Subject to the limitation of compensation payable under Subsection G of Section 52-1-46 NMSA 1978 and except for provision of lifetime benefits for permanent total disability awarded pursuant to Section 52-1-41 NMSA 1978:

A. compensation benefits for any combination of disabilities, whether temporary or permanent, or any combination of disabilities and death shall not be payable for a period in excess of seven hundred weeks;

B. compensation benefits for any combination of disabilities or any combination of disabilities and death shall not exceed an amount equal to seven hundred multiplied by the maximum weekly compensation payable at the time of the accidental injury resulting in the disability or death under Section 52-1-41 NMSA 1978, exclusive of increased compensation that may be awarded under Sections 52-1-10, 52-1-28.1 and 52-1-46 NMSA 1978 and exclusive of any attorney fees awarded under Section 52-1-54 NMSA 1978;

C. in no case shall compensation benefits for disability continue after the disability ends or after the death of the injured worker; and

D. the compensation benefits payable by reason of disability caused by accidental injury shall be reduced by the compensation benefits paid or payable on account of any prior injury suffered by the worker if compensation benefits in both instances are for injury to the same member or function or different parts of the same member or function or for disfigurement and if the compensation benefits payable on account of the subsequent injury would, in whole or in part, duplicate the benefits paid or payable on account of the prior injury.

History: 1953 Comp., § 59-10-18.8, enacted by Laws 1959, ch. 67, § 26; 1963, ch. 269, § 8; 1967, ch. 151, § 6; 1968, ch. 46, § 1; 1969, ch. 173, § 4; 1971, ch. 261, § 4; 1973, ch. 240, § 8; 1975, ch. 284, § 12; 1987, ch. 235, § 20; 1990 (2nd S.S.), ch. 2, § 19; 2015, ch. 70, § 3.

The 2015 amendment, effective June 19, 2015, specified that the limitation on compensation benefits for any combination of disabilities is seven hundred weeks whether the combination of disabilities is temporary or permanent, with certain exceptions; in Subsection A, after "disabilities", added "whether temporary or permanent"; in Subsection B, after "Sections 52-1-10" added "52-1-28.1"; and in Subsection D, after "payable on account of", deleted "such" and added "the".

The 1990 (2nd S.S.) amendment, effective January 1, 1991, added "and except for provision of lifetime benefits for total disability awarded pursuant to Section 52-1-41 NMSA 1978" in the opening paragraph and substituted "that" for "which" in Subsection B.

I. GENERAL CONSIDERATION.

Allocation of medical expenses. — Where worker suffered two injuries, each while working for different employers, the worker's compensation judge had authority to apportion the worker's non-surgical medical expenses evenly between the two employers and to apportion all surgical expenses to the second employer. Leonard v. Payday Prof'l, 2007-NMCA-128, 142 N.M. 605, 168 P.3d 177.

Legislative intent. — This statute expresses a legislative intent to excuse an insurer from the obligation to pay benefits from a deceased worker's estate when as a matter of law there exist no benefits payable to the worker. Jackson v. K & M Constr., 2004-NMCA-082, 136 N.M. 94, 94 P.3d 837, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.

The legislature intended unaccrued workers' compensation benefits to be unavailable for any purpose including accumulated debts. Jackson v. K & M Constr., 2004-NMCA-082, 136 N.M. 94, 94 P.3d 837, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.

In enacting Subsection C of this section, the legislature presumably intended this section to preclude the deceased worker's estate from obtaining benefits that would only accrue if the worker had lived. Jackson v. K & M Constr., 2004-NMCA-082, 136 N.M. 94, 94 P.3d 837, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.

Subsection C of this section proscribes the payment of compensation benefits under the death of an injured worker and this proscription includes any lump-sum payments. Jackson v. K & M Constr., 2004-NMCA-082, 136 N.M. 94, 94 P.3d 837, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.

Compensation is indemnification for injury sustained. This has nothing to do with the salary. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Section allocation of burden in successive injuries situation. — This section is not merely a device for preventing a double recovery; it is an affirmative allocation of the burden in a successive injuries situation and when that burden falls squarely upon the employer at the time of the prior injury, and the fact that the subsequent employer has made some payments can be of no aid to this employer. Maes v. John C. Cornell, Inc., 1974-NMCA-061, 86 N.M. 393, 524 P.2d 1009.

Preexisting condition. — The plain language of this section does not preclude a recovery based on the total impairment resulting from a work-related injury in combination with a preexisting condition. 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. Ariz. 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.

Contribution not authorized. — Contributions outside Workers' Compensation Act from subsequent employers to initial employers is not authorized by statute. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

The absence of a prior determination of disability does not preclude the application of the statute. Garcia v. Mora Painting & Decorating, 1991-NMCA-065, 112 N.M. 596, 817 P.2d 1238.

Section not applicable where payments from subsequent accident. — This section does not apply to the situation in the instant case as the payments for which a credit is sought result from a subsequent and not a prior accident. Maes v. John C. Cornell, Inc., 1974-NMCA-061, 86 N.M. 393, 524 P.2d 1009.

Subsequent Injury Act. — Under the Subsequent Injury Act (Sections 52-2-1 to 52-2-13 NMSA 1978), the employer or insurance carrier is solely responsible for payment of compensation benefits for the first eight weeks of disability and is not entitled to reimbursement for this period. Thereafter, the subsequent injury fund is liable to the worker for its apportioned share of compensation benefits (payable twice a month) for the remainder of the maximum period of 600 (now 700) weeks. Compensation benefits are limited to the maximum weekly benefits payable at the time of the accidental injury. Mares v. Valencia Cnty. Sheriff's Dep't, 1988-NMCA-003, 106 N.M. 744, 749 P.2d 1123.

No conflict with Section 52-1-56 NMSA 1978 providing for alteration of benefits. — This section simply sets general limitations on compensation benefits and does not conflict with or alter Section 52-1-56 NMSA 1978, relating to increasing, reducing or terminating a compensation award. Jaramillo v. Kaufman Plumbing & Heating Co., 1985-NMSC-089, 103 N.M. 400, 708 P.2d 312.

The word "recovery" does not necessarily imply a complete return to the normal or usual state. It is correctly used in referring to a return toward a normal or usual state. 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.

Entitled to compensation though receiving unemployment compensation. — Claimant is entitled to claim workmen's (workers') compensation, even though he applied for and received unemployment compensation for the same period, in the absence of any statutory provisions to the contrary. Winter v. Roberson Constr. Co., 1962-NMSC-076, 70 N.M. 187, 372 P.2d 381.

Plaintiff's receipt of unemployment compensation benefits would not bar her receipt of total disability benefits, absent any statute precluding double recovery in such a situation. 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.

Set-off for medical expenses. — "Compensation benefits" as used in this section include medical expenses. Brewster v. Cooley & Assocs., 1993-NMCA-154, 116 N.M. 681, 866 P.2d 409.

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.

Unaccrued benefits cease upon death. —Under a plain reading of Subsection C of this section, unless the exceptions stated in the statute apply, unaccrued compensation benefits to which a worker would be entitled, when alive, cease upon the death of the worker. Jackson v. K & M Constr., 2004-NMCA-082, 136 N.M. 94, 94 P.3d 837, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.

Awarded but unaccrued benefits for disability terminate upon death. Holliday v. Talk of Town, Inc., 1985-NMCA-024, 102 N.M. 540, 697 P.2d 959.

Petition for award for debts denied upon death. — Although Subsection C of this section does not expressly or automatically resolve whether a pending petition for a lump sum award for existing debts necessarily should be denied because the worker dies, the statute is construed to require such a result. Jackson v. K & M Constr., 2004-NMCA-082, 136 N.M. 94, 94 P.3d 837, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.

Evidence not sufficient to find current disability from injury. — An injury to employee's low back in the same area that was previously injured while working for defendant employers was not sufficient to find that plaintiff's partial permanent disability as of the time of trial was the same disability which followed the subsequent injury or to find that the current disability was due in part to the subsequent injury. Reed v. Fish Eng'g Corp., 1966-NMSC-183, 76 N.M. 760, 418 P.2d 537.

"Temporary total disability" ordinarily refers to a limited time during which the worker is undergoing treatment. Garcia v. Mora Painting & Decorating, 1991-NMCA-065, 112 N.M. 596, 817 P.2d 1238.

Award of future medical benefits. — Future medical benefits cannot be denied based solely on a prediction regarding future medical needs; a trial court is without authority to limit or restrict in advance future medical benefits once a compensable injury is established. McMains v. Aztec Well Serv., 1994-NMCA-126, 119 N.M. 22, 888 P.2d 468.

II. SUCCESSIVE INJURIES.

Liability of initial employer for disability caused by aggravation of injury. — An initial employer is not liable for the period of temporary total disability caused by aggravation of an initial non-disabling injury if subsequent work-related activities with another employer aggravates the initial injury and results in a disability. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

A worker who has a non-disabling injury and subsequent work-related activities contribute to the worker's subsequent disability, the employer and insurer at the time of disability are responsible for payment of disability benefits. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

Previous employer's liability for subsequent injury. — Where the healing period for the first accidental injury had long since expired when the worker suffered his second injury, the previous employer could not be liable for total disability for a healing period following the second injury, since the medical evidence was not sufficient to support a finding of causal connection between the first accident and the period of total disability for which benefits were awarded. Garcia v. Mora Painting & Decorating, 1991-NMCA-065, 112 N.M. 596, 817 P.2d 1238.

The worker compensation judge erred in ordering the second employer to pay for all future medical care required as a result of the worker's relapse of lower back work injuries without any contribution from the first employer. McMains v. Aztec Well Serv., 1994-NMCA-126, 119 N.M. 22, 888 P.2d 468.

Apportionment of liability for subsequent injuries. — The employer and compensation carrier at the time of a first accidental injury remain liable for compensation benefits payable for the disability resulting therefrom. The employer and compensation carrier at the time of second accidental injury are initially liable for the disability resulting from the second accidental injury, to the full extent of the disability. Liability for the disability resulting from the second accidental injury is reduced to the extent of benefits paid or payable for the disability resulting from the first accidental injury if the requirements of Subsection D are met. Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.

III. REDUCTION OF BENEFITS.

Section allocation of burden in successive injuries situation. — Where a deduction is sought under Subsection D, the burden of proof to establish a right to a deduction is ordinarily shared by the second employer and the Subsequent Injury Fund. Lea Cnty. Good Samaritan Vill. v. Wojcik, 1988-NMCA-102, 108 N.M. 76, 766 P.2d 920.

Where a second employer withdraws its request for credit at the beginning of trial, the Subsequent Injury Fund has the burden of proof to establish both its right to a reduction and the amount of the reduction. Lea Cnty. Good Samaritan Vill. v. Wojcik, 1988-NMCA-102, 108 N.M. 76, 766 P.2d 920.

Employer has the burden of persuasion on the issue of whether an offset or deduction under Subsection D is appropriate, including the burden of presenting evidence of (1) the extent and nature of the worker's prior disability or disabilities; (2) the amounts of any previous awards and the amounts designated as compensation benefits; (3) the number of weeks of compensation benefits which were payable under prior awards or settlements; and (4) the extent to which payments for the last injury will duplicate payments previously made to the worker for the same bodily member of function. Munoz v. Deming Truck Terminal, 1990-NMCA-084, 110 N.M. 537, 797 P.2d 987.

To obtain credit, subsequent employer must make a sufficient showing that there is an overlap between any sums for which subsequent employer is liable and any sums for which previous employer is liable. On this issue, subsequent employer will have the burden of proof. Garcia v. Mora Painting & Decorating, 1991-NMCA-065, 112 N.M. 596, 817 P.2d 1238.

Right to reduction due to overlapping benefits. — When a worker has been awarded benefits for a certain number of weeks of disability, and before that period expires he is injured again and once more becomes entitled to disability benefits, those who are liable for the second injury may be entitled to a reduction on the basis of an overlap. Garcia v. Mora Painting & Decorating, 1991-NMCA-065, 112 N.M. 596, 817 P.2d 1238.

The right to a reduction under Subsection D of this section has depended on whether a subsequent employer or the subsequent injury fund made a sufficient showing that specific amounts paid by a previous employer in weekly benefits or by settlement could be said to "overlap" with any amounts for which the subsequent employer would otherwise be liable. Garcia v. Mora Painting & Decorating, 1991-NMCA-065, 112 N.M. 596, 817 P.2d 1238.

No credit for payments paid under Arizona law. — Employer was not entitled to a credit pursuant to this section, for benefits paid under Arizona's workers' compensation law where New Mexico could not have asserted jurisdiction over the accident and the resulting benefits were governed by the laws of another jurisdiction. Yates v. Phelps Dodge Corp., 1994-NMCA-087, 118 N.M. 167, 879 P.2d 799, cert. denied, 118 N.M. 256, 880 P.2d 867.

No overlap of benefits where injury to same member or function. — Subsection D does not state that a workman (worker) may not receive compensation benefits for successive injuries. It does state that when there are successive injuries to the same member or function, benefits for the subsequent injury may not duplicate benefits paid or payable for the prior injury. It is the overlap in benefits to which the reduction applies. Gurule v. Albuquerque-Bernalillo Cnty. Economic Opportunity Bd., 1972-NMCA-094, 84 N.M. 196, 500 P.2d 1319, cert. denied, 84 N.M. 180, 500 P.2d 1303; 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.

The subsection D reduction applies when there is an overlap in compensation benefits resulting from two injuries to the same member or function or different parts of the same member or function, and if the compensation benefits would, in whole or in part, duplicate benefits paid or payable as a result of the prior injury. The reduction applies notwithstanding the fact that the worker has recovered from the prior injuries and there is no offset for the total amount paid on the first injury. Smith v. City of Albuquerque, 1986-NMCA-113, 105 N.M. 125, 729 P.2d 1379.

Arguments or recitations of counsel, whether presented orally or by memoranda or in briefs, do not constitute valid evidence to support the granting of an offset of benefits under Subsection D. Munoz v. Deming Truck Terminal, 1990-NMCA-084, 110 N.M. 537, 797 P.2d 987.

Under Subsection D of this section, prior employers and their insurers are not responsible for any portion of disability resulting from aggravation of a prior injury if the initial injury did not result in disability. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

Subsection D applies to medical benefits as well as disability compensation. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

In determining credit, must characterize payments made after injury. — The allowance of credit is dependent on the employer's intention, and in determining intention, "wages" and "compensation" are to be considered in accordance with the following usage of those terms: "compensation" of an employee in the form of wages or salary for services performed does not have the same meaning as the word "compensation" in the Workmen's (Workers') Compensation Act. The former is remuneration for work done; the latter is indemnification for injury sustained. Therefore the question is one of determining whether the wages were paid in lieu of disability payments. In arriving at an answer, it is necessary to characterize payments made during the period of employment subsequent to the injury. This characterization turns on the facts of each case. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Proof failing to delineate allocation of benefits. — Denial of credit was proper where the proof offered failed to clearly delineate what portion of the remaining settlement was specifically allocated for compensation benefits, future medical expenses, vocational rehabilitation benefits, if any, or other specific benefits. Absent such evidence, the trial court could not properly calculate the amount of any deduction under Subsection D. Lea Cnty. Good Samaritan Vill. v. Wojcik, 1988-NMCA-102, 108 N.M. 76, 766 P.2d 920.

A failure of a settlement, or order approving settlement, to itemize the particular components of the award will not foreclose the Subsequent Injury Fund from presenting evidence in order to secure a reduction in appropriate cases and to prevent double recovery. Lea Cnty. Good Samaritan Vill. v. Wojcik, 1988-NMCA-102, 108 N.M. 76, 766 P.2d 920.

Benefits not duplicate where claimant partially recovered. — Under Subsection D, compensation benefits payable to claimant did not entirely duplicate benefits he received for prior injury where plaintiff had partially recovered from prior injury, returned to work and subsequently suffered identical injury. Gurule v. Albuquerque-Bernalillo Cnty. Economic Opportunity Bd., 1972-NMCA-094, 84 N.M. 196, 500 P.2d 1319, cert. denied, 84 N.M. 180, 500 P.2d 1303.

IV. PAYMENT OF WAGES.

Dependents entitled to payments after employee dies. — Where employee had been awarded compensation to be paid for 550 weeks but died from his injuries after receiving compensation for only 207 weeks, his dependents were entitled to the compensation payments for the remaining 343 weeks as such payments were not cut off by provisions of 59-10-18, 1953 Comp. (now repealed). Gonzales v. Sharp & Fellows Contracting Co., 1947-NMSC-021, 51 N.M. 121, 179 P.2d 762 (decided under former law).

If payment of wages was intended to be in lieu of compensation, credit for the wages is allowed. However, since there is seldom any direct evidence on whether such an intention lay behind the payment, it must be inferred from the circumstances surrounding the payment and the most important of these circumstances seems to be the question whether the injured man really earned his wages. If he is paid his regular wage although he does no work at all, it is a reasonable inference that the allowance is in lieu of compensation. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Regular pay to injured workman (worker) as compensation. — When the employee is given light or reduced work at his old pay, if that rate of pay is not ordinarily offered to workers performing those duties, the expenditure can only be explained as provision of regular financial benefits to a work-injured man - in other words, workmen's (workers') compensation. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Intent of employer in paying for labor. — If the man is giving a dollar's worth of labor for every dollar he is paid, the intention of the employer cannot be said to be that of supplying a substitute for workmen's (workers') compensation; it is simply to purchase these services from this man on the same terms as from any other man. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Reduction of benefits proper to eliminate overlap. — A reduction in benefits for a subsequent injury equal to the value of payments remaining under an earlier judgment at the time of the second injury is proper where it eliminates the overlap in benefits. 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.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers's Compensation §§ 381 to 387, 434.

99 C.J.S. Workmen's Compensation § 296.