The workers’ compensation judge may, upon the application of the employer, worker or other person bound by the compensation order, fix a time and place for hearing upon the issue of claimant’s recovery. If it appears upon such hearing that diminution or termination of disability has taken place, the workers’ compensation judge shall order diminution or termination of payments of compensation as the facts may warrant. If it appears upon such hearing that the disability of the worker has become more aggravated or has increased without the fault of the worker, the workers’ compensation judge shall order an increase in the amount of compensation allowable as the facts may warrant. Hearings shall not be held more frequently than at six-month intervals. In the event the employer or other person upon whose application the hearing is had to diminish or terminate compensation is unsuccessful in diminishing or terminating the compensation previously awarded to the worker, the worker shall be entitled to recover from the applicant all reasonable and necessary expenses incidental to his attending the hearing, including the cost of travel, meals, lodging, loss of pay or other like direct expense together with his costs. If the worker has, prior to his application to the workers’ compensation judge, made demand in writing to the employer or other person bound by the compensation order for examination as provided in Section 52-1-51 NMSA 1978 for the purpose of determining whether compensation should be increased and if the employer or other person bound by the compensation order has failed to provide the examination within a period of one month after receipt of the demand or, after the examination, has denied to the worker any increase in compensation, then if the worker is successful in obtaining an increase of compensation, he is entitled to recover from the employer or other person bound by the compensation order all reasonable and necessary expenses incidental to his attending the hearing, including the cost of travel, meals, lodging, loss of pay or other like direct expense together with his costs. The compensation of the worker as previously awarded shall continue while the hearing is pending. If the applicant decides to have the worker examined after he has come to the place of hearing pursuant to notice given, he shall pay the worker his expenses necessarily incurred in attending the hearing before the worker is required to submit to such examination, but such worker is not entitled to receive expense money more than one time for the same trip.
HISTORY:
1978 52-1-56, enacted by Laws 1987, ch. 235, § 26; 1989, ch. 263, § 33.
Notes to Decisions
Vocational rehabilitation award.
Generally.
Although 52-1-56C NMSA 1978 is worded in terms of an assignment of any cause of action against any other party to the extent of the compensation and medical benefits paid, it has been consistently interpreted to confer a right of reimbursement to form proceeds obtained from a third party by an employee, and there is but one cause of action, the employee’s, and the employee is an indispensable party to third-party lawsuits; however, the employee may assign to the compensation insurer the employee’s claim against the third party. Continental Casualty Co. v. Wueschinski, 1981-NMCA-035, 95 N.M. 733, 625 P.2d 1250, 1981 N.M. App. LEXIS 707 (N.M. Ct. App. 1981).
Except in rare circumstances with preclusive facts, any judgment for compensation in a workman’s compensation case may be reopened under 52-1-56A NMSA 1978 during the remainder of the statutory period after the original judgment’s entry for the purpose of requesting an increase or decrease in compensation benefits. Glover v. Sherman Power Tongs, 1980-NMCA-076, 94 N.M. 587, 613 P.2d 729, 1980 N.M. App. LEXIS 883 (N.M. Ct. App. 1980).
Under former 59-10-25, 1953 Comp., a trial court could extend the length of time compensation was to be paid. Goolsby v. Pucci Distrib. Co., 1969-NMCA-012, 80 N.M. 59, 451 P.2d 308, 1969 N.M. App. LEXIS 536 (N.M. Ct. App. 1969).
Applicability.
Purpose of 52-1-56 NMSA 1978 is to prevent double recovery by a worker and to provide reimbursement to an employer or insurer, but 52-1-56 NMSA 1978 applies only if the worker has received payment or recovered damages for injuries occasioned by the negligence or wrong of the third party. Gantt v. L & G Air Conditioning, 1983-NMCA-083, 101 N.M. 208, 680 P.2d 348, 1983 N.M. App. LEXIS 825 (N.M. Ct. App. 1983).
A trial court did not err in raising the percentage of disability after the first hearing where the second hearing was not held prior to the expiration of a six-month interval and thus former 52-1-56 NMSA 1978 (52-1-56 NMSA 1978), providing that hearings “may not be held more frequently than at six-month intervals” was not applicable; even if the statute were applicable, it is worded in permissive terms (may) and not mandatory terms (shall). Tafoya v. S & S Plumbing Co., 1981-NMCA-150, 97 N.M. 249, 638 P.2d 1094, 1981 N.M. App. LEXIS 806 (N.M. Ct. App. 1981), cert. denied, 98 N.M. 50, 644 P.2d 1039, 1982 N.M. LEXIS 2956 (N.M. 1982).
While New Mexico has no statutory provision providing the mechanics for protecting the statutory right to reimbursement conferred by 52-1-56C NMSA 1978, there is another provision for protecting that right found in Rule 1-019(A) NMRA, which is applicable, pursuant to 52-1-34 NMSA 1978, because no provision of the Workmen’s Compensation Act directly conflicts with Rule 1-019, which provides that a person who is subject to service of process shall be joined as a party in the action if in his absence complete relief cannot be accorded among those already parties. Continental Casualty Co. v. Wueschinski, 1981-NMCA-035, 95 N.M. 733, 625 P.2d 1250, 1981 N.M. App. LEXIS 707 (N.M. Ct. App. 1981).
Attorney fees.
In its award of attorney’s fees to an injury claimant in a workers’ compensation case, the trial court’s calculation of present value of the disability benefits award was erroneously based on the total escalated and anticipated benefits for the entire period of the injury claimant’s statutory entitlement, without regard to the possibility of diminution or termination; it was also improper to establish the present value of the injury claimant’s award as including amounts over a figure due or to become due within six months beyond the date the award was granted, in the absence of evidence directed to the benefits continuing beyond the six-month period. Fitch v. Sam Tanksley Trucking Co., 1980-NMCA-150, 95 N.M. 477, 623 P.2d 991, 1980 N.M. App. LEXIS 965 (N.M. Ct. App. 1980).
Comparative negligence.
New Mexico has adopted “pure” comparative negligence. Although a jury may apportion liability to an employer under the “pure” comparative negligence standard, none of this apportioned negligence shall reduce the employer’s right of reimbursement as provided under 52-1-56 NMSA 1978. Taylor v. Delgarno Transp., 1983-NMSC-052, 100 N.M. 138, 667 P.2d 445, 1983 N.M. LEXIS 2307 (N.M. 1983).
Compensation.
Term “compensation order” applies to the initial award of benefits even though the award was not, in the strict sense of the term, a compensation order. 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).
Agreements to pay medical and compensation benefits are “compensation orders” within the meaning of 52-1-56 NMSA 1978, even if they have not been reduced to writing and approved by a workers’ compensation judge. 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).
Construction.
Workers’ compensation judge erred in modifying a prior order based solely upon the fact that the worker obtained his college degree after the initial order; the legislature was presumed to have known that the court had defined “disability” as being a physical condition, and it chose to not include education level in the definition of “disability” as that term is used in 52-1-56 NMSA 1978. Herrera v. Quality Imports, 1999-NMCA-140, 128 N.M. 300, 992 P.2d 313, 1999 N.M. App. LEXIS 118 (N.M. Ct. App. 1999).
Under the definition of “partial disability” found in 52-1-26B NMSA 1978, a worker’s education level could not be equated with the term “disability” because education could not be an injurious condition arising out of and in the course of employment; the provision in 52-1-56 NMSA 1978 for fixing a time and place for a hearing on recovery applies to physical recovery. Herrera v. Quality Imports, 1999-NMCA-140, 128 N.M. 300, 992 P.2d 313, 1999 N.M. App. LEXIS 118 (N.M. Ct. App. 1999).
Construction with other law.
Summary judgment was found to have been properly granted in favor of an employee and employer in a tort action brought by another employee, which was based on a battery claim, because the common-law cause of action was not permitted under 52-1-8 and 52-1-9 NMSA 1978 since the act was covered by the Workmen’s Compensation Act, 52-1-1 to 52-1-69 NMSA 1978; 52-1-6D, 52-1-8, and 52-1-56C NMSA 1978 were found to accord immunity for all causes of action, all common-law rights and remedies, for negligence or wrong. Gallegos v. Chastain, 1981-NMCA-014, 95 N.M. 551, 624 P.2d 60, 1981 N.M. App. LEXIS 683 (N.M. Ct. App. 1981), overruled in part, Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148, 2001 N.M. LEXIS 376 (N.M. 2001), overruled in part as stated in Richey v. Hammond Conservancy Dist., No. 32847, 2015 N.M. App. LEXIS 12 (N.M. Ct. App. Jan. 26, 2015).
Dismissal.
Where an employee was receiving maximum workers’ compensation benefits, the trial court properly dismissed his court action seeking a determination that his injury was permanent, because the court action was premature. George v. Miller & Smith, Inc., 1950-NMSC-029, 54 N.M. 210, 219 P.2d 285, 1950 N.M. LEXIS 615 (N.M. 1950).
Dual recovery.
Purpose of 52-1-56C NMSA 1978 is to prevent dual recovery but that purpose does not extend to limiting accessibility to workmen’s compensation benefits outside of a dual recovery situation. Clemmer v. Carpenter, 1982-NMCA-098, 98 N.M. 302, 648 P.2d 341, 1982 N.M. App. LEXIS 894 (N.M. Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 3010 (N.M. 1982).
Eligibility.
Under 52-1-56 and 52-1-42 NMSA 1978, a worker was entitled to petition for modification at any time during the 500-week statutory benefits period, even if worker had received all of the permanent partial disability benefits to which he was entitled through partial lump-sum payments before the 500-week 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).
Worker was not entitled to an increase in his workmen’s compensation benefits under 52-1-56 NMSA 1978 for his new injury, a deteriorating hip resulting from medication that required hip replacement surgery, because the new injury did not increase his disability. Jaramillo v. Consolidated Freightways, 1990-NMCA-008, 109 N.M. 712, 790 P.2d 509, 1990 N.M. App. LEXIS 14 (N.M. Ct. App.), cert. denied, 109 N.M. 704, 789 P.2d 1271, 1990 N.M. LEXIS 90 (N.M. 1990).
Employer liability.
Where a worker’s employer was found partially at fault in the worker’s negligence and products liability suit against third-party tortfeasors, the employer’s insurer was entitled to reimbursement in full for the workmen’s compensation paid by the employer to the worker. Taylor v. Delgarno Transp., 1983-NMSC-052, 100 N.M. 138, 667 P.2d 445, 1983 N.M. LEXIS 2307 (N.M. 1983).
Equitable principles.
Having been made “financially whole” by a wrongful death award, plaintiff could not retain both compensation benefits and the damages recovered; while plaintiff would end up receiving less than she would have received in workers’ compensation benefits, there was no factual basis for reducing the amount of a compensation insurer’s reimbursement on the basis of equitable principles. Strickland v. Roosevelt County Rural Elec. Coop., 1982-NMCA-184, 99 N.M. 335, 657 P.2d 1184, 1982 N.M. App. LEXIS 967 (N.M. Ct. App. 1982), cert. denied, 99 N.M. 358, 658 P.2d 433, 1983 N.M. LEXIS 2242 (N.M. 1983), cert. denied, 463 U.S. 1209, 103 S. Ct. 3540, 77 L. Ed. 2d 1390, 1983 U.S. LEXIS 756 (U.S. 1983).
Evidence.
—Sufficient.
In a workers’ compensation action, a diminution order under former 59-10-25, 1953 Comp. was proper because employee had obtained and retained gainful employment and was earning two and one-half times as much per month by obtaining employment than he would have received in compensation benefits. Bartlett v. Shaw, 1966-NMSC-197, 76 N.M. 753, 418 P.2d 533, 1966 N.M. LEXIS 2752 (N.M. 1966).
Award of an extension of the duration of compensation and medical expenses was based on substantial evidence of the claimant’s worsening back injury and the need for exploratory surgery to discern the cause of the problem. Segura v. Jack Adams Gen. Contractor, 1958-NMSC-101, 64 N.M. 413, 329 P.2d 432, 1958 N.M. LEXIS 1353 (N.M. 1958).
Finality.
Workmen’s compensation claimant’s motion to reopen a judgment approving a lump-sum settlement of his claim, in which he alleged that his disability had become more aggravated and that the aggravation could not have been anticipated at the date of judgment, was properly denied because the lump-sum judgment based upon a stipulation of the parties, fully paid and satisfied, was conclusive and could not be reopened under a claim of aggravation or increase in disability in the absence of fraud or other inequitable conduct. Durham v. Gulf Interstate Eng'g Co., 1964-NMSC-130, 74 N.M. 277, 393 P.2d 15, 1964 N.M. LEXIS 2202 (N.M. 1964).
Hearing.
On a motion to extend the length of workers’ compensation benefits, former 59-10-25, 1953 Comp. did not authorize a trial court to condition a hearing on the worker paying the fee of the employer’s expert if the motion was unsuccessful. Goolsby v. Pucci Distrib. Co., 1969-NMCA-012, 80 N.M. 59, 451 P.2d 308, 1969 N.M. App. LEXIS 536 (N.M. Ct. App. 1969).
While former 59-10-25, 1953 Comp. stated that the district court “may” fix a time and a place for a hearing, it also stated that a worker’s application for additional benefits was to be resolved “as the facts may warrant.” The issue was a change in a claimant’s condition subsequent to the prior award, and this factual matter was to be resolved at an evidentiary hearing resulting in new findings and a judgment in accordance with the new findings. Goolsby v. Pucci Distrib. Co., 1969-NMCA-012, 80 N.M. 59, 451 P.2d 308, 1969 N.M. App. LEXIS 536 (N.M. Ct. App. 1969).
Jurisdiction.
New Mexico Workers’ Compensation Act did not limit the court’s continuing jurisdiction to enforce prior workers’ compensation awards only to instances where the worker or employer has moved to increase or diminish disability benefits; both 52-1-38 NMSA 1978 and 52-1-56 NMSA 1978 invested the court with continuing jurisdiction in workers’ compensation actions. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993, 1990 N.M. App. LEXIS 87 (N.M. Ct. App. 1990).
In a workers’ compensation matter, the trial court had continuing jurisdiction under 52-1-38 NMSA 1978, 52-1-49 NMSA 1978 and 52-1-56 NMSA 1978 to enforce its original judgment requiring defendants to pay all reasonably necessary future medical benefits to the claimant, including future home nursing and attendant care expenses; the decision was nevertheless subject to compliance with the provisions of Rules 1-059 or 1-060 NMRA to provide proof of such expenses. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993, 1990 N.M. App. LEXIS 87 (N.M. Ct. App. 1990).
Trial court had continuing jurisdiction under 52-1-56 NMSA 1978 to enforce its order requiring the county and the insurance company to pay all reasonably and necessary future medical expenses to the claimant. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993, 1990 N.M. App. LEXIS 87 (N.M. Ct. App. 1990).
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).
Latent injury.
One who initially suffers and is compensated for impairment to a scheduled member, without further disability, is not thereafter denied the opportunity of reopening his case under 52-1-56A NMSA 1978 to show a latent disability arising from the same injury, and to claim entitlement to an adjustment of the earlier award. The later development is one of the precise reasons inducing the legislature’s enactment of 52-1-56A NMSA 1978. Glover v. Sherman Power Tongs, 1980-NMCA-076, 94 N.M. 587, 613 P.2d 729, 1980 N.M. App. LEXIS 883 (N.M. Ct. App. 1980).
Legislative intent.
Workers’ Compensation Act, 52-1-56 NMSA 1978, was enacted to meet the changes that may occur in a worker’s physical condition, and allows an increase in the amount of compensation allowable based on a proper showing that the worker’s disability has increased. 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).
The intended purpose of 52-1-56 NMSA 1978 was to meet the effect of changes which could occur in a worker’s physical condition, as related to a compensable injury. Glover v. Sherman Power Tongs, 1980-NMCA-076, 94 N.M. 587, 613 P.2d 729, 1980 N.M. App. LEXIS 883 (N.M. Ct. App. 1980).
Lump-sum settlement.
In order for a trial court to order a lump-sum settlement pursuant to 52-1-56B NMSA 1978, there must be an “enforceable” right to compensation; therefore, in an employee’s “friendly” action for a lump-sum settlement from his employer, the trial court properly dismissed the complaint because maximum compensation benefits were being paid, so there was no basis for a compensation claim and, thus, no enforceable right to compensation. Neumann v. A.S. Horner, Inc., 1983-NMCA-039, 99 N.M. 603, 661 P.2d 503, 1983 N.M. App. LEXIS 701 (N.M. Ct. App. 1983), overruled, Raines v. W.A. Klinger & Sons, 1988-NMSC-083, 107 N.M. 668, 763 P.2d 684, 1988 N.M. LEXIS 291 (N.M. 1988).
Modification.
Workers’ compensation judge (WCJ) properly determined that a worker was no longer at maximum medical improvement after the worker had admitted being at maximum medical improvement and received a lump sum award of benefits because (1) under 52-5-9 NMSA 1978 and this section, the WCJ had the authority to modify the maximum medical improvement determination upon a change of condition if the worker’s injury became aggravated or worsened to an extent that the worker was no longer at maximum medical improvement, and (2) no statutory provision precluded such a modification because the worker previously admitted to being at maximum medical improvement and requested lump sum payment of benefits. 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).
Summary judgment was improperly granted to a worker who was seeking temporary total disability benefits after taking a lump sum payment due to the fact that his medical condition had worsened. 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).
Proximate cause.
Where a worker obtains a verdict against third party tortfeasors for a work-related injury and the verdict, under comparative fault principles, includes a determination that the employer is at fault and such fault is a proximate cause of the worker’s injury, such determination does not reduce or affect the employer’s right to be reimbursed for amounts paid in compensation and medical benefits. Taylor v. Delgarno Transp., 1983-NMSC-052, 100 N.M. 138, 667 P.2d 445, 1983 N.M. LEXIS 2307 (N.M. 1983).
Purpose.
Purpose of 52-1-56 NMSA 1978, as demonstrated by its language and by court opinions concerning its predecessor statutes, is to give a workers’ compensation judge the power to increase or decrease awards of compensation upon a proper showing. 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).
Recovery.
In an action by an employee and his workmen’s compensation insurer against a third party for damages from injuries suffered by the employee, the third party’s insurer could not be added as a party to the action because 52-1-56 NMSA 1978 was not a subrogation statute but a reimbursement statute preventing a double recovery by the employee. Schulte v. Baber Well Servicing Co., 1982-NMCA-036, 98 N.M. 547, 650 P.2d 831, 1982 N.M. App. LEXIS 878 (N.M. Ct. App.), cert. quashed, 98 N.M. 478, 649 P.2d 1391, 1982 N.M. LEXIS 3008 (N.M. 1982).
Remedies.
Where an injured worker entered into a stipulated settlement with his employer’s general contractor, making him financially whole, he was not entitled to dual recovery from his employer in order to make him whole under the former version of 52-1-56C NMSA 1978. Apodaca v. Formwork Specialists, 1990-NMCA-102, 110 N.M. 778, 800 P.2d 212, 1990 N.M. App. LEXIS 111 (N.M. Ct. App. 1990), cert. denied, 110 N.M. 749, 799 P.2d 1121, 1990 N.M. LEXIS 331 (N.M. 1990), overruled, Montoya v. AKAL Sec., 1992-NMSC-056, 114 N.M. 354, 838 P.2d 971, 1992 N.M. LEXIS 261 (N.M. 1992).
Requirements.
Workmen’s compensation claimant was not entitled to an increase in compensation, and summary judgment in favor of the employer was appropriate, where the uncontroverted medical evidence showed no aggravation or exacerbation of the claimant’s hand injury. Holliday v. Talk of the Town, 1982-NMCA-103, 98 N.M. 354, 648 P.2d 812, 1982 N.M. App. LEXIS 889 (N.M. Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 3009 (N.M. 1982).
Res judicata.
Jury award of six months of workers’ compensation was not res judicata as to the claimant’s subsequent application for an extension of the duration of compensation and medical expenses based on the claimant’s worsening condition. Segura v. Jack Adams Gen. Contractor, 1958-NMSC-101, 64 N.M. 413, 329 P.2d 432, 1958 N.M. LEXIS 1353 (N.M. 1958).
Retroactivity.
1951 N.M. Laws 205, § 3, which was codified at former 59-10-25, 1953 Comp., and which permitted the reopening of a claim based on proof of aggravation of an injury, is not retroactive, and a claimant who was injured before the effective date of the amendment could not reopen his claim and seek further compensation. Davis v. Meadors-Cherry Co., 1958-NMSC-119, 65 N.M. 21, 331 P.2d 523, 1958 N.M. LEXIS 1372 (N.M. 1958).
Review.
A person bound by a judgment awarding workmen’s compensation may apply for a diminution of benefits; defendants were bound by the judgment and were not precluded from applying for a reduction of future benefits while the appeal was pending. Genuine Parts Co. v. Garcia, 1978-NMSC-059, 92 N.M. 57, 582 P.2d 1270, 1978 N.M. LEXIS 955 (N.M. 1978).
Satisfaction of judgment.
Under former 59-10-25, 1953 Comp., the employee was entitled to evidentiary hearing on his motion for an increase in the compensation award after he executed a release and a satisfaction of judgment on his award of workmen’s compensation because the satisfaction of judgment was not a waiver since the employee’s motion was concerned with compensation for disability subsequent to the period covered by the judgment. Burton v. Jennings Bros., 1975-NMCA-068, 88 N.M. 95, 537 P.2d 703, 1975 N.M. App. LEXIS 674 (N.M. Ct. App.), cert. denied, 88 N.M. 318, 540 P.2d 248, 1975 N.M. LEXIS 895 (N.M. 1975).
Settlement.
Under 52-1-56 NMSA 1978, the acceptance of a settlement under uninsured motorist coverage did not bar a working partner’s workmen’s compensation claim, and the partnership and its insurer were not entitled to summary judgment on grounds that the partner was not an employee. Gantt v. L & G Air Conditioning, 1983-NMCA-083, 101 N.M. 208, 680 P.2d 348, 1983 N.M. App. LEXIS 825 (N.M. Ct. App. 1983).
Special errand.
Workmen’s compensation death benefits were properly awarded to the widow of an employee that was killed in a car accident while driving through 10 inches of snow to attend a Coast Guard Reserve meeting and also to do some work for the employer after the meeting; benefits were not offset by the receipt of federal benefits by the employee’s widow and stepdaughter from the Veterans Administration as a result of the employee’s death on the way to the Coast Guard meeting. Clemmer v. Carpenter, 1982-NMCA-098, 98 N.M. 302, 648 P.2d 341, 1982 N.M. App. LEXIS 894 (N.M. Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 3010 (N.M. 1982).
Third-party claims.
Injured employee may sue a third party, other than the employer or an employee of the employer, for negligence in causing the injured employee’s accident. If the injured employee recovers in a third-party suit, 52-1-56 NMSA 1978 provides a right of reimbursement for benefits received under the Workmen’s Compensation Act if the employee’s third-party claim is successful in order to prevent dual recovery. Taylor v. Delgarno Transp., 1983-NMSC-052, 100 N.M. 138, 667 P.2d 445, 1983 N.M. LEXIS 2307 (N.M. 1983).
Time limitations.
Only initial claims for compensation fall under 52-1-31A NMSA 1978; applications for modification of benefits should be filed 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).
Claims under 52-1-56 NMSA 1978 can be filed at any time during the maximum period that a worker could have received benefits, even if the original judgment awarded benefits for less than that period of time and even if the original judgment had been fully paid some time earlier. 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).
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).
Vocational rehabilitation award.
Worker was not entitled to an increase in workers’ compensation benefits based on a change in physical condition that did not increase his disability; however, the worker was entitled to vocational rehabilitation award based on need, not potential for success. Jaramillo v. Consolidated Freightways, 1990-NMCA-008, 109 N.M. 712, 790 P.2d 509, 1990 N.M. App. LEXIS 14 (N.M. Ct. App.), cert. denied, 109 N.M. 704, 789 P.2d 1271, 1990 N.M. LEXIS 90 (N.M. 1990).
Workers’ compensation.
Under 52-1-56C NMSA 1978, an employee may sue a third-party wrongdoer for the entire amount of damages received, but the employer or insurer is entitled to reimbursement from the proceeds for the benefits already paid to the employee. American Gen. Fire & Casualty Co. v. J.T. Constr. Co., 1987-NMCA-094, 106 N.M. 195, 740 P.2d 1179, 1987 N.M. App. LEXIS 740 (N.M. Ct. App. 1987).
In a workers’ compensation case, under 52-1-56 NMSA 1978, the employer had the burden of proving that the claimant’s disability had diminished or terminated following an award for total temporary disability. Amos v. Gilbert W. Corp., 1985-NMCA-106, 103 N.M. 631, 711 P.2d 908, 1985 N.M. App. LEXIS 611 (N.M. Ct. App. 1985).
Where an earlier action on the worker’s claim for disability benefits for a back injury was dismissed without prejudice by a stipulation under which the employer and its insurer voluntarily paid the worker disability benefits, 52-1-56 NMSA 1978 did not apply to deprive the trial court of jurisdiction to reopen because there had never been a determination of liability or a judgment awarding compensation. Brooks v. Hobbs Mun. Sch., 1984-NMCA-088, 101 N.M. 707, 688 P.2d 25, 1984 N.M. App. LEXIS 696 (N.M. Ct. App. 1984).
Where a workers’ compensation claimant’s doctor expressed concern that a spinal fusion performed on the claimant might not be completely successful, 52-1-56 NMSA 1978 allowed reconsideration if the condition deteriorated such that dismissal of the action with prejudice was an improper result. Rumpf v. Rainbo Baking Co., 1981-NMCA-037, 96 N.M. 1, 626 P.2d 1303, 1981 N.M. App. LEXIS 706 (N.M. Ct. App. 1981).
Where an employee, not a workers’ compensation insurer, was the one that had the cause of action against a third party, not to require the employee to be an involuntary plaintiff would have been an injustice because the insurer would have been deprived of its statutory right of reimbursement. Continental Casualty Co. v. Wueschinski, 1981-NMCA-035, 95 N.M. 733, 625 P.2d 1250, 1981 N.M. App. LEXIS 707 (N.M. Ct. App. 1981).
After a trial court’s award of compensation for temporary total disability to an employee, the employer had a right under former 59-10-25A, 1953 Comp. to re-evaluate the employee after six months; whether the disability was total or partial, permanent or temporary played no role in any subsequent hearing. Short v. Associated Milk Producers, 1978-NMCA-100, 92 N.M. 204, 585 P.2d 649, 1978 N.M. App. LEXIS 612 (N.M. Ct. App. 1978).
Trial court has the power to exercise the continuing jurisdiction provided in former 1929 Code, § 156-124 (now 52-1-56 NMSA 1978), notwithstanding the fact that subsequent to the original award, an appeal has been granted to the supreme court of New Mexico and the appeal is pending. Norvell v. Barnsdall Oil Co., 1937-NMSC-038, 41 N.M. 421, 70 P.2d 150, 1937 N.M. LEXIS 39 (N.M. 1937).
Research References and Practice Aids
Cross references.
Fee restrictions; appointment of attorneys by the director or workers’ compensation judge; discovery costs; offer of judgment; penalty for violations, 52-1-54 NMSA 1978.