A. As a guide to the interpretation and application of this section, the policy and intent of this legislature is declared to be that every person who suffers a compensable injury with resulting permanent partial disability should be provided with the opportunity to return to gainful employment as soon as possible with minimal dependence on compensation awards.

B. As used in the Workers' Compensation Act, "partial disability" means a condition whereby a worker, by reason of injury arising out of and in the course of employment, suffers a permanent impairment.

C. Permanent partial disability shall be determined by calculating the worker's impairment as modified by the worker's age, education and physical capacity, pursuant to Sections 52-1-26.1 through 52-1-26.4 NMSA 1978; provided that, regardless of the actual calculation of impairment as modified by the worker's age, education and physical capacity, the percentage of disability awarded shall not exceed ninety-nine percent.

D. On or after the date of maximum medical improvement, the worker's permanent partial disability rating shall be equal to the worker's impairment and shall not be subject to the modifications calculated pursuant to Sections 52-1-26.1 through 52-1-26.4 NMSA 1978 if:

(1) the worker returns to work at a wage at or above the worker's pre-injury wage;

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

(3) 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; or

(4) the worker is terminated for misconduct connected with the employment that is unrelated to the workplace accident; if the workers' compensation judge finds that an employer terminates the worker for pretextual reasons to avoid payment of benefits to the worker or as retaliation against the worker for seeking benefits, the worker shall be entitled to modifier 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. In considering a claim for permanent partial 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.

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., § 52-1-26, enacted by Laws 1987, ch. 235, § 12; 1989, ch. 263, § 18; 1990 (2nd S.S.), ch. 2, § 11; 2017, ch. 32, § 2.

Repeals and reenactments. — Laws 1987, ch. 235, § 12 repealed former 52-1-26 NMSA 1978, relating to temporary total disability and enacted a new 52-1-26 NMSA, 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 2017 amendment, effective June 16, 2017, clarified the determination of an injured worker's permanent partial disability rating, provided the workers' compensation judge with the authority to impose certain fines and with the responsibility of settling certain disputes between the parties regarding return to work; in Subsection C, after "modified by", deleted "his" and added "the worker's"; in Subsection D, deleted "If", after "maximum medical improvement", deleted "an injured worker returns to work at a wage equal to or greater than the worker's pre-injury wage", and after "NMSA 1978", added "if"; added Paragraphs F(1) through F(4); added a new Subsection E and redesignated former Subsection E as Subsection F; and added Subsection G.

The 1990 (2nd S.S.) amendment, effective January 1, 1991, added "permanent" in the catchline and in Subsection B; deleted "and is unable to some percentage extent to perform any work for which he is fitted by age, education, and training" following "impairment" in Subsection B; rewrote Subsection C; and added Subsections D and E.

I. GENERAL CONSIDERATION.

Status as undocumented worker as a defense to payment of modifier benefits. — Employers who cannot demonstrate good faith compliance with federal law in the hiring process cannot use their workers' undocumented status as a defense to continued payment of modifier benefits under the Workers' Compensation Act. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, rev'g 2011-NMCA-025, 150 N.M. 306, 258 P.3d 1098.

Status as undocumented worker was not a defense to payment of modifier benefits. — Where, when worker, who was an undocumented immigrant, was initially hired by employer as a painter's helper, employer failed to follow appropriate hiring procedures as required by federal law, and failed to fill out an I-9 form and keep it on file for the requisite time; worker was permanently partially disabled when worker fell off a ladder; employer offered worker a job with modified duty that took into account worker's injury-related restrictions; and worker was unable to complete a new job application, which included verification of worker's eligibility for employment, because worker could not produce a social security card, employer could not use worker's undocumented status as a defense to continued payment of modifier benefits. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, rev'g 2011-NMCA-025, 150 N.M. 306, 258 P.3d 1098.

Application to undocumented, illegal immigrants. — Subsections C and D of Section 52-1-26 NMSA 1978 do not apply to cases involving workers with undocumented, illegal immigration status. Gonzalez v. Performance Painting, Inc., 2011-NMCA-025, 150 N.M. 306, 258 P.3d 1098, rev'd, 2013-NMSC-021.

Where worker was an undocumented worker who provided a false social security number on an employment application with employer; employer did not ask worker to produce a social security card, investigate the worker's status, or complete an employment verification form; employer had no reason to believe worker was an undocumented worker during the time worker worked for employer; and the workers' compensation judge awarded worker partial disability benefits, worker was not entitled to modifier benefits because employer was legally forbidden by the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324, to rehire worker because worker was an undocumented, illegal immigrant. Gonzalez v. Performance Painting, Inc., 2011-NMCA-025, 150 N.M. 306, 258 P.3d 1098, rev'd, 2013-NMSC-021.

Workers' compensation judge properly denied modifier benefits where worker knowingly provided false identification documents. — Where worker filed for workers' compensation benefits following a work-related accident while employed with defendant's construction company, the district court did not err in denying worker's modifier benefits when worker knowingly presented false identification documentation while filling out his employment eligibility verification forms, because employer reasonably relied upon worker's representations and there was no reasonable basis for employer to have known worker was undocumented. Melendez v. Salls Bros. Constr., Inc., 2018-NMCA-028.

Employer and workman (worker) must comply with spirit of this 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.

Disability necessary for compensation. — To entitle an injured workman (worker) to compensation, impairment is not enough; there must be disability. Pacheco v. Springer Corp., 1972-NMCA-044, 83 N.M. 622, 495 P.2d 800.

In order to be entitled to an award of compensation benefits a workman (worker) must not only suffer a physical impairment, but also be unable to perform work. Cardenas v. United Nuclear Homestake Partners, 1981-NMCA-117, 97 N.M. 46, 636 P.2d 317.

Disability is defined in terms of inability to perform usual tasks of his employment or work for which the workman (worker) is fitted. Anaya v. Big Three Indus., Inc., 1974-NMCA-027, 86 N.M. 168, 521 P.2d 130.

The primary test for disability is the capacity to perform work. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71 (1976); Klindera v. Worley Mills, Inc., 1981-NMCA-104, 96 N.M. 743, 634 P.2d 1295, cert. denied, 97 N.M. 140, 637 P.2d 571.

Change in primary test of disability. — The 1963 amendment of the 1959 definition changed the primary test of disability from wage-earning ability to capacity to perform work as delineated in the section. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71 (1976); Smith v. Trailways Bus Sys., 1981-NMCA-041, 96 N.M. 79, 628 P.2d 324 (decided under former law).

Two tests in definition of disability. — The definition of total and partial disability under Section 52-1-24 NMSA 1978 (now Section 52-1-25 NMSA 1978)and this section contain two tests: (1) the workman (worker) must be totally or partially unable to perform the work he was doing at the time of the injury, and (2) he must be wholly or partially unable to perform any work for which he is fitted. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71 (1976); Aranda v. Miss. Chem. Corp., 1979-NMCA-097, 93 N.M. 412, 600 P.2d 1202, cert. denied, 93 N.M. 683, 604 P.2d 821; Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231; Smith v. City of Albuquerque, 1986-NMCA-113, 105 N.M. 125, 729 P.2d 1379.

Showing of two things necessary for partial disability. — To be partially disabled under this section plaintiff contends there must be a showing of two things: (1) an inability, to some percentage extent, to perform the usual work the workman (worker) was performing when injured and (2) an inability, to some percentage extent, to perform any work for which the workman (worker) is fitted. Cordova v. Union Baking Co., 1969-NMCA-037, 80 N.M. 241, 453 P.2d 761.

Partial disability is measured by the extent to which the worker is unable to perform work for which he or she was fitted before the injury; if the jobs for which a worker is fitted are reduced in number, then the worker's percentage of disability is increased. Barnett & Casbarian, Inc. v. Ortiz, 1992-NMCA-071, 114 N.M. 322, 838 P.2d 476.

Qualifications to be "fitted" for job. — The workers' compensation judge could properly find that employee who had entered post-injury job was fitted for the job if he possessed strong qualifications in some areas and was passable in other areas in which he could improve with experience and training. Barnett & Casbarian, Inc. v. Ortiz, 1992-NMCA-071, 114 N.M. 322, 838 P.2d 476.

Worker not disabled until unable to work. — Where a worker is able to, and does, perform the work she was doing at the time of an injury, albeit with constant pain, as well as work for which she is fitted by her training and experience, and files her claim for compensation well within the time limitation after she knows or has reason to know she has suffered a compensable injury when so advised by her own doctor, she is not disabled until she is unable to work. Sedillo v. Levi-Strauss Corp., 1982-NMCA-069, 98 N.M. 52, 644 P.2d 1041, cert. denied, 98 N.M. 336, 648 P.2d 794.

If a workman (worker) is partially unable to perform the work he was doing at the time of injury because of weight lifting limitations, but is totally able to perform work for which he is fitted and does not return to work, the workman (worker) is not entitled to compensation. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71 (1976).

Finding that worker is no longer disabled means that she has the capacity to perform work in the sense that she is wholly able to perform the usual tasks in the work she was performing at the time of her injury, and is wholly able to perform any work for which she is fitted by age, education, training, general physical and mental capacity and previous work experience. Klindera v. Worley Mills, Inc., 1981-NMCA-104, 96 N.M. 743, 634 P.2d 1295, cert. denied, 97 N.M. 140, 637 P.2d 571.

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.

Not entitled to compensation where totally able to perform fitted work. — If a workman (worker) is partially unable to perform the work he was doing at the time of injury because of weight lifting limitations, but is totally able to perform work for which he is fitted and does not return to work, the workman (worker) is not entitled to compensation. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71 (1976).

Worker must be capable of performing work. — It is implicit in the language of this section that the legislature intended that where 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.

Where workman (worker) unable to obtain only kind of work ever known. — If a workman (worker), even though only partially disabled, is unable to obtain the only kind of work he has ever known, he is therefore entitled to total disability. Churchill v. City of Albuquerque, 1959-NMSC-101, 66 N.M. 325, 347 P.2d 752.

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.

Where disability causes employee to quit job. — Where an employee's disability or inability to perform his former job on production causes him to quit the job, for purposes of determining his rights to compensation benefits, the employee did not voluntarily leave his employment. 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.

Evidence of termination of employment is strong evidence that the claimant was totally incapacitated, but it may be overcome by considerations of claimant's other training, experience, his educational background and the fact that his injury was not so serious as to prevent his satisfactorily performing his job for approximately a year and a half after the jury's verdict. Churchill v. City of Albuquerque, 1959-NMSC-101, 66 N.M. 325, 347 P.2d 752 (decided under former law).

Permanent partial disability calculated pursuant to statutory formula. — Even if a worker can still perform the duties of his or her job, the worker may still be entitled to compensation for a "permanent impairment". Permanent partial disability is calculated pursuant to the statutory formula of Subsection C of this section, and not in accordance with the worker's ability or inability to function at work. Smith v. Arizona Pub. Serv. Co., 2003-NMCA-097, 134 N.M. 202, 75 P.3d 418, cert. denied, 2003-NMCERT 008, 134 N.M. 71, 74 P.3d 600.

A claim for compensation for partial disability is properly denied where there is a failure to establish that the claimant has been to some percentage-extent disabled as defined by this section. Pacheco v. Springer Corp., 1972-NMCA-044, 83 N.M. 622, 495 P.2d 800.

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.

Impairment not necessarily disability. — Compensation, apart from the scheduled injury section, is based on disability to work, and a physical impairment is not necessarily a "disability" under the section. Pacheco v. Springer Corp., 1972-NMCA-044, 83 N.M. 622, 495 P.2d 800.

Preexisting physical impairment. — The legislature, in enacting Sections 52-1-26 to 52-1-26.4 NMSA 1978, intended that when a worker suffers from a preexisting physical impairment, which combines with the impairment attributable to the work-related injury to produce disability, this impairment must be included in the determination of the impairment rating to be used to determine a worker's permanent partial disability. Leo v. Cornucopia Restaurant, 1994-NMCA-099, 118 N.M. 354, 881 P.2d 714, cert. denied, 118 N.M. 430, 882 P.2d 21.

Nondisabling pain does not constitute compensable injury under the New Mexico Workmen's (Workers') Compensation Act. Gomez v. Hausman Corp., 1971-NMCA-173, 83 N.M. 400, 492 P.2d 1263, cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972).

Employee unable to "double over" consecutive shifts is partially disabled. — If a workman (worker) is assigned some overtime work occasionally and is unable to perform, he may not be partially disabled. But an employee assigned to "double over," that is, remain on the job for a second eight-hour shift whenever requested to do so by his employer, who is able to perform his regularly assigned work yet unable to "double over" is partially disabled to some percentage. Perez v. International Minerals & Chem. Corp., 1981-NMCA-022, 95 N.M. 628, 624 P.2d 1025, cert. denied, 95 N.M. 669, 625 P.2d 1186.

Total and partial two segments of disability continuum. — Section 52-1-24 NMSA 1978 (now Section 52-1-25 NMSA 1978) and this section establish 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.

No different measure of proof for total and partial disability. — Because the legislature saw fit to define total disability and partial disability in separate sections (Section 52-1-25 NMSA 1978 and this section) 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.

Termination from post-injury employment. — A worker's termination from post-injury employment does not disqualify the worker from receiving permanent partial disability benefits and statutory-based modifier benefits after the worker's termination for cause. Hawkins v. McDonald's, 2014-NMCA-048, cert. denied, 2014-NMCERT-002.

Where worker, who suffered a job-related accident while working at a fast food restaurant, was released to return to work with a twenty-pound weight lifting limitation; 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 told worker that the restaurant manager had sent the employee a sexually inappropriate message; worker did not report the allegation to employer; employer terminated worker for cause for violating the employer's policy; there were no permanent jobs at a fast food restaurant that could be done with worker's weight lifting limitation; after worker reached maximum medical improvement employer did not make any employment offer, worker was unemployed, and worker took classes to get an education so that worker could get a job, worker was not voluntarily unemployed and worker's termination did not disqualify worker from receiving permanent partial disability benefits along with the statutory-based modifier benefits. Hawkins v. McDonald's, 2014-NMCA-048, cert. denied, 2014-NMCERT-002.

Effect of post-injury employment. — The existence of post-injury employment does not necessarily disqualify the workman (worker) from disability benefits. Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231; Bower v. Western Fleet Maintenance, 1986-NMCA-091, 104 N.M. 731, 726 P.2d 885.

Post-injury employment is evidence going to the question of whether a disability exists, but compensation for disability depends on the inability to perform some of the work for which the workman (worker) is fitted, not on whether or not the workman (worker) is employed. Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231.

Even though employee, injured while employed as a carpenter, had returned to fulltime employment as a police officer, the employee may be found to be permanently, partially disabled, as this section allows benefits where an employee is unable to perform some of the work for which he is fit. Jaramillo v. Kaufman Plumbing & Heating Co., 1985-NMSC-089, 103 N.M. 400, 708 P.2d 312.

Post-injury unrelated illness. — This section does not provide authority for the trial court to consider a post-injury unrelated illness in awarding compensation. Clavery v. Zia Co., 1986-NMCA-056, 104 N.M. 321, 720 P.2d 1262.

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.

Employer cannot have failed or refused to pay compensation until such time as the injured workman (worker) "is disabled to some percentage-extent to perform the usual tasks in the work he was performing at the time of his injury and is unable to some percentage-extent to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience." Gomez v. Hausman Corp., 1971-NMCA-173, 83 N.M. 400, 492 P.2d 1263, cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972).

Absent fraud, no credit for overpayment of minor amount. — Where defendants made absolutely no allegation that plaintiff defrauded them or was otherwise unjustly enriched, and where plaintiff has been overpaid by only approximately $42.00, this was not an appropriate case for credit for overpayments. Bower v. Western Fleet Maintenance, 1986-NMCA-091, 104 N.M. 731, 726 P.2d 885.

Voluntary unemployment or underemployment. — If a worker returns to work on or after the date of maximum medical improvement and earns a wage at least as great as the worker's pre-injury wage, then the age, education, and physical capacity modifications are not considered in computing the percentage of partial disability. A worker can not evade this provision by voluntary unemployment or underemployment. Jeffrey v. Hays Plumbing & Heating, 1994-NMCA-071, 118 N.M. 60, 878 P.2d 1009.

A worker may take reasonable action that precludes an employer from making a return-to-work offer and remain eligible for modifier-based permanent partial disability benefits. Cordova v. KSL-Union, 2012-NMCA-083, 285 P.3d 686, cert. denied, 2012-NMCERT-007.

Voluntary retirement was reasonable. — Where worker was temporarily, totally disabled; employer gave worker a modified-duty job at worker's pre-injury wage from the date of workers' accident to the date of worker's voluntarily retirement; worker retired when worker became eligible for maximum union retirement benefits, before worker reached maximum medical improvement; in order to remain entitled to receive a union retirement pension, worker was required to terminate employment with employer effective as of the date worker retired and worker was prohibited from working as a union member at any time thereafter; worker was unable to perform the type of heavy duty work for which worker was qualified due to worker's injuries; and worker's injuries impeded worker's ability to return to work at a non-union job after worker's retirement, worker's decision to retire was reasonable and worker was not precluded from receiving modifier-based permanent partial disability benefits because worker decided to retire. Cordova v. KSL-Union, 2012-NMCA-083, 285 P.3d 686, cert. denied, 2012-NMCERT-007.

While incarcerated, an employee is entitled to continue to receive permanent partial disability benefits in accordance with his impairment rating but is not entitled to receive benefits based on the statutory modification of that rating. Connick v. County of Bernalillo, 1998-NMCA-060, 125 N.M. 119, 957 P.2d 1153.

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 modifier benefits. Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085.

It does not follow that the provisions of Section 52-1-26D NMSA 1978 are triggered whenever the employer offers a job at a wage equal to or greater than the worker's pre-injury wage. Rejection of the employer's offer does not necessarily mean that the worker is voluntarily unemployed or underemployed. An offer rejected by the employee triggers the adjustment provided by Section 52-1-26D NMSA 1978 only if the rejection was unreasonable. Jeffrey v. Hays Plumbing & Heating, 1994-NMCA-071, 118 N.M. 60, 878 P.2d 1009.

II. PROCEDURAL MATTERS.

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.

Plaintiff must establish that he was totally or partially unable to perform the work he was doing at the time of the injury, and in addition thereto, he must establish that he was totally or partially unable to perform any work for which he was fitted. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71 (1976).

Doctor's opinion testimony was substantial evidence for a finding of 80% partial permanent disability. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

An 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.

Ability to perform established by worker's testimony. — Disability is measured by the ability to perform work. Medical testimony on this issue is not necessary and sometimes is not even helpful. Ability to perform work may be established by plaintiff's testimony. Grudzina v. N.M. Youth Diagnostic & Dev. Ctr., 1986-NMCA-047, 104 N.M. 576, 725 P.2d 255, cert. denied, 104 N.M. 460, 722 P.2d 1182.

Evidence of impairment to nonscheduled member required. — Even though there was evidence that the employee suffered an injury to a nonscheduled member in the form of disabling pain to her neck, since there was no evidence establishing an impairment, there was no evidence to support an award for permanent partial disability. Jurado v. Levi Strauss & Co., 1996-NMCA-112, 122 N.M. 519, 927 P.2d 1057.

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. 1532, 591 P.2d 286 (1979).

Determination of degree of disability. — The determination of the degree of disability is a question of fact for the fact finder; if there is substantial evidence to support the finding, an appellate court is bound thereby. Gonzales v. Bates Lumber Co., 1981-NMCA-052, 96 N.M. 422, 631 P.2d 328.

Disability question 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).

III. ILLUSTRATIVE CASES.

Evidence establishing partial disability. — That plaintiff could not lift heavy items, he experienced continuous back pain even while wearing a back brace, his left leg was weak and ached, and he couldn't touch one or more of his toes on his left foot because of pain established that to some percentage extent he was unable to perform "any work" for which he was fitted and therefore partially disabled. Cordova v. Union Baking Co., 1969-NMCA-037, 80 N.M. 241, 453 P.2d 761.

There was substantial evidence to support the trial court's finding that plaintiff, paralyzed in a work-related accident, was totally unable to perform the work which he was doing at the time of the injury and 99 percent unable to perform any work for which he was fitted. Bower v. Western Fleet Maintenance, 1986-NMCA-091, 104 N.M. 731, 726 P.2d 885.

Where the doctor has testified that claimant is "medically" 100% disabled from driving a school bus and, further, that he is 80% incapacitated from doing any other work for which he is qualified, the evidence is substantial to support the finding of 80% partial permanent disability. Ortega v. N.M. State Hwy. Dep't, 1966-NMSC-250, 77 N.M. 185, 420 P.2d 771.

Disability based on allergy. — The condition of being physically affected by the presence of a certain substance is a permanent condition, if the susceptibility is permanent. Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231.

Evidence not supporting that claimant should have known of injury. — Where there was no evidence that plaintiff's pain prevented him, in any manner whatsoever, from performing all of the duties of his job until January 15, 1970, just as he had prior to the accident, there was no suggestion in the evidence that the plaintiff did not earn the wages paid him after the accident, it followed that there was no failure or refusal to pay compensation prior to January 15, 1970, and the trial court's finding that the plaintiff knew at all times, or by the exercise of reasonable diligence should have known, that he suffered a compensable injury on July 27, 1966, was not supported by substantial evidence and, therefore, was erroneous. Gomez v. Hausman Corp., 1971-NMCA-173, 83 N.M. 400, 492 P.2d 1263, cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972).

Finding of disability is not foreclosed by fact that appellee has been working driving a school bus, even though he should not be doing so because of injurious effects of such activity on him. Oretega v. N.M. State Hwy. Dep't, 1966-NMSC-250, 77 N.M. 185, 420 P.2d 771.

A finding of 40% disabled under this section is not erroneous where plaintiff, whose job involved lifting heavy objects, suffered a ruptured lumbar disc, would not be able to perform his old duties unless he had both discs fused, could only do sedentary work such as answering phones, and was generally disabled as to the first test of this section - the extent to which he was able to perform the usual tasks at the time of his injury - and also under the second test - the extent to which he was unable to perform any work to which he is fitted by training, etc. - the defendant was in pain, the chances of improvement were nil, and the plaintiff would be barred from jobs in his field when they came up. Barger v. Ford Sales Co., 1976-NMCA-014, 89 N.M. 25, 546 P.2d 873, cert. denied, 89 N.M. 206, 549 P.2d 284.

A finding of 25% partial disability. — Substantial evidence supported the judge's finding of twenty-five percent permanent partial disability, assuming the judge on remand decided that determination could be made prior to completion of vocational rehabilitation. Moveover, the judge could allow credit for overpayment if he decided that the determination of permanent partial disability was appropriate at that time and before completion of vocational rehabilitation. Easterling v. Woodward Lumber Co., 1991-NMCA-036, 112 N.M. 32, 810 P.2d 1252.

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 annual survey of New Mexico Workers' Compensation Law, see 20 N.M.L. Rev. 459 (1990).

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, 302 to 304; 101 C.J.S. Workmen's Compensation §§ 850, 854, 860, 967.