A. Unless otherwise contracted for by the worker and employer, workers’ compensation benefits shall be limited so that no worker receives more in total payments, including wages and benefits from his employer, by not working than by continuing to work. Compensation benefits under the Workers’ Compensation Act [52-1-1 NMSA 1978] shall accordingly be reduced, if necessary, to account for any wages and employer-financed disability benefits a worker receives after the time of injury. For the purposes of this section, total payments shall be determined on an after-tax basis. This section does not apply to social security payments, employee-financed disability benefits, benefits or payments a worker received from a prior employer, payments for medical or related expenses or general retirement payments, except it does apply to disability retirement benefits.
B. This section shall only apply to injuries that occur after the effective date of this section; it shall not reduce benefits received or due or affect the benefits due for injuries that occur before the effective date of this section.
HISTORY:
Laws 1990 (2nd S.S.), ch. 2, § 30.
Notes to Decisions
Cap on benefits.
Employer was not entitled to an offset for the percentage of disability benefits paid for by a worker's premium contributions because the statute providing for such offset only provides it for the portion of disability benefits paid by the employer's premium contributions. Esckelson v. Miners' Colfax Med. Ctr., 2014-NMCA-052, 324 P.3d 393, 2014 N.M. App. LEXIS 14 (N.M. Ct. App. 2014).
Subsection A of this section requires consideration of the amount of benefits a worker can receive on a weekly basis, not over the course of a lifetime. Livingston v. Envtl. Earthscapes, 2013-NMCA-099, 311 P.3d 1196, 2013 N.M. App. LEXIS 62 (N.M. Ct. App.), cert. denied, 309 P.3d 100, 2013 N.M. LEXIS 297 (N.M. 2013).
Where an injured worker sought permanent partial disability and loss of use benefits that exceeded his average weekly wage, the workers’ compensation judge correctly held that this section prevented him from receiving benefits that exceeded his average weekly wage. Livingston v. Envtl. Earthscapes, 2013-NMCA-099, 311 P.3d 1196, 2013 N.M. App. LEXIS 62 (N.M. Ct. App.), cert. denied, 309 P.3d 100, 2013 N.M. LEXIS 297 (N.M. 2013).
Based on this section, a worker may not receive permanent partial disability and loss of use benefits that exceed his average weekly wage. Livingston v. Envtl. Earthscapes, 2013-NMCA-099, 311 P.3d 1196, 2013 N.M. App. LEXIS 62 (N.M. Ct. App.), cert. denied, 309 P.3d 100, 2013 N.M. LEXIS 297 (N.M. 2013).
Offset.
This section provides an offset only for wages and employer-financed benefits that an at-injury employer provided; it does not allow an offset for wages paid by a subsequent employer. Moya v. City of Albuquerque, 2007-NMCA-057, 141 N.M. 617, 159 P.3d 266, 2007 N.M. App. LEXIS 29 (N.M. Ct. App.), rev'd, 2008-NMSC-004, 143 N.M. 258, 175 P.3d 926, 2007 N.M. LEXIS 693 (N.M. 2007).