As used in the New Mexico Occupational Disease Disablement Law:

A. "award" means the final compensation order made by the workers' compensation judge pursuant to Section 52-5-7 NMSA 1978;

B. "compensation" means the payments and benefits provided for in the New Mexico Occupational Disease Disablement Law;

C. "compensation order" means a compensation order of the workers' compensation division issued by a workers' compensation judge pursuant to Section 52-5-7 NMSA 1978; and

D. "disablement" means:

(1) the total physical incapacity, by reason of an occupational disease, of an employee to perform any work for remuneration or profit in the pursuit in which the employee was engaged, provided that silicosis, when complicated by active tuberculosis of the lungs, shall be presumed to result in disablement; or

(2) the partial physical incapacity of an employee, by reason of an occupational disease, to perform to some percentage extent any work for which he is fitted by age, education and training.

History: 1978 Comp., § 52-3-4, enacted by Laws 1987, ch. 235, § 31; 1989, ch. 263, § 49.

Repeals and reenactments. — Laws 1987, ch. 235, § 31 repealed former 52-3-4 NMSA 1978, as amended by Laws 1986, ch. 22, §§ 53, 54, and enacted a new 52-3-4, effective June 19, 1987.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 — Laws 1987, ch. 235, § 54A, effective June 19, 1987, repealed Laws 1986, ch. 22, § 105 which had formerly repealed this section effective July 1, 1987.

Cross references. — For the definitions of "director" and "hearing officer", see 52-1-1.1 NMSA 1978.

Benefits payable for occupational disease. — The reference in 52-3-49 NMSA 1978 to any kind of work does not change the provision that benefits are payable for disablement by reason of an occupational disease. Vincent v. United Nuclear-Homestake Partners, 1976-NMCA-105, 89 N.M. 704, 556 P.2d 1180, cert. denied, 90 N.M. 7, 558 P.2d 619.

"Disablement" under this section, giving an ordinary meaning to "incapacity," may mean total physical unfitness, by reason of occupational disease, to perform any work for remuneration in the pursuit in which the workman (worker) was engaged. Salazar v. Kaiser Steel Corp., 1973-NMCA-068, 85 N.M. 254, 511 P.2d 580, cert. denied, 85 N.M. 229, 511 P.2d 555 (decided under prior law).

Construed in pari materia. — The provisions in Sections 52-3-14 and 52-3-15 NMSA 1978 which refer to total and partial disablement, do not change the definition of disablement and do not provide that compensation is payable for partial disablement; the word "total" in Section 52-3-14 NMSA 1978 is a redundancy since the only disablement under the section is for total physical incapacity by reason of an occupational disease. Vincent v. United Nuclear-Homestake Partners, 1976-NMCA-105, 89 N.M. 704, 556 P.2d 1180, cert. denied, 90 N.M. 7, 558 P.2d 619 (decided under prior law).

Workman (Worker) able to perform other work. — If the proof brings plaintiff within the statutory definition of disablement, the fact that he is still able to work in other fields does not alter this situation. A finding that plaintiff had worked as an underground miner for 27 years, and that he became totally disabled from work as an underground miner, supported the conclusion of disablement, and his work since the date of disablement, other than as an underground miner, had no legal effect on the judgment of disablement. Vincent v. United Nuclear-Homestake Partners, 1976-NMCA-105, 89 N.M. 704, 556 P.2d 1180, cert. denied, 90 N.M. 7, 558 P.2d 619 (decided under prior law).

When the employee was disabled from working as a filling station operator because of the occupational disease, he was disabled from following "the pursuit in which he was engaged" and the court did not err in so ruling. That he is still able to work in other fields does not alter this situation. Holman v. Oriental Refinery, 1965-NMSC-029, 75 N.M. 52, 400 P.2d 471 (decided under prior law).

Under prior law, to be totally disabled, a worker had to prove that he or she was completely unable to perform the tasks comprising the work performed at the time of injury and also was unable to perform any work for which he or she was fitted, based upon his or her age, education, and experience. Under present law, the inquiry is limited to whether the worker is totally unable to perform any work in the occupation in which the worker was engaged. Thus, in determining whether a worker is totally incapacitated, other occupations for which the worker might be fitted are not considered. Bryant v. Lear Siegler Mgmt. Servs. Corp., 1993-NMCA-052, 115 N.M. 502, 853 P.2d 753, cert. denied, 115 N.M. 535, 854 P.2d 362.

Work after finding of disability. — A workman (worker) may, from a clinical standpoint, be totally and permanently disabled but through sheer drive of willpower and habit continue for some time at his job; therefore, that employees worked for varying periods of time after the date the trial court found them to be disabled does not require a ruling that the men were not disabled as a matter of law. Salazar v. Kaiser Steel Corp., 1973-NMCA-068, 85 N.M. 254, 511 P.2d 580, cert. denied, 85 N.M. 229, 511 P.2d 555 (decided under prior law).

Suffer entire loss of earning ability not mean helplessness. — Although the requirements of this section are more definite and specific than the requirements for total disability under the workmen's (workers') compensation law, to suffer an entire loss of wage earning ability does not mean that a workman (worker) must be in a state of absolute helplessness, or unable to do work of any kind. Salazar v. Kaiser Steel Corp., 1973-NMCA-068, 85 N.M. 254, 511 P.2d 580, cert. denied, 85 N.M. 229, 511 P.2d 555 (decided under prior law).

Plaintiff who developed an allergic disorder after inhaling paint fumes and was thus unable to work any longer as a painter was entitled to compensation under this act, even though he might possibly have obtained work in another field. Herrera v. Fluor Utah, Inc., 1976-NMCA-045, 89 N.M. 245, 550 P.2d 144, cert. denied, 89 N.M. 321, 551 P.2d 1368.

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

30 C.J.S. Employers' Liability §§ 35 to 37; 99 C.J.S. Workmen's Compensation §§ 299 to 305.