52-1-25.1.  Temporary total disability; return to work.

Amendment Notes. 

The 2005 amendment, effective July 1, 2005, made minor stylistic changes in Subsection A; in Subsection B, substituted the language beginning “the worker is not entitled” for “and the employer offers work at the worker’s pre-injury wage, the worker is not entitled to temporary total disability benefits”; and substituted “two-thirds of the difference” for “sixty-six and two-thirds percent of the difference”.

Notes to Decisions

      Generally.

Worker who returned to work in a light duty job at her pre-injury wage but was later terminated for cause prior to reaching maximum medical improvement was entitled to full temporary total disability (TTD) benefits under the Workers' Compensation Act (Act) because terminating TTD benefits based on the worker's reason for termination thwarted the Act's purpose and operation. Hawkins v. McDonald's & Food Indus. Self Ins. Fund of N.M., 2014-NMCA-048, 323 P.3d 932, 2013 N.M. App. LEXIS 135 (N.M. Ct. App. 2013), cert. denied, 322 P.3d 1062, 2014 N.M. LEXIS 50 (N.M. 2014).

      Appeal.

      Applicability.

Worker was entitled to temporary total disability benefits throughout her recovery where evidence established that the doctor’s release was premature and the worker was in fact unable to return to work. Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085, 308 P.3d 983, 2013 N.M. App. LEXIS 45 (N.M. Ct. App. 2013).

2005 version of this section did not apply to a workers’ compensation case where the worker’s injury occurred in 2004 and case law required that the law in effect at the time of injury applied. Moya v. City of Albuquerque, 2007-NMCA-057, 141 N.M. 617, 159 P.3d 266, 2007 N.M. App. LEXIS 29 (N.M. Ct. App.), rev'd, 2008-NMSC-004, 143 N.M. 258, 175 P.3d 926, 2007 N.M. LEXIS 693 (N.M. 2007).

An employer cannot have failed or refused to pay compensation before the injured workman is disabled to some extent from performing the usual tasks in the work he was performing at the time of his injury and is unable to some extent to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience; where the employee continued to work despite pain, he was not disabled. Gomez v. Hausman Corp., 1971-NMCA-173, 83 N.M. 400, 492 P.2d 1263, 1971 N.M. App. LEXIS 781 (N.M. Ct. App. 1971), cert. denied, 83 N.M. 395, 492 P.2d 1258, 1972 N.M. LEXIS 944 (N.M. 1972).

While a worker is not limited to compensation under the scheduled injury section of New Mexico’s Workmen’s Compensation Law, where there is evidence of separate and distinct impairment to other parts of the body, such impairment would have to be a disability in order to be compensable. Willcox v. United Nuclear Homestake Sapin Co., 1971-NMCA-126, 83 N.M. 73, 488 P.2d 123, 1971 N.M. App. LEXIS 820 (N.M. Ct. App. 1971).

      Credit.

When an employer had already made disability payments to an injured worker, the employer was allowed credit against temporary total disability benefits, on a week-to-week basis. Gurule v. Dicaperl Minerals Corp., 2006-NMCA-054, 139 N.M. 521, 134 P.3d 808, 2006 N.M. App. LEXIS 27 (N.M. Ct. App. 2006).

      Disability.

Given the definition of temporary total disability in this section, a workers’ compensation claimant became disabled when he could no longer perform his employment duties. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320, 2005 N.M. LEXIS 292 (N.M. 2005).

Finding of “no longer disabled” alerted a reviewing court to the standard used to measure an employee’s disability which was the capacity to perform work. A finding that a plaintiff is no longer disabled is the finding of an ultimate fact and means that plaintiff has the capacity to perform work in the sense that she was wholly able to perform the usual tasks in the work she was performing at the time of her injury, and is wholly able to perform any work for which she is fitted by age, education, training, general physical and mental capacity and previous work experience. Klindera v. Worley Mills, 1981-NMCA-104, 96 N.M. 743, 634 P.2d 1295, 1981 N.M. App. LEXIS 770 (N.M. Ct. App. 1981).

Although the doctor stated that the employee was 20 percent disabled, the employee was entitled to 100 percent bodily impairment because he was unable to perform any task he was doing at the time of the injury and any of the task he was qualified for. Quintana v. Trotz Constr. Co., 1968-NMSC-037, 79 N.M. 109, 440 P.2d 301, 1968 N.M. LEXIS 1893 (N.M. 1968).

      Employees.

Where an employee’s injury resulted in the loss of a leg, the trial court properly awarded workmen’s compensation benefits for both temporary total and permanent partial disabilities in accordance with former § 57-919, 1941 Comp. Scofield v. Lordsburg Mun. Sch. Dist., 1949-NMSC-027, 53 N.M. 249, 205 P.2d 834, 1949 N.M. LEXIS 685 (N.M. 1949).

      Employer.

      Evidence.

           —Insufficient.

Where a worker was released to work, the employer offered the worker a job at less than the worker’s earlier wage, and the worker was subsequently fired for reasons unrelated to his disability, the worker was not entitled to the full benefits for temporary total disability. Lackey v. Darrell Julian Constr., 1998-NMCA-121, 125 N.M. 592, 964 P.2d 153, 1998 N.M. App. LEXIS 104 (N.M. Ct. App. 1998).

Trial court’s finding of the duration of temporary total disability was improper because there was evidence that a worker was in need of job training and that the worker did not receive the necessary job training prior to her knee surgery; the worker had not attained maximum medical improvement where the worker underwent knee surgery and was in rehabilitation. The court noted that although a worker could attain maximum medical improvement prior to her knee surgery, the evidence was clear that the worker needed job training which she did not receive at the time of her surgery. Toynbee v. Mimbres Memorial Nursing Home, 1992-NMCA-057, 114 N.M. 23, 833 P.2d 1204, 1992 N.M. App. LEXIS 48 (N.M. Ct. App. 1992).

Workers’ compensation division’s hearing officer erred in granting judgment to a claimant for temporary total disability benefits under the New Mexico Workers’ Compensation Act because her injury had not yet reached maximum medical improvement, where medication that she was taking was to treat symptoms and not to effect a lasting improvement to her injury, and a physician’s testimony suggested that the claimant’s underlying condition was permanent and any treatment would be symptomatic and not curative, but never stated that he would expect further recovery from or lasting improvement to the claimant’s injury. Baca v. Bueno Foods, 1988-NMCA-112, 108 N.M. 98, 766 P.2d 1332, 1988 N.M. App. LEXIS 110 (N.M. Ct. App. 1988).

Evidence did not support a finding that an employee was temporarily totally disabled for only 18 months; however, the trial court was required on remand to determine if the employee’s healing period was prolonged by his failure to exercise his knee properly and, if so, whether the employee’s failure to do so was arbitrary or unreasonable. Rhodes v. Cottle Constr. Co., 1960-NMSC-130, 68 N.M. 18, 357 P.2d 672, 1960 N.M. LEXIS 1246 (N.M. 1960), superseded by statute as stated in Quintana v. Trotz Constr. Co., 79 N.M. 109, 440 P.2d 301, 1968 N.M. LEXIS 1929 (N.M. 1968).

           —Sufficient.

Evidence was sufficient to support the ruling that an employee was totally disabled, pursuant to former 59-10-12.18, 1953 Comp. where he was unable to return to his former employment because his usual tasks involved lifting and pulling heaving objects, which his doctor indicated that he was unable to do. Gallegos v. Duke City Lumber Co., 1975-NMCA-039, 87 N.M. 404, 534 P.2d 1116, 1975 N.M. App. LEXIS 638 (N.M. Ct. App. 1975).

      Job training.

Where the evidence showed that a worker needed job training after injuring her knee, such training became mandatory and the worker could not be denied continued temporary disability benefits until that job training was given. Toynbee v. Mimbres Memorial Nursing Home, 1992-NMCA-057, 114 N.M. 23, 833 P.2d 1204, 1992 N.M. App. LEXIS 48 (N.M. Ct. App. 1992).

      Legislative intent.

      Payments.

Temporary total disability benefits can be paid at a reduced rate, or in full, depending on a worker’s employment status. Gurule v. Dicaperl Minerals Corp., 2006-NMCA-054, 139 N.M. 521, 134 P.3d 808, 2006 N.M. App. LEXIS 27 (N.M. Ct. App. 2006).

      Termination.

Termination of temporary total disability is more dependent upon the ability to work rather than abstract notions about maximum recovery. Easterling v. Woodward Lumber Co., 1991-NMCA-036, 112 N.M. 32, 810 P.2d 1252, 1991 N.M. App. LEXIS 140 (N.M. Ct. App. 1991).

      Workers’ compensation.

Under 52-1-20A NMSA 1978 and Subsection A of this section, the employee was entitled to full temporary total disability benefits (TTD) in the amount of his average weekly wage; under Subsection C of this section, the employee was entitled to reduced TTD benefits in the amount of two-thirds the difference between his pre-injury average weekly wage and his post-injury wage until he reached maximum medical improvement. Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070, 2010 N.M. App. LEXIS 151 (N.M. Ct. App. 2010).

Research References and Practice Aids

      Cross references.