A. As used in the Workers' Compensation Act, "temporary total disability" means the inability of a worker, by reason of accidental injury arising out of and in the course of the worker's employment, to perform the duties of that employment prior to the date of the worker's maximum medical improvement.

B. If, prior to the date of maximum medical improvement, an injured worker's health care provider releases the worker to return to work and the employer does not make a reasonable work offer at the worker's pre-injury wage, the worker shall receive temporary total disability compensation benefits equal to two-thirds of the worker's pre-injury wage.

C. If, prior to the date of maximum medical improvement, an injured worker's health care provider releases the worker to return to work and the worker returns to work at less than the worker's pre-injury wage, the worker shall receive temporary total disability compensation benefits equal to two-thirds of the difference between the worker's pre-injury wage and the worker's post-injury wage.

D. A worker is not entitled to temporary total disability benefits as set forth in Subsection B or C of this section if:

(1) the employer makes a reasonable work offer at or above the worker's pre-injury wage, within medical restrictions, if any, as stated by the health care provider pursuant to Section 52-1-49 NMSA 1978, and the worker rejects the offered employment;

(2) the worker accepts employment with another employer at or above the worker's pre-injury wage; or

(3) the worker is terminated for misconduct connected with the employment that is unrelated to the workplace injury; if the workers' compensation judge finds that an employer terminated the worker for pretextual reasons as a way of attempting to avoid payment of benefits to the worker or as retaliation against the worker for seeking benefits, the worker shall be entitled to temporary total disability benefits and the employer shall be subject to penalties as set forth in Sections 52-1-28.1 and 52-1-28.2 NMSA 1978.

E. Upon a finding that an employer has terminated a worker for pretextual reasons, the workers' compensation judge at the judge's discretion may also impose an additional fine, not to exceed ten thousand dollars ($10,000), on the employer, to be paid to the worker.

F. Notwithstanding the provisions of this section, the employer shall continue to provide reasonable and necessary medical care pursuant to Section 52-1-49 NMSA 1978.

G. If there is a dispute between the parties regarding the reasonableness of the employer's work offer or the worker's refusal to return to work, the workers' compensation judge shall decide if the work offer or the worker's refusal to return to work is reasonable based on all of the circumstances.

History: 1978 Comp., § 52-1-25.1, enacted by Laws 1990 (2nd S.S.), ch. 2, § 10; 2005, ch. 151, § 1; 2017, ch. 32, § 1.

The 2017 amendment, effective June 16, 2017, changed certain benefit entitlements after injured workers return to work; in Subsection B, in the introductory clause, after "return to work", deleted "the worker is not entitled to temporary total disability benefits if", and deleted Paragraphs B(1) and B(2), which provided conditions under which an injured worker is not entitled to temporary total disability benefits after the worker returns to work, and added "and the employer does not make a reasonable work offer at the worker's pre-injury wage, the worker shall receive temporary total disability compensation benefits equal to two-thirds of the worker's pre-injury wage"; in Subsection C, after "return to work and the", deleted "employer offers" and added "worker returns to", and after "pre-injury wage, the worker", deleted "is disabled and"; in Subsection D, in the introductory clause, deleted "If the worker returns to work pursuant to the provisions of Subsection B of this section" added the remainder of the introductory clause; added Paragraphs D(1) through D(3); added Subsection E; added subsection designation "F", and in Subsection F, added "Notwithstanding the provisions of this section"; and added Subsection G.

The 2005 amendment, effective July 1, 2005, provided in Subsection A that temporary total disability means the inability to perform the duties of the worker's employment prior to the date of maximum medical improvement; provided in Subsection B that if prior to the date of maximum medical improvement, the worker's health care provider releases the worker, the worker is not entitled to temporary total disability benefits if the employer offers work at the worker's pre-injury wage or the worker accepts employment with another employer at the worker's pre-injury wage; and provided in Subsection C that the temporary total disability compensation benefit shall equal two-thirds of the difference between the pre-injury wage and the post-injury wage.

Disabled worker to seek work within capabilities. — A disabled workman (worker), with knowledge that his employer hires handicapped employees, should seek work with his former employer or make reasonable efforts to obtain work within work capabilities. Ulibarri v. Homestake Mining Co., 1982-NMCA-059, 97 N.M. 734, 643 P.2d 298 (decided under former law).

Temporary total disability means that which lasts for a limited time only while the workman (worker) is undergoing treatment. Sena v. Gardner Bridge Co., 1979-NMCA-042, 93 N.M. 358, 600 P.2d 304 , cert. denied, 92 N.M. 675, 593 P.2d 1078.

Temporary total disability. — Temporary disability is that which lasts for a limited time only while the workman (worker) is undergoing treatment, anticipating that eventually there will be either complete recovery or an impaired bodily condition which is static. Smith v. Trailways Bus Sys., 1981-NMCA-041, 96 N.M. 79, 628 P.2d 324, cert. denied, 96 N.M. 116, 628 P.2d 686.

"Temporary total disability," under former Section 52-1-26 NMSA 1978 (the Interim Act), means the inability of the worker to perform his duties prior to the date of his maximum medical improvement, referring to the duties incidental to the work he was performing when injured. A worker need not prove that he is also unable to perform other work for which he is fitted. Cass v. Timberman Corp., 1990-NMCA-061, 110 N.M. 158, 793 P.2d 288, rev'd on other grounds, 1990-NMSC-112, 111 N.M. 184, 803 P.2d 669.

Inability to work. — Although a claimant had taken voluntary retirement, she was totally disabled because she was unable to perform any work due to an accidental injury. Her ability to work had nothing to do with the fact that she had retired. Feese v. U.S. W. Serv. Link, Inc., 1991-NMCA-121, 113 N.M. 92, 823 P.2d 334, cert. withdrawn, 113 N.M. 23, 821 P.2d 1060 (decided under prior law).

Refusal of worker to accept job offers. — Where worker, who was employed as a school bus driver and who injured worker's back and shoulder, was released to return to work under a light level of duty; employer offered worker worker's former school bus driver position, which worker refused due to worker's concern about driving a school bus while on prescribed medication; employer then offered worker a crossing guard position, which worker refused because of pain in worker's shoulder; and worker's physician subsequently discovered that worker had a torn rotator cuff and put worker off work, worker did not unreasonably reject employers' job offers because worker's release to return to work was premature and worker was unable to perform either the bus driver position or the crossing guard position, and worker remained eligible for temporary total disability benefits. Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085.

Effect of Section 52-1-50.1B NMSA 1978 on job "offer". — The final sentence of Section 52-1-50.1B NMSA 1978 adjusts compensation benefits prior to maximum medical improvement for a worker who has been "rehired." The explicit terms of the sentence apply only when the worker is actually employed by the employer. Yet, this section applies so long as the worker is offered the position, even if the worker does not accept and become rehired. The final sentence of Section 52-1-50.1B NMSA 1978 was not intended to repeal or limit this section. Jeffrey v. Hays Plumbing & Heating, 1994-NMCA-071, 118 N.M. 60, 878 P.2d 1009.

Worker must be capable of performing work. — It is implicit in the language of Section 52-1-26 NMSA 1978 that the legislature intended that when a worker is given a release to return to work, the release anticipates that the worker return to the type of work he was doing prior to the accident or work which he or she is otherwise physically capable of performing. If the work involves duties which are more strenuous than those involved in his prior work assignment, and the worker remains injured, the new duties must involve work he is capable of performing. The employer cannot offer any work that has the same pre-injury wage, and thereby make the worker ineligible to receive disability benefits, even though the worker is unable to perform the work. Garcia v. Borden, Inc., 1993-NMCA-047, 115 N.M. 486, 853 P.2d 737, cert. denied, 115 N.M. 409, 852 P.2d 682.

Termination from post-injury employment. — A worker's termination from post-injury employment does not disqualify the worker from receiving full temporary total disability benefits after the worker's termination, whether or not the termination was for cause. Hawkins v. McDonald's, 2014-NMCA-048, cert. denied, 2014-NMCERT-002.

Where worker, who suffered a job-related accident, was released to return to work; employer provided worker a job as a shift manager; employer required its shift managers to report all incidents of sexual harassment that the managers became aware of; at a dinner at worker's home another employee reported that the store manager had sent the employee a sexually inappropriate message; worker did not report the allegation to employer; and employer terminated worker for cause for violating the employer's policy, the worker's termination did not disqualify worker from receiving full temporary total disability benefits prior to reaching maximum medical improvement. Hawkins v. McDonald's, 2014-NMCA-048, cert. denied, 2014-NMCERT-002.

Subsequent firing does not reduce employer's liability. — Where employee was injured on the job, was released by his doctor for limited work and offered a job by employer at a lower wage, was fired for reasons unrelated to the injury, and was later taken off work entirely by his doctor, employer was liable for the amount of the wage reduction for the period prior to employee being taken off work by his doctor, and was liable for temporary total disability benefits thereafter for the period prescribed in Subsection C. Lackey v. Darrell Julian Constr., 1998-NMCA-121, 125 N.M. 592, 964 P.2d 153.

Full benefits for terminated worker. — The worker was entitled to full benefits for the period between the date of the injury and the date on which she reached maximum medical improvement, even though the reason she was incapable of returning to work prior to maximum medical improvement was because she was terminated for misconduct. Ortiz v. BTU Block & Concrete Co., 1996-NMCA-09, 122 N.M. 381, 925 P.2d 1.

Overtime pay. — Because overtime pay is compensable under Section 52-1-20 NMSA 1978, an injured worker is entitled to reduced temporary total disability benefits if an employer offers reduced overtime hours after the worker returns to work. The worker need not prove that the reduction in overtime hours was caused by the worker's disability. Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070.

Where worker was employed at a housing and treatment center for mentally and physically disabled persons; worker was sexually assaulted by a patient; prior to the assault, worker earned an average weekly wage of $884.31, which included $455.36 in regular hourly wages and $428.95 in overtime pay; after the assault, worker was reassigned to a different facility where worker received less overtime pay; the workers' compensation judge determined that worker was entitled to temporary total disability benefits for the period worker was unable to work, but excluded overtime pay from the amount awarded, and denied worker's claim for temporary total disability benefits after worker returned to work, the workers' compensation judge erred in excluding overtime pay, worker was entitled to full temporary total disability benefits in the amount of worker's average weekly wage of $884.31 during the time worker was unable to work, and because the employer offered worker significantly less overtime hours after worker returned to work, worker was entitled to reduced temporary total disability benefits in the amount of two-thirds the difference between worker's pre-injury average weekly wage and worker's post-injury wage until worker reached maximum medical improvement. Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070.

Eligibility after rehire by different employer. — The term "employer" as used in this section refers to the employer at the time of injury; therefore, in the absence of an offer of work from the prior employer, acceptance of work at a subsequent employer does not trigger the termination or reduction in TTD benefits under Subsections B or C. Grubelnik v. Four-Four, Inc., 2001-NMCA-056, 130 N.M. 633, 29 P.3d 533, cert. denied, 130 N.M. 558, 28 P.3d 1099.

Evidence not supporting temporary total disability. — Where appellant testified that he had sought and was refused employment in the carpenter trade when his prospective employer became aware of his disabled condition; two witnesses who were, or had been, foreman or superintendents in building construction testified that in their opinion appellant could not secure employment as a carpenter because of his physical condition resulting from the accidental injury; one of two doctors testified he did not believe appellant could obtain employment as a carpenter; both doctors expressed the opinion that at the time of their last examination appellant could perform certain of the duties of a carpenter which could be done without climbing or the use of other than wide trestles; both doctors testified that appellant's injury had not reached maximum recovery; one doctor testified that the disability to the injured member at the time of the last examination was 50%, the other that it was 60% to the right leg from the hip down; they both testified that they had expected maximum recovery within a period of 18 months, and that the ultimate partial permanent disability to the scheduled member was expected to be 25%, does not support the finding that appellant was temporarily totally disabled for only 18 months. Rhodes v. Cottle Constr. Co., 1960-NMSC-130, 68 N.M. 18, 357 P.2d 672 (decided under former law).

Credits for payments after offers of employment. — Since evidence bearing on a worker's ability to return to work contradicted her testimony that she was unable to carry out jobs offered by her employer, the employer was entitled to credits for payments made after its offers of suitable employment. Villanueva v. Sunday Sch. Bd. of S. Baptist Convention, 1995-NMCA-135, 121 N.M. 98, 908 P.2d 791.

Denial of benefits not supported by evidence. — Findings made in support of the determination to deny benefits for temporary total disability were not supported by substantial evidence where the medical evidence only supported a determination that claimant could have returned to light duty work but there was no evidence that light duty work was available to claimant on terms with which he was able to comply. Sanchez v. Molycorp, Inc., 1992-NMCA-007, 113 N.M. 375, 826 P.2d 971 (decided under prior law).

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