The workers' compensation judge may, upon the application of the employer, worker or other person bound by the compensation order, fix a time and place for hearing upon the issue of claimant's recovery. If it appears upon such hearing that diminution or termination of disability has taken place, the workers' compensation judge shall order diminution or termination of payments of compensation as the facts may warrant. If it appears upon such hearing that the disability of the worker has become more aggravated or has increased without the fault of the worker, the workers' compensation judge shall order an increase in the amount of compensation allowable as the facts may warrant. Hearings shall not be held more frequently than at six-month intervals. In the event the employer or other person upon whose application the hearing is had to diminish or terminate compensation is unsuccessful in diminishing or terminating the compensation previously awarded to the worker, the worker shall be entitled to recover from the applicant all reasonable and necessary expenses incidental to his attending the hearing, including the cost of travel, meals, lodging, loss of pay or other like direct expense together with his costs. If the worker has, prior to his application to the workers' compensation judge, made demand in writing to the employer or other person bound by the compensation order for examination as provided in Section 52-1-51 NMSA 1978 for the purpose of determining whether compensation should be increased and if the employer or other person bound by the compensation order has failed to provide the examination within a period of one month after receipt of the demand or, after the examination, has denied to the worker any increase in compensation, then if the worker is successful in obtaining an increase of compensation, he is entitled to recover from the employer or other person bound by the compensation order all reasonable and necessary expenses incidental to his attending the hearing, including the cost of travel, meals, lodging, loss of pay or other like direct expense together with his costs. The compensation of the worker as previously awarded shall continue while the hearing is pending. If the applicant decides to have the worker examined after he has come to the place of hearing pursuant to notice given, he shall pay the worker his expenses necessarily incurred in attending the hearing before the worker is required to submit to such examination, but such worker is not entitled to receive expense money more than one time for the same trip.

History: 1978 Comp., § 52-1-56, enacted by Laws 1987, ch. 235, § 26; 1989, ch. 263, § 33.

Repeals and reenactments. — Laws 1987, ch. 235, § 26 repealed former 52-1-56 NMSA 1978, as reenacted by Laws 1986, ch. 22, § 19, and enacted a new 52-1-56 NMSA 1978, effective June 19, 1987.

Cross references. — For filing insurance policy or other evidence of coverage in office of director, see 52-1-4 NMSA 1978.

I. GENERAL CONSIDERATION.

Award subject to diminution or termination due to change. — An award for total and permanent disability under this section, with the exception of certain amputations, is always subject to diminution or termination due to a change in disability. Hamilton v. Doty, 1962-NMSC-068, 71 N.M. 422, 379 P.2d 69.

Workmen's (Workers') compensation statutes should be liberally and fairly construed in the workman's (worker's) favor to insure the full measure of his exclusive statutory remedy. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958).

Purpose of section is to protect workman (worker), or those claiming the right to receive payment, and whatever right the employer or its insurer has to reimbursement follows payment of compensation but does not precede it. Brown v. Arapahoe Drilling Co., 1962-NMSC-051, 70 N.M. 99, 370 P.2d 816.

Dismissal of claim with prejudice contrary to Act's policy. — Dismissal with prejudice of a workman's (worker's) compensation claim, even when the claimant's attorney agreed to dismissal, is contrary to the policy of the Workmen's (Workers') Compensation Act as it deprives the workman (worker) of his right to reopen his claim if and when labor problems develop which are related to the compensable injury. Rumpf v. Rainbo Baking Co., 1981-NMCA-037, 96 N.M. 1, 626 P.2d 1303, cert. denied, 96 N.M. 17, 627 P.2d 412.

Act not written with intent that it be penuriously interpreted that a workman (worker) be bound by a "one-shot" chance at showing his ability or inability to perform the tasks of his usual occupation or other work he is fitted by past history to do. Glover v. Sherman Power Tongs, 1980-NMCA-076, 94 N.M. 587, 613 P.2d 729, cert. denied, 94 N.M. 675, 615 P.2d 992.

Sections provide for continuing jurisdiction over award. — Both Section 52-1-46 NMSA 1978 and this section provide for a continuing jurisdiction of the court over a compensation award. Clauss v. Electronic City, 1979-NMCA-066, 93 N.M. 75, 596 P.2d 518.

Under this section, the court is invested with continuing jurisdiction to increase, diminish, or terminate compensation benefits payable to an injured worker based upon evidence indicating a change in the worker's condition and justifying modification. However, the filing of a motion under this section does not invest the court with jurisdiction to retroactively modify a prior final judgment. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993.

This act has no extra-territorial effect. Kandelin v. Lee Moor Contracting Co., 1933-NMSC-058, 37 N.M. 479, 24 P.2d 731.

Statute is reimbursement statute and there is but one cause of action. Herrera v. Springer Corp., 1973-NMCA-041, 85 N.M. 6, 508 P.2d 1303, rev'd on other grounds, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072.

This section does not deal with right of subrogation, but with the right of reimbursement. Therefore, the general law of subrogation is not applicable to the right of reimbursement accorded by this section. Herrera v. Springer Corp., 1973-NMCA-041, 85 N.M. 6, 508 P.2d 1303, rev'd on other grounds, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072.

"Claim". — As used in Workmen's (Workers') Compensation Act, the word "claim" is synonymous with "demand"; it means the assertion of liability against another. Ritter v. Albuquerque Gas & Elec. Co., 1943-NMSC-035, 47 N.M. 329, 142 P.2d 919.

Section is unquestionably intended to meet effect of changes which could occur in a workman's (worker's) physical condition, as related to a compensable injury (whether the change be for better or worse), during the period for which compensation could be paid. Glover v. Sherman Power Tongs, 1980-NMCA-076, 94 N.M. 587, 613 P.2d 729, cert. denied, 94 N.M. 675, 615 P.2d 992.

Accepting lesser amount of compensation not deny appeal. — Under Workmen's (Workers') Compensation Law, a workman (worker) cannot be denied the right of appeal by his acceptance of a compensation award in an amount less than that to which he is entitled. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958).

Receiving benefits under other statute not forbidden. — There is no provision in the compensation statute forbidding benefits to an injured workman (worker) on the ground that he is receiving benefits under some other local or federal statute. Snead v. Adams Constr. Co., 1963-NMSC-075, 72 N.M. 94, 380 P.2d 836.

Payments as separate not community property. — Payments under this act are based upon degree of disability of injured workman (worker), not loss of earning power, so that such payments are considered the separate property of injured workman (worker) rather than community property for purpose of divorce settlement. Richards v. Richards, 1955-NMSC-043, 59 N.M. 308, 283 P.2d 881.

Recovery of claim against insurer by employer. — An employer, who pays the hospital and medical expenses and compensation of his injured employee after notice to his compensation insurer, and after refusal of the insurer to pay or demand suit, may recover from the insurer notwithstanding a provision of the policy that no action should lie against the company unless the claim has been fixed or rendered certain by final judgment. Stahmann v. Maryland Cas. Co., 1940-NMSC-025, 44 N.M. 289, 101 P.2d 1021.

Ordinary tort law governs tortious acts of medical personnel and employee. — Section 52-1-49 NMSA 1978 coupled with Section 52-1-6 NMSA 1978 and this section clearly demonstrate a legislative intent that ordinary tort law, except as modified by Section 52-1-49 NMSA 1978 and this section, shall govern the tortious acts of medical personnel and hospitals charged with the care and treatment of an employee for a compensable accident. Security Ins. Co. v. Chapman, 1975-NMSC-052, 88 N.M. 292, 540 P.2d 222 (decided under prior law).

Right of workman (worker) to recover damages for injuries occasioned by negligence or wrong of a person other than the employer is not affected by the Workmen's (Workers') Compensation Act. Herrera v. Springer Corp., 1973-NMCA-041, 85 N.M. 6, 508 P.2d 1303, rev'd on other grounds, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072.

Injured employee releasing claim for compensation. — In absence of statute to the contrary, an injured employee may in consideration of a contract for life employment release or dismiss his claim against an employer for personal injuries previously incurred or forego his right to prosecute therefor. Ritter v. Albuquerque Gas & Elec. Co., 1943-NMSC-035, 47 N.M. 329, 142 P.2d 919.

II. MODIFICATION OF AWARD.

Modification of benefits award. — A worker may, pursuant to this section, seek an increase in his compensation based on change in condition at any time during the statutory benefits period under Section 52-1-42 NMSA 1978, even if, as a result of receiving partial lump-sum payments for debt pursuant to Section 52-5-12C NMSA 1978, the worker has received the monetary equivalent of the benefits allowed in a compensation order before the benefits period expires. Souter v. Ancae Heating & Air Conditioning, 2002-NMCA-078, 132 N.M. 608, 52 P.3d 980.

Modification of determination of maximum medical improvement. — 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, the workers' compensation judge had authority to modify the maximum medial improvement determination upon a change of condition if worker's injury became aggravated or worsened to an extent that worker was no longer at maximum medical improvement and the previous finding of maximum medical improvement and payment of lump sum benefits did not preclude the workers' compensation judge from concluding that worker was not at maximum medical improvement in 2007. Fowler v. Vista Care, 2013-NMCA-036, 298 P.3d 491, rev'd, 2014-NMSC-019.

Construction with Section 52-1-26.3 NMSA 1978. — The term "disability," as used in this section for purposes of modification of a compensation order, refers to a worker's physical condition and does not include the education modifier used pursuant to 52-1-26.3 NMSA 1978 to determine disability rating. Herrera v. Quality Imports, 1999-NMCA-140, 128 N.M. 300, 992 P.2d 313.

Credit for overpayment, not exceeding value of award, should be fashioned to avoid termination of benefits. — A credit is appropriate for overpayments made under an employer's good faith belief that he is discharging his statutory obligation, if the prejudgment overpayments are intended by the employer to be compensation payments and not a mere gratuity, but unless the overpayment equals or exceeds the value of the compensation award, an award of credit should be fashioned to avoid immediate termination of benefits because such termination violates the central scheme of the act. Paternoster v. La Cuesta Cabinets, Inc., 1984-NMCA-097, 101 N.M. 773, 689 P.2d 289.

The interest in encouraging voluntary payments mandates that some form of credit be permitted for overpayments resulting from such voluntary payments. An employer will not necessarily be entitled to the full amount of a credit, if allowing the full credit would require repayment by a worker of overpaid amounts. Apex Lines v. Lopez, 1991-NMCA-023, 112 N.M. 309, 815 P.2d 162.

Increase of "disability" required. — Under the provisions of this section, an increase or aggravation of "disability" is required. Holliday v. Talk of Town, Inc., 1982-NMCA-103, 98 N.M. 354, 648 P.2d 812.

Physical impairment does not automatically equate with disability. Tafoya v. Leonard Tire Co., 1980-NMCA-106, 94 N.M. 716, 616 P.2d 429.

Nondisabling pain is not compensable. Tafoya v. Leonard Tire Co., 1980-NMCA-106, 94 N.M. 716, 616 P.2d 429.

Termination for failure to appear for deposition held reversible error. — Termination of an employee's workmen's (workers') compensation benefits for failure to appear for a scheduled deposition was reversible error, where his status as an excludable alien made him legally not eligible to enter the United States, constituting an excuse for noncompliance, and alternative methods of discovery were available and could have been utilized. Sandoval v. United Nuclear Corp., 1986-NMCA-110, 105 N.M. 105, 729 P.2d 503.

Provision for reexamination of a workman (worker), when first enacted, provided for relief for the employer only when an injured workman's (worker's) condition had improved or his disability had terminated. It was later amended to put the workman (worker) on a par with the employer, so if the disability had become more aggravated or increased without fault on his part the court might order an increase. Segura v. Jack Adams Gen. Contractor, 1958-NMSC-101, 64 N.M. 413, 329 P.2d 432.

Periodic payments rule while lump-sum awards exception. — Although the "best interest" of the plaintiff is the guide in determining whether a lump sum should be awarded, periodic compensation payments are the rule, and lump-sum awards are the exception, and in applying this exception the purpose of workmen's (workers') compensation must be kept in mind, that is the public policy that compensation shall be made in a certain amount, to secure the injured employee against want, and to avoid his becoming a public charge. Arther v. Western Co. of N. Am., 1975-NMCA-082, 88 N.M. 157, 538 P.2d 799, cert. denied, 88 N.M. 318, 540 P.2d 248.

Generally, the best interests of the claimant will be served by paying the compensation in regular installments as wages are paid; periodic payments supply, in a measure, the loss of a regular pay check. Codling v. Aztec Well Servicing Co., 1976-NMCA-044, 89 N.M. 213, 549 P.2d 628.

Where exceptional circumstances warrant. — Lump-summing should only be permitted when it appears that exceptional circumstances warrant the departure from the general scheme; however, once a departure is warranted there should be no hesitancy in making a lump-sum award, which may be made either in whole or in part so long as it is made because of exceptional circumstances. Codling v. Aztec Well Servicing Co., 1976-NMCA-044, 89 N.M. 213, 549 P.2d 628.

As each request for a lump-sum payment is unique, a precise enumeration of what factual ingredients constitute special circumstances is impossible, but in each case which has granted a lump-sum award, a certain factual situation has emerged which, by its quantum and quality of evidence, has convincingly portrayed the existence of exceptional circumstances. Codling v. Aztec Well Servicing Co., 1976-NMCA-044, 89 N.M. 213, 549 P.2d 628.

A lump-sum award should be calculated on a sound annuity basis and should not be permitted for the purpose of beating the actuarial tables; thus the claimant has the burden of showing that it is in his best interest and the lack of lump-summing would create a manifest hardship where relief is essential to protect claimant and his family from want, privation or to facilitate the production of income or to help in a rehabilitation program, and depending on the circumstances, the payment of debts may or may not be an important factor. Codling v. Aztec Well Servicing Co., 1976-NMCA-044, 89 N.M. 213, 549 P.2d 628.

Evidence insufficient to support lump-sum award. — Evidence that 50% partially permanently disabled plaintiff was married and had four children ranging from age 11 months to 11 years, was unemployed but actively pursuing an electro-mechanical technology program which he was scheduled to complete in a little over a year, after which he hoped to get a job with a power plant as an electronics technician, that his family had a total monthly income of approximately $1350 ($800 of which would terminate shortly) and that it cost $700 to $800 a month to live and that if granted a lump-sum award plaintiff's wife would like to stay home and take care of the baby; he would pay the medical bills; he would pay off the land and car; and he would place the balance in a savings account for a supplementary program was insufficient to support a lump-sum award. Codling v. Aztec Well Servicing Co., 1976-NMCA-044, 89 N.M. 213, 549 P.2d 628.

Reopening lump-sum judgment. — A lump-sum judgment, fully paid and satisfied, is conclusive under the Workmen's (Workers') Compensation Act, and absent stipulation to the contrary may not be reopened under a claim of aggravation or increase in disability of the workman (worker). Durham v. Gulf Interstate Eng'g Co., 1964-NMSC-130, 74 N.M. 277, 393 P.2d 15.

Judgment payable in installments is not final until the full statutory period has elapsed. Durham v. Gulf Interstate Eng'g Co., 1964-NMSC-130, 74 N.M. 277, 393 P.2d 15.

Judgment not final until full statutory period elapsed. — Judgment that claimant was partially disabled in the amount of 50% and that his disability would continue for a period of 250 weeks is not final until the full statutory period of 550 weeks has elapsed and the court therefore retained jurisdiction to amend or correct the verdict. Churchill v. City of Albuquerque, 1959-NMSC-101, 66 N.M. 325, 347 P.2d 752 (decided under prior law).

Admission of liability established right to compensation. — This section and Section 52-1-30 (see now 52-5-12) NMSA 1978 authorize lump-sum awards only where the right to compensation has been previously established. Where defendants in their answer admitted death from injuries arising out of and in the course of employment, and contested only the propriety of a lump-sum award, their admission of liability sufficiently established plaintiff's right to compensation and authorized a lump-sum award under the section. Arther v. Western Co. of N. Am., 1975-NMCA-082, 88 N.M. 157, 538 P.2d 799, cert. denied, 88 N.M. 318, 540 P.2d 248.

Accepting compensation not election of remedies. — By accepting compensation which in no sense is considered as representing full compensation for injuries, no election of remedies could have been intended by the legislature. But when damages are sought and recovered from the tort-feasor, the amount of the recovery is for the full loss or detriment suffered by the injured party and makes him financially whole. Castro v. Bass, 1964-NMSC-094, 74 N.M. 254, 392 P.2d 668, overruled on other grounds by Montoya v. AKAL Sec., Inc., 1992-NMSC-056, 114 N.M. 354, 838 P.2d 971.

Discretion to reduce compensation where workman (worker) refuses treatment. — Where workman (worker) refuses to submit to medical or surgical treatment as is reasonably essential to promote his recovery, the court may in its discretion reduce or suspend his compensation. The matter is clearly one within the discretion of the trial court, but the discretion is judicial and subject to review by court of appeals. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958).

Refusal of operation not unreasonable where serious risk. — If the operation be of a major character and attended with serious risk of life or member, the rule is that an injured employee's refusal to submit to such operation is deemed not unreasonable, and compensation should not be denied on that account. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958).

Operation for laminectomy cannot be categorized as "simple" one to which no risk of life or limb attaches. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958).

Order reducing award abuse of discretion. — Lower court order, involving surgery for removal of a herniated vertebrae in which the injured workman's (worker's) refusal to submit to corrective surgery was permitted, to reduce the amount of his award was held to be erroneous and an abuse of discretion. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958).

Employer's liability not diminished where employee works. — To hold that the employer's liability should be diminished because his injured workman (worker) has seen fit to suffer the discomforts of his infirmity and obtain employment, rather than to simply exist on the compensation the law allows him, seems inconsistent with the purpose and intent of the Workmen's (Workers') Compensation Act. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958).

III. HEARING.

A worker has a right to reopen his claim when there is a showing that his disability has increased and that the increase in disability is causally related to his initial compensable injury. An increase in physical impairment, however, will not automatically result in an increase in the worker's disability. Jaramillo v. Consolidated Freightways, 1990-NMCA-008, 109 N.M. 712, 790 P.2d 509, cert. denied, 109 N.M. 704, 789 P.2d 1271.

Judgment for compensation in workman's (worker's) compensation case may be reopened during the remainder of the statutory period after the original judgment, for the purpose of requesting an increase or decrease in compensation benefits, except in rare circumstances. Glover v. Sherman Power Tongs, 1980-NMCA-076, 94 N.M. 587, 613 P.2d 729, cert. denied, 94 N.M. 675, 615 P.2d 992.

Jurisdiction to reopen award. — Under Workmen's (Workers') Compensation Act district court retains jurisdiction after expiration of 30-day period during which it generally retains jurisdiction over its judgments to reopen its award for disability and to suspend or reduce the amount awarded by reason of claimant's refusal to undergo proposed surgery to reduce the percentage of his disability. Fowler v. W.G. Constr. Co., 1947-NMSC-049, 51 N.M. 441, 188 P.2d 160.

Right to apply for increase in amount of payments, should an individual's condition undergo a change for the worse, is a right enjoyed in all cases where payments extend over 550 weeks, the period applicable for all cases of permanent disability, total or partial, except instances of permanent partial for unscheduled injuries. Mann v. Board of Cnty. Comm'rs, 1954-NMSC-088, 58 N.M. 626, 274 P.2d 145 (decided under prior law).

Who may apply for diminution. — Under this section a person bound by a judgment awarding compensation may apply for a diminution of benefits. Genuine Parts Co. v. Garcia, 1978-NMSC-059, 92 N.M. 57, 582 P.2d 1270.

Award of compensation required. — The only essential element necessary to allow an employer to proceed for diminution or termination of disability is the fact that a "workman (worker) has been awarded compensation." Whether the disability is total or partial, permanent or temporary, plays no role in any subsequent hearing. Short v. Associated Milk Producers, Inc., 1978-NMCA-100, 92 N.M. 204, 585 P.2d 649.

Section applies to agreements. — Agreements to pay medical and compensation benefits to the worker were compensation orders within the meaning of this section, even if they had not been reduced to writing and approved by the workers' compensation judge. 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.

No limitation on time to file application to reopen. — This section did not give trial court the authority to place a time limitation on when plaintiff, who had been awarded benefits previously, could file an application to reopen. Application filed any time within period for which compensation was allowable was timely. Martinez v. Earth Res. Co., 1977-NMCA-067, 90 N.M. 590, 566 P.2d 838.

Application presented any time within compensation period. — Application to decrease or terminate compensation may be presented at any time within the period for which compensation is allowable. Norvell v. Barnsdall Oil Co., 1937-NMSC-038, 41 N.M. 421, 70 P.2d 150.

Application not affected by provisions limiting time of proceedings. — Generally, an application to decrease or terminate compensation under a prior award, not being an original proceeding, is not affected by the provision of an act fixing the time within which original proceedings for compensation must be instituted and is not affected by statutory provisions applicable to modification of judgments generally. Norvell v. Barnsdall Oil Co., 1937-NMSC-038, 41 N.M. 421, 70 P.2d 150.

Application not affected while original award on appeal. — Though application to decrease or terminate compensation may be made to district court pending appeal from original award, employer's motion asking supreme court to instruct and direct district court to take testimony and make findings and to certify to supreme court the testimony and findings and conclusions was denied. Norvell v. Barnsdall Oil Co., 1937-NMSC-038, 41 N.M. 421, 70 P.2d 150.

Res judicata not apply to judgment. — In view of provisions of the section, the ordinary rules of res judicata cannot apply to a judgment rendered on the merits after trial. In fact, in such a case except for loss of a specific member of the body there is no final judgment as it is generally understood short of 550 weeks when either party may come into court and have a hearing on a decrease or increase of disability and have a new judgment rendered in accordance with new findings. Segura v. Jack Adams Gen. Contractor, 1958-NMSC-101, 64 N.M. 413, 329 P.2d 432.

Evidentiary hearing with new finding and judgment. — The issue of a change in plaintiff's condition subsequent to the prior award is to be resolved at an evidentiary hearing resulting in new findings and a judgment in accordance with the new findings. Goolsby v. Pucci Distrib. Co., 1969-NMCA-012, 80 N.M. 59, 451 P.2d 308.

Employer bears burden to establish diminution or termination of disability. — Pursuant to this section, once a workman (worker) receives an award for total temporary disability which does not specify a precise date for termination or reevaluation of the disability, an employer seeking modification of the award has the burden of proof to establish that the workman's (worker's) disability has diminished or terminated. Amos v. Gilbert W. Corp., 1985-NMCA-106, 103 N.M. 631, 711 P.2d 908.

Shifting burden of proof. — Where there was testimony from the doctor that appellee was improved over his previous condition, but this testimony referred to appellee's ability to do lighter jobs and did not relate to his ability to return to his former work, this was insufficient to shift the burden of proof to the claimant. Lucero v. Koontz, 1962-NMSC-007, 69 N.M. 417, 367 P.2d 916.

Court may extend compensation time. — In the case of a change in the workman's (worker's) condition subsequent to the original award, the trial court may extend the length of time compensation is to be paid. Goolsby v. Pucci Distrib. Co., 1969-NMCA-012, 80 N.M. 59, 451 P.2d 308.

Motion for increased compensation. — Judgment entered after trial in workmen's (workers') compensation case did not bar a motion for increased compensation award, nor did satisfaction of that judgment, since motion for increased award did not allege failure to pay the judgment, but was concerned with compensation for disability subsequent to the period covered by the judgment. Burton v. Jennings Bros., 1975-NMCA-068, 88 N.M. 95, 537 P.2d 703, cert. denied, 88 N.M. 318, 540 P.2d 248.

Application for extension of payment time. — The trial court was acting within its jurisdiction when it heard the application for an extension of payment time, and for necessary medical and hospital expenses. Segura v. Jack Adams Gen. Contractor, 1958-NMSC-101, 64 N.M. 413, 329 P.2d 432.

Not apply where injury occurred before effective date. — Claimant was not entitled to the benefits of Laws 1951, ch. 205, § 3 which allowed a workman (worker) whose injuries have been aggravated a hearing before a district judge and an additional award if the facts warrant it, where he was injured on January 4, 1951, and the 1951 amendment did not become effective until June 8, 1951. Davis v. Meadors-Cherry Co., 1958-NMSC-119, 65 N.M. 21, 331 P.2d 523.

Not error to reduce benefits where workman (worker) in new vocation. — The testimony which indicates that appellant learned a new vocation, obtained employment and attended to it satisfactorily and that he should be able to do so indefinitely is such that appellant is no longer considered totally disabled and, therefore, it was not error for the trial court to reduce appellant's compensation benefits to 20% of total. Bartlett v. Shaw, 1966-NMSC-197, 76 N.M. 753, 418 P.2d 533.

Where documents do not resolve disability. — The trial court did not err in denying additional benefits on the basis of documents relied on in the motion where the documents did not provide a basis for resolving the question of disability as defined in the Workmen's (Workers') Compensation Law. Goolsby v. Pucci Distrib. Co., 1969-NMCA-012, 80 N.M. 59, 451 P.2d 308.

Instruction permitting jury to speculate as erroneous. — Instruction which was calculated to cause jury to take a chance on its verdict when there was available a sure means of correcting it six months later, if wrong, permitted jury to speculate upon the results of judicial proceedings and was erroneous and highly prejudicial. Martin v. La Motte, 1951-NMSC-078, 55 N.M. 579, 237 P.2d 923.

Substantial evidence for award. — Medical expert's testimony of 100 percent permanent disability was substantial evidence for an award of partial permanent disability. Tafoya v. S & S Plumbing Co., 1981-NMCA-150, 97 N.M. 249, 638 P.2d 1094, cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982).

Retroactive modification of benefits. — Despite the language in former Subsection A requiring continuation of compensation while a hearing is pending on the issue of the diminution or termination of compensation, the court could make a determination of the date that the workman's (worker's) disability changed, determine the extent of his disability from that date onward, and make a retroactive modification of benefits. Jaramillo v. Kaufman Plumbing & Heating Co., 1985-NMSC-089, 103 N.M. 400, 708 P.2d 312.

Law reviews. — For comment on Johnson v. C & H Constr. Co., 78 N.M. 423, 432 P.2d 267 (Ct. App. 1967), see 8 Nat. Resources J. 522 (1968).

For survey, "Workmen's Compensation," see 6 N.M. L. Rev. 413 (1976).

For comment, "Comparative Fault Principles Do Not Affect Negligent Employer's Right to Full Reimbursement of Compensation Benefits Out of Worker's Partial Third-Party Recovery - Taylor v. Delgarno Transp., Inc.," see 14 N.M.L. Rev. 437 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 446 to 463, 507 to 516, 651.

Leaving state or locality of employment after the injury as affecting right to compensation, 162 A.L.R. 1462.

Right of health or accident insurer to intervene in workers' compensation proceeding to recover benefits previously paid to claimant or beneficiary, 38 A.L.R.4th 355.

Workers' compensation: reopening lump-sum compensation payment, 26 A.L.R.5th 127.

101 C.J.S. Workmen's Compensation §§ 849 to 912.