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

Constitutionality.

Appeal.

Applicability.

Attorney fees.

Compensation.

Construction.

Construction with other law.

Damages.

Disability.

Discretion.

Discretion of judge.

           —Extension of time period.

Eligibility.

Error.

Evidence.

           —Generally.

           —Sufficient.

Exclusive remedy.

Partial loss.

Rate.

Remedies.

Requirements.

Subsection A.

Subsection B.

Subsequent injury.

Total disability.

Workers’ compensation.

Scheduled injury provisions of 52-1-43 NMSA 1978 are not unconstitutional and do not deny workers equal protection of the law simply because they receive an injury to a bodily member listed in 52-1-43 NMSA 1978. 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 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 degree of disability which the claimant had suffered at 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).

While a worker is not limited to compensation under the scheduled injury section of New Mexico’s workmen’s compensation law, where there is evidence of separate and distinct impairment to other parts of the body, such impairment would have to be a disability in order to be compensable. 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).

If as a result of an accidental injury partial loss of use of a specific body member or physical function covered by 52-1-43 NMSA 1978 is suffered by a workman, the compensation therefor is to be computed as provided in 52-1-43B NMSA 1978 and statutes defining “disability” are not applicable. Sessing v. Yates Drilling Co., 1964-NMSC-225, 74 N.M. 550, 395 P.2d 824, 1964 N.M. LEXIS 2298 (N.M. 1964).

Claimant, who had several fingers amputated while working as a punch-press operator and 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), for the loss of his fingers, and was not allowed to recover for partial permanent disability as well. 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 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 transient provisions of the Workers’ Compensation Act (52-1-1 NMSA 1978), the definition of total disability relates back to the definition of partial disability through the definition of “comparable wages or salary” in 52-1-24 NMSA 1978, which provides that a worker is permanently totally disabled only if he or she is wholly unable to earn comparable wages or salary considering the benefits the worker is entitled to receive under 52-1-43 NMSA 1978; thus, it is appropriate to read 52-1-24 NMSA 1978 as incorporating the requirement in 52-1-25 NMSA 1978 of reference to the AMA guidelines to prove “permanent physical impairment.” Barela v. Midcon of New Mexico, 1989-NMCA-093, 109 N.M. 360, 785 P.2d 271, 1989 N.M. App. LEXIS 100 (N.M. Ct. App. 1989).

Where a work-related injury is within the scheduled injury provisions of the New Mexico Workers’ Compensation Act (52-1-1 NMSA 1978), a court must first ascertain whether the injury is covered by 52-1-43 NMSA 1978; only if the answer is “yes” should the court proceed to determine whether the resulting impairment or disability extends to other parts of the body or otherwise renders a claimant totally disabled. 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).

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).

52-1-42 NMSA 1978 prescribes the amount and duration of benefits for a partial disability; it explicitly excepts from its purview disabilities covered by this section, which 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).

This article treats scheduled injury benefits under 52-1-43 NMSA 1978 and permanent partial disability benefits under 52-1-42 NMSA 1978 differently. The statutes do not define the duration and amount of benefits for a particular accident; rather, they define the duration and amount of benefits for a particular type of disability that is causally connected to a work-related accident. 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).

This article treats scheduled injury benefits under 52-1-43 NMSA 1978 and permanent partial disability benefits under 52-1-42 NMSA 1978 differently. The statutes do not define the duration and amount of benefits for a particular accident; rather, they define the duration and amount of benefits for a particular type of disability that is causally connected to a work-related accident. 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).

Where an employee suffered a partial loss of vision in the left eye as a result of a workplace accident, the trial court properly limited his damages to a percentage of the amount provided for under the Workers’ Compensation Act (52-1-1 NMSA 1978) for total blindness; although the employee also suffered from a resulting loss of binocular visual efficiency and from headaches, the evidence did not establish that he suffered from any general bodily disability. Webb v. Forrest Currell Lumber Co., 1961-NMSC-029, 68 N.M. 187, 360 P.2d 380, 1961 N.M. LEXIS 1512 (N.M. 1961).

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).

WCJ properly added the benefits period if 52-1-42 and Subsection A(32) of this section in awarding the worker benefits as all of the worker’s injuries were caused by his accident in falling off a ladder, and the progressive deterioration of his injuries was a direct result of that accident. As such, the WCJ properly allowed the scheduled injury benefits and non-scheduled injury benefits to be added. Gutierrez v. Intel Corp., 2009-NMCA-106, 147 N.M. 267, 219 P.3d 524, 2009 N.M. App. LEXIS 122 (N.M. Ct. App. 2009).

Under 52-1-43C NMSA 1978, the workers’ compensation judge has discretion to enlarge or even double the time period of 52-1-43A NMSA 1978 if the worker’s disability results from actual amputation of an arm or leg. 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.), cert. denied, 131 N.M. 737, 42 P.3d 842, 2002 N.M. LEXIS 74 (N.M. 2002).

A separate and distinct injury necessary to remove a plaintiff from the scheduled injury section must result from or be attributable to the accident or injury to the scheduled member; whether a separate and distinct impairment exists is one for the fact finder to determine. 52-1-42 to 52-1-43 NMSA 1978. Beltran v. Van Ark Care Ctr., 1988-NMCA-043, 107 N.M. 273, 756 P.2d 1, 1988 N.M. App. LEXIS 37 (N.M. Ct. App. 1988).

An employee who injured his eye should have been awarded workers’ compensation benefits without consideration of the correctability through the use of contact lens because the intent of 52-1-43 NMSA 1978 was to compensate for specific loss. 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).

Plaintiff employee’s award of workmen’s compensation benefits was not limited to an injury to right great toe under former 59-10-18.4, 1953 Comp. (now 52-1-43 NMSA 1978) because the evidence showed that the employee had a general permanent bodily impairment and disability that was traceable to his foot injury Salome v. Eidal Mfg. Co., 1965-NMSC-082, 75 N.M. 354, 404 P.2d 308, 1965 N.M. LEXIS 1569 (N.M. 1965), 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).

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 NMSA 1978 et seq., 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).

The worker’s loss of use of one eye due to job-related stress was included within the scope of 52-1-43 NMSA 1978, thus the limitation of 120 weeks applied; it was error for the district court to award the worker total disability benefits for 600 weeks. 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).

Summary judgment in favor of an employer in a workers’ compensation case was reversed because proof of an impairment or evidence of the percentage loss of uses was not required for recovery of workmen’s compensation benefits; the court held that proof of an impairment, as defined in 52-1-24A NMSA 1978, was not required for recovery under 52-1-43 NMSA 1978, and that the worker presented specific facts sufficient to raise an issue as to loss of use. Lucero v. Smith's Food & Drug Ctrs., 1994-NMCA-076, 118 N.M. 35, 878 P.2d 353, 1994 N.M. App. LEXIS 70 (N.M. Ct. App. 1994).

Evidence, while debatable, supported a finding of partial disability and benefits were properly awarded under the scheduled injury section of 52-1-43 NMSA 1978, where there was no evidence of impairment other than to the employee’s knee and substantial evidence supported the finding that the employee was fit for other mining jobs. 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).

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, workmen’s compensation benefits were limited to those provided in 52-1-43 NMSA 1978, the scheduled injury section of the Workmen’s Compensation Act. 52-1-43 NMSA 1978 is exclusive unless there is evidence of separate and distinct impairment to other parts of the body in addition to the disability resulting from the injury to a scheduled member. 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).

To determine a worker’s disability, a hearing officer was required to test how the worker’s wage earning ability was affected by comparing the benefits the worker was entitled to under 52-1-43 NMSA 1978, and the wage that the worker was able to earn after the date of maximum medical improvement and vocational rehabilitation, to the wage the worker was earning when he was injured. Barela v. Midcon of New Mexico, 1989-NMCA-093, 109 N.M. 360, 785 P.2d 271, 1989 N.M. App. LEXIS 100 (N.M. Ct. App. 1989).

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).

Award of benefits received under 52-1-43 NMSA 1978 included those for partial disability; thus, where a worker claimed either permanent total disability or permanent partial disability, in addition to other proofs required, the worker had to establish a permanent physical impairment, as required under 52-1-25 NMSA 1978. Barela v. Midcon of New Mexico, 1989-NMCA-093, 109 N.M. 360, 785 P.2d 271, 1989 N.M. App. LEXIS 100 (N.M. Ct. App. 1989).

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).

In an action for workmen’s compensation benefits, an employee who had a congenital defect in one eye and then sustained a work-related accidental injury to his other eye was entitled to successive disability benefits from the former Subsequent Injury Fund because that act applied to a worker’s congenital impairment and not just to subsequent injuries which are preceded by an accidental injury. Thus, the limitation provided in 52-1-43 NMSA 1978 could not be used to insulate the Fund from liability in the employee’s case. Fierro v. Stanley's Hardware, 1986-NMCA-059, 104 N.M. 411, 722 P.2d 662, 1986 N.M. App. LEXIS 617 (N.M. Ct. App. 1986).

Where an injury to a scheduled member resulted in total disability, the scheduled member section, 52-1-43 NMSA 1978, did not prohibit compensation based on such total disability. Archuleta v. Safeway Stores, 1986-NMCA-092, 104 N.M. 769, 727 P.2d 77, 1986 N.M. App. LEXIS 659 (N.M. Ct. App. 1986).

Workers’ compensation benefits were properly awarded to an employee based on increased partial loss of use of left knee because 52-1-43B NMSA 1978 did not limit the amount of time in which a worker could file a claim for increased benefits under 52-1-56 NMSA 1978. 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.), cert. denied, 131 N.M. 737, 42 P.3d 842, 2002 N.M. LEXIS 74 (N.M. 2002).

Where an employee suffered a work-related injury to two body parts, one a scheduled body part, and the other a non-scheduled body part, the benefits paid for compensation for the injury to the scheduled body part could not be deducted from the benefits payable for the injury to the non-scheduled body part. 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).

There was no evidence to support the testimony of the worker’s doctor that the defendant’s impaired hand resulted in an impairment of her entire arm; the acceptance of the doctor’s testimony would have rendered meaningless the scheduled injury under 52-1-43 NMSA 1978, so the trial court erred in finding a scheduled injury to the worker’s arm. Murphy v. Duke City Pizza, 1994-NMCA-085, 1994-NMCA-085, 118 N.M. 346, 881 P.2d 706, 1994 N.M. App. LEXIS 94 (N.M. Ct. App. 1994), cert. denied, No. 22,305, 1994 N.M. LEXIS 320 (N.M. Sept. 1, 1994).

52-1-43 NMSA 1978 is construed as providing a simplified method for determining the benefits owed a worker when the sole injury to the worker is the loss or impairment (total or partial) of certain body members or functions. The benefits are due even absent proof of disability caused by the loss or impairment; Subsection A states the benefits for loss or total impairment and subsection B states how to compute benefits when the impairment is only partial. 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).

Consistent philosophy of New Mexico workers’ compensation acts is that persons who suffer a certain percentage of partial disability or partial impairment should receive benefits equal to that percentage of what one would receive for total disability or total impairment; thus, a worker who suffers a partial disability ordinarily receives benefits equal to a percentage of the benefit payable for total disability, and a worker who suffers a partial impairment of a member ordinarily receives compensation computed on the basis of the 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).

Worker’s contention that 52-1-43A NMSA 1978 applied whenever a loss or loss of use of a body member resulting from an accidental injury caused injury to the worker and that 52-1-43B NMSA 1978 applied only when a partial loss of use of a body member did not result in any disability distorted the meaning of the statute; the most sensible construction of 52-1-43 NMSA 1978 was that subsection A set forth the benefits for total loss or total loss of use of a member or function and subsection B set forth the benefits for partial loss of use of a member or function. 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).

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).

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).

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).

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).

Injury which caused an employee’s vision to be less correctable, but did not affect his uncorrected vision, was a compensable partial loss of the eye. Sessing v. Yates Drilling Co., 1964-NMSC-225, 74 N.M. 550, 395 P.2d 824, 1964 N.M. LEXIS 2298 (N.M. 1964).

Under former 59-10-18, 1953 Comp., an employee does not have to wait until the specified period has run and then seek a determination of excess disability, if any, by reason of the loss of the member if he is already receiving maximum compensation for the loss of his member and there is no failure or refusal to pay benefits. Gonzales v. Gackle Drilling Co., 1960-NMSC-059, 67 N.M. 130, 353 P.2d 353, 1960 N.M. LEXIS 1159 (N.M. 1960).

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