Director’s Response to Public Comment

Robert Aurbach

Informations

• Publié par: Nasong
• Nombre de lectures: 9
• Langue: English

Extrait

New Mexico Register / Volume XV, Number 22 / November 30, 2004

Director’s Response to Public Comment

Extra Hazardous Employers

The proposed rules governing data reporting and safety requirements were opened for public comment on October

19, 2004 for in person comment and through October 26, 2004 for written comment. Several questions and one

suggestion were received from members of the public at the public hearing. Two comments were received from the

public in writing.

One commentator suggested that there was the potential for confusion in the use of the term “disability” in the

description of the methodology for rating accidents. It was suggested that the term “severity” be used consistently to

avoid confusion with the common use of the term “disability” in claims handling. The suggestions will be adopted

in principle. The actual terminology to be used will be “type of benefit payable”.

One commentator suggested that insurers had a concern about the time for conduct of safety inspections after

designation of an employer as extra hazardous. The commentator observed that the goal of obtaining a safety

consultation from the company’s insurer within 15 days of the designation is unrealistic if insurance companies are

going to be held liable for performance of the inspections. It was pointed out at the hearing that the role of the

insurance company, under applicable law, is to provide annual safety inspections to certain policyholders. The

designation of an employer as extra hazardous does not invoke that requirement and, therefore, the ability of any

particular insurer to perform the service within the time frame set forth in the rule will not subject the insurer to

liability. The listing of the insurer in the rule as a possible source of acceptable safety consultations was meant only

to open the possibility, subject to the ability of the insurer to perform the requested service. In the meantime,

workers are at imminent risk of injury in an environment that has already proven to be unreasonably dangerous, and

an extension of time to comply with the requirement for corrective action is not advisable. The suggestion that the

time for a post-designation safety consultation be extended will not be adopted.

One commentator had a number of comments directed to the statistical validity of the calculations described in the

designation process. Our resident statistician has examined the comments in detail and believes that the comments

do not take into account the fact that scaling labels in the context of the severity index calculation have a

hierarchical meaning that allows meaningful statistical calculations to be made from them, in the context of the

calculation system in which the labels exist. No suggestion was offered as an alternative to the calculation system

described in the rule, so no adoption or rejection of a comment is possible.

One commentator suggested that the provision at 11.4.2.9.B(3), which contains the reference to the “safety bureau”,

be deleted as the terminology is obsolete. The suggestion is well-founded and will be adopted.

One commentator made two suggestions aimed at removing the personal prejudices of a safety consultant in

proposing the remedial safety plan by introducing “industry standards” as the standard for the remediation plan.

While the WCA understands the concern that some safety consultants may impose onerous requirements, the

safeguard is the approval of the safety remediation plan by the Administration. The interposition of “industry

standards”, which are subject to reasonable debate, will present the opportunity for litigation of the remediation plan

in many instances, with the possibility of resulting delay in the implementation of the plan, to the detriment of the

workers at risk. The suggestions will not be adopted.

The public record of this rulemaking shall incorporate this Response to Public Comment and the formal record of

the rulemaking proceedings shall close upon execution of this document.

_____________________________________

Alan M. Varela

Director

N.M. Workers’ Compensation Administration

November 15, 2004