Another small business saga: mandatory posters

The following is a real message (slightly edited, name changed) that I sent to a friend who owns an insurance agency.

Dear Marge,

As you know, I’m something of a workers’ compensation expert.  In my years at the Workers’ Compensation Administration (WCA), I explained the employer posting requirement in publications and in hundreds of talks to employers. At your office the other day, I couldn’t help noticing your company’s workers’ compensation poster.

Your posting (required by law, as you know) is incorrect.  Since you are a competent and conscientious agent and you sell worker’s comp insurance, I knew you would want to know.

In the blank space in the middle, you filled out your own name and address.  You should have filled out the contact information for your insurance company (in your case, that’s the carrier you represent).

Here’s why.   Workers’ comp is an adversarial system.  It assumes anyone can behave badly:  workers might make false claims, and employers might refuse to report real claims.  If the employer fails or refuses to report a claim to the insurer, the information on the poster allows the worker to contact the insurer himself.  You would never cheat your employees that way, but some employers would.

Most employers don’t notice that space so they ignore it – and not only private employers.  The New Mexico Attorney General’s office (in a previous administration) once called me to discuss posting issues, because they were receiving complaints about commercial poster companies.  When I visited, their posting was incorrect.

A few in-state insurers and groups provide posters to clients with the space corrrectly filled in.  They have the right idea.

Next:  There are no Notice of Accident (NOA) forms on your bulletin board!  The statute (paragraph 52-1-29) requires these forms to be posted near the poster  — and the poster itself says this.  The NOA is a form that a worker should use to document any incident that could lead to an injury.  The completed for is written evidence that the worker reported the incident.

The law requires the form to be in duplicate.  The worker fills it out, and  a supervisor signs both copies.  The worker keeps one copy.  Again, it’s an adversarial system.  If the worker doesn’t report in time, the employer may not be liable – unless the employer fails to post the form.  This is especially important for accidents that nobody else witnesses, and for little things, like a slip and fall that doesn’t seem important but that might cause a serious problem later.

Hardly anybody understands this, and it is universally violated.   I know of major employers who instruct workers to report accidents by calling an 800 number or filing an online form that does not provide a receipt.  I have seen completed forms with both copies filed by the employer because the worker gave both copies back.

The WCA used to print the forms with carbonless duplicates, but it has stopped printing the forms entirely.  Now the forms are online at the WCA web site.  You have to print them yourself.  Probably very few employers print them, and I doubt anybody provides carbonless duplicates.  Workers have lost a right.

The WCA made this change after I retired.  I was the NOA expert and I said the law was clear.  Without the carbonless duplicates, every employer in New Mexico would inadvertently violate the statute.  I started saying years ago that the solution was to update the statute.

The law is only 23 years old, but it’s a dinosaur.  It was written before the 1990s’ massive changes in computer technology.  And, though well-intended, it wasn’t ever practical.  When the WCA was distributing NOA forms by the hundreds of thousands, employers still didn’t use them.

When responsible people like you can’t figure out how to comply with the law, there’s something wrong with the law.

Triple Spaced Again, © New Mexico News Services 2013

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