As used in the Workers' Compensation Act, unless the context otherwise requires, "employer" includes any person or body of persons, corporate or incorporate, and the legal representative of a deceased employer or the receiver or trustee of a person, corporation, association or partnership engaged in or carrying on for the purpose of business or trade, charitable organizations, except as provided in Section 52-1-6 NMSA 1978, and also includes the state and each county, municipality, school district, drainage, irrigation or conservancy district and public institution and administrative board thereof employing workers under the terms of the Workers' Compensation Act.

History: 1953 Comp., § 59-10-12.8, enacted by Laws 1965, ch. 295, § 8; 1975, ch. 284, § 5; 1989, ch. 263, § 11.

Cross references. — For employers who come within act, see 52-1-2 NMSA 1978.

For coverage by state agencies, see 52-1-3 NMSA 1978.

Release of one employer ineffective for second employer. — A worker may have two employers, both of whom are liable for workers' compensation benefits. Worker's claim was not barred against one employer because of the settlement agreement previously reached with another employer. Johnson v. Aztec Well Servicing Co., 1994-NMCA-065, 117 N.M. 697, 875 P.2d 1128.

Test of act's applicability. — It is the business or undertaking of the employer, not the particular duty or task of the employee at the time, which furnishes the test on whether the act is applicable. Rumley v. Middle Rio Grande Conservancy Dist., 1936-NMSC-023, 40 N.M. 183, 57 P.2d 283 (decided under former law).

It is not purpose of Workmen's [Workers'] Compensation Act to permit suit against state without consent having been first obtained. There is no basis to assume that a school district can be sued without consent on the strength of its inclusion in Section 52-1-2 NMSA 1978 and former 59-10-12 1953 Comp. McWhorter v. Board of Educ., 1958-NMSC-015, 63 N.M. 421, 320 P.2d 1025 (decided under former law).

There is no express consent by state to be sued in workmen's [workers'] compensation proceeding involving the state penitentiary and the consent is not to rest on implication. Day v. Penitentiary of N.M., 1954-NMSC-064, 58 N.M. 391, 271 P.2d 831 (decided under former law).

Compensation benefits are not based on physical injury itself but on the disability produced by the injury. Lozano v. Archer, 1962-NMSC-164, 71 N.M. 175, 376 P.2d 963 (decided under former law).

Free from total disability. — Evidence of 15 to 20% medical impairment, standing alone, is not substantial evidence as to what was the disability of the workman [worker]. In order to be free from total disability, a workman [worker] must be physically able to do the work required of him in his regular employment. Lucero v. Koontz, 1962-NMSC-007, 69 N.M. 417, 367 P.2d 916 (decided under former law).

Wage earning ability in competitive market. — Where claimant was not able to do much of anything and could not pursue a regular job of labor without special consideration and even with successful surgery he would never be able to do heavy work, would be more vulnerable to new injury, would constitute a hazard to any employer or carrier and that the claimant is able to assist his wife in running a small grocery store by keeping books and giving advice is not indicative of wage earning ability in a competitive market. Lozano v. Archer, 1962-NMSC-164, 71 N.M. 175, 376 P.2d 963 (decided under former law).

Wage earning ability not reflected by employer willing to retain in limited capacity. — The willingness of the employer, through special consideration because of long service, to continue to employ claimant in a capacity limited in quality, dependability or quantity, by no means reflects claimant's wage earning ability. Lozano v. Archer, 1962-NMSC-164, 71 N.M. 175, 376 P.2d 963 (decided under former law).

Meaning of entire loss of wage earning ability. — To suffer an entire loss of wage earning ability does not mean that a workman [worker] must be in a state of absolute helplessness, or unable to do work of any kind. It means the disablement of the workman [worker] to earn wages in the same kind of work, or work of a similar nature for which he is trained, or is accustomed to perform, or any other kind of work which a person of his mentality and attainments could do. Lozano v. Archer, 1962-NMSC-164, 71 N.M. 175, 376 P.2d 963 (decided under former law).

Measure of loss of wage earning ability. — Whether the question involved is one of total disability or of partial disability, under the act, is to be determined by what the workman [worker] earns or is able to earn. The loss of wage earning ability is in theory a comparison of what the employee would have earned had he not been injured and what he is able to earn in his injured condition. Lozano v. Archer, 1962-NMSC-164, 71 N.M. 175, 376 P.2d 963 (decided under former law).

May determine total disability. — An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist may well be classified as totally disabled. Lozano v. Archer, 1962-NMSC-164, 71 N.M. 175, 376 P.2d 963 (decided under former law).

When total disability exists. — Where employee sued under Workmen's [Workers'] Compensation Act for total, permanent disability from a back injury, jury instruction that total disability is presumed when both hands, both arms, both feet or both legs or any two thereof are lost was erroneous. Total disability exists where there is complete disability and must be determined from the facts in each case. Gerrard v. Harvey & Newman Drilling Co., 1955-NMSC-034, 59 N.M. 262, 282 P.2d 1105 (decided under former law).

Use or handling of explosives by employees of department of game and fish in no way imperils the protection provided such employees by the Workmen's [Workers'] Compensation Act. 1957 Op. Att'y Gen. No. 57-42 (opinion rendered under former law).

State agencies within act though state immune from suit. — The fact that the state is immune from suit does not mean that the state agencies such as the New Mexico A & M College are at liberty to disobey the law. They are clearly within the terms of the Workmen's [Workers'] Compensation Act and must comply therewith. 1957 Op. Att'y Gen. No. 57-19 (opinion rendered under former law).

A college is under the provisions of the workmen's [workers'] compensation law. 1957 Op. Att'y Gen. No. 57-19 (opinion rendered under former law).

Sixth judicial district may not be classified as an employer within the meaning of this act. 1967 Op. Att'y Gen. No. 67-131 (rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 116, 117, 138.

Workers' compensation: liability of successive employers for disease or condition allegedly attributable to successive employments, 34 A.L.R.4th 958.

99 C.J.S. Workmen's Compensation §§ 37 to 58.