52-1-24.  Impairment; definition.

Constitutionality.

Applicability.

Attorney fees.

Construction.

Definition of impairment.

Disability.

Eligibility.

Evidence.

           —Generally.

           —Insufficient.

           —Sufficient.

           —Substantial.

Findings.

           —Sufficient.

Instructions.

Legislative intent.

New employment.

Offer of judgment.

Physical injury.

Preexisting impairment.

Primary mental impairment.

Requirements.

Secondary mental impairment.

Settlement.

Subsequent injury.

Summary judgment.

Time limitations.

Workers’ compensation.

Applying intermediate scrutiny, appellate court determined that 52-1-24(B) NMSA 1978 did not violate equal protection under the New Mexico Constitution because the requirement that a worker had to demonstrate a catastrophic event was not a new requirement but was an attempt to define and clarify what was already required. Further, the state supreme court had found that the proof requirements were valid and permissible. Romero v. City of Santa Fe, 2006-NMCA-055, 139 N.M. 440, 134 P.3d 131, 2006 N.M. App. LEXIS 26 (N.M. Ct. App. 2006).

Where an injured worker who had been granted total disability status under 52-1-24 NMSA 1978 was elected to a job as a union representative, the odd-lot doctrine did not apply to exclude the union representative job from consideration in determining the worker’s disability. The odd-lot doctrine excluded casual or odd-job employment in disability determinations, and the worker’s job as a union representative was a full-time, continuing employment. Barnett & Casbarian, Inc. v. Ortiz, 1992-NMCA-071, 114 N.M. 322, 838 P.2d 476, 1992 N.M. App. LEXIS 70 (N.M. Ct. App. 1992).

In a challenge by an elected labor union officer to the decision of the workers’ compensation administration reducing his original permanent total disability award based on injuries sustained as a pipe fitter to 55 percent permanent partial disability after he was elected to a paying union position, the court held that the duties of an elective position can be “work” within the meaning of the act and that the union officer was fitted by age, education, training, general physical and mental capacity, and previous work experience for the elective position of union business agent/financial secretary-treasurer. Barnett & Casbarian, Inc. v. Ortiz, 1992-NMCA-071, 114 N.M. 322, 838 P.2d 476, 1992 N.M. App. LEXIS 70 (N.M. Ct. App. 1992).

If as a result of an accidental injury partial loss of use of a specific body member or physical function is suffered by a workman, the compensation for the injury is to be computed as provided in former 59-10-18.4B, 1953 Comp. (now 52-1-43 NMSA 1978); former 59-10-12.1, 1953 Comp., defining “disability” was not applicable and the court did not consider whether this right varies according to corrective measures which may be available. Sessing v. Yates Drilling Co., 1964-NMSC-225, 74 N.M. 550, 395 P.2d 824, 1964 N.M. LEXIS 2298 (N.M. 1964).

In an action under the Workmen’s Compensation Act, former §§ 57-901 to 57-931, 1941 Comp. (now 52-1-1 NMSA 1978), where the claimant appealed from a judgment denying total permanent disability plus 50 percent additional compensation by reason of the failure of the employer to provide reasonable safety devices as required by the Act, the claimant’s contention that the trial court erred in awarding a lump-sum settlement and in awarding attorney fees directly to the attorney was not reversible error, even though pursuant to former § 57-918, 1941 Comp., attorney fees were payable to the claimant. Rowland v. Reynolds Elec. Eng'g Co., 1951-NMSC-046, 55 N.M. 287, 232 P.2d 689, 1951 N.M. LEXIS 743 (N.M. 1951).

Mandatory reference in 52-1-24 NMSA 1978 to the AMA Guide in determining impairment for workers’ compensation claims is not a delegation of legislative authority to the AMA: (1) because the impairment rating is the sole determinative factor in evaluating disability only where the worker has returned to work at the same or greater rate of pay than earned prior to the injury; (2) because the AMA Guide provides the standards of a well-recognized, independent authority and provides guidance to medical professionals and workers’ compensation claims adjusters on the complex issue of impairment; (3) because the AMA guide was specifically developed to bring greater objectivity to estimating the degree of long standing or permanent impairment, and (4) because the AMA Guide allows for an element of discretion. Madrid v. St. Joseph Hosp., 1996-NMSC-064, 122 N.M. 524, 928 P.2d 250, 1996 N.M. LEXIS 431 (N.M. 1996).

Where a worker was unable to make wages comparable to what he made before being injured, he was classified as permanently disabled; for purposes of 52-1-24 NMSA 1978, the term “comparable” meant “substantially equal” or “equivalent.” Carpenter v. Arkansas Best Corp., 1991-NMSC-038, 112 N.M. 1, 810 P.2d 1221, 1991 N.M. LEXIS 155 (N.M. 1991).

Although 52-1-24 NMSA 1978 relates only to how to make a comparable wage calculation, and not to when the calculation should be made, the Court of Appeals of New Mexico interprets the phrase “the wage he is able to earn after vocational rehabilitation” to mean the wages a worker could reasonably be expected to earn if he avails himself of rehabilitation. Gonzales v. Lovington Pub. Sch., 1989-NMCA-102, 109 N.M. 365, 785 P.2d 276, 1989 N.M. App. LEXIS 102 (N.M. Ct. App. 1989), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1990 N.M. LEXIS 13 (N.M. 1990).

Where a worker reached maximum medical improvement and was undergoing vocational rehabilitation, a hearing officer properly made a determination as to partial disability before the worker completed vocational rehabilitation; the worker was also entitled to board, lodging, travel, and other expenses, and for maintenance of his family during rehabilitation. Gonzales v. Lovington Pub. Sch., 1989-NMCA-102, 109 N.M. 365, 785 P.2d 276, 1989 N.M. App. LEXIS 102 (N.M. Ct. App. 1989), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1990 N.M. LEXIS 13 (N.M. 1990).

Under the transient provisions of the Workers’ Compensation Act,  the definition of total disability relates back to the definition of partial disability through the definition of “comparable wages or salary” in 52-1-24 NMSA 1978, which provides that a worker is permanently totally disabled only if he or she is wholly unable to earn comparable wages or salary considering the benefits the worker is entitled to receive under 52-1-43 NMSA 1978; thus, it is appropriate to read 52-1-24 NMSA 1978 as incorporating the requirement in 52-1-25 NMSA 1978 of reference to the AMA guidelines to prove “permanent physical impairment.” Barela v. Midcon of New Mexico, 1989-NMCA-093, 109 N.M. 360, 785 P.2d 271, 1989 N.M. App. LEXIS 100 (N.M. Ct. App. 1989).

Statutes defining disability, 52-1-24 and 52-1-25 NMSA 1978, are construed to contain two tests for determining disability: (1) the worker has to be totally or partially unable to perform the work they were doing at the time of the injury, and (2) the workman has to be wholly or partially unable to perform any work for which they are fitted and qualified; the second test is not to be narrowly construed. Jaramillo v. Kaufman Plumbing & Heating Co., 1985-NMSC-089, 103 N.M. 400, 708 P.2d 312, 1985 N.M. LEXIS 2004 (N.M. 1985).

Where an employee suffered a work-related injury but was able to work for 15 months, the trial court erred in awarding the employee partial disability for 15 months and total disability thereafter; the employee did not become disabled pursuant to 52-1-24 and 52-1-25 NMSA 1978 until the employee was unable to work. Sedillo v. Levi-Strauss Corp., 1982-NMCA-069, 98 N.M. 52, 644 P.2d 1041, 1982 N.M. App. LEXIS 852 (N.M. Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 2937 (N.M. 1982).

That a worker is restricted under 52-1-24 and 52-1-28 NMSA 1978 to proving his or her claim by the testimony of a qualified health care provider agreed upon by the parties or approved by a Workers’ Compensation Judge and that the health care provider is directed to utilize the American Medical Association (AMA) Guide or other comparable publications of the AMA in establishing and quantifying the degree of disability does not limit the running of the statute of limitations to only those situations where a health care provider has actually informed a worker that he or she has sustained a permanent impairment. Montoya v. Kirk-Mayer, Inc., 1995-NMCA-104, 120 N.M. 550, 903 P.2d 861, 1995 N.M. App. LEXIS 100 (N.M. Ct. App. 1995).

Court rejected a worker’s contention that a trial court could not determine partial disability prior to the time the worker completed his rehabilitation; 52-1-24 NMSA 1978 allowed a hearing officer to make a determination as to partial disability before the worker completed vocational rehabilitation and did not conflict with former 52-1-50 NMSA 1978 (see now 52-3-17 NMSA 1978), which provided that a worker’s refusal to avail himself of rehabilitation would not result in a forfeiture or diminution of an award. Gonzales v. Lovington Pub. Sch., 1989-NMCA-102, 109 N.M. 365, 785 P.2d 276, 1989 N.M. App. LEXIS 102 (N.M. Ct. App. 1989), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1990 N.M. LEXIS 13 (N.M. 1990).

Claimant failed to prove as required by a prior version of 52-1-24 NMSA 1978 that he was disabled because it was undisputed that after the injury he performed his job until he resigned, and during this time he renewed his pilot’s license and acquired a motorcycle license, specifically indicating he did not suffer from the claimed disabling condition. Grudzina v. New Mexico Youth Diagnostic & Dev. Ctr., 1986-NMCA-047, 104 N.M. 576, 725 P.2d 255, 1986 N.M. App. LEXIS 635 (N.M. Ct. App. 1986).

Where it was stipulated that plaintiff employee was totally disabled for about 21 months by reason of an injury that occurred within the course and scope of her employment and the employee established as a reasonable medical probability that she suffered a psychological injury and that, as a proximate result thereof, she was “wholly unable to perform any work for which” she “was fitted,” workers’ compensation benefits for total disability were properly awarded from the date they had been discontinued until further order of a court. Lujan v. Circle K Corp., 1980-NMCA-107, 94 N.M. 719, 616 P.2d 432, 1980 N.M. App. LEXIS 914 (N.M. Ct. App. 1980).

Where a supervisor’s treatment of an employee amounted to a form of intentional and unjustified harassment, a prima facie tort claim for emotional and mental distress was not barred by the Workers’ Compensation Act (Act) and was properly submitted to a jury. Because the employee’s psychological disability had been determined by a workers’ compensation judge to have been incurred outside the provisions of 52-1-24 NMSA 1978 and to be noncompensable under the Act, the exclusivity provision of the Act, 52-1-9 NMSA 1978, did not bar the employee’s tort claim. Beavers v. Johnson Controls World Servs., 1995-NMCA-070, 120 N.M. 343, 901 P.2d 761, 1995 N.M. App. LEXIS 74 (N.M. Ct. App.), cert. denied, 120 N.M. 68, 898 P.2d 120, 1995 N.M. LEXIS 256 (N.M. 1995).

Medical benefits recoverable under 52-1-49 NMSA 1978 are limited to those types of injuries which are defined in 52-1-24 NMSA 1978 and which are not otherwise expressly excluded from coverage. Douglass v. State, Regulation & Licensing Dep't, 1991-NMCA-041, 112 N.M. 183, 812 P.2d 1331, 1991 N.M. App. LEXIS 153 (N.M. Ct. App.), cert. denied, 112 N.M. 77, 811 P.2d 575, 1991 N.M. LEXIS 168 (N.M. 1991).

Examination of the provisions of 52-1-24 NMSA 1978 and the Workers’ Compensation Act (52-1-1 NMSA 1978) as a whole indicates the legislature’s intent to make gradual, stress-caused mental injuries non-compensable. Douglass v. State, Regulation & Licensing Dep't, 1991-NMCA-041, 112 N.M. 183, 812 P.2d 1331, 1991 N.M. App. LEXIS 153 (N.M. Ct. App.), cert. denied, 112 N.M. 77, 811 P.2d 575, 1991 N.M. LEXIS 168 (N.M. 1991).

Under 52-1-24B, C NMSA 1978, the legislature intended to exclude from coverage claims of mental illness resulting from work-related stress, unaccompanied by either a psychologically traumatic event that is generally outside of a worker’s usual experience, or mental illness resulting from a physical impairment caused by an accidental injury arising out of and in the course of employment. Douglass v. State, Regulation & Licensing Dep't, 1991-NMCA-041, 112 N.M. 183, 812 P.2d 1331, 1991 N.M. App. LEXIS 153 (N.M. Ct. App.), cert. denied, 112 N.M. 77, 811 P.2d 575, 1991 N.M. LEXIS 168 (N.M. 1991).

When worker failed to introduce any evidence regarding comparable wages or salary as required for an award of permanent total disability, his claim was properly denied. Strickland v. Coca-Cola Bottling Co., 1988-NMCA-049, 107 N.M. 500, 760 P.2d 793, 1988 N.M. App. LEXIS 56 (N.M. Ct. App. 1988).

Concept of “compensable disability” intrinsic to the New Mexico workmen’s compensation law is that in order to be entitled to an award of compensation benefits a workman must not only suffer a physical impairment, but also be unable to perform work. Cardenas v. United Nuclear Homestake Partners, 1981-NMCA-117, 97 N.M. 46, 636 P.2d 317, 1981 N.M. App. LEXIS 779 (N.M. Ct. App. 1981).

In an action to recover compensation benefits for a physical impairment, the trial court was not required, under 52-1-24A NMSA 1978, to base the employee’s impairment rating on the testimony of one doctor, even though 52-1-28 NMSA 1978 required expert testimony on the issue of causation, where the facts providing the basis for the doctor’s testimony were not worthy of belief. Peterson v. Northern Home Care, 1996-NMCA-030, 121 N.M. 439, 912 P.2d 831, 1996 N.M. App. LEXIS 10 (N.M. Ct. App. 1996).

Summary judgment in favor of an employer in a workers’ compensation case was reversed because proof of an impairment or evidence of the percentage loss of uses was not required for recovery of workmen’s compensation benefits; the court held that proof of an impairment, as defined in 52-1-24A NMSA 1978, was not required for recovery under 52-1-43 NMSA 1978, and that the worker presented specific facts sufficient to raise an issue as to loss of use. Lucero v. Smith's Food & Drug Ctrs., 1994-NMCA-076, 118 N.M. 35, 878 P.2d 353, 1994 N.M. App. LEXIS 70 (N.M. Ct. App. 1994).

Disability is measured under 52-1-24 NMSA 1978 and 52-1-25 NMSA 1978 by the ability to perform work; medical testimony on the issue of disability was not required; therefore, the trial court was not bound by the medical testimony to find disability for the longer period of time. Grudzina v. New Mexico Youth Diagnostic & Dev. Ctr., 1986-NMCA-047, 104 N.M. 576, 725 P.2d 255, 1986 N.M. App. LEXIS 635 (N.M. Ct. App. 1986).

Where an injured claimant-worker presented no evidence of the existence of a permanent physical impairment resulting by reason of an accidental injury arising out of and in the course of employment, whereby he was wholly unable to earn comparable wages or salary, he failed to prove an entitlement under 52-1-24 NMSA 1978 to, and could not receive total disability compensation. Strickland v. Coca-Cola Bottling Co., 1988-NMCA-049, 107 N.M. 500, 760 P.2d 793, 1988 N.M. App. LEXIS 56 (N.M. Ct. App. 1988).

Substantial evidence supported a trial court’s finding of total disability under 52-1-24 NMSA 1978 where as a result of an injury to the claimant’s right leg, she was limited in her ability to perform the duties of a meat wrapper, which including standing for long periods of time, repeatedly stooping, bending, reaching, lifting, and withstanding cold temperatures and where because of her age, limited education, and lack of previous work experience, she possessed little capacity for re-education or re-training and had no transferable work skills or other attributes that would render her employable in any field other than as a meat wrapper. Archuleta v. Safeway Stores, 1986-NMCA-092, 104 N.M. 769, 727 P.2d 77, 1986 N.M. App. LEXIS 659 (N.M. Ct. App. 1986).

Substantial evidence supported the trial court’s finding that a workers’ compensation claimant had fully recovered from any injuries suffered in a work-related accident within one month of the accident and that the claimant was not disabled within the contemplation of 52-1-24 NMSA 1978; although the evidence showed that the claimant might have been injured in the uranium mine accident, the trial court properly weighed the conflicting expert testimony in determining that the claimant was not disabled. Cardenas v. United Nuclear Homestake Partners, 1981-NMCA-117, 97 N.M. 46, 636 P.2d 317, 1981 N.M. App. LEXIS 779 (N.M. Ct. App. 1981).

Where supervisor’s treatment of employee amounted to intentional and unjustified harassment, because the employee’s psychological disability was determined by a workers’ compensation judge to have been incurred outside the provisions of 52-1-24 NMSA 1978 and to be noncompensable under the Workers’ Compensation Act [52-1-1 NMSA 1978], a prima facie tort claim for emotional and mental distress was not barred by 52-1-9 NMSA 1978, the exclusive remedy provision of the Act, and the claim was properly submitted to a jury under the instructions contained in UJI 13-1631, not the instructions contained in UJI 13-1628. Beavers v. Johnson Controls World Servs., 1995-NMCA-070, 120 N.M. 343, 901 P.2d 761, 1995 N.M. App. LEXIS 74 (N.M. Ct. App.), cert. denied, 120 N.M. 68, 898 P.2d 120, 1995 N.M. LEXIS 256 (N.M. 1995).

Where a trial court in a workmen’s compensation case concluded that a claimant’s disability, which was caused by inhalation of cigarette smoke, was temporary and that it terminated when the claimant became temporarily employed, that was error because, under 52-1-24 and 52-1-25 NMSA 1978, it was significant that the claimant’s current work installing sprinkler systems did not utilize his training and background experience, and so the new employment did nor bar him from receiving disability benefits. Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231, 1980 N.M. App. LEXIS 928 (N.M. Ct. App. 1980).

Section 52-1-54F NMSA 1978 is intended to encourage both sides in a workers’ compensation proceeding to make and accept reasonable offers of judgment by providing financial sanctions for the rejection of an offer of judgment if the rejecting party does not obtain a more favorable ruling. Accordingly, the word “employer” in 52-1-54F(4) NMSA 1978 is an obvious mistake and the legislature intended to use the word “worker.” Leo v. Cornucopia Restaurant, 1994-NMCA-099, 118 N.M. 354, 881 P.2d 714, 1994 N.M. App. LEXIS 93 (N.M. Ct. App. 1994), cert. denied, No. 22,302, 1994 N.M. LEXIS 319 (N.M. Sept. 1, 1994).

Under a provision of the New Mexico Workers’ Compensation Act, 52-1-24 NMSA 1978, a truck accident in which a worker suffered mental injuries qualified as a traumatic event, and the truck driver was not barred from receiving benefits even though the accident caused physical injury as well as mental impairment. Chavez v. Mountain States Constructors, 1996-NMSC-070, 122 N.M. 579, 929 P.2d 971, 1996 N.M. LEXIS 454 (N.M. 1996).

Workmen’s compensation claimant’s background, his work experience, training, and education were in a specialized area of electronics, but since his collapse, and because of his allergic reaction to tobacco smoke, he has been unable to obtain a job that would utilize his electronics skills; therefore, he was disabled by application of the two part test used to determine disability under 52-1-24 and 52-1-25 NMSA 1978, which was (1) the workman had to be totally or partially unable to perform the work he was doing at the time of the injury; and (2) the workman had to be totally or partially unable to perform any work for which he is fitted and qualified. Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231, 1980 N.M. App. LEXIS 928 (N.M. Ct. App. 1980).

Trial court properly sustained, pursuant to former N.M. R. Civ. P. 41(b), (now Rule 1-041 NMRA), an employer’s motion to dismiss an employee’s complaint to recover workmen’s compensation for a knee injury where there was no evidence that the employee’s injury was caused by a work-related accident or that there was any decrease in his wage earning ability. The employee was not disabled and there was no decrease in his wage earning ability under former  59-10-12.1, 1953 Comp. Blancett v. Homestake-Sapin Partners, 1963-NMSC-180, 73 N.M. 47, 385 P.2d 568, 1963 N.M. LEXIS 2031 (N.M. 1963).

Award of workers’ compensation of total permanent disability based on secondary mental impairment to a claimant, who was injured when she was severely beaten while working as a nurse at a correctional facility, was erroneous under 52-1-41 NMSA 1978. Where the claimant no longer suffered a physical impairment at the time of the hearing and continued to suffer a secondary mental impairment but never suffered a primary mental impairment, which was defined by 52-1-24 NMSA 1978 as a mental impairment without physical injury, the claimant was disabled solely by a secondary mental impairment at the time of the hearing, and accordingly, she was subject to the limitation of 52-1-41A(2) NMSA 1978 of 100 weeks for secondary mental impairment benefits because her psychical impairment lasted less than 100 weeks. Fitzgerald v. Open Hands, 1993-NMCA-026, 115 N.M. 210, 848 P.2d 1137, 1993 N.M. App. LEXIS 16 (N.M. Ct. App. 1993).

In adopting the amendments to 52-1-24, 52-1-26, 52-1-49, and 52-1-4-1 NMSA 1978, the legislature did not intend to abrogate the rule recognized in Smith v. Dowell Corp. or Whittenberg v. Graves Oil & Butane Co., or the precedent upon which they relied, so as to limit the commencement of the running of the statute of limitations in workers’ compensation cases to situations where a worker was actually told by a health care provider that he had suffered a permanent impairment. Montoya v. Kirk-Mayer, Inc., 1995-NMCA-104, 120 N.M. 550, 903 P.2d 861, 1995 N.M. App. LEXIS 100 (N.M. Ct. App. 1995).

52-1-41B NMSA 1978 did not require the termination of payment of temporary total disability benefits for an employee’s secondary mental impairment, as defined under 52-1-24 NMSA 1978, after the employee had received 100 weeks of disability benefits. Udero v. Phelps Dodge Mining Co., 1996-NMCA-034, 121 N.M. 492, 913 P.2d 680, 1996 N.M. App. LEXIS 14 (N.M. Ct. App. 1996).

Where a worker was paid temporary total disability benefits for approximately 89 weeks after which a judge found she no longer had any physical impairment, the worker was entitled to benefits for secondary mental impairment for approximately eleven weeks under 52-1-42B NMSA 1978, because although 52-1-24C NMSA 1978 defined secondary mental impairment as a mental illness resulting from a physical impairment, it did not require a continuation of the physical impairment, but only the physical impairment to trigger the mental illness. Peterson v. Northern Home Care, 1996-NMCA-030, 121 N.M. 439, 912 P.2d 831, 1996 N.M. App. LEXIS 10 (N.M. Ct. App. 1996).

It was error for a trial court to construe 52-1-24B NMSA 1978 as excluding any emergency-type worker from compensation for primary mental impairment under the workers’ compensation act; the legislature did not intend to exclude any occupational group from seeking compensation for primary mental impairment. Collado v. City of Albuquerque, 1995-NMCA-117, 120 N.M. 608, 904 P.2d 57, 1995 N.M. App. LEXIS 105 (N.M. Ct. App. 1995).

A psychiatric nurse was brutally beaten by a psychotic prisoner and suffered secondary mental impairment from the time of the injuries; she was entitled to workers’ compensation benefits under 52-1-41A(2) NMSA 1978 only for the period of disability produced by physical impairment or for 100 weeks, whichever was greater. Fitzgerald v. Open Hands, 1993-NMCA-026, 115 N.M. 210, 848 P.2d 1137, 1993 N.M. App. LEXIS 16 (N.M. Ct. App. 1993).

A school aide was not entitled to workers’ compensation benefits for an alleged psychological injury precipitated by an anonymous co-worker who threatened to bomb the school unless the aide was fired because the aide’s injury fell outside the scope of 52-1-24B NMSA 1978 in that the bomb threat stemmed from the personal animosity of the co-worker against the aide for reasons that were not occasioned by the aide’s employment, but by matters unrelated to her employment. Bader-Rondeau v. Truth or Consequences Mun. Sch., 1991-NMCA-150, 113 N.M. 218, 824 P.2d 358, 1991 N.M. App. LEXIS 257 (N.M. Ct. App. 1991).

Exclusivity provisions of the former interim Workmen’s Compensation Act, a former version of 52-1-24 NMSA 1978, precluded any separate tort action for mental injuries sustained by an employee, even though compensation for purely mental injuries was excluded by the interim Act. Maestas v. El Paso Natural Gas Co., 1990-NMCA-092, 110 N.M. 609, 798 P.2d 210, 1990 N.M. App. LEXIS 105 (N.M. Ct. App. 1990), cert. denied, 110 N.M. 653, 798 P.2d 1039, 1990 N.M. LEXIS 307 (N.M. 1990), overruled in part, Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148, 2001 N.M. LEXIS 376 (N.M. 2001), overruled in part as stated in Richey v. Hammond Conservancy Dist., No. 32847, 2015 N.M. App. LEXIS 12 (N.M. Ct. App. Jan. 26, 2015).

Claimant’s action for death benefits related to her husband’s suicide, which claimant asserted resulted from on-the-job stress was barred by 52-1-24B NMSA 1978 because claimant did not allege that her husband suffered from a psychologically traumatic event, as the statute made compensable only primary impairment to sudden, emotion-provoking events of a catastrophic nature and not gradual, progressive stress-producing causes. Holford v. Regents of Univ. of Cal., Los Alamos Nat'l Lab., 1990-NMCA-066, 110 N.M. 366, 796 P.2d 259, 1990 N.M. App. LEXIS 78 (N.M. Ct. App. 1990).

Phrase “the wage he is able to earn” in the former version of 52-1-24A NMSA 1978 of the transient provisions of the Workmen’s Compensation Act, 52-1-1 to -68 NMSA 1978 did not necessarily mean the wage that a worker was earning at the time of a hearing; rather, the determination depended upon the hearing officer’s factual determination of the worker’s capacity based on all relevant evidence, including his actual post-injury earnings. Kincaid v. WEK Drilling Co., 1989-NMCA-111, 109 N.M. 480, 786 P.2d 1214, 1989 N.M. App. LEXIS 108 (N.M. Ct. App. 1989).

Hearing officer is not entitled to elect between granting partial or total disability benefits where the evidence would support both. Varela v. Arizona Pub. Serv., 1989-NMCA-104, 109 N.M. 306, 784 P.2d 1049, 1989 N.M. App. LEXIS 93 (N.M. Ct. App. 1989).

Definitions of partial and total disability under the Workmen’s Compensation Interim Act are not mutually exclusive. Instead, a worker may satisfy all of the requirements under both definitions, yet, be entitled only to benefits under the section providing the most in benefits. Varela v. Arizona Pub. Serv., 1989-NMCA-104, 109 N.M. 306, 784 P.2d 1049, 1989 N.M. App. LEXIS 93 (N.M. Ct. App. 1989).

Where a worker experienced ulcers related to her job for eight years, she was not entitled to compensation for permanent partial disability until she was completely unable to work pursuant to 52-1-24 NMSA 1978; the time period in which she was required to give notice under 52-1-31A NMSA 1978 began when she was unable to work. Zengerle v. Socorro, 1986-NMCA-099, 105 N.M. 797, 737 P.2d 1174, 1986 N.M. App. LEXIS 715 (N.M. Ct. App. 1986), overruled,  Whittenberg v. Graves Oil & Butane Co., 1991-NMCA-142, 113 N.M. 450, 827 P.2d 838, 1991 N.M. App. LEXIS 264 (N.M. Ct. App. 1991).

A finding of total disability under 52-1-24 NMSA 1978 was affirmed where it was proven by the claimant at trial that claimant had a complete inability to perform the usual tasks in the work he was performing at the time of the injury and an absolute inability to perform any work for which he was fitted by age, education, training and previous experience. Amos v. Gilbert W. Corp., 1985-NMCA-106, 103 N.M. 631, 711 P.2d 908, 1985 N.M. App. LEXIS 611 (N.M. Ct. App. 1985).

Finding of the trial court that the workers’ compensation injury claimant did not suffer a loss in earning capacity should not have been determinative on the issue of disability; the trial court overlooked case law reflected in former 52-1-24 and 52-1-25 NMSA 1978 changing the primary test of disability from wage-earning ability to capacity to perform work as delineated in the statute. Chavira v. Gaylord Broadcasting Co., 1980-NMCA-154, 95 N.M. 267, 620 P.2d 1292, 1980 N.M. App. LEXIS 958 (N.M. Ct. App. 1980), overruled,  Chapman v. Jesco, Inc., 1982-NMCA-144, 98 N.M. 707, 652 P.2d 257, 1982 N.M. App. LEXIS 933 (N.M. Ct. App. 1982).

Because a worker’s compensation was for an impairment of earning capacity caused by an injury, a trial court did not err in using the date that the claimant ceased working as the date of disability, rather than the date of the work-related accident; the rate of compensation benefits should be based upon the applicable law on the date of disability. Lamont v. New Mexico Military Inst., 1979-NMCA-047, 92 N.M. 804, 595 P.2d 774, 1979 N.M. App. LEXIS 828 (N.M. Ct. App.), cert. denied, 92 N.M. 675, 593 P.2d 1078, 1979 N.M. LEXIS 1410 (N.M. 1979).