Compensation shall be paid by the employer to the worker in installments. The first installment shall be paid not later than fourteen days after the worker has missed seven days of lost time from work, whether or not the days are consecutive. Remaining installments shall be paid twice a month at intervals not more than sixteen days apart in sums as nearly equal as possible, except as provided in Section 52-5-12 NMSA 1978.
HISTORY:
1978 52-1-30, enacted by Laws 1987, ch. 235, § 14; 1993, ch. 193, § 3; 2003, ch. 259, § 4.
Notes to Decisions
Generally.
Former provision in subsection B of this section provided for lump-sum awards when such an award would aid in claimant’s rehabilitation; the word “rehabilitation” is defined, in the sense used in the statute, as the restoration of one’s health and efficiency. Lane v. Levi Strauss & Co., 1979-NMCA-012, 92 N.M. 504, 590 P.2d 652, 1979 N.M. App. LEXIS 795 (N.M. Ct. App. 1979).
Under former 52-1-30B NMSA 1978, the claimant was not awarded a lump-sum award for her permanent, total disability because the award was not in her best interests where the award would be quickly exhausted due to the claimant’s mounting debts and loans, leaving the claimant to the welfare rolls for relief. Lane v. Levi Strauss & Co., 1979-NMCA-012, 92 N.M. 504, 590 P.2d 652, 1979 N.M. App. LEXIS 795 (N.M. Ct. App. 1979).
On appeal from an order in a workmen’s compensation case increasing the term of disability for a claimant, the trial court was held to be justified in extending the term to the full statutory period where, in light of former 59-10-25, 1953 Comp., the original finding that the claimant’s disability would continue for a period of 250 weeks was mere surplusage, where the claimant’s doctor testified by affidavit that the disability would continue indefinitely, and where, thus, there was proof of permanency of the injury. Churchill v. Albuquerque, 1959-NMSC-101, 66 N.M. 325, 347 P.2d 752, 1959 N.M. LEXIS 987 (N.M. 1959).
Where an employee returned to work after an injury and was later discharged, he was not entitled to compensation for the period during which he had worked until the next semi-monthly payment after his discharge was due, and a claim prior to that was untimely because it was not the result of the employer’s failure or refusal to pay. Spieker v. Skelly Oil Co., 1954-NMSC-095, 58 N.M. 674, 274 P.2d 625, 1954 N.M. LEXIS 1178 (N.M. 1954).
Applicability.
Premature filing section of the Workers’ Compensation Act, specifically 52-1-69 NMSA 1978, does not apply to dependents, as that term is defined in 52-1-17 NMSA 1978, but expressly applies to a worker, as that term is defined in 52-1-16 NMSA 1978, and 52-1-31 NMSA 1978 provides additional evidence that the Act distinguishes between workers and dependents. Pursuant to 52-1-30B NMSA 1978, the worker’s entitlement to future compensation payments is contingent upon the totality and permanency of his disability, and 52-1-69 NMSA 1978 bars him from making a claim for compensation benefits he is already receiving. Zamora v. CDK Contracting Co., 1987-NMCA-093, 106 N.M. 309, 742 P.2d 521, 1987 N.M. App. LEXIS 764 (N.M. Ct. App.), cert. quashed, 106 N.M. 353, 742 P.2d 1058, 1987 N.M. LEXIS 3711 (N.M. 1987).
Burden of proof.
Authorization for lump-sum awards was found under prior law, 52-1-30B NMSA 1978; claimant had the burden of showing that a lump-sum award was in her best interests, and that failure to award a lump-sum created a manifest hardship where such relief was essential to protect the claimant and her family from want or privation, to facilitate the production of income for the claimant, or to help claimant in a rehabilitation program. Boughton v. Western Nuclear, 1983-NMCA-052, 99 N.M. 723, 663 P.2d 382, 1983 N.M. App. LEXIS 708 (N.M. Ct. App. 1983).
Construction with other law.
Sections 52-1-30 NMSA 1978 and 52-1-31A NMSA 1978 are to be added together to compute the maximum period of time in which to file a claim for workers’ compensation benefits; this construction is consistent with the liberal interpretation to be given the remedial provisions of the workers’ compensation statutes. Cole v. J.A. Drake Well Serv., 1987-NMCA-132, 106 N.M. 484, 745 P.2d 392, 1987 N.M. App. LEXIS 818 (N.M. Ct. App. 1987).
District court was without jurisdiction to award an employee workmen’s compensation benefits for an accidental injury under the Workmen’s Compensation Act; employer was not required to make a payment to employee within seven days of employee’s injury under former 59-10-13 and 59-10-19, 1953 Comp., and employer made installment payments within 16 days of the injury and within 16 days of each other payment at all times prior to employee’s filing his action as required by former 59-10-13, 59-10-18, and 59-10-19, 1953 Comp., and thus was not in default. Fresquez v. Farnsworth & Chambers Co., 1955-NMSC-112, 60 N.M. 384, 291 P.2d 1102, 1955 N.M. LEXIS 1104 (N.M. 1955).
Definitions.
Phrase “failure or refusal” of any employer to pay any workman entitled thereto any installment of the compensation to which such workman may be entitled, as used in former 57-913, 1941 Comp., means that the employer or its insurer must continue to make compensation payments at regular intervals of not more than 16 days apart, as required by former 57-918, 1941 Comp., and if they fail or refuse so to do, whether intentionally or inadvertently, when the installment becomes due and payable, then the worker may file a claim as provided for in the New Mexico Workmen’s Compensation Act and not before. State ex rel. Mountain States Mut. Casualty Co. v. Swope, 1954-NMSC-082, 58 N.M. 553, 273 P.2d 750, 1954 N.M. LEXIS 1164 (N.M. 1954).
Error.
In a workmen’s compensation action by an employee’s widow and children seeking a lump-sum payment for the remainder of death benefits, the trial court abused its discretion in finding, pursuant to 52-1-30B NMSA 1978, that it was in the best interest of the minor children to award a lump-sum payment in order to generate maximum income on the investment; while the widow and children had the burden of showing that granting the award would serve their best interests and that failure to award a lump-sum would create a manifest hardship because relief was essential to facilitate the production of income for them, the term “facilitate the production of income” did not mean maximizing return on investment; furthermore, a recipient’s best interests generally will be served by the payment of compensation in regular periodic payments, and a lump-sum award is the exception rather than the rule. Merrifield v. Auto-Chlor Sys., 1983-NMCA-098, 100 N.M. 263, 669 P.2d 739, 1983 N.M. App. LEXIS 769 (N.M. Ct. App. 1983).
Judgment.
Because the general scheme of the Workers’ Compensation Act, 52-1-1 to 52-1-69 NMSA 1978, is to provide for periodic payments to a worker in lieu of earnings, and particularly where lump-sum payments are the exception under 52-1-30B NMSA 1978, a credit to the employer or insurer for a prejudgment overpayment of benefits to an employee, at least where the overpayment does not equal or exceed the judgment, should be applied so as not to terminate an employee’s continued benefits, but rather to reduce them pro rata. Paternoster v. La Cuesta Cabinets, 1984-NMCA-097, 101 N.M. 773, 689 P.2d 289, 1984 N.M. App. LEXIS 706 (N.M. Ct. App. 1984).
In a workmen’s compensation case, the trial court properly determined that it was in the best interests of the widow of a deceased worker to receive a lump-sum payment of benefits under 52-1-30B NMSA 1978 where the widow intended to use the lump-sum payment to purchase or build a larger home for herself, her three teen-age boys, a daughter, and a grandchild, where she and the worker had made plans for a new home prior to his death due to the crowded living conditions and lack of privacy in the family home, and where the trial court found that this was a valid reason for the award and dismissed the argument that the widow would squander the lump-sum payment. Spidle v. Kerr-McGee Nuclear Corp., 1981-NMSC-058, 96 N.M. 290, 629 P.2d 1219, 1981 N.M. LEXIS 2363 (N.M. 1981).
Jurisdiction.
In order to confer jurisdiction in the district courts, an employer must have either failed or refused to make compensation payments to an injured workman as provided in the New Mexico Workmen’s Compensation Act before he is entitled to file a claim. Therefore, a district court lacked jurisdiction to hear an employee’s suit to enforce his employer’s payment of workmen’s compensation award under former 57-913, 1941 Comp., where the employer had not failed or refused to make payments due under former 57-918, 1941 Comp. State ex rel. Mountain States Mut. Casualty Co. v. Swope, 1954-NMSC-082, 58 N.M. 553, 273 P.2d 750, 1954 N.M. LEXIS 1164 (N.M. 1954).
Lump-sum award.
Where more than two and one-half years elapsed after an employer and its insurer entered into a court-approved settlement with a worker, the former New Mexico Subsequent Injury Fund was required to bring its share of the compensation payments due to the worker current with a lump-sum payment; thereafter, the Fund was permitted to make bi-weekly payments. Mares v. Valencia County Sheriff's Dep't, 1988-NMCA-003, 106 N.M. 744, 749 P.2d 1123, 1988 N.M. App. LEXIS 2 (N.M. Ct. App. 1988).
While the widow of an employee killed in a work-related accident established that she had a right to compensation due to the employer’s continuous payment of maximum compensation benefits to her under 52-1-46 NMSA 1978 without contest, the benefits could not be commuted under 52-1-30B NMSA 1978 into a lump-sum award because the widow did not meet her burden of establishing that the lack of a lump-sum award would create a manifest hardship. Zamora v. CDK Contracting Co., 1987-NMCA-093, 106 N.M. 309, 742 P.2d 521, 1987 N.M. App. LEXIS 764 (N.M. Ct. App.), cert. quashed, 106 N.M. 353, 742 P.2d 1058, 1987 N.M. LEXIS 3711 (N.M. 1987).
Employers’ continuous payment of maximum compensation benefits to the dependents of employees killed in work-related accidents under 52-1-46 NMSA 1978 without contesting the dependents’ right to compensation is sufficient to establish the dependents’ right to petition for a lump-sum award under 52-1-30B NMSA 1978. Zamora v. CDK Contracting Co., 1987-NMCA-093, 106 N.M. 309, 742 P.2d 521, 1987 N.M. App. LEXIS 764 (N.M. Ct. App.), cert. quashed, 106 N.M. 353, 742 P.2d 1058, 1987 N.M. LEXIS 3711 (N.M. 1987).
Where a worker suffered total permanent disability due to an injury to her back, the trial court properly denied a lump-sum award under 52-1-30B NMSA 1978, because she failed to show the existence of exceptional circumstances, and because her debts, loans, and monthly payments would quickly exhaust the award and leave her to the welfare rolls for relief. Lane v. Levi Strauss & Co., 1979-NMCA-012, 92 N.M. 504, 590 P.2d 652, 1979 N.M. App. LEXIS 795 (N.M. Ct. App. 1979).
Given that lump summing was a departure from the norm of periodic payments and that the evidence offered by an employee did not show the exceptional circumstances required by former 59-10-25B, 1953 Comp., as justification for a lump-sum, a lump-sum award that an employer and the employer’s insurer had been ordered to pay to an employee for partial permanent disability under the former Workmen’s Compensation Act, 59-10-1 to 59-10-37, 1953 Comp., was reversed. Codling v. Aztec Well Servicing Co., 1976-NMCA-044, 89 N.M. 213, 549 P.2d 628, 1976 N.M. App. LEXIS 570 (N.M. Ct. App. 1976).
Lump-sum settlement.
In order for an employee to receive a lump-sum settlement on the basis of a “total, permanent” disability, pursuant to 52-1-30B NMSA 1978, the employee must show that a right to compensation for such disability has been established; therefore, in an employee’s action for a lump-sum settlement where there was no judgment and no settlement, the employee was properly denied his request because there was no admission of total, permanent disability; the employer’s voluntary payment of maximum compensation benefits over a period of time did not amount to an admission by the employer of the totality or permanency of any injury. Neumann v. A.S. Horner, Inc., 1983-NMCA-039, 99 N.M. 603, 661 P.2d 503, 1983 N.M. App. LEXIS 701 (N.M. Ct. App. 1983), overruled, Raines v. W.A. Klinger & Sons, 1988-NMSC-083, 107 N.M. 668, 763 P.2d 684, 1988 N.M. LEXIS 291 (N.M. 1988).
Time limitations.
Where the employee is aware he suffered an injury for which he is entitled to compensation, but the disability does not occur until some time later, the limitations period begins to run after the occurrence of the disability, not on the date of the worker’s awareness. 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).
Where a workers’ compensation claimant was told by her employer’s insurer that she would be compensated, which may have delayed her filing of her claim, summary judgment in favor of the employer and insurer was premature because a fact issue remained as to whether claimant had cause to have filed a claim outside the one year period of 52-1-31A NMSA 1978. Additionally, the court noted that the 31-day period for paying the first installment of compensation provided in 52-1-30 NMSA 1978 has no applicability to the one year limitation period of 52-1-31A NMSA 1978. Owens v. Eddie Lu's Fine Apparel, 1980-NMCA-149, 95 N.M. 176, 619 P.2d 852, 1980 N.M. App. LEXIS 959 (N.M. Ct. App. 1980), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).
Time of payment.
Workers’ compensation is not due an injured employee until 31 days after the date of the occurrence of the disability. 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).
Workers’ compensation.
Pursuant to 52-1-30B NMSA 1978, petitioner employee was not precluded from seeking a hearing regarding the appropriateness of a lump-sum award even though he was receiving maximum compensation benefits in periodic installments. Raines v. W.A. Klinger & Sons, 1988-NMSC-083, 107 N.M. 668, 763 P.2d 684, 1988 N.M. LEXIS 291 (N.M. 1988).
Pursuant to 52-1-30B NMSA 1978, lump-sum compensation was properly awarded a deceased worker’s minor children of two marriages, because the lump-sum, needed to secure services of a conservator at a reasonable cost, was not awarded simply to maximize income production, but to best protect the children’s financial welfare, given a finding that the mothers might mismanage the children’s benefits. Sowders v. MFG Drilling Co., 1985-NMCA-081, 103 N.M. 267, 705 P.2d 172, 1985 N.M. App. LEXIS 593 (N.M. Ct. App. 1985).
A precise enumeration of what factual ingredients constitute special circumstances is impossible, and the propriety of a lump-sum award in each case stands or falls on its own merits. Where the very nature of a claimant’s illness precluded a precise determination of his future medical expenses and where his medical situation was termed “extraordinary,” the trial court acted within its discretion in awarding a lump-sum to the claimant. Woodson v. Phillips Petroleum Co., 1985-NMSC-018, 102 N.M. 333, 695 P.2d 483, 1985 N.M. LEXIS 2009 (N.M. 1985), superseded by statute as stated in Sanchez v. Wohl Shoe Co., 1989-NMCA-003, 108 N.M. 276, 771 P.2d 984, 1989 N.M. App. LEXIS 11 (N.M. Ct. App. 1989).
Section 52-1-30B NMSA 1978, provides that awards may be in the form of a lump-sum when it is in “the best interests” of the claimant; lump-sum payments, however, are justified only when “exceptional circumstances” exist. The claimant seeking a lump-sum award has the burden of showing that failure to award a lump-sum would create a manifest hardship where relief is essential to (1) protect the claimant from want or privation, (2) facilitate the production of income for the claimant, or (3) help the claimant in a rehabilitation program; as to the second of the criteria, it is not enough that a lump-sum award will allow a claimant to maximize return on investment. Woodson v. Phillips Petroleum Co., 1985-NMSC-018, 102 N.M. 333, 695 P.2d 483, 1985 N.M. LEXIS 2009 (N.M. 1985), superseded by statute as stated in Sanchez v. Wohl Shoe Co., 1989-NMCA-003, 108 N.M. 276, 771 P.2d 984, 1989 N.M. App. LEXIS 11 (N.M. Ct. App. 1989).
Under the New Mexico Workmen’s Compensation Act (Act), 52-1-30 NMSA 1978, the first installment of compensation was to be paid within a specified period from the date of the occurrence of the disability, and under 52-1-31 NMSA 1978, the one year statutory period was tolled during the time the worker remained actively employed by the employer, up to a maximum of one additional year; although the worker returned to his job after his injury, it was apparent from his post injury performance that the worker had a disability and where the worker did not file within the required time, his claim was barred. ABF Freight Sys. v. Montano, 1982-NMSC-149, 99 N.M. 259, 657 P.2d 115, 1982 N.M. LEXIS 2989 (N.M. 1982), superseded by statute as stated in Henington v. Technical-Vocational Inst., 2002-NMCA-025, 131 N.M. 655, 41 P.3d 923, 2002 N.M. App. LEXIS 3 (N.M. Ct. App. 2002).
Where a widow intended to use a lump-sum workmen’s compensation settlement to buy or build a larger home for her family, the lump-sum was in her best interest, the lack of a lump-sum would have created a hardship, and it was properly awarded in accordance with 52-1-30 NMSA 1978. Spidle v. Kerr-McGee Nuclear Corp., 1981-NMSC-058, 96 N.M. 290, 629 P.2d 1219, 1981 N.M. LEXIS 2363 (N.M. 1981).
Research References and Practice Aids
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).