A. The range of the physical capacity modification is one to eight.
B. The award of points to a worker shall be based upon the difference between the physical capacity necessary to perform the worker’s usual and customary work and the worker’s residual physical capacity. The award of points shall be based upon the following table:RESIDUAL PHYSICAL CAPACITY
S L M H PRE-INJURY S 1 1 1 1 PHYSICAL CAPACITY L 3 1 1 1 (USUAL AND M 5 3 1 1 CUSTOMARY WORK) H 8 5 3 1.
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C. For the purposes of this section:
(1) “H” or “heavy” means the ability to lift over fifty pounds occasionally or up to fifty pounds frequently;
(2) “M” or “medium” means the ability to lift up to fifty pounds occasionally or up to twenty-five pounds frequently;
(3) “L” or “light” means the ability to lift up to twenty pounds occasionally or up to ten pounds frequently. Even though the weight lifted may be only a negligible amount, a job is in this category when it requires walking or standing to a significant degree or when it involves sitting most of the time with a degree of pushing and pulling of arm or leg controls or both; and
(4) “S” or “sedentary” means the ability to lift up to ten pounds occasionally or up to five pounds frequently. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required only occasionally and other sedentary criteria are met.
D. The determination of a worker’s residual physical capacity shall be made by a health care provider defined in Subsection C, E or G of Section 52-4-1 NMSA 1978. If the worker or employer disagrees on who shall make this determination, the dispute shall be resolved in accordance with the provisions set forth in Section 52-1-51 NMSA 1978.
HISTORY:
1978 52-1-26.4, enacted by Laws 1990 (2nd S.S.), ch. 2, § 15; 2003, ch. 265, § 2.
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).
In a workers’ compensation proceeding, the workers’ compensation judge (WCJ) did not err in considering the worker’s employment history as a motel maid and dishwasher in classifying the worker’s usual and customary work rather than considering only the worker’s employment as an agricultural sort, which was the employment she held during the three years before the accident. No time frame was set forth in 52-1-26.4 NMSA 1978, and it was the WCJ’s prerogative, as fact finder, to consider, within reason and practicality, the worker’s entire work history and experience in order to determine what was her worker’s “usual and customary” work. 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).
Finding of the trial court in a workers’ compensation case that the injury claimant did not suffer a loss in earning capacity should not have been determinative on the issue of disability; the uncontradicted, competent evidence of the injury claimant’s inability to function at occupations requiring driving, reading, writing, bending or quick movements efforts cannot be ignored, because it was medically shown that the injury claimant was unable, at least to some percentage-extent to perform the usual tasks in the work the injury claimant was performing at the time of the injury and was unable to some percentage-extent to perform any work for which the claimant was fitted by age, education, training, general physical and mental capacity and previous work experience. 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).
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.
In determining the amount of an award of permanent partial disability benefits, the workers’ compensation judge properly awarded four points for the injured worker’s residual physical capacity where there was evidence from which the judge could conclude that his job as a carpenter required an exertion level that was heavy rather than medium, and it was undisputed that his farm work was heavy, and where the greatest residual physical capacity that any physician assigned to the worker was a medium level. 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).
Burden of proof.
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 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).
Capacity determination.
Workers’ compensation judge did not err in finding that the worker’s residual physical capacity was light duty; the independent medical examiners also agreed that the worker’s abilities were consistent with a light duty designation. Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085, 308 P.3d 983, 2013 N.M. App. LEXIS 45 (N.M. Ct. App. 2013).
Workers’ compensation judge’s determination that a correctional officer’s job required only “medium” physical capacity was incorrect. According to the job description, the worker could have been required to lift more than 50 pounds 1 percent to 10 percent of the time and on an emergency basis when carrying injured or unconscious persons; regardless of how rarely that might have occurred, the capacity to lift more than 50 pounds was never contemplated by the statutory classification of “medium” physical capacity. Moya v. City of Albuquerque, 2008-NMSC-004, 143 N.M. 258, 175 P.3d 926, 2007 N.M. LEXIS 693 (N.M. 2007).
Disability.
Workers’ compensation judge erred in modifying a prior workers’ compensation 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 education level in the definition of “disability” under 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).
Conclusion that an injured employee had sedentary residual physical capacity pursuant to 52-1-26.4C(4) NMSA 1978 was found to have been properly based on a workers’ compensation judge’s determination that the employee could not walk or stand to a significant degree where (1) the workers’ compensation judge considered a doctor’s testimony in conjunction with employee’s testimony in arriving at his decision, (2) where 52-1-26.4D NMSA 1978 did not require that a worker’s residual physical capacity had to be determined solely by a health care provider, and (3) where, based on both the testimony of a doctor and the employee, the trial judge could have reasonably concluded that the employee, who was unable to walk or stand to a significant degree, did not fall within the light residual physical capacity category under 52-1-26.4C(3) NMSA 1978. Slygh v. RMCI, Inc., 1995-NMCA-081, 120 N.M. 358, 901 P.2d 776, 1995 N.M. App. LEXIS 78 (N.M. Ct. App. 1995).
Evidence.
—Insufficient.
Where no doctor who examined or treated a claimant would say that, as a medical probability, the claimant was worse off at the time of trial than he was prior to a work-related accident, and one of them testified that there was no way to tell, the claimant did not show a disability as required by former 59-10-13.3B, 1953 Comp. Brannon v. Well Units, 1970-NMCA-130, 82 N.M. 253, 479 P.2d 533, 1970 N.M. App. LEXIS 663 (N.M. Ct. App. 1970).
Expert.
Evidence must be presented by a qualified health care provider on the issue of a worker’s residual physical capacity, but the judge is free to consider this evidence in the same manner, and to the same degree, as any other expert testimony presented. Slygh v. RMCI, Inc., 1995-NMCA-081, 120 N.M. 358, 901 P.2d 776, 1995 N.M. App. LEXIS 78 (N.M. Ct. App. 1995).
Lump-sum award.
Widow was not entitled to a lump-sum workmen’s compensation award under former 59-10-25B, 1953 Comp. (now 52-1-8 NMSA 1978), where her short-term financial interest in investing the money did not comport with the purposes of the compensation statutes; although former 59-10-13.5B, 1953 Comp. (now 52-1-26.4 NMSA 1978) authorized the widow to petition for the lump-sum award, the lump-sum award was not authorized where it was not in the widow’s best interest. Arther v. Western Co. of N. Am., 1975-NMCA-082, 88 N.M. 157, 538 P.2d 799, 1975 N.M. App. LEXIS 685 (N.M. Ct. App.), cert. denied, 88 N.M. 318, 540 P.2d 248, 1975 N.M. LEXIS 890 (N.M. 1975).
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. 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).
Stipulation.
A trial court erred in finding that the physical capacity of an employee’s job for purposes of receiving disability benefits was “medium”, after the parties had stipulated that it was “heavy” under 52-1-26.4 NMSA 1978, where there was no notice and opportunity given the employee to challenge the nonuse of the parties’ stipulation or to allow the employee to introduce evidence to support the stipulation. 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).
Time limitations.
Because a “disability” is a decreased earning ability caused by an injury, under former 59-10-13.5, 1953 Comp., a worker may not recover disability benefits for any period during which his earning ability is as much as before an injury; further, the statute of limitations on a claim does not commence to run until the wage earning ability of a worker has been decreased as a result of an accidental 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).
Research References and Practice Aids
Cross references.
Partial disability determination; calculation of modifications, 52-1-26.1 NMSA 1978.