A. For total disability, the worker shall receive, during the period of that disability, sixty-six and two-thirds percent of the worker's average weekly wage, and not to exceed a maximum compensation of eighty-five percent of the average weekly wage in the state, a week, effective July 1, 1987 through December 31, 1999, and thereafter not to exceed a maximum compensation of one hundred percent of the average weekly wage in the state, a week; and to be not less than a minimum compensation of thirty-six dollars ($36.00) a week.

B. For permanent total disability as set forth in Section 52-1-25 NMSA 1978, the worker shall receive compensation benefits for the remainder of the worker's life. For temporary disability as set forth in Section 52-1-25.1 NMSA 1978, the maximum period of compensation is subject to the maximum duration and limitation on compensation benefits set forth in Section 52-1-47 NMSA 1978.

C. For disability resulting from primary mental impairment, the maximum period of compensation is the maximum period allowable for a physical injury, as set forth in Sections 52-1-26 and 52-1-42 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978. For disability resulting in secondary mental impairment, the maximum period of compensation is the maximum period allowable for the disability produced by the physical impairment, as set forth in Section 52-1-26 or 52-1-43 NMSA 1978 and Section 52-1-42 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978.

D. For the purpose of paying compensation benefits for death, pursuant to Section 52-1-46 NMSA 1978, the worker's maximum disability recovery shall be deemed to be seven hundred weeks.

E. Where the worker's average weekly wage is less than thirty-six dollars ($36.00) a week, the compensation to be paid the worker shall be the worker's full weekly wage.

F. For the purpose of the Workers' Compensation Act, the average weekly wage in the state shall be determined by the workforce solutions department on or before June 30 of each year and shall be computed from all wages reported to the workforce solutions department from employing units, including reimbursable employers, in accordance with the rules of the department for the preceding calendar year, divided by the total number of covered employees divided by fifty-two.

G. The average weekly wage in the state, determined as provided in Subsection F of this section, shall be applicable for the full period during which compensation is payable when the date of the occurrence of an accidental injury falls within the calendar year commencing January 1 following the June 30 determination.

H. Unless the computation provided for in Subsection F of this section results in an increase or decrease of two dollars ($2.00) or more, raised to the next whole dollar, the statewide average weekly wage determination shall not be changed for any calendar year.

History: 1953 Comp., § 59-10-18.2, enacted by Laws 1959, ch. 67, § 20; 1965, ch. 252, § 1; 1967, ch. 151, § 2; 1969, ch. 173, § 1; 1971, ch. 261, § 3; 1973, ch. 240, § 5; 1975, ch. 284, § 8; 1986, ch. 22, § 11; 1987, ch. 235, § 16; 1989, ch. 263, § 23; 1990 (2nd S.S.), ch. 2, § 17; 1993, ch. 193, § 4; 1999, ch. 172, § 1; 2015, ch. 70, § 1.

Cross references. — For total disability, see 52-1-25 NMSA 1978.

The 2015 amendment, effective June 19, 2015, amended the Workers' Compensation Act to change temporary disability benefits; in Subsection A, after "two-thirds percent of", deleted "his" and added "the worker's", and after "($36.00) a week", deleted the remainder of the subsection; rewrote Subsection B and designated the language from former Subsection B as new Subsection C; in new Subsection C, after "period of compensation is", deleted "one hundred weeks", and added "the maximum period allowable for a physical injury, as set forth in Sections 52-1-26 and 52-1-42 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978", and after "physical impairment", deleted "or one hundred weeks, whichever is greater"; deleted the designation from former Subsection C and added "as set forth in Section 52-1-26 or 52-1-43 NMSA 1978 and Section 52-1-42 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978" to the end of new Subsection C; designated the language in former Subsection C as Subsection D; redesignated former Subsections D, E, F and G as Subsections E, F, G and H, respectively; in Subsection E, after "worker shall be", deleted "his" and added "the worker's"; in Subsection F, after "determined by the", deleted "employment security division of the labor" and added "workforce solutions", after "reported to the", deleted "employment security division" and added "workforce solutions department", after "accordance with the", deleted "regulations" and added "rules", and after "of the", deleted "division" and added "department"; in Subsection G, after "Subsection", deleted "E" and added "F"; in Subsection H, after "Subsection", deleted "E" and added "F".

The 1999 amendment, effective June 18, 1999, substituted the language beginning "through" and ending "a week" for the language relating to the maximum compensation for certain effective dates in the first sentence of Subsection A.

The 1993 amendment, effective June 18, 1993, made a minor stylistic change in Subsection A; deleted "total" preceding the first two occurrences of "disability" in Subsection B; and made minor stylistic changes in Subsection D.

The 1990 (2nd S.S.) amendment, effective January 1, 1991, divided former Subsection A to form Subsections A and B, rewriting some of the provisions therein; added Subsection C and redesignated former Subsections B through E as Subsections D through G; and deleted the former last sentence of Subsection E regarding the timing of the initial determination by the employment security division of the average weekly wage.

Limitation on benefits does not violate due process. — In view of the overall economic benefits of the Workmen's (Workers') Compensation Act, the limitation on disability benefits imposed by this section does have a reasonable relation to the economic purpose of the act and therefore does not violate due process. Casillas v. S.W.I.G., 1981-NMCA-045, 96 N.M. 84, 628 P.2d 329, cert. denied, 96 N.M. 116, 628 P.2d 686, and appeal dismissed, 454 U.S. 934, 102 S. Ct. 467, 70 L. Ed. 2d 242 (1981).

This section violates equal protection guarantees of the New Mexico Constitution by treating mentally disabled workers differently than physically disabled workers. Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, 138 N.M. 331, 120 P.3d 413.

This section limits basic benefits for persons with mental disabilities. Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, 138 N.M. 331, 120 P.3d 413.

This section provided for total disability and clarified the statutes theretofore existing. Boggs v. D & L Constr. Co., 1963-NMSC-044, 71 N.M. 502, 379 P.2d 788, overruled on other grounds by American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

Sections to be read together. — All of the three sections, Sections 52-1-41, 52-1-42, and 52-1-43 NMSA 1978, are part of the same legislative act and are to be read together so as to give effect to each of the sections. Witcher v. Capitan Drilling Co., 1972-NMCA-145, 84 N.M. 369, 503 P.2d 652, cert. quashed, 85 N.M. 380, 512 P.2d 953 (1973).

Compensation based on disability, not physical impairment. — The fact that compensation is not limited to the scheduled injury section does not, however, mean that compensation outside the scheduled injury section is to be awarded on the basis of physical impairment. Compensation, apart from the scheduled injury section, is based on disability. "Physical impairment" does not automatically equate with "disability." Willcox v. United Nuclear Homestake Sapin Co., 1971-NMCA-126, 83 N.M. 73, 488 P.2d 123.

Where in fact there is a total disability, compensation under the workmen's (workers') compensation statute is to be paid for the disability without regard to whether the workman (worker) has a bodily impairment distinct from scheduled injuries. Witcher v. Capitan Drilling Co., 1972-NMCA-145, 84 N.M. 369, 503 P.2d 652, cert. quashed, 85 N.M. 380, 512 P.2d 953 (1973).

Impairment and disability contrasted. — If a workman (worker) is able to perform his usual tasks, despite a defect or infirmity limiting or making useless a member or limb of the body, the workman (worker) is physically impaired, but not functionally disabled, because the act is not concerned with a workman's (worker's) physical injury. It is concerned with capacity to work. Therefore, nondisabling pain does not constitute a compensable injury. Neither does a psychiatric or mental impairment. Perez v. Int'l Minerals & Chem. Corp., 1981-NMCA-022, 95 N.M. 628, 624 P.2d 1025, cert. denied, 95 N.M. 669, 625 P.2d 1186.

Impairment does not automatically equate with disability. Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.

When impairment equates with disability. — If a member or limb of a body is defective or infirm and creates a condition whereby a workman (worker) is wholly or partially unable to perform the usual tasks in the work he was performing at the time of his injury, and is wholly or partially unable to perform any work for which he is fitted, "physical impairment" equates with total or partial disability. 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.

Section invoked when impairment amounts to disability. — If one suffers a scheduled injury which causes a physical impairment but does not create disability, Section 52-1-43 NMSA 1978 will apply. When the impairment amounts to a disability, this section and Section 52-1-42 NMSA 1978 are properly invoked. American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

If a worker is totally disabled due to an injury, then he or she is entitled to disability under this section, even if the disability results from the loss of or injury to a scheduled member that is enumerated under Section 52-1-43 NMSA 1978. Hise Constr. v. Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210.

"Average weekly wage", as used in this section, has statutory meaning. Gilliland v. Hanging Tree, Inc., 1978-NMCA-061, 92 N.M. 23, 582 P.2d 400, cert. denied, 92 N.M. 180, 585 P.2d 324.

Subsection A means that a workman (worker) cannot be totally disabled doubly. To construe it otherwise would grant a workman (worker) a "windfall," fundamentally inconsistent with the nature of the Workmen's (Workers') Compensation Act. Rollins v. Albuquerque Pub. Schs., 1979-NMCA-039, 92 N.M. 795, 595 P.2d 765, cert. denied, 92 N.M. 675, 593 P.2d 1078.

Total disability may be temporary. — The language of this section contemplates that total disability may be temporary. Pacheco v. Alamo Sheet Metal Works, Inc., 1978-NMCA-057, 91 N.M. 730, 580 P.2d 498.

Pain as disability. — A severe pain which does disable a workman (worker) is a compensable injury. A workman (worker) may retain all of the normal bodily functions of his organs and still be so weak or be in such pain that he would be totally or partially disabled from retaining or obtaining remunerative employment. 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.

Degree of disability is question of fact for trial court, and the primary test for disability is plaintiff's capacity to perform work. Trujillo v. Tanuz, 1973-NMCA-048, 85 N.M. 35, 508 P.2d 1332.

Medical payments as compensation. — Medical payments have been ruled to be compensation for the purpose of allowing attorney fees under Section 52-1-54 NMSA 1978, and if they are compensation for one purpose they should be compensation for all purposes. Since plaintiff's employer had failed to pay a medical bill, the trial court erred in dismissing his action alleging total disability and seeking a lump-sum award on grounds of premature filing. Briscoe v. Hydro Conduit Corp., 1975-NMCA-147, 88 N.M. 568, 544 P.2d 283.

Rate of compensation should be based upon applicable law on date of disability, where total disability commenced in January of 1975, the rate of compensation should be based upon the statutory rate in effect at that time and not on the rate in effect at the time of the 1973 accident. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Applicable rate of compensation in determining amount of award is that rate in effect on the date of disability, not the date of the accident. Lamont v. N.M. Military Inst., 1979-NMCA-047, 92 N.M. 804, 595 P.2d 774, cert. denied, 92 N.M. 675, 593 P.2d 1078.

Date of disability is the date the workman (worker) knows or should know he has suffered a compensable injury. Turner v. Shop-Rite Foods, Inc., 1982-NMCA-165, 99 N.M. 56, 653 P.2d 887.

Benefits are based upon the rate in effect when the workman (worker) becomes disabled. After a workman (worker) is disabled the rate does not escalate each time he returns to work. Turner v. Shop-Rite Foods, Inc., 1982-NMCA-165, 99 N.M. 56, 653 P.2d 887.

Voluntary payment of maximum compensation benefits over period of time does not establish total permanent disability, and such payment is not an admission by the employer of the totality or permanency of any injury. Armijo v. Co-Con Constr. Co., 1978-NMCA-106, 92 N.M. 295, 587 P.2d 442, cert. denied, 92 N.M. 260, 586 P.2d 1089, overruled on other grounds by Maitlen v. Getty Oil Co., 1987-NMCA-002, 105 N.M. 370, 733 P.2d 1 and Raines v. W.A. Klinger & Sons, 1988-NMSC-083, 107 N.M. 668, 763 P.2d 684.

Maximum compensation benefits for total disability cannot exceed that provided for in this section. Rollins v. Albuquerque Pub. Schs., 1979-NMCA-039, 92 N.M. 795, 595 P.2d 765, cert. denied, 92 N.M. 675, 593 P.2d 1078.

Where a hearing officer concluded that a claimant was entitled to compensation benefits "until further order of the Workers' Compensation Division," but did not limit benefits to the statutory limit, the order granting benefits was not overbroad. 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.

No time limits on payment of temporary total disability benefits. — Temporary total disability benefits are payable during any period of total disability for the remainder of a worker's life. The payment of temporary total disability benefits to a worker is not subject to any of the duration limits found in 52-1-42 NMSA 1978 for permanent partial disability or 52-1-47 NMSA 1978 for combinations of disabilities. Fowler v. Vista Care, 2014-NMSC-019, rev'g 2013-NMCA-036, 298 P.3d 491.

Where worker, who suffered a back injury in 2003, began receiving temporary total disability benefits, and underwent back surgery; in 2006, worker's physician determined that worker had reached maximum medical improvement, worker's temporary total disability benefits were terminated, and worker received a lump sum payment of permanent partial disability benefits; and in 2007, worker's physician determined that worker's condition had deteriorated and recommended another surgery, worker was entitled to reinstatement of temporary total disability benefits as of 2007 when worker's physician determined that worker was no longer at maximum medical improvement. Fowler v. Vista Care, 2014-NMSC-019, rev'g 2013-NMCA-036, 298 P.3d 491.

Durational limits of temporary total disability benefits. — Temporary total disability benefits are subject to the 700-week durational limit in 52-1-57A NMSA 1978. Fowler v. Vista Care, 2013-NMCA-036, 298 P.3d 491, rev'd, 2014-NMSC-019.

Where worker suffered a back injury in 2003 and underwent a spinal fusion in 2006; the workers' compensation judge determined that worker had reached maximum medical improvement in 2006 and awarded worker a lump sum payment of permanent partial disability benefits; in 2007, worker's physician discovered that worker had a new injury that related to the original injury; worker underwent surgery in 2010; and in a 2010 compensation order, the workers' compensation judge concluded that worker was not at maximum medical improvement as of 2007 and awarded worker temporary total disability benefits for an indefinite period of time until the date worker reached maximum medical improvement from the 2010 surgery, worker's temporary total disability benefits were subject to the 700-week durational limit in 52-1-57A NMSA 1978. Fowler v. Vista Care, 2013-NMCA-036, 298 P.3d 491, rev'd, 2014-NMSC-019.

Maximum compensation for secondary mental impairment. — Subsection A(2) (now Subsections A and B) of this section allows compensation payments for as long as the physical disability is present; if the physical disability lasts less than 100 weeks, then a person who is totally disabled by secondary mental impairment can receive compensation payments for the balance of the 100 weeks but no more. Fitzgerald v. Open Hands, 1993-NMCA-026, 115 N.M. 210, 848 P.2d 1137 (decided under version prior to 1991 amendment).

When claim of injury filed prematurely. — Employee's claim for a first injury is filed prematurely where she is receiving maximum compensation benefits for a second injury, both arising out of the same employment and the same employer. Rollins v. Albuquerque Pub. Schs., 1979-NMCA-039, 92 N.M. 795, 595 P.2d 765, cert. denied, 92 N.M. 675, 593 P.2d 1078.

No change in amount of compensation payable during disability. — The amount of compensation to be paid for disability from the date the disability began, does not change during the period that disability continues; the maximum compensation payable is limited to the benefits payable when the disability began, and continues for the full period of that disability. Casias v. Zia Co., 1980-NMCA-109, 94 N.M. 723, 616 P.2d 436.

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.

Disability resulting from a second accident, regardless of a preexisting condition, is compensable by the employer and compensation insurer at the time of the second accident. Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.

Judge's unconcurred opinion on escalating benefits not court of appeal's decision. — Where a judge's opinion concerning escalating benefits under the Workmen's (Workers') Compensation Act is not concurred in by another judge, her view concerning escalating benefits is not a decision of the court of appeals and a judgment on remand which does not provide for escalating benefits complies with the mandate and opinion of the court of appeals. Casias v. Zia Co., 1980-NMCA-109, 94 N.M. 723, 616 P.2d 436.

Award of one day's benefits is not contemplated by the Workmen's (Workers') Compensation Act. Grudzina v. N.M. Youth Diagnostic & Dev. Ctr., 1986-NMCA-047, 104 N.M. 576, 725 P.2d 255.

Law reviews. — For note, "Workmen's Compensation in New Mexico: Preexisting Conditions and the Subsequent Injury Act," see 7 Nat. Resources J. 632 (1967).

For article, "Survey of New Mexico Law, 1979-80: Workmen's Compensation," see 11 N.M.L. Rev. 235 (1981).

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's Compensation §§ 380 to 384, 406, 413.

99 C.J.S. Workmen's Compensation §§ 289 to 301; 101 C.J.S. Workmen's Compensation § 896.