A. For permanent partial disability, the workers' compensation benefits not specifically provided for in Section 52-1-43 NMSA 1978 shall be a percentage of the weekly benefit payable for total disability as provided in Section 52-1-41 NMSA 1978. The percentage of permanent partial disability shall be determined pursuant to the provisions of Sections 52-1-26 through 52-1-26.4 NMSA 1978. The duration of partial disability benefits shall depend upon the extent and nature of the partial disability, subject to the following:

(1) where the worker's percentage of disability is equal to or greater than eighty, the maximum period is seven hundred weeks;

(2) where the worker's percentage of disability is less than eighty, the maximum period is five hundred weeks;

(3) where the partial disability results from a primary mental impairment, the maximum period is the maximum period allowable for a physical injury, as set forth in Section 52-1-26 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978; and

(4) where the partial disability results from a secondary mental impairment, the maximum period 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 subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978.

B. If an injured worker receives temporary disability benefits prior to an award of permanent partial disability benefits, the maximum period for permanent partial disability benefits shall be reduced by the number of weeks the worker actually receives temporary disability benefits.

History: 1953 Comp., § 59-10-18.3, enacted by Laws 1959, ch. 67, § 21; 1963, ch. 269, § 2; 1965, ch. 252, § 2; 1975, ch. 284, § 9; 1986, ch. 22, § 12; 1987, ch. 235, § 17; 1989, ch. 263, § 24; 1990 (2nd S.S.), ch. 2, § 18; 2015, ch. 70, § 2.

Cross references. — For partial disability, see 52-1-26 NMSA 1978.

The 2015 amendment, effective June 19, 2015, amended the Workers' Compensation Act to change the maximum period of benefits; in Subsection A, Paragraph (3), after "the maximum period is", deleted "one hundred weeks" and added "the maximum period allowable for a physical injury, as set forth in Section 52-1-26 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978"; in Subsection A, Paragraph (4), after "physical impairment", deleted "or one hundred weeks, whichever is greater" and added "as set forth in Section 52-1-26 or 52-1-43 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978"; and in Subsection B, after "an award of", added "permanent", after "maximum period for", added "permanent", and after the second occurrence of "temporary", deleted "total".

The 1990 (2nd S.S.) amendment, effective January 1, 1991, inserted "permanent" in the catchline and rewrote the section to such an extent that a detailed comparison would be impracticable, adding the Subsection A designation and Subsection B.

Combining benefit periods to exceed 500 weeks. — Where worker suffers a scheduled and a non-scheduled injury at the same time, the benefit period for the scheduled member can be added to the benefits period for the non-scheduled injury. Gutierrez v. Intel Corp., 2009-NMCA-106, 147 N.M. 267, 219 P.3d 524.

Where worker fell off of a ladder and injured worker's left foot and back, the workers' compensation judge properly added the allocation of 500 weeks for the back injury and the allocation of 113 weeks for the foot injury, for a total award of 615 weeks of benefits. Gutierrez v. Intel Corp., 2009-NMCA-106, 147 N.M. 267, 219 P.3d 524.

Commencement of benefits period. — Where worker fell off of a ladder and injured worker's left foot and back; worker continued to be consistently symptomatic from the time of the accident until back surgery eight years after the accident; and the back surgery was performed to address a progressive deterioration, the workers' compensation judge properly used the date of the accident, rather than the date of the back surgery, to begin the benefits for the worker's back injury. Gutierrez v. Intel Corp., 2009-NMCA-106, 147 N.M. 267, 219 P.3d 524.

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.

Credit for temporary total disability benefits. — An employer is entitled to credit for payment of partial temporary total disability benefits equal to a reduction of one week of permanent partial disability benefits for each week of partial temporary total disability benefits, regardless of the percentage of partial temporary total disability benefits actually paid. Gurule v. Dicaperl Minerals Corp., 2006-NMCA-054, 139 N.M. 521, 134 P.3d 808.

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.

Statutory obfuscation legitimated. — Sections 52-1-41, 52-1-42 and 52-1-43 NMSA 1978 may seem inconsistent and hard to understand to some lay and professional people, but these provisions are the law in New Mexico. Maschio v. Kaiser Steel Corp., 1983-NMCA-119, 100 N.M. 455, 672 P.2d 284, cert. denied, 100 N.M. 439, 671 P.2d 1150.

For there to be workmen's (workers') compensation award, there must be disability and the compensation payable is measured in terms of disability. McCleskey v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M. 317, 454 P.2d 974.

Compensation based on decreased earning ability. — The Workmen's (Workers') Compensation Act under Laws 1959, ch. 67 provided that compensation payments not be based upon the injury itself, but rather upon the decreased earning ability produced by the injury. Brownlee v. Lincoln Cnty. Livestock Co., 1966-NMSC-060, 76 N.M. 137, 412 P.2d 562.

This section provided for partial 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.

Definition of "disability" is the disablement of the workman (worker) to earn wages in the same kind of work, or work of a similar nature for which he is trained, or is accustomed to perform, or any other kind of work which a person of his mentality and attainments could do. Brownlee v. Lincoln Cnty. Livestock Co., 1966-NMSC-060, 76 N.M. 137, 412 P.2d 562.

Statute must be construed in its entirety, and the words "he earns or is able to earn" should be considered together to arrive at "wage earning ability." Batte v. Stanley's, 1962-NMSC-105, 70 N.M. 364, 374 P.2d 124 (decided under former law).

Construed in pari materia. — All of the three sections, Sections 52-1-41, 52-1-42, and 52-1-43, 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).

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; 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.

When one invokes section, one also invokes the limitation on partial disability benefits stated in this section. Newhoff v. Good Housekeeping, Inc., 1980-NMCA-090, 94 N.M. 621, 614 P.2d 33, cert. denied, 94 N.M. 674, 615 P.2d 991, overruled on other grounds by Candelaria v. Hise Constr., 1981-NMCA-145, 98 N.M. 763, 652 P.2d 1214.

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.

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, Section 52-1-41 NMSA 1978 and this section are properly invoked. Ameriican Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

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

Disability "separate and distinct" from scheduled injury. — In order for a court to award a worker benefits under the partial disability benefits section, there must be a separate and distinct impairment to other parts of the body in addition to the disability resulting from injury to a scheduled member. Ranville v. J.T.S. Enters., Inc., 1984-NMCA-100, 101 N.M. 803, 689 P.2d 1274.

In order to obtain partial disability benefits and not be limited to scheduled injury benefits, plaintiff was required to establish a separate and distinct impairment to other body parts in addition to the injury to her knee. Beltran v. Van Ark Care Ctr., 1988-NMCA-043, 107 N.M. 273, 756 P.2d 1.

The separate and distinct injury necessary to remove a plaintiff from the scheduled injury section must result from or be attributable to the accident or injury to the scheduled member. The question of whether a separate and distinct impairment exists is one for the finder of fact to determine. Beltran v. Van Ark Care Ctr., 1988-NMCA-043, 107 N.M. 273, 756 P.2d 1.

Since an injured worker proved separate and distinct impairment to other parts of his body in addition to his scheduled member injuries, he was entitled to partial disability benefits under this section, and not just to benefits under Section 52-1-43 NMSA 1978 (specific body members). Harrison v. Animas Valley Auto & Truck Repair, 1988-NMSC-055, 107 N.M. 373, 758 P.2d 787.

For a worker to receive permanent partial disability benefits under this section, rather than scheduled injury benefits under Section 52-1-43 NMSA 1978, she must show that: (1) she is totally disabled; or (2) she has suffered a separate and distinct impairment to a nonscheduled body part. Jurado v. Levi Strauss & Co., 1995-NMCA-129, 120 N.M. 801, 907 P.2d 205, cert. denied, 120 N.M. 715, 905 P.2d 1119.

Secondary mental impairment. — A worker is not required to have a current physical impairment in order to have a secondary mental impairment; thus, when a worker was paid total temporary disability benefits for 89 weeks, after which a judge found she no longer had any physical impairment, she was entitled to benefits for secondary mental impairment for 11 weeks under Subsection B. Peterson v. N. Home Care, 1996-NMCA-030, 121 N.M. 439, 912 P.2d 831.

Intermediary secondary mental impairment. — Substantial evidence supported the determination that the claimant's chronic pain disability was the result of both physical and mental impairment and that the benefits cap in Paragraph A(4) did not apply, since physical strain always remained in the diagnosis and since even the company physician gave the claimant an impairment rating based in part on a positive x-ray finding. Crespin v. Consol. Constructors, Inc., 1993-NMCA-109, 116 N.M. 334, 862 P.2d 442, cert. denied, 116 N.M. 364, 862 P.2d 1223.

Wages earned after injury are not necessarily determinative of the question of post-injury earning ability. Batte v. Stanley's, 1962-NMSC-105, 70 N.M. 364, 374 P.2d 124.

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.

Finding of disability as ultimate fact. — A finding that a workman (worker), to a stated percentage extent, is partially and permanently disabled is a finding of an ultimate fact. McClesky v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M. 317, 454 P.2d 974.

Failure to make findings not error where ultimate findings support judgment. — In a workman's (worker's) compensation case, the failure of the trial court to make findings as to functional disability, employability in the open market, ability to pass preemployment physicals, pain and suffering while engaged in gainful employment and employer's sympathy did not constitute fundamental error. Findings made as to decrease in wages, reduction of earning capacity and medical disability were sufficient under Rule 52(B)(a)(2), N.M.R. Civ. P. (see now Rule 1-052A), and such ultimate findings amply sustained the judgment under the provisions of this section. Scott v. Homestake-Sapin, 1963-NMSC-122, 72 N.M. 268, 383 P.2d 239.

No compensation outside schedule where no finding of disability. — Where court finds a 30% physical impairment to the body as a whole, but it also finds that plaintiff did not suffer a "partial disability," then not having established a "disability," plaintiff is not entitled to compensation outside the scheduled injury section. Willcox v. United Nuclear Homestake Sapin Co., 1971-NMCA-126, 83 N.M. 73, 488 P.2d 123.

Although payment of full wages following injury is not conclusive on the question of earning ability, it may be indicative. Brownlee v. Lincoln Cnty. Livestock Co., 1966-NMSC-060, 76 N.M. 137, 412 P.2d 562.

Question whether there is additional bodily injury giving rise to award beyond that specifically provided for in 52-1-43 NMSA 1978 is for the jury to decide. Reck v. Robert E. McKee Gen. Contractors, Inc., 1955-NMSC-074, 59 N.M. 492, 287 P.2d 61 (decided under former law).

No deduction of non-schedule benefits from disability received for scheduled injury. — The number of weeks an injured worker received benefits for the disabilities caused by injuries to a scheduled body part, his knees, could not be deducted from the number of weeks he was entitled to receive benefits for the subsequent injury to his shoulder, a non-scheduled part, which was caused by his original knee injury. Baca v. Complete Drywall Co., 2002-NMCA-002, 131 N.M. 413, 38 P.3d 181, cert. denied, 131 N.M. 564, 40 P.3d 1008.

Award not justified where earning more in other kind of work. — That claimant is disabled to some extent for a former occupation of ranch work does not justify an award for partial disability when, from a factual standpoint, he is receiving a higher weekly wage than he was earning prior to the injury in another kind of work, which a person of his mentality and attainments can do. Brownlee v. Lincoln Cnty. Livestock Co., 1966-NMSC-060, 76 N.M. 137, 412 P.2d 562.

To support conclusion that earning ability is less than actual earnings, there must be a finding of fact to support that conclusion. Brownlee v. Lincoln Cnty. Livestock Co., 1966-NMSC-060, 76 N.M. 137, 412 P.2d 562.

Failure of trial court to find concerning plaintiff's ability to perform usual tasks of the work performed when injured was not a failure to find an ultimate fact. McCleskey v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M. 317, 454 P.2d 974.

Finding of reduction in earning capacity does not follow from a finding of impairment of body function. Batte v. Stanley's, 1962-NMSC-105, 70 N.M. 364, 374 P.2d 124.

It is not improper to award only 15% disability where the decrease in earning capacity has been shown to be 30%. Pies v. Bekins Van & Storage Co., 1962-NMSC-104, 70 N.M. 361, 374 P.2d 122.

Failure to show evidence of wages earned after notice of disability does not preclude a finding of partial disability under this section. Sanchez v. City of Albuquerque, 1965-NMSC-043, 75 N.M. 137, 401 P.2d 583.

Return to previous employment relieves employer of duty to pay. — A return to previous employment and payment of regular wages for the performance of usual duties, absent any suspicious circumstances, relieves the employer of the duty of making compensation payments during such period of regular employment and payment of regular wages. Cordova v. City of Albuquerque, 1962-NMSC-148, 71 N.M. 491, 379 P.2d 781.

Where injury is confined to member with the remainder of the body being unaffected, compensation is limited to that provided for injury to the hand, even though age, lack of training for other work "or other conditions peculiar" to appellant has resulted in reduced ability in him to perform his duties with a resultant reduction of earnings. Lee v. United States Fid. & Guar. Co., 1960-NMSC-003, 66 N.M. 351, 348 P.2d 271.

Recovery limited for knee disability. — A plaintiff whose sole injury is a 50% disability to one knee has a recovery which is limited to the scheduled injury provision in Section 52-1-43 NMSA 1978. Maschio v. Kaiser Steel Corp., 1983-NMCA-119, 100 N.M. 455, 672 P.2d 284, cert. denied, 100 N.M. 439, 671 P.2d 1150.

Lost eye compensated under scheduled injury section following recovery from "separate and distinct" disability. — Plaintiff who was legally blind in his injured eye had "lost his eye" and, upon recovery from traumatic neurosis, no longer suffering from impairment "separate and distinct" from loss of that eye, should be compensated under the scheduled injury section. Ranville v. J.T.S. Enters., Inc., 1984-NMCA-100, 101 N.M. 803, 689 P.2d 1274.

Law reviews. — 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 §§ 380 to 384, 431, to 434.

99 C.J.S. Workmen's Compensation §§ 301 to 303.