52-1-41.  Compensation benefits; total disability.

Constitutionality.

Applicability.

Burden of proof.

Compensation.

Construction.

Construction with other law.

Disability.

Disability and impairment.

Doubly disabled.

Error.

Evidence.

           —Sufficient.

Res judicata.

Secondary mental impairment.

Temporary total disability.

Workers’ compensation.

Sections 52-1-41 and 52-1-42 NMSA 1978 violated equal protection by limiting workers’ compensation for mentally disabled workers compared to similarly situated physically disabled workers. Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, 138 N.M. 331, 120 P.3d 413, 2005 N.M. LEXIS 445 (N.M. 2005).

According to 52-1-48 NMSA 1978, an employee injured in February 1977 was not entitled to the wage rate in effect in February 1979, but that in effect under 52-1-41 NMSA 1978, as the employee suffered the accidental injury for which he sought compensation in 1977. Turner v. Shop-Rite Foods, 1982-NMCA-165, 99 N.M. 56, 653 P.2d 887, 1982 N.M. App. LEXIS 948 (N.M. Ct. App. 1982).

In computing survivors’ benefits, the decedent’s widow was entitled to 40 percent of the decedent’s average weekly wage pursuant to 52-1-46C(3) NMSA 1978 and his three stepchildren and one natural child were each entitled to one-fourth of the difference between that amount and two thirds of the average weekly wage pursuant to 52-1-41A NMSA 1978. Schall v. Schall, 1982-NMCA-045, 97 N.M. 665, 642 P.2d 1124, 1982 N.M. App. LEXIS 834 (N.M. Ct. App. 1982).

Injured employee was not entitled to compensation outside of the scheduled injury section of the Workmen’s Compensation Law, former 59-10-18.4A(31), 1953 Comp., even though the trial court found that his injury resulted in an impairment of his body as a whole of 30 percent, because “physical impairment” did not equate with “disability” as those terms were defined in former 59-10-18.2, 59-10-18.3, 59-10-12.18, and 59-10-12.19, 1953 Comp. 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).

Under 52-1-46G NMSA 1978, no compensation benefits payable by reason of a workman’s death shall exceed the maximum weekly benefits as provided by 52-1-41 NMSA 1978, and no dependent or class thereof, other than a widow, widower, or children, shall in any event be paid total benefits in excess of $7,500 exclusive of funeral expenses and the expenses provided for medical and hospital services for the deceased paid for by the employer. Section 52-1-46(G), as it related to appellant parents, was neither unconstitutional, nor violative of the equal protection clause of N.M.Const. Art. II, § 18, or the 14th Amendment to the U.S. Constitution. Gallegos v. Homestake Mining Co., 1982-NMCA-052, 97 N.M. 717, 643 P.2d 281, 1982 N.M. App. LEXIS 847 (N.M. Ct. App. 1982).

Where there was in fact a total disability, the scheduled injury section, 59-10-18.4, 1953 Comp. (now 52-1-43 NMSA 1978), did not prohibit compensation based on such disability and compensation was to be paid for the disability without regard to whether the employee had a bodily impairment distinct from the scheduled injuries. The scheduled injury section limited only the benefits payable for partial disability pursuant to 59-10-18.3, 1953 Comp. (now 52-1-42 NMSA 1978); there was no parallel limitation on total disability benefits under 59-10-18.2, 1953 Comp. (now 52-1-41 NMSA 1978). Witcher v. Capitan Drilling Co., 1972-NMCA-145, 84 N.M. 369, 503 P.2d 652, 1972 N.M. App. LEXIS 862 (N.M. Ct. App. 1972), cert. quashed, 85 N.M. 380, 512 P.2d 953, 1973 N.M. LEXIS 1349 (N.M. 1973).

Although Subsection A of this section does not specifically make reference to permanent total disability as found in 52-1-25 NMSA 1978, when the provisions of the Workers’ Compensation Act are construed together to produce a harmonious whole, Subsection A can be understood to refer only to a permanent total disability under 52-1-25 NMSA 1978. Fowler v. Vista Care, 2013-NMCA-036, 298 P.3d 491, 2012 N.M. App. LEXIS 134 (N.M. Ct. App. 2012), rev'd, 2014-NMSC-019, 329 P.3d 630, 2014 N.M. LEXIS 169 (N.M. 2014).

Subsection A of this section is ambiguous because nothing in the statute explains the connection between a worker’s entitlement to receive the compensation benefits calculated in the first sentence of the statute for the period of a total disability and the worker’s entitlement in the second sentence to receive compensation benefits for a total disability for the remainder of the worker’s life. Fowler v. Vista Care, 2013-NMCA-036, 298 P.3d 491, 2012 N.M. App. LEXIS 134 (N.M. Ct. App. 2012), rev'd, 2014-NMSC-019, 329 P.3d 630, 2014 N.M. LEXIS 169 (N.M. 2014).

If a worker is totally disabled due to an work-related injury, the worker is entitled to total disability benefits even if the disability results from the loss of or injury to a scheduled member. Nelson v. Nelson Chem. Corp., 1987-NMCA-024, 105 N.M. 493, 734 P.2d 273, 1987 N.M. App. LEXIS 680 (N.M. Ct. App. 1987).

52-1-47 NMSA 1978 does not place a limitation on all the benefits authorized by 52-1-41 to 52-1-46 NMSA 1978. 52-1-47 NMSA 1978 says nothing about payment of disability benefits to which the worker was entitled prior to death. Holliday v. Talk of the Town, 1985-NMCA-024, 102 N.M. 540, 697 P.2d 959, 1985 N.M. App. LEXIS 545 (N.M. Ct. App. 1985).

Where an injury to a specific member results in permanent total incapacity, it is compensable as such and is not to be confined to the schedule compensation for the loss or loss of use of the injured member. Mathews v. New Mexico Light & Power Co., 1942-NMSC-007, 46 N.M. 118, 122 P.2d 410, 1942 N.M. LEXIS 6 (N.M. 1942).

Injury is not specific within the meaning of a schedule unless such injury relates solely to the injured member, and, if because of an injury to a specific member the whole body suffers, thereby incapacitating the workman, the injury is not specific. Mathews v. New Mexico Light & Power Co., 1942-NMSC-007, 46 N.M. 118, 122 P.2d 410, 1942 N.M. LEXIS 6 (N.M. 1942).

In an action in which the uncontradicted evidence showed that a workmen’s compensation claimant was totally disabled within the meaning of former 59-10-12.18, 1953 Comp., the court’s award of benefits for a temporary total disability did not violate former  59-10-16A, 1953 Comp. (now 52-1-38 NMSA 1978), even though the claimant argued that the judgment should have provided for compensation for 600 weeks from the date of the accident. The judgment provided for the payment of weekly benefits of a specified amount from the date of the accident to entry of the judgment, and because total disability payments are to be made “during the period of that disability,” pursuant to former  59-10-18.2, 1953 Comp. (now 52-1-41 NMSA 1978), the judgment stated the “further amounts he was entitled to receive,” as required by former 59-10-16A, 1953 Comp. (now 52-1-38 NMSA 1978). Pacheco v. Alamo Sheet Metal Works, 1978-NMCA-057, 91 N.M. 730, 580 P.2d 498, 1978 N.M. App. LEXIS 571 (N.M. Ct. App. 1978).

If one suffers a scheduled injury which causes a physical impairment that amounts to a disability, in former sections 59-10-18.2, 1953 Comp. (now 52-1-41 NMSA 1978) and 59-10-18.3, 1953 Comp. (now 52-1-42 NMSA 1978) are properly invoked. 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).

Former 59-10-18.3, 1953 Comp. (now 52-1-42 NMSA 1978) limits the benefits payable for partial disability when such benefits are specifically provided for in former 59-10-18.4, 1953 Comp., the scheduled injury section; however, former 59-10-18.2, 1953 Comp. (now 52-1-41 NMSA 1978) does not contain a parallel limitation on total disability benefits but states the benefits that shall be paid for total disability and provides that such benefits are mandatory. Witcher v. Capitan Drilling Co., 1972-NMCA-145, 84 N.M. 369, 503 P.2d 652, 1972 N.M. App. LEXIS 862 (N.M. Ct. App. 1972), cert. quashed, 85 N.M. 380, 512 P.2d 953, 1973 N.M. LEXIS 1349 (N.M. 1973).

52-1-41 NMSA 1978 provides for the amount of compensation benefits to be paid for “total disability.” “Physical impairment” does not automatically equate with “disability.” Candelaria v. Hise Constr., 1981-NMCA-145, 98 N.M. 763, 652 P.2d 1214, 1981 N.M. App. LEXIS 826 (N.M. Ct. App. 1981), aff'd in part, modified, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210, 1982 N.M. LEXIS 2903 (N.M. 1982), overruled,  Garcia v. Schneider, Inc., 1986-NMCA-127, 105 N.M. 234, 731 P.2d 377, 1986 N.M. App. LEXIS 690 (N.M. Ct. App. 1986).

In a workmen’s compensation case, the district court erred in awarding the employee disability benefits under 52-1-41 NMSA 1978 of the Workmen’s Compensation Act, 52-1-1 et seq. NMSA 1978, because the loss of use of one eye was included within the scope of 52-1-43D NMSA 1978; thus, the limitation of 120 weeks applied. Crane v. San Juan County, 1983-NMCA-133, 100 N.M. 600, 673 P.2d 1333, 1983 N.M. App. LEXIS 806 (N.M. Ct. App. 1983).

Where an employee sought total disability benefits, pursuant to 52-1-41 NMSA 1978, as a result of a knee injury, the trial court properly awarded partial disability benefits under 52-1-42 NMSA 1978 where there was substantial evidence that an employee could still work at other mining jobs after a knee injury and no other impairment existed, and the trial court did not err when it failed to award travel expenses incurred by the employee’s attorney in attending depositions, as such were not costs or charges that could be awarded under 52-1-34 NMSA 1978. Maschio v. Kaiser Steel Corp., 1983-NMCA-119, 100 N.M. 455, 672 P.2d 284, 1983 N.M. App. LEXIS 792 (N.M. Ct. App. 1983).

Substantial evidence supported an award of total and permanent disability benefits under the Workmen’s Compensation Act, because there was medical testimony that an employee’s accident at work resulted in his permanent total disability. Trujillo v. Beaty Elec. Co., 1978-NMCA-021, 91 N.M. 533, 577 P.2d 431, 1978 N.M. App. LEXIS 541 (N.M. Ct. App. 1978).

Employee did not lack a comparable incentive to litigate the issue of proximate cause in a workers’ compensation proceeding because of the statutory limits on the amount of benefits and attorney fees under 52-1-41A and 52-1-54I NMSA 1978 because those limitations were offset by advantages under 52-1-8 and 52-1-54D NMSA 1978; therefore, the trial court did not err in holding that the employee’s tort action against third parties was precluded by the administrative findings that the accident was fraudulently caused by the employee. Padilla v. Intel Corp., 1998-NMCA-125, 125 N.M. 698, 964 P.2d 862, 1998 N.M. App. LEXIS 110 (N.M. Ct. App. 1998).

Award of workers’ compensation of total permanent disability based on secondary mental impairment to a claimant, who was injured when she was severely beaten while working as a nurse at a correctional facility, was erroneous under 52-1-41 NMSA 1978. Where the claimant no longer suffered a physical impairment at the time of the hearing and continued to suffer a secondary mental impairment but never suffered a primary mental impairment, which was defined by 52-1-24 NMSA 1978 as a mental impairment without physical injury, the claimant was disabled solely by a secondary mental impairment at the time of the hearing, and accordingly, she was subject to the limitation of 52-1-41A(2) NMSA 1978 of 100 weeks for secondary mental impairment benefits because her psychical impairment lasted less than 100 weeks. Fitzgerald v. Open Hands, 1993-NMCA-026, 115 N.M. 210, 848 P.2d 1137, 1993 N.M. App. LEXIS 16 (N.M. Ct. App. 1993).

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).

A psychiatric nurse was brutally beaten by a psychotic prisoner and suffered secondary mental impairment from the time of the injuries; she was entitled to workers’ compensation benefits under 52-1-41A(2) NMSA 1978 only for the period of disability produced by physical impairment or for 100 weeks, whichever was greater. Fitzgerald v. Open Hands, 1993-NMCA-026, 115 N.M. 210, 848 P.2d 1137, 1993 N.M. App. LEXIS 16 (N.M. Ct. App. 1993).

Despite plaintiff worker’s argument that she had a loss of use of her good eye and not a loss of that eye, the workers’ compensation that she was entitled to was that provided by 52-1-43 NMSA 1978, and, ergo, the trial court erred by giving her benefits for total disability under 52-1-41 NMSA 1978; there was no rational basis by which the legislature would include only the loss of the body parts enumerated in 52-1-43D NMSA 1978 but exclude the loss of use of those same parts from the coverage of 52-1-43D NMSA 1978. Crane v. San Juan County, 1983-NMCA-133, 100 N.M. 600, 673 P.2d 1333, 1983 N.M. App. LEXIS 806 (N.M. Ct. App. 1983).

If a worker suffers a scheduled injury that causes a physical impairment but does not create disability, the worker receives compensation as provided under 52-1-43 NMSA 1978. When the impairment amounts to a disability, and there is a “separate and distinct” injury to another part of the body, 52-1-41 and 52-1-42 NMSA 1978 are properly invoked. Hise Constr. v. Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210, 1982 N.M. LEXIS 2903 (N.M. 1982).

Trial court, after awarding an injured employee workers’ compensation benefits, did not violate the mandate of an appellate court ruling when it denied the employee’s claim for escalating benefits, because the amount of compensation to be paid for disability, from the date the disability began, did not change during the period the disability continued, with the maximum compensation payable being limited to the benefits payable when the disability began, the court explained in construing 52-1-41C NMSA 1978, 52-1-47B NMSA 1978, and 52-1-48 NMSA 1978, provisions governing the payment of such compensation. Casias v. Zia Co., 1980-NMCA-109, 94 N.M. 723, 616 P.2d 436, 1980 N.M. App. LEXIS 926 (N.M. Ct. App. 1980).

Compensation benefits; permanent partial disability; maximum duration of benefits, 52-1-42 NMSA 1978.

Compensation benefits; injury to specific body members, 52-1-43 NMSA 1978.

Limitations on compensation benefits, 52-1-47 NMSA 1978.