A. As used in the Workers’ Compensation Act [52-1-1 NMSA 1978], “permanent total disability” means:
(1) the permanent and total loss or loss of use of both hands or both arms or both feet or both legs or both eyes or any two of them; or
(2) a brain injury resulting from a single traumatic work-related injury that causes, exclusive of the contribution to the impairment rating arising from any other impairment to any other body part, or any preexisting impairments of any kind, a permanent impairment of thirty percent or more as determined by the current American medical association guide to the evaluation of permanent impairment.
B. In considering a claim for total disability, a workers’ compensation judge shall not receive or consider the testimony of a vocational rehabilitation provider offered for the purpose of determining the existence or extent of disability.
HISTORY:
1978 52-1-25, enacted by Laws 1987, ch. 235, § 11; 1990 (2nd S.S.), ch. 2, § 9; 2003, ch. 265, § 1.
Notes to Decisions
Constitutionality.
Under 52-1-25 NMSA 1978, neither suspect or sensitive classifications are created nor are fundamental or important rights infringed. Different criterion for impairment evaluation is rationally related to the purpose of providing workers’ compensation benefits based on current medical advances. Valdez v. Wal-Mart Stores, 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, 1997 N.M. App. LEXIS 143 (N.M. Ct. App. 1997), cert. denied, 124 N.M. 589, 953 P.2d 1087, 1998 N.M. LEXIS 68 (N.M. 1998).
In its requirements for permanent total disability, 52-1-25 NMSA 1978 evaluates all workers equally. Valdez v. Wal-Mart Stores, 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, 1997 N.M. App. LEXIS 143 (N.M. Ct. App. 1997), cert. denied, 124 N.M. 589, 953 P.2d 1087, 1998 N.M. LEXIS 68 (N.M. 1998).
Under 52-1-25 NMSA 1978, the threshold inquiry of the equal protection analysis is whether the result is dissimilar treatment of similarly-situated individuals. Valdez v. Wal-Mart Stores, 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, 1997 N.M. App. LEXIS 143 (N.M. Ct. App. 1997), cert. denied, 124 N.M. 589, 953 P.2d 1087, 1998 N.M. LEXIS 68 (N.M. 1998).
The permanent total disability benefit statute, 52-1-25 NMSA 1978, withstands scrutiny under the rational basis test and, therefore, is constitutional. Valdez v. Wal-Mart Stores, 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, 1997 N.M. App. LEXIS 143 (N.M. Ct. App. 1997), cert. denied, 124 N.M. 589, 953 P.2d 1087, 1998 N.M. LEXIS 68 (N.M. 1998).
Generally.
Although the hernia from which the workman’s compensation claimant suffered was work-related and rendered him partially unable to do the work in which he was engaged at the time of his injury due to his inability to lift heavy objects, he was not entitled to total or partial disability benefits under either former 59-10-12.18, 1953 Comp. or former 59-10-12.19, 1953 Comp., because he was wholly able to perform the appropriate existing work that the employer made available to him. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, 1975 N.M. App. LEXIS 753 (N.M. Ct. App. 1975), cert. denied, 89 N.M. 6, 546 P.2d 71, 1976 N.M. LEXIS 891 (N.M. 1976).
Employee’s temporary work as a doorman and a janitor after his injury did not prevent a finding that he had a temporary partial disability until the date of a second injury and a permanent total disability thereafter; the temporary work did not involve the heavy physical labor for which he was suited by training and experience, and his post-injury employment history did not disqualify him for benefits as a matter of law. Maes v. John C. Cornell, Inc., 1974-NMCA-061, 86 N.M. 393, 524 P.2d 1009, 1974 N.M. App. LEXIS 672 (N.M. Ct. App. 1974).
Applicability.
Duties of a person elected to a job may come within the usage of the word “work” under 52-1-25 NMSA 1978, which defines “total disability.” 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).
To be partially disabled, the court must find that plaintiff is unable to some percentage-extent to perform the usual tasks in the work he was performing at the time of his injury and is unable to some percentage-extent to perform any work for which he is fitted. Candelaria v. Hise Constr., 1981-NMCA-145, 98 N.M. 763, 652 P.2d 1214, 1981 N.M. App. LEXIS 826 (N.M. Ct. App. 1981), aff'd in part, modified, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210, 1982 N.M. LEXIS 2903 (N.M. 1982), overruled, Garcia v. Schneider, Inc., 1986-NMCA-127, 105 N.M. 234, 731 P.2d 377, 1986 N.M. App. LEXIS 690 (N.M. Ct. App. 1986).
Pursuant to former 59-10-19.2, 1953 Comp., an employee who had been determined to be entitled to total and permanent disability benefits was also entitled to vocational rehabilitation services. Trujillo v. Beaty Elec. Co., 1978-NMCA-021, 91 N.M. 533, 577 P.2d 431, 1978 N.M. App. LEXIS 541 (N.M. Ct. App. 1978).
Award reduction.
Given that the test of disability under the Veterans Administration compensation statute, 38 U.S.C.S. § 332, and the awards granted pursuant to 38 U.S.C.S. § 355 were very different from the test under the former workmen’s compensation statute, 59-10-1 to 59-10-31, 1953 Comp. (now 52-1-1 NMSA 1978 et seq.), which related to the workman’s ability to obtain and retain gainful employment considering his age, education, training, general mental and physical capacity, and his adaptability, an award for 100 percent disability under the workmen’s compensation statute should not have been reduced by the pre-industrial accident 60 percent disability awarded by the Veterans Administration for a service-connected disability. Snead v. Adams Constr. Co., 1963-NMSC-075, 72 N.M. 94, 380 P.2d 836, 1963 N.M. LEXIS 1935 (N.M. 1963).
Compensation.
Where an employee suffered a work-related injury but for the next 15 months she was able to and did perform the work that she was doing at the time of the injury as well as work for which she was fitted by her training and experience, the trial court erred in awarding her partial disability for 15 months and total disability thereafter; she did not become disabled until she 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).
Construction.
Although 52-1-41A NMSA 1978 does not specifically make reference to permanent total disability as found in this section, when the provisions of the Workers’ Compensation Act are construed together to produce a harmonious whole, 52-1-41A can be understood to refer only to a permanent total disability under this section. Fowler v. Vista Care, 2013-NMCA-036, 298 P.3d 491, 2012 N.M. App. LEXIS 134 (N.M. Ct. App. 2012), rev'd, 2014-NMSC-019, 329 P.3d 630, 2014 N.M. LEXIS 169 (N.M. 2014).
Under the transient provisions of the Workers’ Compensation Act (52-1-1 NMSA 1978), 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).
Costs.
52-1-25B NMSA 1978 does not authorize the assessment of expert witness fees against a losing worker, even if the witness testifies under subpoena. Mathis v. Trailways Lines, 1990-NMCA-131, 111 N.M. 292, 804 P.2d 1111, 1990 N.M. App. LEXIS 142 (N.M. Ct. App. 1990).
Definitions.
Confining the meaning of “permanent, total disability” to the ability “to do any kind of work” gives them too broad an application. Smith v. Spence & Son Drilling Co., 1956-NMSC-096, 61 N.M. 431, 301 P.2d 723, 1956 N.M. LEXIS 1112 (N.M. 1956).
Disability.
In a workers’ compensation action, a compensation judge’s decision not to award a worker total disability benefits under 52-1-25 NMSA 1978 was proper where total disability benefits were not available for the worker’s scheduled injury because the injury did not meet the requirements of 52-1-25A NMSA 1978. Valdez v. Wal-Mart Stores, 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, 1997 N.M. App. LEXIS 143 (N.M. Ct. App. 1997), cert. denied, 124 N.M. 589, 953 P.2d 1087, 1998 N.M. LEXIS 68 (N.M. 1998).
In a workers’ compensation action where a worker argued that 52-1-25 NMSA 1978 violated equal protection because it arbitrarily denied total disability to workers who were unable to work and granted total disability to those who could work, a compensation judge’s determination that the worker was not entitled to permanent total disability benefits under 52-1-25 NMSA 1978 was proper because 52-1-25 NMSA 1978 was rationally related to a legitimate state purpose and, thus, was constitutional under N.M. Const. art II § 18; 52-1-25 NMSA 1978 neither created suspect or sensitive classifications nor infringed fundamental or important rights. Valdez v. Wal-Mart Stores, 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, 1997 N.M. App. LEXIS 143 (N.M. Ct. App. 1997), cert. denied, 124 N.M. 589, 953 P.2d 1087, 1998 N.M. LEXIS 68 (N.M. 1998).
Under 52-1-25.1B NMSA 1978 a worker was not entitled to temporary total disability benefits because the worker was released back to work prior to the date of maximum medical improvement and the employer offered the worker her pre-injury wage. Villanueva v. Sunday Sch. Bd. of the S. Baptist Convention, 1995-NMCA-135, 121 N.M. 98, 908 P.2d 791, 1995 N.M. App. LEXIS 136 (N.M. Ct. App. 1995).
Reduction in an injured worker’s total disability award under 52-1-24 NMSA 1978 to 55 percent permanent partial disability under 52-1-25 NMSA 1978 after he was elected as a union representative was remanded because the Workers’ Compensation Judge applied an incorrect legal standard. The worker’s job may have been new evidence showing his capacity to perform work, but his employment as a union representative was not a change in his condition, and his capacity to perform work was the same whether or not he obtained a job for which he was fitted. 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).
Where a president of employer’s company fell from a truck, injuring his back and hip, the trial court did not err when it found that there was no causal connection between the employee’s injuries and the aggravation of his preexisting back injury; however, the trial court erred when it failed to award compensation for pain suffered in the hip, and the cause was remanded to consider the alleged disabling pain was suffered, pursuant to 52-1-25 NMSA 1978. Nelson v. Nelson Chem. Corp., 1987-NMCA-024, 105 N.M. 493, 734 P.2d 273, 1987 N.M. App. LEXIS 680 (N.M. Ct. App. 1987).
Impairment of physical function is not enough to justify a workmen’s compensation award for an employee without some disability, or inability to perform work. “Physical impairment” does not automatically equate with “disability;” rather, there must be some proof that the employee’s wage-earning ability has been decreased. Anaya v. New Mexico Steel Erectors, 1980-NMSC-057, 94 N.M. 370, 610 P.2d 1199, 1980 N.M. LEXIS 2684 (N.M. 1980).
Elements.
Duties of a person elected to a job may come within the usage of the word “work” under 52-1-25 NMSA 1978, which defines “partial disability.” 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).
Eligibility.
Workmen’s compensation claimant does not have to be incapacitated from doing any work to qualify for disability benefits because it would promote the undesirable result of discouraging post-injury employment; rather it is sufficient that he is unable to perform any work for which he is fitted to some “percentage extent to perform.” Anaya v. New Mexico Steel Erectors, 1980-NMSC-057, 94 N.M. 370, 610 P.2d 1199, 1980 N.M. LEXIS 2684 (N.M. 1980).
Evidence.
—Generally.
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 by reason of the injury an employee is so disqualified from performing the usual tasks of a workman that they are is unable to procure and retain employment, and are unable to pursue their customary employment or work of the same general character, they are totally incapacitated and entitled to the compensation therefor. Mathews v. New Mexico Light & Power Co., 1942-NMSC-007, 46 N.M. 118, 122 P.2d 410, 1942 N.M. LEXIS 6 (N.M. 1942).
—Insufficient.
Employee’s hernia was a compensable workers’ compensation injury, but the employee was not entitled to total disability benefits because no evidence showed that the employee could not work. Barela v. ABF Freight Sys., 1993-NMCA-137, 116 N.M. 574, 865 P.2d 1218, 1993 N.M. App. LEXIS 126 (N.M. Ct. App. 1993).
The trial court erred in awarding the employee total disability benefits because the uncontradicted evidence showed that there was no total disability, as the employee was performing almost 50 percent of his pre-accident duties and had worked satisfactorily since his return to work. Dodrill v. Albuquerque Utils. Corp., 1985-NMCA-122, 103 N.M. 737, 713 P.2d 7, 1985 N.M. App. LEXIS 615 (N.M. Ct. App. 1985).
—Sufficient.
In a workers’ compensation action, where the trial court’s finding that claimant was disabled as defined under 52-1-25 NMSA 1978, was based on substantial evidence that claimant suffered from ongoing pain and was unable to lift heavy objects, she was properly awarded benefits. Shores v. Charter Servs., 1991-NMSC-078, 112 N.M. 431, 816 P.2d 500, 1991 N.M. LEXIS 333 (N.M. 1991).
Employee did not have to be incapacitated to qualify for disability benefits where evidence showed that he lost partial use of his right arm and hand, that he would always have some amount of pain, and that he would never be able to do the type of heavy construction he did before his accident. Anaya v. New Mexico Steel Erectors, 1980-NMSC-057, 94 N.M. 370, 610 P.2d 1199, 1980 N.M. LEXIS 2684 (N.M. 1980).
Findings.
—Insufficient.
Worker did not prove that he had sustained an anatomic or functional abnormality as determined by a medically or scientifically demonstrable finding as presented in the medical association’s guides; thus he was not entitled to receive permanent partial disability payments. 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).
—Not permanent disability.
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 testimony of an expert plus the fact that the claimant, except for a few days following each operation, had returned to work, was working at the time of trial, and was earning substantially the same amount he was receiving prior to the injury, warranted the finding that the claimant was not totally and permanently disabled. 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).
Liability.
Where there was evidence that a worker’s surgery was planned before the second accident and that the worker’s arm problems pre-existed the second accident, the insurer that covered the first accident was liable for disability compensation, not the insurer that covered the second accident. Rodriguez v. McAnally Enters., 1994-NMCA-025, 117 N.M. 250, 871 P.2d 14, 1994 N.M. App. LEXIS 21 (N.M. Ct. App. 1994).
New employment.
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).
Permanent total disability.
Because an employee’s psychological injuries were directly related to his physical injuries he could not maintain a tort action to recover for those psychological injuries against his employer even though the definition of “permanent total disability” in 52-1-25A NMSA 1978 did not include impairment of function due solely to psychological or emotional conditions, including mental stress. 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).
Pleadings.
No variance between pleading and proof prevented an employee’s recovery of workers’ compensation benefits for a temporary partial disability followed by a permanent total disability when the employee had sought recovery for temporary total disability and permanent partial disability; former 59-10-12.18 and 59-10-12.19, 1953 Comp., established a continuum of disability and not two separate concepts of partial and total disability. Maes v. John C. Cornell, Inc., 1974-NMCA-061, 86 N.M. 393, 524 P.2d 1009, 1974 N.M. App. LEXIS 672 (N.M. Ct. App. 1974).
Preexisting impairment.
Because the claimant’s preexisting impairment and work-related impairment combined to create a disability, the trial court erred by failing to combine the two in determining the claimant’s impairment rating. An employer is liable for the full amount of a worker’s disability that is causally connected to the accidental injury, even if the worker has a preexisting condition that makes the disability more severe than it otherwise would be. 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).
Requirements.
Awarding scheduled injury benefits was correct, when a worker did not demonstrate that she met the requirements for total disability under 52-1-25 NMSA 1978 and substantial evidence supported the judge’s decision. Valdez v. Wal-Mart Stores, 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, 1997 N.M. App. LEXIS 143 (N.M. Ct. App. 1997), cert. denied, 124 N.M. 589, 953 P.2d 1087, 1998 N.M. LEXIS 68 (N.M. 1998).
Award of benefits received under 52-1-43 NMSA 1978 included those for partial disability; thus, where a worker claimed either permanent total disability or permanent partial disability, in addition to other proofs required, the worker had to establish a permanent physical impairment, as required under 52-1-25 NMSA 1978. 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).
Test under this section is a two-part test, turning on a claimant’s capacity to perform the tasks of his usual employment at the time he is injured, and his capacity to perform the tasks of any other work under the statutory terms. Salazar v. Albuquerque Tribune, 1988-NMCA-086, 107 N.M. 674, 763 P.2d 690, 1988 N.M. App. LEXIS 88 (N.M. Ct. App. 1988).
In order to qualify for partial disability benefits, a worker must prove: (1) an inability, to some percentage-extent, to perform the usual tasks of the work he was performing at the time of the injury; and (2) an inability, to some percentage-extent, to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience. This two-pronged test is applicable to proceedings to reduce or terminate disability benefits. Bower v. Western Fleet Maintenance, 1986-NMCA-091, 104 N.M. 731, 726 P.2d 885, 1986 N.M. App. LEXIS 653 (N.M. Ct. App. 1986), superseded by statute as stated in Fernandez v. Espanola Pub. Sch. Dist., 2004-NMCA-068, 135 N.M. 677, 92 P.3d 689, 2004 N.M. App. LEXIS 41 (N.M. Ct. App. 2004).
Retirement.
Even though the employee had planned to retire, she was still entitled to disability benefits, pursuant to 52-1-25A NMSA 1978 because she had not removed herself from the labor market and there was sufficient evidence to support that she was disabled as defined by the statute. Feese v. U.S. West Serv. Link, 1991-NMCA-121, 113 N.M. 92, 823 P.2d 334, 1991 N.M. App. LEXIS 229 (N.M. Ct. App. 1991).
Workers’ compensation.
Where the evidence showed that an employee was deemed totally disabled for the purposes of receiving social security benefits and Public Employees Retirement Act benefits, and that based on the employee’s limitations due to age, lack of education, functional illiteracy, and prior work history he was not qualified to work; the trial court erred in not finding that the employee was totally disabled under 52-1-25A NMSA 1978, but that he was partially disabled under 52-1-26B NMSA 1978. Trujillo v. City of Albuquerque, 1993-NMCA-114, 116 N.M. 640, 866 P.2d 368, 1993 N.M. App. LEXIS 127 (N.M. Ct. App.), cert. denied, 116 N.M. 364, 862 P.2d 1223, 1993 N.M. LEXIS 325 (N.M. 1993).
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), 52-1-24C, and 52-1-25A 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).
Where the amount of a worker’s post-injury potential wage plus partial disability benefits he was awarded totaled 84 percent of his pre-injury wages, the worker was not receiving an amount that was comparable to his pre-injury wages within the meaning of permanent total disability and, in lieu of partial disability benefits, the worker was to receive a total disability benefit. Carpenter v. Arkansas Best Corp., 1991-NMSC-038, 112 N.M. 1, 810 P.2d 1221, 1991 N.M. LEXIS 155 (N.M. 1991).
Former 52-1-24A of the interim Workmen’s Compensation Act (now 52-1-25 NMSA 1978) defined “permanent total disability” as permanent physical impairment arising out of a work-related accident whereby a worker is wholly unable to earn a comparable wage or salary; however, physical impairment does not include impairment of function due solely to psychological or emotional conditions, including mental stress. 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).
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).
Trial court improperly considered an employee’s post-injury breast cancer in determining that the employee suffered a permanent partial disability and that she was unable to work, because the employee, her employer, and the employer’s insurer stipulated and the trial court found that her cancer was not causally related to her employment; under 52-1-28 NMSA 1978, liability for workers’ compensation claims was imposed only when the employee’s disability was a natural and direct result of the accident, and the employee failed to establish a causal connection between her compensable injury and her cancer as required by 52-1-25 NMSA 1978. Clavery v. ZIA Co., 1986-NMCA-056, 104 N.M. 321, 720 P.2d 1262, 1986 N.M. App. LEXIS 615 (N.M. Ct. App. 1986).
Award of workmen’s compensation benefits to a former employee for total permanent disability was affirmed under former 59-10-12.1, 1953 Comp. because the evidence both medical and otherwise was substantial that the employee was unable to continue in his employment even in a limited capacity because by virtue of his injuries in May and August he aggravated an earlier injury, because the employee was totally disabled from doing the only work that he had done for many years and for which he had training and experience, and because his condition progressively deteriorated. Lozano v. Archer, 1962-NMSC-164, 71 N.M. 175, 376 P.2d 963, 1962 N.M. LEXIS 1505 (N.M. 1962).