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

The 2015 amendment, effective June 19, 2015, substituted “the maximum period allowable for a physical injury, as set forth in  Section 52-1-26 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in  Section 52-1-47 NMSA 1978” for “one hundred weeks” in A(3); substituted “set forth in  Section 52-1-26 or  52-1-43 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in  Section 52-1-47 NMSA 1978” for “or one hundred weeks, whichever is greater” in A(4); and in B, substituted “temporary disability” for “temporary total disability” twice and “permanent partial disability” for “permanent disability” twice.

Constitutionality.

Generally.

Applicability.

Basis of compensation.

Compensation.

Construction.

Construction with other law.

Credit.

Disability.

Discretion of judge.

           —Extension of time period.

Eligibility.

Evidence.

           —Generally.

           —Insufficient.

           —Sufficient.

Modification.

Remedies.

Requirements.

Time limitations.

Voluntary benefits.

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).

Under the Workmen’s Compensation Act, former 59-10-18.3, 1953 Comp. (now 52-1-42 NMSA 1978), compensation payments are not to be based upon the injury itself, but rather they are to be based upon the decreased earning ability produced by the injury. Brownlee v. Lincoln County Livestock Co., 1966-NMSC-060, 76 N.M. 137, 412 P.2d 562, 1966 N.M. LEXIS 2614 (N.M. 1966).

Evidence supported a finding that a manual laborer was 60 percent disabled by an injury, although his actual post-injury earnings were only 17 percent less than his previous earnings; the court held that earning as much or more after an injury as before was not conclusive on the issue of whether or not the worker’s earning ability was impaired under statute. Batte v. Stanley's, 1962-NMSC-105, 70 N.M. 364, 374 P.2d 124, 1962 N.M. LEXIS 1602 (N.M. 1962).

Where an employee’s work related disability was chronic pain, the disability was a result of both physical and mental impairment; thus, 52-1-42 NMSA 1978 did not apply, and the benefits were not capped. Crespin v. Consolidated Constructors, 1993-NMCA-109, 116 N.M. 334, 862 P.2d 442, 1993 N.M. App. LEXIS 107 (N.M. Ct. App.), cert. denied, 116 N.M. 334, 862 P.2d 442, 1993 N.M. LEXIS 315 (N.M. 1993).

Trial court did not err in basing a workers’ compensation award on 52-1-42 NMSA 1978, rather than on the more narrowly focused 52-1-43 NMSA 1978, where the trial court, under the two-pronged test enunciated in case law, found the claimant’s degree of disability to be 80 percent; the claimant had proved separate and distinct impairment to other parts of his body in addition to the schedule member injuries and he was entitled to partial disability benefits and attorney’s fees. Harrison v. Animas Valley Auto & Truck Repair, 1988-NMSC-055, 107 N.M. 373, 758 P.2d 787, 1988 N.M. LEXIS 206 (N.M. 1988).

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).

In accordance with 52-1-42 NMSA 1978, a claimant who suffers a partial disability ordinarily is eligible to receive compensation based upon a degree of such partial loss of use. Twin Mountain Rock v. Ramirez, 1994-NMCA-020, 117 N.M. 367, 871 P.2d 1373, 1994 N.M. App. LEXIS 32 (N.M. Ct. App.), cert. denied, 117 N.M. 802, 877 P.2d 1105, 1994 N.M. LEXIS 141 (N.M. 1994).

Where there was in fact a total disability, the scheduled injury section, former 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 former 59-10-18.3, 1953 Comp. (now 52-1-42 NMSA 1978); there was no parallel limitation on total disability benefits under former 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).

Under the Workmen’s Compensation Act, former 59-10-18.3, 1953 Comp. (now 52-1-42 NMSA 1978), although an employee was partially disabled from employment for ranch work, he had not suffered a compensable disability because he had been continuously employed as a maintenance man and was receiving a higher weekly wage than he had been earning as a ranch worker prior to the injury. Brownlee v. Lincoln County Livestock Co., 1966-NMSC-060, 76 N.M. 137, 412 P.2d 562, 1966 N.M. LEXIS 2614 (N.M. 1966).

Because workers’ compensation statutes should be liberally construed in the worker’s favor and because any reasonable doubts should be resolved in favor of the workman, the language of 52-1-42A NMSA 1978 and 52-1-1 through 52-1-69 NMSA 1978, relating to “one arm at or near the shoulder,” should be construed to include only injuries to the arm itself and not injuries to the shoulder. Carter v. Mountain Bell, 1986-NMCA-103, 105 N.M. 17, 727 P.2d 956, 1986 N.M. App. LEXIS 670 (N.M. Ct. App. 1986).

In connection with a claim for workmen’s compensation benefits, the trial court did not err in finding a 15 percent partial permanent disability where actual earnings showed a 30 percent reduction; an employee’s post-injury earnings are not conclusive as to earning ability or capacity. Pies v. Bekins Van & Storage Co., 1962-NMSC-104, 70 N.M. 361, 374 P.2d 122, 1962 N.M. LEXIS 1601 (N.M. 1962).

Provisions in former § 57-918A, 1941 Comp., as to the awarding of workmen’s compensation benefits, did not benefit the workmen’s compensation claimant; the Workmen’s Compensation Act does not contain a statutory mandate as to minimum for awards for permanent partial disability cases. Mann v. Board of County Comm'rs, 1954-NMSC-088, 58 N.M. 626, 274 P.2d 145, 1954 N.M. LEXIS 1172 (N.M. 1954).

This section prescribes the amount and duration of benefits for a partial disability; it explicitly excepts from its purview disabilities covered by 52-1-43 NMSA 1978, while that section prescribes the amount and duration of benefits for disabilities caused by injuries to specific body members or functions. Each section addresses the effect of temporary total disability payments for such disabilities on the duration of the benefits provided for that disability; nothing in the language of either statute indicates that benefits under the one are somehow part of the benefits payable under the other. Baca v. Complete Drywall Co., 2002-NMCA-002, 131 N.M. 413, 38 P.3d 181, 2001 N.M. App. LEXIS 110 (N.M. Ct. App. 2001), cert. denied, 131 N.M. 564, 40 P.3d 1008, 2002 N.M. LEXIS 14 (N.M. 2002).

In a workmen’s compensation action in which an employee lost total sight in his right eye in an accidental injury while working for his employer, the employee was not entitled to additional benefits under 52-1-42 NMSA 1978 based on his 45 percent permanent partial disability; such partial disability benefits could not be recovered because the injury was solely to a scheduled member under 52-1-43 NMSA 1978. Newhoff v. Good Housekeeping, 1980-NMCA-090, 94 N.M. 621, 614 P.2d 33, 1980 N.M. App. LEXIS 905 (N.M. Ct. App. 1980), overruled,  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).

For a worker to receive permanent partial disability benefits under 52-1-42 NMSA 1978, rather than scheduled injury benefits under 52-1-43 NMSA 1978, the worker had to show that she was totally disabled or that she suffered a separate and distinct impairment to a nonscheduled body part, and while there was evidence of a separate and distinct injury in the nature of disabling pain to nonscheduled members, the worker failed to establish an impairment to a nonscheduled member; thus, she was not entitled to an award of permanent partial disability. Jurado v. Levi Strauss & Co., 1996-NMCA-112, 122 N.M. 519, 927 P.2d 1057, 1996 N.M. App. LEXIS 93 (N.M. Ct. App. 1996).

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 section 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).

Where an employee filed for workers’ compensation for an injury to his eye, the trial court erred when it awarded the employee benefits of 15 percent disability to the body as a whole, as he should have been compensated for the loss of a scheduled member under 52-1-43A NMSA 1978 and the loss of his eye should have been compensated without considering the correctability through the use of a contact lens; where the employee had received benefits for a total disability related to traumatic neurosis, the claim for the injury to his eye was separate and compensable under 52-1-42 NMSA 1978. Ranville v. J.T.S. Enters., 1984-NMCA-100, 101 N.M. 803, 689 P.2d 1274, 1984 N.M. App. LEXIS 721 (N.M. Ct. App. 1984).

Claimant who had several fingers amputated while working as a punch-press operator, who was paid temporary total disability by the employer, was limited in his recovery of workmen’s compensation benefits to the amount which conformed to the schedule set forth in former 59-10-18.4, 1953 Comp. (now 52-1-43 NMSA 1978), because the provisions of former 59-10-18.3, 1953 Comp. was applicable only for partial disability resulting from injuries not specifically provided for in former 59-10-18.4, 1953 Comp. Sisneros v. Breese Indus., 1963-NMSC-166, 73 N.M. 101, 385 P.2d 960, 1963 N.M. LEXIS 2039 (N.M. 1963), 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).

Where there was substantial evidence on the record as a whole that supported the finding and conclusion that a workers’ compensation claimant’s disability was a result of a combined physical and mental condition, 52-1-42(2) NMSA 1978, did not apply and the decision refusing to limit benefits to 100 weeks was upheld. Crespin v. Consolidated Constructors, 1993-NMCA-109, 116 N.M. 334, 862 P.2d 442, 1993 N.M. App. LEXIS 107 (N.M. Ct. App.), cert. denied, 116 N.M. 334, 862 P.2d 442, 1993 N.M. LEXIS 315 (N.M. 1993).

Trial court properly awarded an employee a workmen’s compensation award of 30 percent decrease in his earning capacity and did not err in failing to make findings as to functional disability, employability in the open market, and other factors. There was no necessity, nor was it proper, for the trial court to make certain evidentiary findings as claimant averred (former 21-1-1(52)(B)(a)(2), 1953 Comp.). The ultimate findings made by the court amply sustained the judgment under the provisions of former 59-10-18.3, 1953 Comp. (now 52-1-42 NMSA 1978), and were in accordance with the court’s rulings. Scott v. Homestake-Sapin, 1963-NMSC-122, 72 N.M. 268, 383 P.2d 239, 1963 N.M. LEXIS 1972 (N.M. 1963).

Where the worker returned to work full time at her pre-injury salary, obtained a raise, retired, and found employment in the private sector, the evidence was sufficient for a finding that the worker did not establish a separate and distinct injury to a body part not appearing in 52-1-43A NMSA 1978; the determination that she was entitled only to scheduled injury benefits under 52-1-43B NMSA 1978 rather than permanent partial disability for the maximum number of weeks under 52-1-42 NMSA 1978 was proper. Gomez v. Bernalillo County Clerk's Office, 1994-NMCA-102, 118 N.M. 449, 882 P.2d 40, 1994 N.M. App. LEXIS 106 (N.M. Ct. App. 1994).

Although an employee was partially disabled for ranch work, he had not suffered a compensable disability pursuant to the Workmen’s Compensation Act, former 59-10-18.3, 1953 Comp. (now 52-1-42 NMSA 1978), where he had been continuously employed as a maintenance man and was receiving a higher weekly wage than he was earning prior to the injury. Brownlee v. Lincoln County Livestock Co., 1966-NMSC-060, 76 N.M. 137, 412 P.2d 562, 1966 N.M. LEXIS 2614 (N.M. 1966).

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).

In a workmen’s compensation action, an employee was entitled to partial disability benefits under 52-1-42 NMSA 1978 in addition to his scheduled member injury under 52-1-43 NMSA 1978 because he proved resulting “separate and distinct impairment” to other parts of his body, and the evidence showed that the employee was unable to perform his current duties and other jobs for which he was fit. Aragon v. Mountain States Constr. Co., 1982-NMCA-041, 98 N.M. 225, 647 P.2d 427, 1982 N.M. App. LEXIS 883 (N.M. Ct. App.), rev'd, 1982-NMSC-058, 98 N.M. 194, 647 P.2d 396, 1982 N.M. LEXIS 2846 (N.M. 1982).

A worker could seek an increase in benefits based on a change in his condition at any time during the statutory benefits period under 52-1-42 NMSA 1978 even if he received, under 52-5-12C NMSA 1978, the equivalent of the benefits allowed before the benefits period expired. Souter v. Ancae Heating & Air Conditioning, 2002-NMCA-078, 132 N.M. 608, 52 P.3d 980, 2002 N.M. App. LEXIS 57 (N.M. Ct. App. 2002), overruled in part, Benny v. Moberg Welding, 2007-NMCA-124, 142 N.M. 501, 167 P.3d 949, 2007 N.M. App. LEXIS 99 (N.M. Ct. App. 2007).

Where a worker suffered an injury to his finger and no other part of his body suffered an injury, he was only entitled to partial disability benefits under the scheduled injury section, 52-1-43 NMSA 1978, and could not be considered partially disabled under 52-1-42 NMSA 1978, because the injury to the scheduled member did not result in a “separate and distinct” injury to another part of the body. Hise Constr. v. Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210, 1982 N.M. LEXIS 2903 (N.M. 1982).

Employee was not subject to the scheduled injury section, 52-1-43A NMSA 1978, because the pain caused by the injury to his finger limited his capacity to work; however, a new trial was necessary to determine if he was partially disabled as defined by 52-1-42 NMSA 1978. 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).

The only partial disability benefits that are available are those in 52-1-43 NMSA 1978, if the injury is solely to a scheduled member. In order to obtain partial disability benefits and not be limited to scheduled injury benefits, there must be a separate and distinct impairment to other parts of the body in addition to the disability resulting from injury to a scheduled member. Hise Constr. v. Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210, 1982 N.M. LEXIS 2903 (N.M. 1982).

Where a portion of the worker’s finger was amputated, the amputation was covered by 52-1-43A NMSA 1978, and any partial loss of the use of the worker’s hand or physical function was covered by 52-1-43B NMSA 1978. Because the evidence did not support findings that would have allowed for a recovery for a “separate and distinct” injury, the percentage compensation for partial disability under 52-1-42 NMSA 1978 did not apply. Hise Constr. v. Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210, 1982 N.M. LEXIS 2903 (N.M. 1982).

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).

Wages earned after an injury are not necessarily determinative of the question of post-injury earning ability; thus, where the record in a workmen’s compensation proceeding did not show that a claimant earned any wage after notice of his disability, he was properly awarded partial permanent disability benefits for the hearing loss he sustained as a result of his employment as a fire truck driver because he was qualified to do nothing other manual labor after his injury and his ability to earn had been reduced by 70 percent. Sanchez v. Albuquerque, 1965-NMSC-043, 75 N.M. 137, 401 P.2d 583, 1965 N.M. LEXIS 1530 (N.M. 1965).

Worker whose fingers were partially amputated and who received a cut in his hand when a machine press came down on his hand was properly denied benefits beyond full schedule compensation for his fingers, given that other suffering was incidental to his injury; former 59-10-18.3, 1953 Comp. (now 52-1-42 NMSA 1978) was applicable only for partial disability resulting from injuries that were not specifically provided for in the schedule. Sisneros v. Breese Indus., 1963-NMSC-166, 73 N.M. 101, 385 P.2d 960, 1963 N.M. LEXIS 2039 (N.M. 1963), 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 § 57-918, 1941 Comp. a claimant who had suffered a 29 percent partial permanent disability was entitled to an award based on the full week schedule of permanent disability, not 29 percent of that amount, so that the claimant would have the full benefit of former § 57-925, 1941 Comp. which allowed for the increase or diminution of awards at six months’ intervals upon proper application and showing of either the recovery or increased disability. Mann v. Board of County Comm'rs, 1954-NMSC-088, 58 N.M. 626, 274 P.2d 145, 1954 N.M. LEXIS 1172 (N.M. 1954).