As used in the Workers' Compensation Act:

A. "impairment" means an anatomical or functional abnormality existing after the date of maximum medical improvement as determined by a medically or scientifically demonstrable finding and based upon the most recent edition of the American medical association's guide to the evaluation of permanent impairment or comparable publications of the American medical association. Impairment includes physical impairment, primary mental impairment and secondary mental impairment;

B. "primary mental impairment" means a mental illness arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances, but is not an event in connection with disciplinary, corrective or job evaluation action or cessation of the worker's employment; and

C. "secondary mental impairment" means a mental illness resulting from a physical impairment caused by an accidental injury arising out of and in the course of employment.

History: 1978 Comp., § 52-1-24, enacted by Laws 1987, ch. 235, § 10; 1990 (2nd S.S.), ch. 2, § 7.

Repeals and reenactments. — Laws 1987, ch. 235, § 10 repeals former 52-1-24 NMSA 1978 as reenacted by Laws 1986, ch. 22, § 4, relating to permanent total disability, and enacts the above section, effective June 19, 1987. For present comparable provisions, see 52-1-25 NMSA 1978.

Compiler's notes. — Laws 1987, ch. 235, § 54A, effective June 19, 1987, repealed Laws 1986, ch. 22, § 105 which had formerly repealed this section effective July 1, 1987.

The 1990 (2nd S.S.) amendment, effective January 1, 1991, added the first sentence in Subsection A.

Constitutionality. — The limitations on proof of primary mental impairment in Subsection B are not arbitrary and unreasonable, but are rationally related to a legitimate legislative purpose. Therefore, the statute is constitutional. Holford v. Regents of Univ. of Cal., 1990-NMCA-066, 110 N.M. 366, 796 P.2d 259, cert. denied, 110 N.M. 330, 795 P.2d 1022.

The provision requiring use of the American medical association's guide to evaluate impairment in Subsection A does not represent an unconstitutional delegation of legislative authority to a nongovernmental entity; additionally, the provision does not violate due process or equal protection rights. Madrid v. St. Joseph Hosp., 1996-NMSC-064, 122 N.M. 524, 928 P.2d 250.

Equal protection. The statute does not violate equal protection even though it makes a classification based on mental disability and imposes a proof requirement on workers with mental disabilities that is not imposed on workers with physical disabilities. Romero v. City of Santa Fe, 2006-NMCA-055, 139 N.M. 440, 134 P.3d 131.

Medical evidence of impairment rating was not controverted. — Where worker suffered an injury while on break at worker's workplace when a co-worker grabbed worker by the shoulders in the area of the worker's neck and lifted the worker off the ground; the doctor who performed an independent medical examination on the worker testified that the worker had a pre-existing, but asymptomatic spinal condition, spinal stenosis, that became symptomatic upon being lifted off the ground and a central nervous system condition, myelopathy, that resulted from the accident and that surgery was required to prevent worsening of significant symptoms; the doctor assigned the worker a combined whole person impairment rating of twenty-six percent based on eight percent impairment from the spinal stenosis and the results of a cervical fusion and twenty percent from myelopathy; and the doctor's testimony was uncontradicted, the workers' compensation judge's finding of twenty-six percent whole-body impairment for the worker was supported by substantial evidence. Esckelson v. Miners' Colfax Med. Ctr., 2014-NMCA-052.

Sufficient allegation of general bodily impairment. — Statement of the injury, together with the further statement that by reason thereof he was totally unable to perform any work in any general field of endeavor in which he could engage, and that his disability was total and permanent, we think, was a sufficient allegation of general bodily impairment resulting from the described injury. Gonzales v. Gackle Drilling Co., 1962-NMSC-063, 70 N.M. 131, 371 P.2d 605.

Worker's knowledge of impairment for purposes of statute of limitations. — The fact that a worker is restricted to proving his claim by the testimony of a health care provider agreed upon by the parties or approved by the workers' compensation judge, and that the provider is directed to use American medical association publications in establishing the degree of disability, does not limit the running of the statute of limitations to only those situations when a health care provider has actually informed the worker that he has sustained a permanent impairment; thus, resolution of when a worker was deemed to have sustained impairment for purposes of running of the limitations period constituted a factual issue unsuitable for resolution by summary judgment. Montoya v. Kirk-Mayer, Inc., 1995-NMCA-104, 120 N.M. 550, 903 P.2d 861.

Capacity to perform work. — The primary test of disability is capacity to perform work. The word "capacity" connotes qualities inherent in the individual. "Capacity to perform work" is the product of the individual's physical and mental power and dexterity, as augmented by education, training, and experience. Barnett & Casbarian, Inc. v. Ortiz, 1992-NMCA-071, 114 N.M. 322, 838 P.2d 476.

Whether an individual's skills constitute a capacity to perform work depends upon what work is being performed by members of society; thus, in measuring one's capacity to work, it is necessary to look at the job market. Barnett & Casbarian, Inc. v. Ortiz, 1992-NMCA-071, 114 N.M. 322, 838 P.2d 476.

Proof of impairment not essential. — Proof of an impairment, as defined in Subsection A, is not essential for recovery under 52-1-43 NMSA 1978. Lucero v. Smith's Food & Drug Ctrs., 1994-NMCA-076, 118 N.M. 35, 878 P.2d 353, cert. denied, 118 N.M. 90, 879 P.2d 91.

"Job market" defined. — The job market by which disability is to be measured should be the general market in which workers are being employed. Barnett & Casbarian, Inc. v. Ortiz, 1992-NMCA-071, 114 N.M. 322, 838 P.2d 476.

Assignment of rating by workers' compensation judge. — Even though only one doctor testified on the issue of the worker's physical impairment, since there was evidence that cast doubt on the worker's reports of pain to the doctor, the worker's compensation judge was entitled to discount the doctor's establishment of a 5% impairment rating and to find that the worker had no physical impairment. Peterson v. N. Home Care, 1996-NMCA-030, 121 N.M. 439, 912 P.2d 831.

Workers' compensation judge should not have assigned an impairment rating where there was no testimony on impairment from a pulmonologist and where the worker had asthma and bronchopulmonary aspergillosis prior to her chemical exposure. Yeager v. St. Vincent Hosp., 1999-NMCA-020, 126 N.M. 598, 973 P.2d 850, cert. denied, 127 N.M. 391, 981 P.2d 1209.

Specific findings required. — Although worker's compensation judge has discretion to reduce or suspend benefits, the judge is required to make findings as to impairment and, if applicable, injurious practices by claimant, and failure to do so warrants a remand with instructions to make specific findings thereon. Chavarria v. Basin Moving & Storage, 1999-NMCA-032, 127 N.M. 67, 976 P.2d 1019.

"Primary mental impairment". — Subsection B reflects a legislative intent to limit primary impairment to sudden, emotion-provoking events of a catastrophic nature, as opposed to gradual, progressive stress-producing causes. Jensen v. N.M. State Police, 1990-NMCA-007, 109 N.M. 626, 788 P.2d 382, cert. denied, 109 N.M. 563, 787 P.2d 1246.

In order for there to be a primary mental impairment, first there must be a "psychologically traumatic event." That is the threshold criterion. Additionally, the psychologically traumatic event must be one that is generally outside the worker's usual experience and one that would evoke significant symptoms of distress in a worker in similar circumstances. Jensen v. N.M. State Police, 1990-NMCA-007, 109 N.M. 626, 788 P.2d 382, cert. denied, 109 N.M. 563, 787 P.2d 1246.

Under Subsection B, in order for there to be a primary mental impairment, there first must be a psychologically traumatic event. Holford v. Regents of Univ. of Cal., 1990-NMCA-066, 110 N.M. 366, 796 P.2d 259, cert. denied, 110 N.M. 330, 795 P.2d 1022.

Claimant, who alleged that as a result of job harassment, which caused work stress, her husband shot himself in the head, could not recover compensation where no psychologically traumatic event had been alleged. Holford v. Regents of Univ. of Cal., 1990-NMCA-066, 110 N.M. 366, 796 P.2d 259, cert. denied, 110 N.M. 330, 795 P.2d 1022.

To determine whether the worker seeking benefits suffered "a psychologically traumatic event that is generally outside of a worker's usual experience," a comparison must be made between that worker's psychologically traumatic event and the usual experiences generally encountered by workers in the same or similar jobs as the worker seeking benefits, regardless of whether they work for the same employer. Collado v. City of Albuquerque, 1995-NMCA-117, 120 N.M. 608, 904 P.2d 57.

It was not the intent of the legislature to exclude any occupational group from seeking compensation under Subsection B; thus, it was error for the court to construe the subsection to exclude any emergency-type workers, such as paramedics, from compensation for primary mental impairment. Collado v. City of Albuquerque, 1995-NMCA-117, 120 N.M. 608, 904 P.2d 57.

A claim of primary mental impairment requires that 1) the worker must establish a work-related accident; 2) the accident must be a traumatic event; and 3) the traumatic event must cause a mental injury that involves no physical injury. Chavez v. Mountain States Constructors, 1996-NMSC-070, 122 N.M. 579, 929 P.2d 971.

Primary mental impairment is a mental disability that satisfies all of the criteria of Subsection B and occurs as a result of a traumatic event, regardless of the presence of any physical injury; thus, the fact that a claimant received personal injuries in an accident did not bar him from compensation for primary mental impairment, since the mental impairment was not caused by the injuries. Chavez v. Mountain States Constructors, 1996-NMSC-070, 122 N.M. 579, 929 P.2d 971.

Secondary mental impairment. — A worker is not required to have a current physical impairment in order to have a secondary mental impairment; thus, when a worker was paid total temporary disability benefits for 89 weeks, after which a judge found she no longer had any physical impairment, she was entitled to benefits for secondary mental impairment for 11 weeks under Section 52-1-42B NMSA 1978. Peterson v. N. Home Care, 1996-NMCA-030, 121 N.M. 439, 912 P.2d 831.

Traumatic event. — A worker driving a loaded dump truck suffered a traumatic event "outside of a worker's usual experience" when the truck's brakes failed on a downgrade, and the accident was one which "would evoke significant symptoms of distress in a worker in similar circumstances." Chavez v. Mountain States Constructors, 1996-NMSC-070, 122 N.M. 579, 929 P.2d 971.

Uncontroverted medical evidence rule applies to issues of causation and the question whether a worker experienced a traumatic event is not a causation issue. The term "traumatic event" is a term of art within the meaning of the statute and a question of law that is not subject to conclusive proof by expert testimony. Romero v. City of Santa Fe, 2006-NMCA-055, 139 N.M. 440, 134 P.3d 131.

Unable to perform work because of anxiety reaction. — That the outward manifestations of the anxiety reaction could be controlled by medication does not alter the fact that plaintiff still was unable to perform any type of work such as he had formerly been able to do, or which, by reason of his age, mental condition, training and experience, he would have been able to do. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Alleged stress of understaffing in a state police radio dispatchers' office did not meet the definition of a "psychologically traumatic event", and a dispatcher was therefore not entitled to compensation. Jensen v. N.M. State Police, 1990-NMCA-007, 109 N.M. 626, 788 P.2d 382, cert. denied, 109 N.M. 563, 787 P.2d 1246.

Work-related, stress-caused neurochemical depression is a "mental impairment", not a "physical impairment", and does not constitute a compensable "primary mental impairment" under Subsection B because no single psychologically traumatic event triggers such an injury. Examination of the provisions of this section, and the Workers' Compensation Act as a whole, indicates the legislature's intent to make gradual, stress-caused mental injuries noncompensable. Douglass v. State, Regulation & Licensing Dep't, 1991-NMCA-041, 112 N.M. 183, 812 P.2d 1331, cert. denied, 112 N.M. 77, 811 P.2d 575.

Illness caused by ongoing stress. — Where worker, who worked as a swimming pool manager, was required to remove pigeon feces, carcasses and feathers, which created foul odors, from pool, areas surrounding the pool and the roof of the pool and experienced nausea and mild headaches after dealing with pigeon matter, worker did not suffer psychologically traumatic event. Romero v. City of Santa Fe, 2006-NMCA-055, 139 N.M. 440, 134 P.3d 131.

Liability for mental injury. — Whenever physical injury from a work-related accident is accompanied by mental injury arising out of the same accident, the worker's sole remedy is workers' compensation, whether or not the particular injury may be compensated by a monetary award under the act. Maestas v. El Paso Natural Gas Co., 1990-NMCA-092, 110 N.M. 609, 798 P.2d 210, cert. denied, 110 N.M. 653, 798 P.2d 1039.

Injury not work-related. — Anonymous bomb threats made by a co-employee to a worker's employer, demanding that either the worker be fired or the school where the worker was employed would be bombed, did not provide a legal basis for recovery under this section for alleged psychological injury because the incident arose out of personal animosity by the co-employee toward the worker involving matters unrelated to her employment. Bader-Rondeau v. Truth or Consequences Mun. Sch., 1991-NMCA-150, 113 N.M. 218, 824 P.2d 358.

Psychological disability incurred outside provisions of this section. — Since a workers' compensation judge determined that the worker suffered a work related mental disability, but that the disability was not compensable since it fell outside the definition of primary mental impairment, the exclusive remedy provision of the Workers' Compensation Act did not bar the worker's prima facie tort claim against her employer and supervisor. Beavers v. Johnson Controls World Servs., Inc., 1995-NMCA-070, 120 N.M. 343, 901 P.2d 761, cert. denied, 120 N.M. 68, 898 P.2d 120.

Effect on Section 52-1-49 NMSA 1978. — In order for medical benefits to be payable as a result of an "injury" sustained by the worker within the contemplation of Section 52-1-49 NMSA 1978, the injury must be of such nature that any "impairment" which may result therefrom would be compensable under this section. Douglass v. State, Regulation & Licensing Dep't, 1991-NMCA-041, 112 N.M. 183, 812 P.2d 1331, cert. denied, 112 N.M. 77, 811 P.2d 575.

Law reviews. — For case note, "WORKERS' COMPENSATION LAW: A Clinical Psychologist Is Qualified to Give Expert Medical Testimony Regarding Causation: Madrid v. University of California, d/b/a Los Alamos National Laboratory," see 18 N.M.L. Rev. 637 (1988).

For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Workmen's Compensation §§ 301, 302.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli - Right to compensation under particular statutory provisions, 97 A.L.R.5th 1.

99 C.J.S. Workmen's Compensation § 201.