A. For disability resulting from an accidental injury to specific body members, including the loss or loss of use thereof, the worker shall receive the weekly maximum and minimum compensation for disability as provided in Section 52-1-41 NMSA 1978, for the following periods:

Injury

Compensation Benefits Number of Weeks

(1) one arm at or near shoulder, dextrous member 200 weeks

(2) one arm at elbow, dextrous member 160 weeks

(3) one arm between wrist at elbow, dextrous member 150 weeks

(4) one arm at or near shoulder, nondextrous member 175 weeks

(5) one arm at elbow, nondextrous member 155 weeks

(6) one arm between wrist and elbow, nondextrous member 140 weeks

(7) one hand, dextrous member 125 weeks

(8) one hand, nondextrous member 110 weeks

(9) one thumb and the metacarpal bone thereof 55 weeks

(10) one thumb at the proximal joint 34 weeks

(11) one thumb at the second distal joint 22 weeks

(12) one first finger and the metacarpal bone thereof 28 weeks

(13) one first finger at the proximal joint 22 weeks

(14) one first finger at the second joint 17 weeks

(15) one first finger at the distal joint 12 weeks

(16) one second finger and the metacarpal bone thereof 22 weeks

(17) one second finger at the proximal joint 17 weeks

(18) one second finger at the second joint 12 weeks

(19) one second finger at the distal joint 10 weeks

(20) one third finger and the metacarpal bone thereof 17 weeks

(21) one third finger at the proximal joint 12 weeks

(22) one third finger at the second joint 10 weeks

(23) one third finger at the distal joint 10 weeks

(24) one fourth finger and the metacarpal bone thereof 14 weeks

(25) one fourth finger at the proximal joint 14 weeks

(26) one fourth finger at the second joint 10 weeks

(27) one fourth finger at the distal joint 7 weeks

(28) loss of all fingers on one hand where thumb and palm remain 70 weeks

(29) one leg at or near hip joint, so as to preclude the use of an artificial limb 200 weeks

(30) one leg at or above the knee, where stump remains sufficient to permit the use of an artificial limb 150 weeks

(31) one leg between knee and ankle 130 weeks

(32) one foot at the ankle 115 weeks

(33) one great toe with the metatarsal bone thereof 35 weeks

(34) one great toe at the proximal joint 17 weeks

(35) one great toe at the second joint 12 weeks

(36) one toe other than the great toe with the metatarsal bone thereof 14 weeks

(37) one toe other than the great toe at the proximal joint 10 weeks

(38) one toe other than the great toe at second or distal joint 8 weeks

(39) loss of all toes on one foot at proximal joint 40 weeks

(40) eye by enucleation 130 weeks

(41) total blindness of one eye 120 weeks

(42) total deafness in one ear 40 weeks

(43) total deafness in both ears 150 weeks.

B. For a partial loss of use of one of the body members or physical functions listed in Subsection A of this section, the worker shall receive compensation computed on the basis of the degree of such partial loss of use, payable for the number of weeks applicable to total loss or loss of use of that body member or physical function.

C. In cases of actual amputation of the arm or leg, the workers' compensation judge in his discretion may award compensation benefits in excess of those provided in Subsection A of this section if there is substantial evidence to support a finding that, because of the worker's advanced age, lack of education or lack of training, he has in fact a partial disability which will disable him longer than the time specified in the schedule in Subsection A of this section. The additional compensation period may not in any event exceed twice the time specified in the schedule in Subsection A of this section for such injury.

D. In determining the worker's compensation benefits payable to a worker under this section for a disability resulting from a scheduled injury, the worker is entitled to be compensated as provided in Subsection A of this section up to the date the worker is released from regular treatment by his primary treating health care provider, as defined in Section 52-4-1 NMSA 1978, if he is in fact totally disabled during that time. Any compensation paid up to that date shall be in addition to the compensation allowed under Subsection A of this section, but in no event shall any worker be entitled to compensation for a period in excess of seven hundred weeks.

History: 1978 Comp., § 52-1-31, enacted by Laws 1987, ch. 235, § 18; 1989, ch. 263, § 25; 2003, ch. 259, § 5.

Repeals and reenactments. — Laws 1987, ch. 235, § 18 repealed former 52-1-43 NMSA 1978, as reenacted by Laws 1986, ch. 22, § 13, and enacted a new 52-1-43 NMSA 1978, effective June 19, 1987.

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 2003 amendment, effective June 20, 2003, in Subsection C substituted "of those provided in Subsection A of this section" for "of the period hereinafter stated" following "benefits in excess" near the middle of the first sentence, inserted "in Subsection A of this section" at the end of the first sentence, and inserted "in Subsection A of this section" near the end of the second sentence.

I. GENERAL CONSIDERATION.

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.

Scheduled injury section limits only benefits payable for "partial disability"; it does not limit benefits where there is a "total disability." 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).

Section does not limit modification. — This section does not limit the amount of time in which the worker could file a claim for increased benefits under Section 52-1-56 NMSA 1978. Henington v. Technical-Vocational Inst., 2002-NMCA-025, 131 N.M. 655, 41 P.3d 923, cert. denied, 131 N.M. 737, 42 P.3d 842.

Construed in pari materia. — Each of the three sections 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).

Proof of impairment not essential. — Proof of an impairment, as defined in Section 52-1-24A NMSA 1978, is not essential for recovery under Section 52-1-43 NMSA 1978. Lucero v. Smith's Food & Drug Ctrs., 1994-NMCA-076, 118 N.M. 35, 878 P.2d 353, cert. denied, 118 N.M. 90, 879 P.2d 91.

New Mexico license not required. — The words "health care provider, as defined in Section 52-4-1 NMSA 1978" should be construed to mean those persons licensed (not necessarily in New Mexico) in one of the occupations listed in Section 52-4-1 NMSA 1978. If the result were otherwise, the person providing health care to a worker residing out of state would not necessarily be licensed in New Mexico, and thus would never be able to release the worker from "his primary treating health care provider, as defined in Section 52-4-1 NMSA 1978" because the worker would have no such treating health care provider. Coslett v. Third St. Grocery, 1994-NMCA-046, 117 N.M. 727, 876 P.2d 656, cert. denied, 117 N.M. 802, 877 P.2d 1105.

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

In order to establish that healing period extended beyond number of weeks specified in Subsection A, claimant was required to show that he was totally disabled during such extended time. Hedgecock v. Vandiver, 1970-NMCA-117, 82 N.M. 140, 477 P.2d 316.

Strict application of section creates inequities in remedy provided to injured workmen who are totally disabled and unable to return to gainful employment because of injuries to a scheduled body member. American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

Section does not take into consideration the occupation of the worker and how the loss of the specific member of the body may affect his or her ability to perform the duties of his or her job. Hise Constr. v. Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210.

Shoulder injury is a non-scheduled injury. Carter v. Mountain Bell, 1986-NMCA-103, 105 N.M. 17, 727 P.2d 956.

II. DISABILITY.

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.

Disability separate and distinct from scheduled injury. — 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 Section 52-1-42 NMSA 1978, and not just to benefits under this section (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 Section 52-1-42 NMSA 1978, rather than scheduled injury benefits under this section, a worker 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.

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. 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.

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.

"Physical impairment" does not automatically equate with "disability." "Physical impairment" denotes a defect or infirmity limiting or making useless a member or limb of the body. Candelaria v. Hise Constr., 1981-NMCA-145, 98 N.M. 763, 652 P.2d 1214, aff'd in part, rev'd in part, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210, overruled on other grounds by Garcia v. Schneider, Inc., 1986-NMCA-127, 105 N.M. 234, 731 P.2d 377.

Total disability covered by Section 52-1-41 NMSA 1978. — If a worker is totally disabled due to an injury, then he or she is entitled to disability under Section 52-1-41 NMSA 1978, even if the disability results from the loss of or injury to a scheduled member that is enumerated under this section. Hise Constr. v. Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210.

Court cannot conclude both total disability and scheduled injury. — Where the court both found and concluded that plaintiff was totally disabled but it also concluded and entered judgment for a scheduled injury, the judgment was reversed and remanded for a new judgment which conformed to the finding of total disability. Mendez v. Southwest Cmty. Health Servs., 1986-NMCA-066, 104 N.M. 608, 725 P.2d 584, cert. denied, 104 N.M. 632, 725 P.2d 832.

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.

Primary test for disability is the capacity to perform work. Adams v. Loffland Bros. Drilling Co., 1970-NMCA-114, 82 N.M. 72, 475 P.2d 466.

Determination of degree of disability is a question of fact for the fact finder and if there is substantial evidence in the record to support a finding, the appellate court is bound thereby. Adams v. Loffland Bros. Drilling Co., 1970-NMCA-114, 82 N.M. 72, 475 P.2d 466.

Degree of disability is a 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.

More compensation if disability transcends scheduled injury. — Disability compensation was more than that allowed for a scheduled injury to the left elbow since there was substantial evidence to support the compensation order to the extent it relied on the fact that the worker's disability was not limited to a scheduled member or function. Rodriguez v. McAnally Enters., 1994-NMCA-025, 117 N.M. 250, 871 P.2d 14.

Impairment distinct from schedule immaterial where total disability. — 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).

Accidental injuries to the nervous system are compensable when resulting in disability. Webb v. Hamilton, 1968-NMSC-008, 78 N.M. 647, 436 P.2d 507, overruled on other grounds by American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

Injury justified award. — A code welder who sustained an accidental injury to his right thumb, right index finger and the webbing between the thumb and finger, without further impairment to his body, as a natural and direct result of an accident, with the ability to use some, but not all, of the tools necessary to perform the usual tasks of a welder, was equally justified to an award of total and permanent disability under Section 52-1-24 NMSA 1978 (now Section 52-1-25 NMSA 1978) or an award for a scheduled injury under this section. American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

Pain as compensable injury. — 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.

Disability benefits for phantom pain and secondary depression. — Since the record supported the determination of the worker's compensation judge that claimant's pain and secondary depression were injuries separate and distinct from an amputation of finger and thumb, claimant was entitled to partial disability benefits on these claims. Gordon v. Dennisson Doors, Inc., 1992-NMCA-136, 114 N.M. 767, 845 P.2d 861.

III. SCHEDULED INJURY.

Subsection B's relation to Subsection A. — The most sensible construction of this section is that Subsection A sets forth the benefits for total loss or total loss of use of a member or function and Subsection B sets forth the benefits for partial loss of use of a member or function. Twin Mt. Rock v. Ramirez, 1994-NMCA-020, 117 N.M. 367, 871 P.2d 1373, cert. denied, 117 N.M. 802, 877 P.2d 1105.

The "number of weeks" referred to in Subsection B is the number of weeks set forth in the various paragraphs in Subsection A. It is significant that Subsection B refers to those numbers as the "number of weeks applicable to total loss or loss of use," thereby indicating that the provisions in Subsection A relate solely to total loss or loss of use of a body member or physical function. Twin Mt. Rock v. Ramirez, 1994-NMCA-020, 117 N.M. 367, 871 P.2d 1373, cert. denied, 117 N.M. 802, 877 P.2d 1105.

Section applicable when impairment does not create disability. — If one suffers a scheduled injury which causes a physical impairment but does not create disability, this section will apply. When the impairment amounts to a disability, Sections 52-1-41 NMSA 1978 and 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.

Work-related injury and preexisting impairment. — Where worker sustained a work-related injury to the left knee; worker had a preexisting impairment in the right knee which was not a consequence of the work-related accident; and there was no evidence that worker's preexisting right knee impairment became worse as a result of the accident, the workers' compensation judge did not err in finding that the preexisting right knee injury did not combine with the left knee injury to result in additional disability. Jojola v. Fresenius Med. Clinic, 2010-NMCA-101, 149 N.M. 51, 243 P.3d 755.

Enhanced disability concept (preexiting injury rule), under which the present extent of impairment covered as a scheduled injury is to be compensated without factoring out previous causes of impairment, is an integral part of the Workers' Compensation Act and applies to the scheduled injuries section under the Act where there is no temporary or permanent disability. 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. 171, 74 P.3d 600.

Where a worker suffered a 59% loss of hearing, which was the result of a work-related injury combined with the worker's preexisting condition, the worker was entitled to compensation for his total impairment, notwithstanding the employer's argument that only 5% of the loss was due to the work-related injury. 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. 171, 74 P.3d 600.

Benefits are allowed for total disability when the total disability results from the loss of, or injury to, a scheduled member. Mendez v. Southwest Cmty. Health Servs., 1986-NMCA-066, 104 N.M. 608, 725 P.2d 584, cert. denied, 104 N.M. 632, 725 P.2d 832.

Where an injury to a scheduled member results in total disability, the scheduled member section does not prohibit compensation based on such total disability. Archuleta v. Safeway Stores, Inc., 1986-NMCA-092, 104 N.M. 769, 727 P.2d 77.

An injury to the hip is an injury to the body as a whole, even if it results in pain, impairment, etc., to a member, i.e., the leg. Nelson v. Nelson Chem. Corp., 1987-NMCA-024, 105 N.M. 493, 734 P.2d 273.

Disability to knee. — A plaintiff whose sole injury is a 50% disability to one knee has a recovery which is limited to the scheduled injury provision in this section. 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.

Total blindness in one eye. — Where claimant lost 98% of vision in her left eye while at home and made no claim for benefits and later lost 80% of vision in her right eye as a result of a hemorrhage suffered at work, she was entitled to benefits for total blindness of one eye, not for total disability. Crane v. San Juan Cnty., 1983-NMCA-133, 100 N.M. 600, 673 P.2d 1333, cert. denied, 100 N.M. 689, 675 P.2d 421.

Lost eye compensated under this 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 this section. Ranville v. J.T.S. Enters., Inc., 1984-NMCA-100, 101 N.M. 803, 689 P.2d 1274.

Loss of use of injured eye judged on basis of uncorrected vision. Ranville v. J.T.S. Enters., Inc., 1984-NMCA-100, 101 N.M. 803, 689 P.2d 1274.

Without correction, impairment to the plaintiff's left eye is 100%; if sight to this eye is corrected to potential, the impairment may be reduced to 90-95%. However, compensation is not based on corrected vision. Fierro v. Stanley's Hardware, 1985-NMCA-085, 104 N.M. 401, 722 P.2d 652, rev'd on other grounds, 1986-NMSC-022, 104 N.M. 50, 716 P.2d 241.

Where eye cannot be corrected by glasses as well. — If plaintiff was injured in the course of his employment, and as a result one eye cannot be corrected by glasses as well after the injury as before, he is entitled to compensation whether or not there is a change in his vision without glasses. Sessing v. Yates Drilling Co., 1964-NMSC-225, 74 N.M. 550, 395 P.2d 824.

Partial loss of vision. — Where the disability is not total blindness in one eye, but only partial loss of vision, the section requires that the compensation shall be measured by the extent of the disability. Webb v. Forrest Currell Lumber Co., 1961-NMSC-029, 68 N.M. 187, 360 P.2d 380.

Claimant receiving scheduled injury benefits based on 60% loss of use of nondexterous hand not barred from seeking additional compensation for psychiatric injury by insurer's payment of maximum benefits for 60% of required period rather than, as required by statute, payment of 60% of maximum benefits for required period. Paternoster v. La Cuesta Cabinets, Inc., 1984-NMCA-097, 101 N.M. 773, 689 P.2d 289.

Evidence. — Although evidence based on American Medical Association (AMA) guides or publications would be helpful to an understanding of the percentage loss of use of a specific member, evidence of that character is not required under this section as it currently exists. Lucero v. Smith's Food & Drug Ctrs., 1994-NMCA-076, 118 N.M. 35, 878 P.2d 353, cert. denied, 118 N.M. 90, 879 P.2d 91.

Judge's award of scheduled injury benefits based on both the AMA Guides and reliance on the worker's and doctors' testimonies was supported by substantial evidence. Valdez v. Wal-Mart Stores, Inc., 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, cert. denied, 124 N.M. 589, 953 P.2d 1087.

Finding supported by substantial evidence prevails over conflicting opinion. — The trial court's finding of 15 to 20% loss of use of the left leg, supported by medical testimony, prevails over a conflicting judgment of the district court ordering payment of 100% of the amount of the compensation rate for loss of a leg. When a finding supported by substantial evidence conflicts with an opinion, the finding prevails. Roybal v. Chavez Concrete & Excavation Contractors, Inc., 1985-NMCA-020, 102 N.M. 428, 696 P.2d 1021.

Finding of injury to arm not supported by evidence. — Although the medical expert testified that, in his opinion, the purpose an arm serves is to position a hand in space and give the hand strength to do things and without a functioning hand the arm becomes useless, nothing more than a "paperweight," the record did not reveal any evidence to support the opinion that worker's left arm was useless. Because the medical expert's opinion would essentially render meaningless those portions of the scheduled injury section dealing with hand injuries and an interpretation of the scheduled injury section that renders part of it meaningless cannot be condoned, the trial judge erred in finding a scheduled injury to worker's left arm instead of her left hand. Murphy v. Duke City Pizza, Inc., 1994-NMCA-085, 118 N.M. 346, 881 P.2d 706, cert. denied, 118 N.M. 430, 882 P.2d 21.

Law reviews. — For comment, "Witnesses - Privileged Communications - Physician-Patient Privilege in Workmen's Compensation Cases," see 7 Nat. Resources J. 442 (1967).

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 on New Mexico Law, 1982-83: Workmen's Compensation," see 14 N.M.L. Rev. 211 (1984).

For survey of workers' compensation law in New Mexico, see 18 N.M.L. Rev. 579 (1988).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 380, 385, 386, 400 to 405, 434.

Workers' compensation: recovery for carpal tunnel syndrome, 14 A.L.R.5th 1.

99 C.J.S. Workmen's Compensation §§ 306 to 317.