Compensation shall be paid by the employer to the worker in installments. The first installment shall be paid not later than fourteen days after the worker has missed seven days of lost time from work, whether or not the days are consecutive. Remaining installments shall be paid twice a month at intervals not more than sixteen days apart in sums as nearly equal as possible, except as provided in Section 52-5-12 NMSA 1978.

History: 1978 Comp., § 52-1-30, enacted by Laws 1987, ch. 235, § 14; 1993, ch. 193, § 3; 2003, ch. 259, § 4.

Cross references. — For payment of benefits in installments, occupational disease, see 52-3-20 NMSA 1978.

The 2003 amendment, effective June 20, 2003, substituted "the worker has missed seven days of lost time from work, whether or not the days are consecutive" for "the filing of the report required in Section 52-1-58 NMSA 1978" at the end of the second sentence, and added "except as provided in Section 52-5-12 NMSA 1978" at the end of the section.

The 1993 amendment, effective June 18, 1993, in the second sentence, substituted "fourteen" for "thirty-one" and "filing of the report required in Section 52-1-58 NMSA 1978" for "date of the occurrence of the disability".

Employer to fail to pay in order to confer court jurisdiction. — In order to confer jurisdiction in the district courts, the employer must have either failed or refused to make compensation payments to the injured workman (worker) as provided in the act before he is entitled to file a claim; such failure cannot occur before the employer has breached his duty to pay which can occur no sooner than 31 days after the date of injury. Martinez v. Wester Bros. Wholesale Produce Co., 1961-NMSC-177, 69 N.M. 375, 367 P.2d 545 (decided prior to 1993 amendment).

It will be seen that in order to confer jurisdiction in the district courts, the employer must have either failed or refused to make compensation payments to the injured workman (worker) as provided in the act before he is entitled to file a claim. Fresquez v. Farnsworth & Chambers Co., 1955-NMSC-112, 60 N.M. 384, 291 P.2d 1102 (decided under former law).

Jurisdiction is conferred on the court to award installment compensation payments only when the employer has failed or refused to make such installment payments as provided in the Workmen's (Workers') Compensation Act. Moody v. Hastings, 1963-NMSC-083, 72 N.M. 132, 381 P.2d 207.

Seeking lump sum while receiving installments. — Injured worker was not precluded from filing a petition for a hearing upon the appropriateness of a lump sum award even while he was receiving maximum compensation benefits in periodic installments. Raines v. W.A. Klinger & Sons, 1988-NMSC-083, 107 N.M. 668, 763 P.2d 684.

While installments being paid, no failure entitling to sue arises. — So long as the 16-day periodic installments are being paid, even though the contingent and suspensory first week's installment is unpaid, no refusal or failure to pay entitling the claimant to sue arises. Fresquez v. Farnsworth & Chambers Co., 1955-NMSC-112, 60 N.M. 384, 291 P.2d 1102 (decided under former law).

This section bars filing of suit until 31 days (now 14) have elapsed from such failure or refusal to pay. Swallows v. City of Albuquerque, 1955-NMSC-042, 59 N.M. 328, 284 P.2d 216, aff'd, 1956-NMSC-063, 61 N.M. 265, 298 P.2d 945 (decided under former law).

Payment of accrued compensation after thirty-first (now 14th) day. — Although at the first moment of the fifth week after the injury, four weeks' compensation had accrued, only two of them, at most, should have been paid by the end of the thirty-first (now 14th) day by reason of the 16-day statute. Fresquez v. Farnsworth & Chambers Co., 1955-NMSC-112, 60 N.M. 384, 291 P.2d 1102 (decided under former law).

Claim filed less than 31 (now 14) days after injury is prematurely filed as to installment compensation benefits and must be dismissed. Moody v. Hastings, 1963-NMSC-083, 72 N.M. 132, 381 P.2d 207 (decided prior to 1993 amendment).

Limitations period of two years and 31 (now 14) days. — The time periods of this section and Subsection A of Section 52-1-31 NMSA 1978 are to be added together to compute the maximum time period in which a compensation claim may be filed. Thus, the maximum period of time to file a worker's compensation claim is two years and 31 (now 14) days from the date of the occurrence of the disability. Cole v. J.A. Drake Well Serv., 1987-NMCA-132, 106 N.M. 484, 745 P.2d 392 (decided prior to 1993 amendment).

Limitations began to run where injury became apparent. — Where, following blows to head, workman (worker) suffered convulsions, was hospitalized, had recurrent headaches, suffered loss of memory and was assigned a helper for the first time at work; injury, for the purpose of workman's (worker's) compensation, had become reasonably apparent, or should have become reasonably apparent, and statute of limitations began to run. Bowers v. Wayne Lovelady Dodge, Inc., 1969-NMCA-065, 80 N.M. 475, 457 P.2d 994.

Actual knowledge of accident as contemplated by Workmen's (Workers') Compensation Act means actual knowledge of a compensable injury. In latent injury cases the workman (worker) is not entitled to compensation, nor can there be a failure or refusal to pay until the injury becomes apparent. Swallows v. City of Albuquerque, 1955-NMSC-042, 59 N.M. 328, 284 P.2d 216, aff'd, 1956-NMSC-063, 61 N.M. 265, 298 P.2d 945 (decided under former law).

Claim subject to dismissal where prematurely filed. — A suit for compensation prematurely filed subjects the complaint, or claim as it is spoken of in the section, to dismissal. Fresquez v. Farnsworth & Chambers Co., 1955-NMSC-112, 60 N.M. 384, 291 P.2d 1102 (decided under former law).

Petition is not prematurely filed when workman (worker) contends that he is totally and permanently disabled. Briscoe v. Hydro Conduit Corp., 1975-NMCA-147, 88 N.M. 568, 544 P.2d 283 (decided under former law).

Medical benefits not subject to limitations. — It was not the intention of the legislature to make the medical benefits provided under Section 52-1-49 NMSA 1978 subject to the limitations of this section. Valdez v. McKee, 1966-NMSC-102, 76 N.M. 340, 414 P.2d 852.

No limitation on payment of medical and hospital benefits. — Installment compensation payments shall be made semimonthly, except that the first installment shall be paid not later than 31 days after the date of the injury. As to medical and hospital benefits, which the injured workman (worker) is entitled to under the act, there is no limitation except that after injury and continuing so long as medical or surgical attention is reasonably necessary, the employer shall furnish all reasonable medical, surgical and hospital services, and medicine, not exceeding $700. Martinez v. Wester Bros. Wholesale Produce Co., 1961-NMSC-177, 69 N.M. 375, 367 P.2d 545 (decided prior to 1993 amendment).

Best interests generally served by periodic installments. — Generally, the best interests of the claimant will be served by paying the compensation in regular installments as wages are paid; periodic payments supply, in a measure, the loss of a regular pay check. Codling v. Aztec Well Servicing Co., 1976-NMCA-044, 89 N.M. 213, 549 P.2d 628.

It was error to award a claimant lump-sum benefits, when such a payment would create an undue risk that the worker would end up on the welfare rolls well before the periodic payments would have terminated. Riesenecker v. Arkansas Best Freight Sys., 1990-NMCA-059, 110 N.M. 654, 798 P.2d 1040, vacated on other grounds, 110 N.M. 451, 796 P.2d 1147 (decided under prior law).

Complaint dismissed because filed prematurely. — Where employee's injury occurred on August 8, and on September 12 he filed in the district court his complaint, the cause was dismissed on the ground that it was prematurely filed. Fresquez v. Farnsworth & Chambers Co., 238 F.2d 709 (10th Cir. 1956) (decided under former law).

Determination of total permanent disability as prerequisite. — This section of the Workmen's (Workers') Compensation Act has as a prerequisite a determination of "total permanent disability." Where the claim filed in the trial court is not a case of "total permanent disability," but still seeks a lump-sum settlement, it is therefore subject to dismissal under Rule 12(b)(6), N.M.R. Civ. P. (see now Rule 1-012B(6)). Sanchez v. Kerr-McGee Co., 1972-NMCA-063, 83 N.M. 766, 497 P.2d 977.

Technical default though payments made. — Where record showed that two installments, although paid late, were nevertheless paid, defendants were in technical default, but workmen's (workers') compensation claim based on this default was moot because liability for those installments was extinguished by the payment. Montoya v. Zia Co., 1971-NMCA-105, 82 N.M. 774, 487 P.2d 202.

Payment of compensation installments after filing of premature claim does not waive such premature filing nor confer jurisdiction upon the district court. Moody v. Hastings, 1963-NMSC-083, 72 N.M. 132, 381 P.2d 207.

Payment of claims may constitute admission against interest by employer or insurer. However, an admission can be rebutted or explained and is by no means conclusive. Michael v. Bauman, 1966-NMSC-079, 76 N.M. 225, 413 P.2d 888.

Admission of total permanent disability. — Defendants' admission by affidavit that they were paying plaintiff the maximum amount of compensation benefits provided by law, coupled with a failure to deny the claim in plaintiff's complaint, and affidavit that he was permanently disabled was an admission of total permanent disability. Briscoe v. Hydro Conduit Corp., 1975-NMCA-147, 88 N.M. 568, 544 P.2d 283.

Plaintiff's attorneys entitled to compensation if cause successful. — The plaintiff's attorneys are entitled to compensation for representing the plaintiff in the trial of this cause only if said cause is successful. Fresquez v. Farnsworth & Chambers Co., 1955-NMSC-112, 60 N.M. 384, 291 P.2d 1102 (decided under former law).

Judgment reversed where suit filed prematurely. — Where it is clear that the suit was prematurely filed, the judgment for the claimant will be reversed and the cause remanded with instruction to dismiss his claim. Swallows v. City of Albuquerque, 1955-NMSC-042, 59 N.M. 328, 284 P.2d 216, aff'd, 1956-NMSC-063, 61 N.M. 265, 298 P.2d 945 (decided under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 674 to 684, 730, 731.

99 C.J.S. Workmen's Compensation §§ 337 to 352; 101 C.J.S. Workmen's Compensation §§ 826 to 835.