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Director’s Response to Public Comment

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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 ...
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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