A. As a guide to the interpretation and application of this section, the policy and intent of this legislature is declared to be that every person who suffers a compensable injury with resulting permanent partial disability should be provided with the opportunity to return to gainful employment as soon as possible with minimal dependence on compensation awards.
B. As used in the Workers’ Compensation Act [52-1-1 NMSA 1978], “partial disability” means a condition whereby a worker, by reason of injury arising out of and in the course of employment, suffers a permanent impairment.
C. Permanent partial disability shall be determined by calculating the worker’s impairment as modified by his age, education and physical capacity, pursuant to Sections 52-1-26.1 through 52-1-26.4 NMSA 1978; provided that, regardless of the actual calculation of impairment as modified by the worker’s age, education and physical capacity, the percentage of disability awarded shall not exceed ninety-nine percent.
D. If, on or after the date of maximum medical improvement, an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his impairment and shall not be subject to the modifications calculated pursuant to Sections 52-1-26.1 through 52-1-26.4 NMSA 1978.
E. In considering a claim for permanent partial 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 52-1-26, enacted by Laws 1987, ch. 235, § 12; 1989, ch. 263, § 18; 1990 (2nd S.S.), ch. 2, § 11.
Notes to Decisions
Appeal.
Discharged worker, who remained unemployed, was entitled to permanent partial disability benefits along with statutory-based modifier benefits because the worker, who continued to be injured and had lifting restrictions, knew of no permanent job at a fast food restaurant, her sole occupation for ten years prior to her injury, and the worker's decision to not seek employment and pursue her education did not mean she was voluntarily unemployed. 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).
—Discretion of trial court.
Trial court did not err in determining that an injured workers’ compensation claim was not compensable under former 59-10-13.3, 1953 Comp.; while there was evidence from which an opposite result was possible, it was for the trial court to weigh the testimony and determine the credibility of the witnesses. Salazar v. Lavaland Heights Block Co., 1965-NMSC-049, 75 N.M. 211, 402 P.2d 948, 1965 N.M. LEXIS 1535 (N.M. 1965).
Applicability.
Workers’ compensation judge erred in denying the worker the modifier portion of her permanent partial disability benefits because the employer made no further job offers to the worker following her surgery, and application of Subsection D of this section was inappropriate. Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085, 308 P.3d 983, 2013 N.M. App. LEXIS 45 (N.M. Ct. App. 2013).
Worker was not entitled to modifier benefits because Subsections C and D of this section are inapplicable to cases involving workers with undocumented, illegal immigration status and because the New Mexico Workers’ Compensation Act does not provide for modifier benefits except under the provisions of those statutory subsections. Gonzalez v. Performance Painting, Inc., 2011-NMCA-025, 150 N.M. 306, 258 P.3d 1098, 2011 N.M. App. LEXIS 6 (N.M. Ct. App. 2011), cert. denied, 150 N.M. 619, 264 P.3d 520, 2011 N.M. LEXIS 118 (N.M. 2011), rev'd, 2013-NMSC-021, 303 P.3d 802, 2013 N.M. LEXIS 171 (N.M. 2013).
Where a worker was injured helping non-employee plumbers install a bathtub, he was injured in the course of employment within the meaning of 52-1-26 NMSA 1978; completion of the plumbers’ work was necessary for the worker to complete his. Urioste v. Sideris, 1988-NMCA-096, 107 N.M. 733, 764 P.2d 504, 1988 N.M. App. LEXIS 91 (N.M. Ct. App. 1988).
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).
In a workmen’s compensation action, even though former 59-10-18.4, 1953 Comp. was exclusive unless there was evidence of a separate and distinct impairment, an employee was entitled to an award for 50 percent partial permanent disability to his body as a whole from a foot injury. Casados v. Montgomery Ward & Co., 1967-NMSC-212, 78 N.M. 392, 432 P.2d 103, 1967 N.M. LEXIS 2811 (N.M. 1967), overruled, American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030, 1977 N.M. LEXIS 1060 (N.M. 1977).
Under former 59-10-13.5, 1953 Comp., workmen’s compensation payments are no longer based upon a physical injury, but upon the disability or decreased earning ability produced by the injury. Salazar v. Lavaland Heights Block Co., 1965-NMSC-049, 75 N.M. 211, 402 P.2d 948, 1965 N.M. LEXIS 1535 (N.M. 1965).
—Burden of proof.
Employee was granted total temporary disability benefits under 52-1-26 NMSA 1978 because the employee met her burden of establishing a causal connection between the disability and a work-related accident as a reasonable medical probability. 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).
Compensation.
Employers may not use an injured worker’s undocumented status as a defense to paying the worker modifier benefits under this section and 52-1-26.1 NMSA 1978 due to a legal inability to rehire the worker if the employers do not demonstrate that the employers complied with the Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. § 3359, when originally hiring the worker because the employers’ negligent or purposeful failure to verify the worker’s eligibility for employment created the problem. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, 2013 N.M. LEXIS 171 (N.M. 2013).
Employers could use an injured worker’s undocumented status as a defense to paying the worker modifier benefits under this section and 52-1-26.1 NMSA 1978 if the employers demonstrated that the employers complied with the Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. § 3359, when originally hiring the worker because the employer could assert a good faith defense to paying such benefits. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, 2013 N.M. LEXIS 171 (N.M. 2013).
Injured worker could not continue to receive modifier benefits after returning to work at the worker’s pre-injury wage because a statutory provision barring such benefits upon a worker’s return to work was no longer contingent on returning to work for the pre-injury employer. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, 2013 N.M. LEXIS 171 (N.M. 2013).
Injured undocumented worker was entitled to modifier benefits because the employer did not show good faith compliance with the Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. § 3359, so knowledge of the worker’s status was imputed to the employer, as the employer could not legitimately offer to rehire the worker. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, 2013 N.M. LEXIS 171 (N.M. 2013).
Under 52-1-26D NMSA 1978, a workers’ compensation claimant who was receiving permanent partial disability benefits was entitled to continue to receive the benefits based on the degree of his impairment during his incarceration but was not entitled to continue to receive benefits based on the statutory modifiers of the worker’s age, education, job skills, and residual physical capacity after injury because the claimant’s incarceration that removed him from the job market was the result of his voluntary conduct in killing his wife, which was unrelated to his injury. Connick v. County of Bernalillo, 1998-NMCA-060, 125 N.M. 119, 957 P.2d 1153, 1998 N.M. App. LEXIS 26 (N.M. Ct. App. 1998).
If a worker returns to work at a wage equal to or greater than the pre-injury wage, the permanent partial disability rating remains at the level of the worker’s impairment rating and is not subject to the statutory modifiers of the worker’s age, education, job skills, and residual physical capacity after injury, no matter what the worker’s age, education, and physical capacity are, and the worker’s benefits are not decreased below the impairment level despite the worker’s gainful employment. Connick v. County of Bernalillo, 1998-NMCA-060, 125 N.M. 119, 957 P.2d 1153, 1998 N.M. App. LEXIS 26 (N.M. Ct. App. 1998).
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).
Where a workman suffers disability as a result of an accidental injury and the employer voluntarily pays compensation benefits and then wrongfully terminates payment thereof, causing the workman to seek relief in the courts, the date that disability is determined in the court proceedings is the date that the applicable rate of compensation applies, not the date of the accidental injury. Purcella v. Navajo Freight Lines, 1980-NMCA-182, 95 N.M. 306, 621 P.2d 523, 1980 N.M. App. LEXIS 997 (N.M. Ct. App. 1980).
Construction with other law.
Under the definition of “partial disability” found in 52-1-26B NMSA 1978, a worker’s education level could not be equated with the term “disability” because education is not an injurious condition arising out of and in the course of employment; therefore, a workers’ compensation judge erred in modifying its prior order under 52-1-56 NMSA 1978 based solely upon the fact that the worker earned a college degree after the issuance of the prior order. Herrera v. Quality Imports, 1999-NMCA-140, 128 N.M. 300, 992 P.2d 313, 1999 N.M. App. LEXIS 118 (N.M. Ct. App. 1999).
Disability.
Worker, who was 44 years old when an accident occurred, was properly granted one age modification point for being 45 years of age when awarded permanent partial disability benefits because the worker was 45 when her disability rating was determined. Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, 120 N.M. 734, 906 P.2d 266, 1995 N.M. App. LEXIS 122 (N.M. Ct. App. 1995).
Employee who suffered a work related injury and was able to return to work to perform his normal duties but was later suspended because he could not perform a “double over” shift was properly found to be 20 percent partially disabled; A workman able to perform his regular assigned work, yet unable to perform the “double over,” is partially disabled to some percentage. Perez v. International Minerals & Chem. Corp., 1981-NMCA-022, 95 N.M. 628, 624 P.2d 1025, 1981 N.M. App. LEXIS 691 (N.M. Ct. App. 1981).
Where an injured claimant returned to work after being permanently disabled for two years, her disability became partial; the fact that the claimant “retrained” herself to become a secretary was commendable, but it did not translate her partial disability into a total disability under former 59-10-12.18, 1953 Comp. Medina v. Wicked Wick Candle Co., 1977-NMCA-118, 91 N.M. 522, 577 P.2d 420, 1977 N.M. App. LEXIS 705 (N.M. Ct. App. 1977).
Former 59-10-12.1, 1953 Comp. as, defines partial disability as a reduction in, but not an entire loss of, a workman’s wage earning ability due to an injury suffered by accident arising out of and in the course of his employment. Winter v. Roberson Constr. Co., 1962-NMSC-076, 70 N.M. 187, 372 P.2d 381, 1962 N.M. LEXIS 1572 (N.M. 1962).
Elements.
Correct legal standard to determine the percentage of partial disability required consideration of the following: the reduction in the spectrum of job opportunities for which the worker was fitted as a result of his injury, the worker’s inability to perform tasks in the present job, and any increase in the worker’s opportunities as a result of post-injury training and experience. 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).
Employee was properly denied permanent partial disability benefits, under former 59-10-12.19, 1953 Comp., after sustaining an injury, which resulted in the loss of a testicle, because impairment was not enough to entitle the employee to compensation; physical disability was required. Pacheco v. Springer Corp., 1972-NMCA-044, 83 N.M. 622, 495 P.2d 800, 1972 N.M. App. LEXIS 766 (N.M. Ct. App. 1972).
Findings.
Where a trial court found the ultimate fact that the employee had a presently existing 20 percent partial permanent disability, this ultimate fact supported the conclusion of law and resultant award of workers’ compensation benefits for a 20 percent partial permanent disability; the trial court’s finding concerning the employee’s ability to perform work for which he was fitted was a finding as to an evidentiary fact and was unnecessary, and the failure to find concerning the employee’s ability to perform the usual tasks of the work performed when he was injured was not a failure to find an ultimate fact. McCleskey v. N. C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, 1969 N.M. App. LEXIS 566 (N.M. Ct. App.), cert. denied, 80 N.M. 317, 454 P.2d 974, 1969 N.M. LEXIS 1740 (N.M. 1969).
Legislative intent.
Purpose of 52-1-26A NMSA 1978 was not to make a worker ineligible to receive disability benefits even though the worker was unable to perform the work; thus, a worker was entitled to total temporary disability benefits even though he was offered work at his pre-injury wage because the evidence showed that the position offered entailed more lifting, standing, climbing, and bending than the pre-injury job. Garcia v. Borden, Inc., 1993-NMCA-047, 115 N.M. 486, 853 P.2d 737, 1993 N.M. App. LEXIS 44 (N.M. Ct. App.), cert. denied, 115 N.M. 409, 852 P.2d 682, 1993 N.M. LEXIS 122 (N.M. 1993).
Liability.
Where there was evidence that a worker’s surgery was planned before the second accident and that the worker’s arm problems preexisted 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).
Maximum improvement.
Claimant failed to meet her burden of proving that she had not reached maximum medical improvement and therefore, she was not entitled to temporary total disability benefits under 52-1-26 and 52-1-27 NMSA 1978. The fact that a medical expert testified that her back ailment might benefit from further treatment did not suffice to establish that the claimant had not reached maximum medical improvement, as the treatment would only produce symptomatic relief. 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).
Partial disability.
Worker was entitled to total temporary disability benefits for her secondary mental impairment because 52-1-41 NMSA 1978 did not impose a maximum cap on temporary total disability benefits for a secondary mental impairment so long as there were continuing benefits awarded for the underlying physical impairment; the court further held that the ability to perform work was not relevant in the statutory definition of the meaning of partial disability under 52-1-26B NMSA 1978. 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).
Worker who was primarily a welder but had been working as a machine operator when he was injured was still held partially disabled even though he was still able to do light welding; for a worker to be partially disabled, there must be: (1) an inability, to some percentage-extent, to perform the usual work the worker was performing when injured; and (2) and inability, to some percentage-extent, to perform any work for which he is fitted. Eberline Instrument Corp. v. Felix, 103 N.M. 422, 708 P.2d 334, 1985 N.M. App. LEXIS 535 (N.M. Ct. App. 1985).
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. Impairment rating is critical to the determination of the degree of permanent partial disability because it may become either the degree of partial disability or may serve as the base value subject to modification as provided by statute. 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.
Section 52-1-26 NMSA 1978 of the Interim Act, transient provisions of the New Mexico Workmen’s Compensation Act, in defining “temporary total disability,” refers to the duties incidental to the work the worker was performing when injured. Cass v. Timberman Corp., 1990-NMCA-061, 110 N.M. 158, 793 P.2d 288, 1990 N.M. App. LEXIS 107 (N.M. Ct. App.), rev'd, in part, 1990-NMSC-112, 111 N.M. 184, 803 P.2d 669, 1990 N.M. LEXIS 407 (N.M. 1990).
Employee who was injured while working as a carpenter was entitled to an award for temporary total disability under 52-1-26 NMSA 1978 of the Interim Act, transient provisions of the New Mexico Workmen’s Compensation Act, when his injury prevented him from performing his duties as a carpenter, even if he was able to perform other work. Cass v. Timberman Corp., 1990-NMCA-061, 110 N.M. 158, 793 P.2d 288, 1990 N.M. App. LEXIS 107 (N.M. Ct. App.), rev'd, in part, 1990-NMSC-112, 111 N.M. 184, 803 P.2d 669, 1990 N.M. LEXIS 407 (N.M. 1990).
Time limitations.
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).
Total disability.
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).
Voluntary unemployment.
Workers cannot intentionally evade the provisions of 52-1-26D NMSA 1978 by voluntary unemployment or underemployment. Connick v. County of Bernalillo, 1998-NMCA-060, 125 N.M. 119, 957 P.2d 1153, 1998 N.M. App. LEXIS 26 (N.M. Ct. App. 1998).
Where an employee’s inability to return to work resulted from his having murdered his wife, he voluntarily took himself out of the labor market; therefore, the employee was able to continue receiving that portion of benefits attributed to his physical impairment, but he could not benefit from the application of statutory modifiers pursuant to 52-1-26D NMSA 1978. Connick v. County of Bernalillo, 1998-NMCA-060, 125 N.M. 119, 957 P.2d 1153, 1998 N.M. App. LEXIS 26 (N.M. Ct. App. 1998).
The definition of permanent partial disability under 52-1-26C NMSA 1978 depends on whether the worker is earning more or less than the pre-injury wage at the time she or he reaches maximum medical improvement; if the worker is earning less, permanent partial disability is calculated as a percentage based on impairment, as well as a number of factors relating to the worker’s ability to perform. Fuentes v. Santa Fe Pub. Sch., 1995-NMCA-050, 119 N.M. 814, 896 P.2d 494, 1995 N.M. App. LEXIS 51 (N.M. Ct. App. 1995).
Wage earning ability.
Substantial evidence was found to support the dismissal of an employee’s claim for workmen’s compensation because, based on the fact that a doctor testified that he thought the employee had the back condition all of his life, that there were considerable arthritic changes around it, that there was no evidence of a traumatic episode that caused the disability as alleged, and because in his opinion the unloading of cement blocks did not aggravate the employee’s back condition as alleged, the employee failed to prove the causal connection as a medical probability by expert medical testimony as required by former 59-10-13.3, 1953 Comp. (now 52-1-28 NMSA 1978); moreover, the employee failed to establish that his wage-earning ability had been decreased as a result of the alleged accidental injury as required by former 59-10-12.18, 1953 Comp. (now 52-1-15 NMSA 1978) and former 59-10-12.19, 1953 Comp. (now 52-1-26 NMSA 1978). Gallegos v. Kennedy, 1968-NMSC-170, 79 N.M. 590, 446 P.2d 642, 1968 N.M. LEXIS 2016 (N.M. 1968).
Workers’ compensation.
Under this section and case law, the worker was entitled to modifier-based permanent partial disability (PPD) benefits, and while the worker chose to retire, he did not choose to get injured, nor did he choose when he would get injured; these circumstances comported with the Legislature’s intent for utilizing a modifier-based calculation of PPD disability, and the employer would not be required to pay modifier-based PPD benefits if the worker was able to secure employment with a non-union employer at his pre-injury wage. Cordova v. KSL-Union, 2012-NMCA-083, 285 P.3d 686, 2012 N.M. App. LEXIS 45 (N.M. Ct. App.), cert. denied, 295 P.3d 599, 2012 N.M. LEXIS 280 (N.M. 2012).
Award of compensation for an employee’s partial permanent disability, in the amount of 47 percent of $30 per week payable over the 12 weeks’ healing period for which the employee already had been paid maximum compensation of $30 per week, was erroneous because the employee should not have been paid twice for the same period. Reck v. Robert E. McKee Gen. Contractors, 1955-NMSC-074, 59 N.M. 492, 287 P.2d 61, 1955 N.M. LEXIS 1055 (N.M. 1955).
Because it was for the jury to determine whether to award an employee for bodily injury beyond that accruing to his left knee, which resulted from a work-related accident, the jury’s award of permanent partial disability that extended beyond the employee’s leg to his other bodily functions and thus, beyond the scheduled awards for the loss of a leg above the knee and below the knee, was not overturned on appeal. Reck v. Robert E. McKee Gen. Contractors, 1955-NMSC-074, 59 N.M. 492, 287 P.2d 61, 1955 N.M. LEXIS 1055 (N.M. 1955).
Research References and Practice Aids
Cross references.
Partial disability determination; calculation of modifications, 52-1-26.1 NMSA 1978.
New Mexico Law Review.
Comment: A Comparison Of Workers’ Compensation In The United States And Mexico, Renee L. Camacho, 26 N.M. L. Rev. 133 (1996).