As used in the Workers’ Compensation Act [52-1-1 NMSA 1978], unless the context otherwise requires, the following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of the Workers’ Compensation Act:
A. a child under eighteen years of age or incapable of self-support and unmarried or under twenty-three years of age if enrolled as full-time student in any accredited educational institution;
B. the widow or widower, only if living with the deceased at the time of his death or legally entitled to be supported by him, including a divorced spouse entitled to alimony;
C. a parent or grandparent only if actually dependent, wholly or partially, upon the deceased; and
D. a grandchild, brother or sister only if under eighteen years of age or incapable of self-support, and wholly dependent upon the deceased.
The relation of dependency must exist at the time of the injury. E. Questions as to who constitute dependents and the extent of their dependency shall be determined as of the date of the injury, and their right to any death benefit shall cease upon the happening of any one of the following contigencies [contingencies]:
(1) upon the marriage of the widow or widower;
(2) upon a child, grandchild, brother or sister reaching the age of eighteen years, unless the child, grandchild, brother or sister at such time is physically or mentally incapacitated from earnings, or upon a dependent child, grandchild, brother or sister becoming self-supporting prior to attaining that age or if a child, grandchild, brother or sister over eighteen years of age who is enrolled as a full-time student in any accredited educational institution ceases to be so enrolled or reaches the age of twenty-three. A child, grandchild, brother or sister who originally qualified as a dependent by virtue of being less than eighteen years of age may, upon reaching age eighteen, continue to qualify if physically or mentally incapable of self-support, actually dependent or enrolled in an educational institution; or
(3) upon the death of any dependent.
HISTORY:
1953 59-10-12.10, enacted by Laws 1965, ch. 295, § 10; 1973, ch. 47, § 1; 1977, ch. 275, § 1; 1989, ch. 263, § 13.
Notes to Decisions
Constitutionality.
In a workers’ compensation action, the decedent’s stepchildren as well as his biological children from a prior marriage were all entitled to benefits as his dependents; former 59-10-12.10, 1953 Comp. (now 52-1-17 NMSA 1978) was constitutional because there was no impermissible discrimination where natural children and stepchildren shared equally in worker’s compensation benefits. Shahan v. Beasley Hot Shot Serv., 1978-NMCA-014, 91 N.M. 462, 575 P.2d 1347, 1978 N.M. App. LEXIS 537 (N.M. Ct. App. 1978).
Applicability.
Premature filing section of the Workers’ Compensation Act, specifically 52-1-69 NMSA 1978, does not apply to dependents, as that term is defined in 52-1-17 NMSA 1978, but expressly applies to a worker, as that term is defined in 52-1-16 NMSA 1978, and 52-1-31 NMSA 1978 provides additional evidence that the Act distinguishes between workers and dependents. Pursuant to 52-1-30B NMSA 1978, the worker’s entitlement to future compensation payments is contingent upon the totality and permanency of his disability, and 52-1-69 NMSA 1978 bars him from making a claim for compensation benefits he is already receiving. Zamora v. CDK Contracting Co., 1987-NMCA-093, 106 N.M. 309, 742 P.2d 521, 1987 N.M. App. LEXIS 764 (N.M. Ct. App.), cert. quashed, 106 N.M. 353, 742 P.2d 1058, 1987 N.M. LEXIS 3711 (N.M. 1987).
Child was not entitled to separate compensation because the deceased left a widow and no specific amount of compensation to be paid to the child was provided for under former § 57-918, 1941 Comp., but the proper amount was 45 percent of the workman’s wages, not to exceed $18 per week. Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365, 1950 N.M. LEXIS 655, 1950 N.M. LEXIS 656, 1951 N.M. LEXIS 706 (N.M. 1950).
Under former 1929 Code, § 156-120, a wife living in Mexico for several years prior to the death of her husband was considered a resident of the United States and could therefore recover his workers’ compensation benefits when he died because the wife’s domicile was considered to be the same as the husband’s domicile, and because the wife had intended to return to the United States, as she was only in Mexico to care for her husband’s mother and at his direction. Gallup Am. Coal Co. v. Lira, 1935-NMSC-071, 39 N.M. 496, 50 P.2d 430, 1935 N.M. LEXIS 79 (N.M. 1935).
Burden of proof.
Under 52-1-1 NMSA 1978, the claimant was entitled to such vocational rehabilitation services as were necessary to return her to suitable employment, but the claimant had the burden of presenting sufficient evidence to establish a need for rehabilitation benefits. Gutierrez v. Amity Leather Prods. Co., 1988-NMCA-006, 107 N.M. 26, 751 P.2d 710, 1988 N.M. App. LEXIS 3 (N.M. Ct. App. 1988).
Decedent’s second wife was not entitled to survivor’s benefits where she failed to overcome the presumption of the validity of the decedent’s third marriage by clear and convincing evidence; although the second wife submitted evidence that the decedent had never obtained a divorce in New Mexico, that fact did not prove that he did not obtain a valid divorce in another jurisdiction. Schall v. Schall, 1982-NMCA-045, 97 N.M. 665, 642 P.2d 1124, 1982 N.M. App. LEXIS 834 (N.M. Ct. App. 1982).
Construction.
Former 59-10-12.10B, 1953 Comp. does not provide that a wife must be actually dependent on her husband for support to recover compensation benefits. Kau v. Bennett, 1977-NMCA-121, 91 N.M. 162, 571 P.2d 819, 1977 N.M. App. LEXIS 683 (N.M. Ct. App. 1977).
When a death occurs for which compensation is recoverable, dependency as defined in the Workmen’s Compensation Act, former 1929 Code, § 156-101 et seq., and not heirship, furnished the sole test of a claimant’s right to recover insofar as governed by status. Under former 1929 Code, § 156-112, subparagraphs (j) and (k), heirship without defined dependency would not authorize compensation, whereas dependency without heirship in certain instances would do so. Rumley v. Middle Rio Grande Conservancy Dist., 1936-NMSC-023, 40 N.M. 183, 57 P.2d 283, 1936 N.M. LEXIS 25 (N.M. 1936).
Dependency claim filed by an aging father against his deceased son’s employer under the Workmen’s Compensation Act for son’s fatal injury should not have been precluded solely upon a finding that the father was able to support himself because, pursuant to 1929 Code, § 156-112, (now 52-1-17 NMSA 1978), the dependency of a parent, although required to be actual, needed to be only partial. Dimas v. Albuquerque & Cerrillos Coal Co., 1931-NMSC-046, 35 N.M. 591, 3 P.2d 1068, 1931 N.M. LEXIS 50 (N.M. 1931).
Dependency.
52-1-17A NMSA 1978 does not require a showing of actual dependency in the case of children under the age of 23 and enrolled as full-time students in accredited educational institutions. Garrison v. Safeway Stores, 1984-NMCA-116, 102 N.M. 179, 692 P.2d 1328, 1984 N.M. App. LEXIS 741 (N.M. Ct. App. 1984).
Divorce.
Husband’s workmen’s compensation disability benefits were properly awarded as his separate property in a divorce because under the Workmen’s Compensation Act, dependency was the key to any recovery, marital status was unimportant. Richards v. Richards, 1955-NMSC-043, 59 N.M. 308, 283 P.2d 881, 1955 N.M. LEXIS 1023 (N.M. 1955).
Eligibility.
Decedent’s daughter was a “dependent” and was entitled to a portion of workers’ compensation benefits paid by his employer because even though she was not dependent on the decedent at the time of his death, she was 23 years old and was a full-time student at an accredited college. Garrison v. Safeway Stores, 1984-NMCA-116, 102 N.M. 179, 692 P.2d 1328, 1984 N.M. App. LEXIS 741 (N.M. Ct. App. 1984).
In a workmen’s compensation action, the deceased employee’s stepchildren, as well as his biological children from a prior marriage, were all entitled to benefits as dependents. Shahan v. Beasley Hot Shot Serv., 1978-NMCA-014, 91 N.M. 462, 575 P.2d 1347, 1978 N.M. App. LEXIS 537 (N.M. Ct. App. 1978).
Contributions of a minor to a fund for his own education did not establish the parents’ dependency on the minor under former 59.10-12.10, 1953 Comp. (now 52-1-17 NMSA 1978) because the contribution was not for the support of his parents, therefore they were not entitled to recover death benefits. Wilson v. Mason, 1967-NMCA-002, 78 N.M. 27, 426 P.2d 789, 1967 N.M. App. LEXIS 145 (N.M. Ct. App. 1967).
Where the deceased workman’s parents were partially dependent upon him at the time of his death as defined under the Workers’ Compensation Act (52-1-1 NMSA 1978), they were entitled to receive his death benefits. Snarr v. Carroll, 1958-NMSC-010, 63 N.M. 380, 320 P.2d 736, 1958 N.M. LEXIS 1255 (N.M. 1958).
Evidence.
—Insufficient.
Children of deceased worker were properly denied workmen’s compensation death benefits because the deceased worker contributed nothing for the children’s financial support and there was no reasonable probability of fulfillment of his support obligations. Kosmicki v. Aspen Drilling Co., 1966-NMSC-081, 76 N.M. 234, 414 P.2d 214, 1966 N.M. LEXIS 2638 (N.M. 1966).
Legislative intent.
The estate of a widow who had been awarded workers’ compensation benefits for the death of her husband was not entitled to benefits because the estate was not a defined dependent under 52-1-17E(3) NMSA 1978; the legislative intent was to only give benefits to those who were “eligible dependents” and not “heirs” as in the case of descent and distribution. Clauss v. Electronic City, 1979-NMCA-066, 93 N.M. 75, 596 P.2d 518, 1979 N.M. App. LEXIS 835 (N.M. Ct. App. 1979).
Multiple spouses.
Where a deceased workman’s first wife and his third wife both claimed workmen’s compensation benefits under former 59-10-12.10B, 1953 Comp. (now 52-1-17 NMSA 1978) based on the workman’s death while in the course of his employment, given that there was substantial evidence to support a finding that the workman did not obtain a divorce from his first wife, the workman did not have the capacity to marry the third wife, but marriage with the consequent liability for support under former 57-2-1, 1953 Comp. (now 40-2-1 NMSA 1978) did not necessarily indicate that the first wife was entitled to compensation, because the right to support might not exist under the facts of the case. The authority of the trial court to award support under former 22-7-2, 1953 Comp. (now 40-4-3 NMSA 1978) was an equitable power and the trial court could properly have found that the first wife was not entitled to support. Lauderdale v. Hydro Conduit Corp., 1976-NMCA-095, 89 N.M. 579, 555 P.2d 700, 1976 N.M. App. LEXIS 620 (N.M. Ct. App. 1976).
Subsection A.
In a workers’ compensation case, there were insufficient facts to establish dependency by the 18 year old daughter on the father, and her claim for benefits was properly denied. Hamilton v. Prestridge, 1943-NMSC-051, 47 N.M. 440, 144 P.2d 156, 1943 N.M. LEXIS 52 (N.M. 1943).
Subsection B.
Plaintiff widow, who was living apart, but was not legally separated from her decedent husband when he died, was properly awarded workmen’s compensation benefits under former 59-10-12.10B, 1953 Comp. from defendants, an employer and its insurer, because she was legally entitled to be supported by him. Kau v. Bennett, 1977-NMCA-121, 91 N.M. 162, 571 P.2d 819, 1977 N.M. App. LEXIS 683 (N.M. Ct. App. 1977).
Subsection C.
In a workmen’s compensation case, where an employee died in the course of his employment, the claimants — mother and father of the deceased — were found to be dependents of the employee since the deceased had been contributing to the claimants’ support; in fact, he was furnishing their sole support, and they were relying upon such contributions for their livelihood. Gonzales v. Chino Copper Co., 1924-NMSC-005, 29 N.M. 228, 222 P. 903, 1924 N.M. LEXIS 50 (N.M. 1924).
Survivor’s benefits.
Where a claimant who asserted entitlement to workers’ compensation survivor’s benefits under 52-1-17 NMSA 1978 presented evidence that decedent did not obtain a divorce from the claimant in New Mexico, that fact did not negate by clear and convincing evidence the presumption of validity of decedent’s marriage to a different woman who was the reputed widow. During the 10-year interval between marriages, it is undisputed that the decedent traveled extensively throughout the United States, and whether or not the decedent was validly divorced in a jurisdiction other than New Mexico was not established. Schall v. Schall, 1982-NMCA-045, 97 N.M. 665, 642 P.2d 1124, 1982 N.M. App. LEXIS 834 (N.M. Ct. App. 1982).
Research References and Practice Aids
Cross references.
Compensation benefits for death, 52-1-46 NMSA 1978.