440, 816 P.2d 509.
"Cost and expense". — The words "cost and expense" in Subsection F also permit the workers' compensation judge to allow a reasonable fee charged by an expert witness in necessarily reviewing records or otherwise preparing to testify by deposition. Cantrell v. W & C Contracting Co., 1991-NMCA-091, 112 N.M. 609, 817 P.2d 1251, cert. denied, 112 N.M. 440, 816 P.2d 509.
The words "cost and expense," as used in Subsection F of this section, have been interpreted to include the actual costs of taking a deposition, such as stenographer and reporter fees. Cantrell v. W & C Contracting Co., 1991-NMCA-091, 112 N.M. 609, 817 P.2d 1251, cert. denied, 112 N.M. 440, 816 P.2d 509.
Award of expert fees. — The requirement of a subpoena must be met before any expert fees can be awarded. Murphy v. Duke City Pizza, Inc., 1994-NMCA-085, 118 N.M. 346, 881 P.2d 706, cert. denied, 118 N.M. 430, 882 P.2d 21.
Authority of judge over worker's residual physical capacity. — Even though evidence must be presented by a qualified health provider on the issue of a worker's residual physical capacity, a worker's compensation judge is free to consider this evidence in the same manner, and to the same degree, as any other expert testimony. Slygh v. RMCI, Inc., 1995-NMCA-081, 120 N.M. 358, 901 P.2d 776.
Law reviews. — For survey of workers' compensation law in New Mexico, see 18 N.M.L. Rev. 579 (1988).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation § 602 et seq.
100 C.J.S. Workmen's Compensation § 581 et seq.