Subject to the limitation of compensation payable under Subsection G of this section, if an accidental injury sustained by a worker proximately results in the worker’s death within the period of two years following the worker’s accidental injury, compensation shall be paid in the amount and to the persons entitled thereto as follows:
A. if there are no eligible dependents, except as provided in Subsection C of Section 52-1-10 NMSA 1978 of the Workers’ Compensation Act, the compensation shall be limited to the funeral expenses, not to exceed seven thousand five hundred dollars ($7,500), and the expenses provided for medical and hospital services for the deceased, together with all other sums that the deceased should have been paid for compensation benefits up to the time of the worker’s death;
B. if there are eligible dependents at the time of the worker’s death, payment shall consist of a sum not to exceed seven thousand five hundred dollars ($7,500) for funeral expenses and expenses provided for medical and hospital services for the deceased, together with such other sums as the deceased should have been paid for compensation benefits up to the time of the worker’s death and compensation benefits to the eligible dependents as hereinafter specified, subject to the limitations on maximum periods of recovery provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978;
C. if there are eligible dependents entitled thereto, compensation shall be paid to the dependents or to the person authorized by the director or appointed by the court to receive the same for the benefit of the dependents in such portions and amounts, to be computed and distributed as follows:
(1) if there is no widow or widower entitled to compensation, sixty-six and two-thirds percent of the average weekly wage of the deceased to the child or children;
(2) if there are no children, sixty-six and two-thirds percent of the average weekly wage of the deceased to the widow or widower, until remarriage; or
(3) if there is a widow or widower and children:
(a) if all the children are living with the widow or widower, forty-five percent of the weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978 to the widow or widower and fifty-five percent divided equally to the children; or
(b) if no child is living with a widow or widower, forty percent of the weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978 to the widow or widower and sixty percent divided equally to the children; and
(4) two years’ compensation benefits in one lump sum shall be payable to a widow or widower upon remarriage; however, the total benefits shall not exceed the maximum compensation benefit as provided in Subsection B of this section;
D. if there is neither widow, widower nor children, compensation may be paid to the father and mother or the survivor of them, if dependent to any extent upon the worker for support at the time of the worker’s death, twenty-five percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to such dependents exceed the amounts contributed by the deceased worker for their care; provided that if the father and mother, or the survivor of them, was totally dependent upon such worker for support at the time of the worker’s death, they shall be entitled to fifty percent of the average weekly wage of the deceased;
E. if there is neither widow, widower nor children nor dependent parent, then to the brothers and sisters and grandchildren if actually dependent to any extent upon the deceased worker for support at the time of the worker’s death, thirty-five percent of the average weekly wage of the deceased worker with fifteen percent additional for brothers and sisters and grandchildren in excess of two, with a maximum of sixty-six and two-thirds percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to partial dependents exceed the respective amounts contributed by the deceased worker for their care;
F. in the event of the death or remarriage of the widow or widower entitled to compensation benefits as provided in this section, the surviving children shall then be entitled to compensation benefits computed and paid as provided in Paragraph (1) of Subsection C of this section for the remainder of the compensable period. In the event compensation benefits payable to children as provided in this section are terminated as provided in Subsection E of Section 52-1-17 NMSA 1978, a surviving widow or widower shall then be entitled to compensation benefits computed and paid as provided in Paragraphs (2) and (4) of Subsection C of this section for the remainder of the compensable period; and
G. no compensation benefits payable by reason of a worker’s death shall exceed the maximum weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA l978, and no dependent or any class thereof, other than a widow, widower or children, shall in any event be paid total benefits in excess of seven thousand five hundred dollars ($7,500) exclusive of funeral expenses and the expenses provided for medical and hospital services for the deceased paid for by the employer.
HISTORY:
1953 59-10-18.7, enacted by Laws 1959, ch. 67, § 25; 1963, ch. 269, § 5; 1965, ch. 252, § 3; 1967, ch. 151, § 5; 1969, ch. 173, § 3; 1972, ch. 65, § 2; 1973, ch. 240, § 7; 1975, ch. 284, § 11; 1977, ch. 275, § 2; 1986, ch. 22, § 15; 1987, ch. 235, § 19; 1999, ch. 172, § 2; 2013, ch. 134, § 3.
Amendment Notes.
The 2013 amendment, effective July 1, 2013, rewrote (C)(3), which formerly read: “to the widow or widower, if there is a child or children living with the widow or widower, forty-five percent of the average weekly wage of the deceased, or forty percent if such child is not or all such children are not living with a widow or widower and, in addition thereto, compensation benefits for the child or children which shall make the total benefits for the widow or widower and child or children sixty-six and two-thirds percent of the average weekly wage of the deceased. When there are two or more children, the compensation benefits payable on account of such children shall be divided among such children, share and share alike; and” and made stylistic changes.
Notes to Decisions
Constitutionality.
Exclusive remedy provisions of the Workers’ Compensation Act which, for purposes of compensation, classify a non-dependent survivor of a deceased employee differently from dependent survivors or ordinary tort victims, did not violate equal protection by limiting the benefits such survivor could receive under 52-1-46A NMSA 1978 because the limitation of benefits is rationally related to the purposes of the act. Sanchez v. M.M. Sundt Constr. Co., 1985-NMCA-087, 103 N.M. 294, 706 P.2d 158, 1985 N.M. App. LEXIS 586 (N.M. Ct. App. 1985).
Applicability.
Claimant’s workers’ compensation case for death benefits under 52-1-46 NMSA 1978 was properly dismissed where her husband’s suicide was not a compensable injury under 52-1-9 NMSA 1978 because it was self-inflicted as was prohibited by 52-1-11 NMSA 1978. Holford v. Regents of Univ. of Cal., Los Alamos Nat'l Lab., 1990-NMCA-066, 110 N.M. 366, 796 P.2d 259, 1990 N.M. App. LEXIS 78 (N.M. Ct. App. 1990).
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).
Inasmuch as a worker had sought an increase in disability benefits prior to his death and was appealing an adverse summary judgment at the time of death, and inasmuch as 52-1-46A, B NMSA 1978, authorized the payment, after death, of benefits that “should have been paid” prior to death, a claim by the worker’s personal representative did not abate by reason of his death, but because he had signed a release as to claims relating to his injury. 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).
The estate of a widow who had been awarded workers’ compensation benefits for the death of her husband was not entitled to benefits because the estate was not a defined dependent; under 52-1-17 NMSA 1978; the legislative intent was to only give benefits to those who were “eligible dependents” and not “heirs” as in the case of descent and distribution. Clauss v. Electronic City, 1979-NMCA-066, 93 N.M. 75, 596 P.2d 518, 1979 N.M. App. LEXIS 835 (N.M. Ct. App. 1979).
Children.
For purposes of awarding survivors’ benefits, the decedent’s dependent minor stepchildren, whether adopted or not, were treated equally with his natural children. 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).
In an action to recover workmen’s compensation death benefits under former 59-10-12J, 1953 Comp., decedent’s minor child was not entitled to his father’s death benefits because the child was not dependent upon the decedent at the time of his death and because the child lived with its mother and stepfather since its birth, and had been supported exclusively by them. Snarr v. Carroll, 1958-NMSC-010, 63 N.M. 380, 320 P.2d 736, 1958 N.M. LEXIS 1255 (N.M. 1958).
Compensation.
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 52-1-46G NMSA 1978, 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).
52-1-46 NMSA 1978 provides that if an accidental injury sustained by a workman proximately results in his death within the period of two years following his accidental injury, compensation shall be paid in the amount and to the persons entitled thereto, as follows: if there be neither widow or widower nor children, compensation may be paid to the father and mother or the survivor of them if dependent to any extent upon the workman for support at the time of the workman’s death, 25 percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to such dependents exceed the amounts contributed by the deceased workman for their care; provided, that if the father and mother, or the survivor of them, shall have been totally dependent upon such workman for support at the time of the workman’s death, he, she or they shall be entitled to 50 percent of the average weekly wage of the deceased. 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).
52-1-46C(3) NMSA 1978 unequivocally awarded a widow of a deceased workman 40 percent of the average weekly wage of the workman, where decedent left surviving him minor children, one or more of whom are not living with the surviving spouse, and decedent’s three stepchildren from his marriage to the widow and his natural daughter were entitled to one-fourth each of the sum of $64, the remaining 26 2/3 percent of decedent’s average weekly wage. 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).
Under former 59-10-18.7C, 1953 Comp., a court properly apportioned a workmen’s compensation death benefits award of five percent of a deceased father’s average weekly wage to be paid directly to the deceased’s son, who was not dependant on the deceased but lived with his mother, where the deceased’s widow was not paying any portion of the workmen’s compensation benefits she was receiving for two children to the son. Cunnan v. Blakley & Sons, 1979-NMCA-091, 93 N.M. 217, 598 P.2d 1177, 1979 N.M. App. LEXIS 754 (N.M. Ct. App. 1979).
Dependents.
Pursuant to 52-1-46 NMSA 1978, appellant parents were not presumed to be dependents of their children, and had the burden of proving it, which they failed to do. 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).
Eligibility.
Where a corporate executive and the majority shareholder of a corporation was performing non-executive work that was ordinarily performed by workmen when he fell and suffered fatal injuries, he was a workman at the time of the accident, notwithstanding his stock ownership and his executive position, and his wife was entitled to receive workmen’s compensation benefits. Shillinglaw v. Owen Shillinglaw Fuel Co., 1962-NMSC-047, 70 N.M. 65, 370 P.2d 502, 1962 N.M. LEXIS 1546 (N.M. 1962).
Employees.
Under former 59-10-12(o), 1953 Comp., a widow could not recover death benefits after her husband died while working for a lumber company because the husband was an independent contractor since the employer did not have any control over the husband’s actions. Roybal v. Bates Lumber Co., 1966-NMSC-057, 76 N.M. 127, 412 P.2d 555, 1966 N.M. LEXIS 2616 (N.M. 1966).
Where an employee suffered head injuries and appreciated the seriousness of his injuries as early as a few months after the work-related incident that caused them, but did not file a workmen’s compensation claim until two days before his death five years later, any claim on behalf of the employee’s minor child was barred. Sanchez v. Bernalillo County, 1953-NMSC-038, 57 N.M. 217, 257 P.2d 909, 1953 N.M. LEXIS 972 (N.M. 1953).
Jurisdiction.
Sections 52-1-46 and 52-1-56 NMSA 1978 provide for the continuing jurisdiction of the district court. Clauss v. Electronic City, 1979-NMCA-066, 93 N.M. 75, 596 P.2d 518, 1979 N.M. App. LEXIS 835 (N.M. Ct. App. 1979).
Lump-sum payment.
Like a lump-sum payment agreement between a living worker and his employer, a lump-sum payment agreement between a deceased worker’s dependents and the worker’s employer must be presented to a Workers’ Compensation Judge for approval; therefore, the legislature’s policy favoring periodic over lump-sum payments in 52-5-12 NMSA 1978 also applies to compensation due a deceased worker’s dependents under this section. Paradiso v. Tipps Equip., 2004-NMCA-009, 134 N.M. 814, 82 P.3d 985, 2003 N.M. App. LEXIS 119 (N.M. Ct. App. 2003).
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).
Multiple payees.
Given the provisions of former 59-10-12J and 59-10-18.7, 1953 Comp. (now 52-1-46 NMSA 1978), because payments to a dependent minor daughter of a deceased workman did not foreclose the right of the dependent mother of the workman to compensation so long as total payments did not exceed the maximum provided, a claim by the workmen’s compensation insurer requesting that the two claimants be required to interplead and settle among themselves their claims to compensation benefits was properly denied. Employers Mut. Liability Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388 P.2d 382, 1963 N.M. LEXIS 2089 (N.M. 1963).
Parent.
The trial court did not commit error by awarding all death benefits to a deceased employee’s son despite the fact that the decedent’s mother was financially dependent on him; the court noted that the son’s status had priority over the mother and Subsection D was inapplicable because the decedent had a surviving son. Aragon v. Anaconda Mining Co., 1982-NMCA-076, 98 N.M. 65, 644 P.2d 1054, 1982 N.M. App. LEXIS 855 (N.M. Ct. App. 1982).
Payee classes.
Former 59-10-12J, 1953 Comp. and former 59-10-18.7, 1953 Comp. (now 52-1-46 NMSA 1978) did not create mutually exclusive classes such that an award to a member of a class in a higher priority excluded an award to a dependent in a lower priority even though both awards might total less than the maximum payable. Employers Mut. Liability Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388 P.2d 382, 1963 N.M. LEXIS 2089 (N.M. 1963).
Subsection C(3).
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).
Succession.
Under former 59-10-18.7D, 1953 Comp. (now 52-1-46 NMSA 1978) the decedent’s mother and father were not considered dependents because the decedent did not substantially support his mother and father, had lived away from home at college, and was not supported by the mother and father while he was at college, therefore the mother and father were not entitled to death benefits as his dependents. Lopez v. Schultz & Lindsay Constr. Co., 1968-NMCA-064, 79 N.M. 485, 444 P.2d 996, 1968 N.M. App. LEXIS 493 (N.M. Ct. App.), cert. denied, 79 N.M. 448, 444 P.2d 775, 1968 N.M. LEXIS 2050 (N.M. 1968).
Surviving parents.
New Mexico legislature created a separate classification in 52-1-46G NMSA 1978, for surviving parents of a deceased workman. Establishment of surviving parents as a separate class for purposes of awarding death benefits, apart from that of surviving spouses and dependent children, was not an unconstitutional distinction, nor violative of equal protection of the laws. 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).
52-1-46D NMSA 1978 evinced a legislative intention to create a separate category of surviving parents from that of other dependents in the award of death benefits and to authorize different benefit sums from those authorized for a surviving spouse or dependent children. That distinction and classification was not arbitrary; it had a reasonable basis prescribing a maximum recovery in the case of dependent parents, different from those allowed a surviving spouse or children and it was a rational distinction and fell within permissible scope of legislative policy determination. 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).
Time limitations.
Pursuant to 52-1-46 NMSA 1978, death benefits were properly awarded to appellee widow because decedent worker knew or should have known that he suffered a compensable injury on August 17, 1987, which was the date of his accidental injury and the worker died on April 30, 1989, which was within two years of his accidental injury. Gambrel v. Marriott Hotel, 1991-NMCA-100, 112 N.M. 668, 818 P.2d 869, 1991 N.M. App. LEXIS 269 (N.M. Ct. App. 1991).
Workers’ compensation.
Under 40-2-1 NMSA 1978, a husband and wife both had a mutual obligation to support the other though the mother still had a primary duty to support her minor child and was entitled to compensation benefits in her own right; therefore, just because a mother remarried, the child of the mother and the deceased worker was still eligible to receive compensation benefits under 52-1-46C NMSA 1978. Employers Nat'l Ins. Co. v. Winters, 1984-NMCA-038, 101 N.M. 315, 681 P.2d 741, 1984 N.M. App. LEXIS 649 (N.M. Ct. App. 1984).
Under 52-1-46 NMSA 1978, the legislative intent was to permit a surviving widow or widower currently receiving compensation benefits to recover, as of the date of any remarriage, a lump-sum award equal to two years’ compensation benefits though the same benefits continued to be paid to a surviving child; thus a trial court erred in not awarding a remarried widow her demand for a lump-sum payment for two years’ benefits. Employers Nat'l Ins. Co. v. Winters, 1984-NMCA-038, 101 N.M. 315, 681 P.2d 741, 1984 N.M. App. LEXIS 649 (N.M. Ct. App. 1984).
In case of the death of a workman who would have been entitled to receive compensation if death had not occurred, a claim for compensation had to be filed on behalf of his eligible dependents to recover compensation from the employer or his insurer; under 52-1-31B NMSA 1978, the claim had to be filed within one year of death and under 52-1-46 NMSA 1978, death had to have occurred within two years of the accidental injury. Shaw v. Warner, 1984-NMCA-010, 101 N.M. 22, 677 P.2d 635, 1984 N.M. App. LEXIS 619 (N.M. Ct. App. 1984).
Widow filed a non-cognizable claim where she had waited more than a year after her husband’s death while in receipt of total disability compensation; 52-1-46 NMSA 1978 allowed dependents of a workers’ compensation recipient to file a claim for benefits. Shaw v. Warner, 1984-NMCA-010, 101 N.M. 22, 677 P.2d 635, 1984 N.M. App. LEXIS 619 (N.M. Ct. App. 1984).
Under 52-1-46G NMSA 1978, establishment of surviving parents as a separate class for purposes of awarding death benefits, apart from that of surviving spouses and dependent children, was not an unconstitutional distinction, nor violative of equal protection of the laws. 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 a decedent did not receive any payment for his work for an employer of which he was a part-owner, plaintiff widow was not entitled to compensation benefits under former 59-10-18.7, 1953 Comp. (now 52-1-46 NMSA 1978) because the decedent did not receive wages as required under the Workmen’s Compensation Act, former 59-10-12.13, 1953 Comp. (now 52-1-20 NMSA 1978). Gilliland v. Hanging Tree, Inc., 92 N.M. 23, 582 P.2d 400, 1978 N.M. App. LEXIS 584 (N.M. Ct. App.), cert. denied, 92 N.M. 180, 585 P.2d 324, 1978 N.M. LEXIS 1101 (N.M. 1978).
Although it was in a widow’s short-term financial interest to receive a lump-sum award for her husband’s injuries arising out of and in the course of his employment which resulted in his death, it was inconsistent with the public policy expressed in the Workers’ Compensation Act (52-1-1 NMSA 1978) because the policy was to assure periodic payments to help secure the recipient of the payments against want. 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).
Evidence that a wife was able to obtain her deceased husband’s savings from his employer, along with evidence of an incomplete reconciliation, substantially supported the trial court’s judgment that the wife and her children were dependents of the deceased husband. Houston v. Lovington Storage Co., 1965-NMSC-030, 75 N.M. 60, 400 P.2d 476, 1965 N.M. LEXIS 1515 (N.M. 1965).
Trial court did not abuse its discretion when it submitted a special interrogatory to a jury asking them to find if the parents of a deceased worker were actually partially dependent to any extent for their support or livelihood upon the deceased worker at the time of his death; the interrogatory concerned a question of fact necessary to decide if the parents were entitled to death benefits, and in view of the way the evidence was presented and the point stressed during trial, the jury fully understood the weight placed upon the question whether the parents were actually partially dependent to any extent for their support of livelihood upon the deceased at the time of his death. Ferris v. Thomas Drilling Co., 1957-NMSC-029, 62 N.M. 283, 309 P.2d 225, 1957 N.M. LEXIS 902 (N.M. 1957).
Trial court did not err when it instructed a jury that the parents of a deceased worker could be found to be dependent upon the worker if the worker had contributed to the parents’ support and livelihood, and the parents relied upon the worker in whole or in part to any extent for their livelihood at the time of the worker’s death. Ferris v. Thomas Drilling Co., 1957-NMSC-029, 62 N.M. 283, 309 P.2d 225, 1957 N.M. LEXIS 902 (N.M. 1957).
Actual partial dependency may exist even if the evidence shows that the claimant could have existed without the contributions of a deceased employee; it depends on whether the deceased employee actually contributed to the claimant’s support and whether the claimant relied upon such earnings in whole or in part for his livelihood. Ferris v. Thomas Drilling Co., 1957-NMSC-029, 62 N.M. 283, 309 P.2d 225, 1957 N.M. LEXIS 902 (N.M. 1957).
Evidence was sufficient to show that the parents of a 20-year-old worker who was killed in a work-related accident were partially dependent upon the worker, where the worker deposited his earnings in a joint account he owned with his mother, the mother withdrew funds from the account for family expenses when necessary, the worker wrote checks on the account to pay family bills, both parents testified that they were partially dependent upon the worker, the father had been off work for an extended period of time due to illness, and the father’s bank account was quite meager. Ferris v. Thomas Drilling Co., 1957-NMSC-029, 62 N.M. 283, 309 P.2d 225, 1957 N.M. LEXIS 902 (N.M. 1957).
Parents who were partially, but not wholly, dependent upon their son for support were entitled to receive workmen’s compensation death benefits following the work-related death of their son under former 59-10-12J(4), 1953 Comp. Ferris v. Thomas Drilling Co., 1957-NMSC-029, 62 N.M. 283, 309 P.2d 225, 1957 N.M. LEXIS 902 (N.M. 1957).
Widow was entitled to death benefits under former § 57-918, 1941 Comp. (now 52-1-46 NMSA 1978) despite the fact that her husband died from his injuries more than a year after the injury occurred because the employer argued that benefits should be awarded under that statute, so that it might avoid a larger liability; further, the employer invited the trial court’s erroneous application of the statute and cannot be allowed to avoid liability under that statute after arguing that it should apply. Gonzales v. Sharp & Fellows Contractor Co., 1944-NMSC-025, 48 N.M. 528, 153 P.2d 676, 1944 N.M. LEXIS 80 (N.M. 1944).
Pursuant to former § 57-912L, 1941 Comp. (now 52-1-46 NMSA 1978), there was no break in deceased’s employment and that the main purpose in making the trip from Albuquerque, New Mexico, to Roswell, New Mexico, was in the furtherance of the business of appellant employer; therefore, workmen’s compensation benefits were properly awarded to claimant widow. McKinney v. Dorlac, 1944-NMSC-017, 48 N.M. 149, 146 P.2d 867, 1944 N.M. LEXIS 34 (N.M. 1944).
Research References and Practice Aids
Cross references.
Increase or reduction in compensation based on failure of employer to provide or failure of employee to use safety devices, 52-1-10 NMSA 1978.
Compensation benefits; total disability, 52-1-41 NMSA 1978.
Limitations on compensation benefits, 52-1-47 NMSA 1978.
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).