A. Unless otherwise contracted for by the worker and employer, workers' compensation benefits shall be limited so that no worker receives more in total payments, including wages and benefits from his employer, by not working than by continuing to work. Compensation benefits under the Workers' Compensation Act shall accordingly be reduced, if necessary, to account for any wages and employer-financed disability benefits a worker receives after the time of injury. For the purposes of this section, total payments shall be determined on an after-tax basis. This section does not apply to social security payments, employee-financed disability benefits, benefits or payments a worker received from a prior employer, payments for medical or related expenses or general retirement payments, except it does apply to disability retirement benefits.

B. This section shall only apply to injuries that occur after the effective date of this section; it shall not reduce benefits received or due or affect the benefits due for injuries that occur before the effective date of this section.

History: Laws 1990 (2nd S.S.), ch. 2, § 30.

Effective dates. — Laws 1990 (2nd S.S.), ch. 2, § 153 Laws 1990 (2nd S.S.), ch. 2, § 30 effective January 1, 1991.

Benefits may not exceed average weekly wage. — Section 52-1-47.1 NMSA 1978 prevents a worker from receiving permanent partial disability and loss of use benefits that exceed the worker's average weekly wage. Livingston v. Envtl. Earthscapes, 2013-NMCA-099, cert. denied, 2013-NMCERT-008.

Employer's right to offset. — An employer that employs a worker at the time of an injury receives an off-set only for wages and benefits that that employer provides and does not receive an off-set for wages paid to the worker by an employer who employs the worker after the injury. Moya v. City of Albuquerque, 2007-NMCA-057, 141 N.M. 617, 159 P.3d 266, rev'd, 2008-NMSC-004, 143 N.M. 258, 175 P.3d 926.

Shared contributions to a disability plan. — Section 52-1-47.1 NMSA 1978 provides an offset only for the portion of disability benefits paid by the employer's contribution. The percentage of disability benefits that correspond to the worker's premium contribution cannot be used by the employer to reduce the worker's benefits. Esckelson v. Miners' Colfax Med. Ctr., 2014-NMCA-052.

Where the worker paid twenty percent of the disability premium and the employer paid eighty percent, the employer was entitled to an offset only for the proportion of the benefit that corresponded to the employer' premium contribution, without any credit for the worker's premium contribution. Esckelson v. Miners' Colfax Med. Ctr., 2014-NMCA-052.

Law reviews. — For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).