A. The range of the education modification is one to eight. The modification shall be based upon the worker’s formal education, skills and training at the time of the disability rating.
B. A worker shall be awarded points based on the formal education that the worker has received. A worker who:
(1) has completed no higher than the fifth grade shall be awarded three points;
(2) has completed the sixth grade but has completed no higher than the eleventh grade shall be awarded two points;
(3) has completed the twelfth grade or has obtained a high school equivalency credential but has not completed a college degree shall be awarded one point; and
(4) has completed a college degree or more shall receive zero points.
C. A worker shall be awarded points based upon the worker’s skills. Skills shall be measured by reviewing the jobs that the worker has successfully performed during the ten years preceding the date of disability determination. For the purposes of this section, “successfully performed” means having remained on the job the length of time necessary to meet the specific vocational preparation (SVP) time requirement for that job as established in the dictionary of occupational titles published by the United States department of labor. The appropriate award of points shall be based upon the highest SVP level demonstrated by the worker in the performance of the jobs that the worker has successfully performed in the ten-year period preceding the date of disability determination, as follows:
(1) a worker with an SVP of one to two shall be awarded four points;
(2) a worker with an SVP of three to four shall be awarded three points;
(3) a worker with an SVP of five to six shall be awarded two points; and
(4) a worker with an SVP of seven to nine shall be awarded one point.
D. A worker shall be awarded points based upon the training that the worker has received. A worker who cannot competently perform a specific vocational pursuit shall be awarded one point. A worker who can perform a specific vocational pursuit shall not receive any points.
E. The sum of the points awarded the worker in Subsections B, C and D of this section shall constitute the education modification.
HISTORY:
1978 52-1-26.3, enacted by Laws 1990 (2nd S.S.), ch. 2, § 14; 2001, ch. 87, § 3; 2015, ch. 122, § 20.
Amendment Notes.
The 2015 amendment , effective July 1, 2015, substituted “that the worker has received” for “he has received” in the first sentence of the introductory language of B; substituted “high school equivalency credential” for “GED certificate” in B(3); in the introductory paragraph of C, substituted “the worker’s skills” for “his skills” in the first sentence, “that the worker has” for “he has” in the second sentence, and “jobs that the worker has” for “jobs he has” in the last sentence; and substituted “that the worker has received” for “he has received” at the end of the first sentence of D.
Notes to Decisions
Generally.
Workers’ compensation judge improperly denied worker a workers’ compensation award of one point for inability to perform a specific vocational pursuit because the worker was not able to meet all the lifting requirements for each prior level. Medina v. Berg Constr., 1996-NMCA-087, 122 N.M. 350, 924 P.2d 1362, 1996 N.M. App. LEXIS 74 (N.M. Ct. App. 1996).
Construction.
Workers’ compensation judge erred in modifying a prior order based solely upon the fact that the worker obtained his college degree after the initial order; the legislature was presumed to have known that the court had defined “disability” as being a physical condition, and it chose to not include the education level in the definition of “disability” as that term is used in 52-1-56 NMSA 1978. 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).
Construction with other law.
Under the definition of “partial disability” found in 52-1-26B NMSA 1978, the workers’ compensation judge erred in modifying its prior order based solely upon the fact that the worker earned a college degree after the issuance of the prior order; 52-1-26.3 NMSA 1978 requires that the education modifier be based on conditions at the time of the original award. 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).
Discretion.
In awarding an injured worker permanent partial disability benefits, the workers' compensation judge properly determined that the worker was entitled to a vocational pursuit point under 52-1-26.3D NMSA 1978 where there was evidence that he could no longer perform heavy work and his previous occupations as a carpenter and a farm worker involved heavy labor. Rodriguez v. La Mesilla Constr. Co., 1997-NMCA-062, 123 N.M. 489, 943 P.2d 136, 1997 N.M. App. LEXIS 51 (N.M. Ct. App. 1997).
In awarding an injured worker permanent partial disability benefits, the workers' compensation judge properly determined the worker's skill points under 52-1-26.3C NMSA 1978 by basing it on the highest specific vocation preparation level demonstrated by the worker in the jobs that he had performed for at least two years in the relevant 10-year period. Rodriguez v. La Mesilla Constr. Co., 1997-NMCA-062, 123 N.M. 489, 943 P.2d 136, 1997 N.M. App. LEXIS 51 (N.M. Ct. App. 1997).
Judicial estoppel.
For purposes of determining a worker’s skills points under 52-1-26.3 NMSA 1978, the doctrine of judicial estoppel was not applicable, where it did not appear that (1) the worker had previously assumed the position which employer asserted that the worker had; or (2) the employer was prejudiced in any way by the worker’s supposed change of position. Rodriguez v. La Mesilla Constr. Co., 1997-NMCA-062, 123 N.M. 489, 943 P.2d 136, 1997 N.M. App. LEXIS 51 (N.M. Ct. App. 1997).
Research References and Practice Aids
Cross references.
Partial disability determination; calculation of modifications, 52-1-26.1 NMSA 1978.