A. As used in the Workers' Compensation Act, "permanent total disability" means:

(1) the permanent and total loss or loss of use of both hands or both arms or both feet or both legs or both eyes or any two of them; or

(2) a brain injury resulting from a single traumatic work-related injury that causes, exclusive of the contribution to the impairment rating arising from any other impairment to any other body part, or any preexisting impairments of any kind, a permanent impairment of thirty percent or more as determined by the current American medical association guide to the evaluation of permanent impairment.

B. In considering a claim for total disability, a workers' compensation judge shall not receive or consider the testimony of a vocational rehabilitation provider offered for the purpose of determining the existence or extent of disability.

History: 1978 Comp., § 52-1-25, enacted by Laws 1987, ch. 235, § 11; 1990 (2nd S.S.), ch. 2, § 9; 2003, ch. 265, § 1.

Repeals and reenactments. — Laws 1987, ch. 235, § 11 repealed former 52-1-25 NMSA 1978, as reenacted by Laws 1986, ch. 22, § 5, relating to partial disability, and enacted a new section, effective June 19, 1987. For present comparable provisions, see 52-1-26 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 — Laws 1987, ch. 235, § 54A, effective June 19, 1987, repealed Laws 1986, ch. 22, § 105 which had formerly repealed this section effective July 1, 1987.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 2003 amendment, effective June 20, 2003, inserted the Paragraph A(1) designation and added present Paragraph A(2).

The 1990 (2nd S.S.) amendment, effective January 1, 1991, added "Permanent" to the catchline, rewrote and combined former Subsections A and B to form Subsection A, and added Subsection B.

I. GENERAL CONSIDERATION.

Total and permanent disability not precluded by light work. — Fact that an employee could for a while after his injury engage in some light kinds of work, attended invariably by painful effects, does not preclude a finding of "total and permanent disability." Lipe v. Bradbury, 1945-NMSC-002, 49 N.M. 4, 154 P.2d 1000.

The extent of an injured employee's compensation is not confined to loss under specific schedule in the Workmen's (Workers') Compensation Act where the jury finds that employee suffered a total and permanent disability directly resulting from the injury. Lipe v. Bradbury, 1945-NMSC-002, 49 N.M. 4, 154 P.2d 1000.

Section constitutional. — This section does not violate equal protection provisions under the federal and state constitutions. Valdez v. Wal-Mart Stores, Inc., 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, cert. denied, 124 N.M. 589, 953 P.2d 1087.

Employer and workman (worker) must comply with spirit of act, i.e., a common-sense concept of fairness in the view of a subjective eye that reviews the facts. Purcella v. Navajo Freight Lines, 1980-NMCA-182, 95 N.M. 306, 621 P.2d 523, overruled on other grounds by Varos v. Union Oil Co. of Cal., 1984-NMCA-091, 101 N.M. 713, 688 P.2d 31.

Compensation benefits are not based on physical injury itself but on disability produced by the injury and a claim for workmen's (workers') compensation is properly denied where there is a failure to establish that the claimant's wage-earning ability had been decreased as a result of the alleged accidental injury. Gallegos v. Kennedy, 1968-NMSC-170, 79 N.M. 590, 446 P.2d 642; Anaya v. N.M. Steel Erectors, Inc., 1980-NMSC-057, 94 N.M. 370, 610 P.2d 1199; Cardenas v. United Nuclear Homestake Partners, 1981-NMCA-117, 97 N.M. 46, 636 P.2d 317.

Legally totally disabled. — Under this section if a worker can no longer do the work he was doing when injured, and cannot do the only work for which he is qualified, he is "legally" totally disabled. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Evidence of other disability awards. — Evidence of disability awards received by a claimant under other statutory laws are generally inadmissible to establish the extent and degree of disability of the claimant in a workers' compensation action. Trujillo v. City of Albuquerque, 1993-NMCA-114, 116 N.M. 640, 866 P.2d 368, cert. denied, 116 N.M. 364, 862 P.2d 1223.

"Disability" means disablement resulting from an accidental injury; it is not synonymous with productivity. Medina v. Wicked Wick Candle Co., 1977-NMCA-118, 91 N.M. 522, 577 P.2d 420.

Total disability does not mean that a workman (worker) must be a helpless invalid. Aranda v. Mississippi Chem. Corp., 1979-NMCA-097, 93 N.M. 412, 600 P.2d 1202, cert. denied, 93 N.M. 683, 604 P.2d 821.

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.

"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.

Loss in earning capacity. — A finding that plaintiff did not suffer a loss in earning capacity is not determinative on the issue of disability. Chavira v. Gaylord Broad. Co., 1980-NMCA-154, 95 N.M. 267, 620 P.2d 1292, cert. denied, 95 N.M. 299, 621 P.2d 516, overruled on other grounds by Chapman v. Jesco, Inc., 1982-NMCA-144, 98 N.M. 707, 652 P.2d 257.

Mere unemployment not sufficient. — The claimant's unemployment in itself does not trigger his entitlement to disability benefits. Barela v. ABF Freight Sys., 1993-NMCA-137, 116 N.M. 574, 865 P.2d 1218.

Partial and total two segments of disability continuum. — This section and Section 52-1-26 NMSA 1978 established a continuum from zero to total disability through all percentages of partial disability; partial and total disability are therefore not two separate concepts or issues but two segments of one disability continuum. Maes v. John C. Cornell, Inc., 1974-NMCA-061, 86 N.M. 393, 524 P.2d 1009.

Award is based upon permanent injuries, not the outward manifestation, or lack thereof, of the symptoms resulting from the injuries. Having found total disability, it was not necessary for the trial court to make a negative finding with respect to the symptoms alone. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

A certain percentage of functional disability is not necessarily the same percentage of disability attributable to an injury under the Workmen's (Workers') Compensation Act. Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657.

Entitled to disability where specific scheduled body member injured. — Workman (Worker) was entitled to compensation benefits for total permanent disability under this section where his disability arose solely from injuries to a specific body member scheduled in Section 52-1-43 NMSA 1978, since that scheduled injury section was not exclusive. American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

Where injury is limited to scheduled member, the compensation is limited to temporary total disability during the healing period in which the workman (worker) is total disabled and thereafter to the percentage of disability to the scheduled member as provided by the statute. Rhodes v. Cottle Constr. Co., 1960-NMSC-130, 68 N.M. 18, 357 P.2d 672 (decided under former law).

Benefits are allowed for total disability when the total disability results from the loss of or injury to a scheduled member. Mendez v. Southwest Cmty. Health Servs., 1986-NMCA-066, 104 N.M. 608, 725 P.2d 584, cert. denied, 104 N.M. 632, 725 P.2d 832.

Court cannot conclude both total disability and scheduled injury. — Where the court both found and concluded that plaintiff was totally disabled but it also concluded and entered judgment for a scheduled injury, the judgment was reversed and remanded for a new judgment which conformed to the finding of total disability. Mendez v. Southwest Cmty. Health Servs., 1986-NMCA-066, 104 N.M. 608, 725 P.2d 584, cert. denied, 104 N.M. 632, 725 P.2d 832.

Reduction of disability held not "wrongful". — Where disability is not reduced in a heedless, unjust, reckless or unfair manner, it is not "wrongful." Ulibarri v. Homestake Mining Co., 1982-NMCA-059, 97 N.M. 734, 643 P.2d 298.

Reduction of disability held without rational basis. — No rational basis was found to exist for reducing plaintiff's total permanent disability to 25 percent temporary partial disability. Martinez v. Zia Co., 1982-NMCA-172, 99 N.M. 80, 653 P.2d 1226.

Payment of total disability benefits during indefinite temporary disability. — Where the evidence supports a finding of temporary disability, which continues indefinitely until some future change occurs, the trial court may direct payment of workmen's (workers') compensation total disability benefits pending a showing that the disability has diminished or no longer exists. Amos v. Gilbert W. Corp., 1985-NMCA-106, 103 N.M. 631, 711 P.2d 908.

II. PROCEDURAL MATTERS.

Extent of injury as question for jury. — Except when it may be stated as a matter of law that a claimant is not totally and permanently disabled within terms of this act, the extent of his disability becomes a jury question. Lipe v. Bradbury, 1945-NMSC-002, 49 N.M. 4, 154 P.2d 1000.

Instruction for jury to make determination between two alternatives proper. — Where, under claim presented, jury had right to determine extent of the injury, whether it was confined to a fractured wrist injury which must be compensated under specific schedule, or whether the injury resulted in total permanent disability under residuary clause, an instruction which permitted jury to make a determination as between these two alternatives was proper. Lipe v. Bradbury, 1945-NMSC-002, 49 N.M. 4, 154 P.2d 1000.

Hearing required to determine whether worker precluded from receiving disability. — To determine whether a worker was precluded as a matter of law from receiving disability benefits during the time he earned wages, there must be a hearing on the worker's capacity to perform work and the availability of work on the job site. Salcido v. Transamerica Ins. Group, Inc., 1985-NMSC-002, 102 N.M. 217, 693 P.2d 583.

Rate of compensation in effect on date of disability applies, not the date of the accident. Purcella v. Navajo Freight Lines, 1980-NMCA-182, 95 N.M. 306, 621 P.2d 523, overruled by Varos v. Union Oil Co. of Cal., 1984-NMCA-091, 101 N.M. 713, 688 P.2d 31.

Date of disability where employer voluntarily pays, then reduces, benefits. — Where a workman (worker) suffers disability as a result of an accidental injury and the employer voluntarily pays compensation benefits and then wrongfully reduces payment thereof, causing the workman (worker) to seek relief in the courts, the date that disability is determined in the court proceedings is the date that the applicable rate of compensation applies, not the date of the accidental injury. Ulibarri v. Homestake Mining Co., 1982-NMCA-059, 97 N.M. 734, 643 P.2d 298.

Physician's testimony not conclusive. — Where medical evidence is conflicting, the testimony of a physician is not conclusive and the trier of facts may accept, reject or give such weight only as it deems the evidence warrants. Cardenas v. United Nuclear Homestake Partners, 1981-NMCA-117, 97 N.M. 46, 636 P.2d 317.

Opinion testimony of medical expert may be considered as substantial evidence upon which a finding of disability may be made. Marez v. Kerr-McGee Nuclear Corp., 1978-NMCA-128, 93 N.M. 9, 595 P.2d 1204, cert. denied, 92 N.M. 532, 591 P.2d 286.

Opinion as to medical disability does not resolve question of disability under Workmen's (Workers') Compensation Law. Disability, at the time of plaintiff's accidental injury, was defined in terms of being able to perform the usual tasks of plaintiff's work or of being able to perform any work for which he was fitted by age, education, training, physical and mental capacity and experience. Goolsby v. Pucci Distrib. Co., 1969-NMCA-012, 80 N.M. 59, 451 P.2d 308.

Payments not proof of disability. — Proof of the voluntary payment of total disability benefits did not constitute sufficient evidence that a worker was disabled. Strickland v. Coca-Cola Bottling Co., 1988-NMCA-049, 107 N.M. 500, 760 P.2d 793, cert. denied, 107 N.M. 413, 759 P.2d 200.

No differing measure of proof between total and partial disability. — Because the legislature saw fit to define total disability and partial disability in separate sections (this section and 52-1-26 NMSA 1978) does not justify a differing measure of proof. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Factors supporting total disability. — Total disability benefits were not available to a worker based on factors applicable to to the determination of partial disability. Valdez v. Wal-Mart Stores, Inc., 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, cert. denied, 124 N.M. 589, 953 P.2d 1087.

Determination of degree of disability is a question of fact for the fact finder and if there is substantial evidence in the record to support a finding, the appellate court is bound thereby. Adams v. Loffland Bros. Drilling Co., 1970-NMCA-114, 82 N.M. 72, 475 P.2d 466.

Determination of degree of disability in workmen's (workers') compensation cases is generally a matter for the trial court, and absent misapplication of the law or a lack of substantial evidence, an appellate court should not substitute its judgment for that of the trial court. Marez v. Kerr-McGee Nuclear Corp., 1978-NMCA-128, 93 N.M. 9, 595 P.2d 1204, cert. denied, 92 N.M. 532, 591 P.2d 286.

Question of disability properly submitted to jury. — Unless the trial court can say that claimant is not totally and permanently disabled as a matter of law, the question is properly submitted to the jury. Ruiz v. Hedges, 1961-NMSC-112, 69 N.M. 75, 364 P.2d 136 (decided under former law).

Error to instruct on total disability where no evidence. — If there is no substantial evidence to support a finding of total and permanent disability, to instruct thereon would inject a false issue into the case and be error. Ruiz v. Hedges, 1961-NMSC-112, 69 N.M. 75, 364 P.2d 136 (decided under former law).

Standard of review on appeal. — It is not a prerogative of the appellate court to weigh the testimony of medical experts, but rather to ascertain whether there is substantial evidence to support the trial court's evaluation of the evidence and determination of where the truth lies. Cardenas v. United Nuclear Homestake Partners, 1981-NMCA-117, 97 N.M. 46, 636 P.2d 317.

When attorney's fees unavailable. — If there are no benefits available to a deceased employee's estate, there can be no separate fee recovery available to his attorney. Brazfield v. Mountain States Mut. Cas. Co., 1979-NMCA-100, 93 N.M. 417, 600 P.2d 1207, cert. denied, 93 N.M. 205, 598 P.2d 1165.

III. ILLUSTRATIVE CASES.

Evidence supported trial court's finding that claimant was totally disabled where his injury caused a chronic lumbo-sacral strain, permanent in duration, from which no improvement could be expected, which occasioned flare-ups from time to time, one of such episodes resulting in hospitalization; where claimant bent down to pick something up or sat down and could not thereafter straighten up; and plaintiff, by experience and training, had done heavy, physical labor and had a seventh grade education. Gallegos v. Duke City Lumber Co., 1975-NMCA-039, 87 N.M. 404, 534 P.2d 1116).

Evidence that wholly unfit for proposed position. — Evidence that the job of night-watchman for claimant's former employer would mainly involve riding in a pickup truck over rough roads and that it would be possible, should plaintiff become disabled while working, that there would be no one at the plant to help him get back into town or call a doctor, taken together with evidence that claimant's condition would flare up from merely reaching to the ground for an object or getting up from a sitting position showed that plaintiff was wholly unfit for the proposed position, and supported the finding that plaintiff was "'totally disabled." Gallegos v. Duke City Lumber Co., 1975-NMCA-039, 87 N.M. 404, 534 P.2d 1116.

Injury justifying award. — A code welder who sustained an accidental injury to his right thumb, right index finger and the webbing between the thumb and finger, without further impairment to his body, as a natural and direct result of an accident, with the ability to use some, but not all, of the tools necessary to perform the usual tasks of a welder, was equally justified to an award of total and permanent disability under this section or an award for a scheduled injury under Section 52-1-43 NMSA 1978. American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

Disability result of first of two accidents. — There was sufficient evidence to support the finding that the disability to a worker's arm was the result of the first of two accidents, since surgery was planned before the second accident, and since a number of maladies, including numbness and tingling, preexisted the second accident. Rodriguez v. McAnally Enters., 1994-NMCA-025, 117 N.M. 250, 871 P.2d 14.

Law reviews. — For annual survey of New Mexico law relating to workmen's compensation, see 13 N.M.L. Rev. 495 (1983).

For article, "The Role of the Vocational Expert in Worker's Compensation Cases," see 14 N.M.L. Rev. 483 (1984).

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 Am. Jur. 2d Workers' Compensation §§ 263 to 294, 381, 382.

Admissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers' compensation cases, 89 A.L.R.3d 783.

99 C.J.S. Workmen's Compensation §§ 299 to 301, 320.