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Form a Business

Workers' Compensation

NMSA 1978 ch. 52, art. 1
in effect

NMSA 1978, § 52-1-1 Short title

52-1-1. Short title Chapter 52, Article 1 NMSA 1978 shall be known and may be cited as the "Workers' Compensation Act". Laws 1929, ch. 113, § 1; C.S. 1929, § 156-101; 1941 Comp., § 57-901; 1953 Comp., § 59-10-1; Laws 1959, ch. 67, § 1; 1986, ch. 22, § 1; 1987, ch. 235, § 1.

NMSA 1978, § 52-1-1.1 Definitions

52-1-1.1. Definitions As used in Chapter 52, Articles 1 through 6 NMSA 1978: A. "controlled insurance plan" means a plan of insurance coverage that is established by an owner or principal contractor that requires participation by contractors or subcontractors who are engaged in the construction project, including coverage plans that are for a fixed term of coverage on a single construction site; B. "director" means the director of the workers' compensation administration; C. "division" means the workers' compensation administration; D. "extra-hazardous employer" means an employer whose injury frequencies substantially exceed those that may reasonably be expected in that employer's business or industry; E. "rolling wrap-up or consolidated insurance plan" means coverage for an ongoing project or series of projects in which the common insurance program remains in place indefinitely and contracted work is simply added as it occurs under the control of one owner or principal contractor; F. "workers' compensation judge" means an individual appointed by the director to act as a workers' compensation judge in the administration of the Workers' Compensation Act or the New Mexico Occupational Disease Disablement Law; G. "workman" or "workmen" means worker or workers; H. "Workmen's Compensation Act" means the Workers' Compensation Act; and I. "workmen's compensation administration" or "administration" means the workers' compensation administration. Laws 1986, ch. 22, § 26; 1987, ch. 235, § 2; 1989, ch. 263, § 2; 1990 (2nd S.S.), ch. 2, § 1; 2003, ch. 259, § 1; 2003, ch. 263, § 1; 2013, ch. 134, § 1.

NMSA 1978, § 52-1-1.2 Advisory council on workers' compensation and occupational disease disablement; functions and duties; independent medical examinations committee

52-1-1.2. Advisory council on workers' compensation and occupational disease disablement; functions and duties; independent medical examinations committee A. There is created in the workers' compensation administration an advisory council on workers' compensation and occupational disease disablement. Members of the council shall be appointed by the governor. There shall be six voting members of the council with three members representing employers and three members representing workers. No member representing employers or workers shall be an attorney. Three of the original appointees shall serve for terms of two years, and three shall serve for four years. The members shall determine by lot which members shall serve for four years and which shall serve for two. Thereafter, each member shall be appointed for a term of four years. The council shall elect a chairman from its membership. The director shall be an ex-officio, nonvoting member of the council. B. Members of the council shall not be paid but shall receive per diem and mileage pursuant to the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978]. C. The council shall meet at least twice each year. It shall annually review workers' compensation and occupational disease disablement in New Mexico and shall issue a report of its findings and conclusions on or before January 1 of each year. The annual report shall be sent to the governor, the superintendent of insurance, the speaker of the house of representatives, the president pro tempore of the senate, the minority leaders of both houses and the chairmen of all appropriate committees of each house that review the status of the workers' compensation and occupational disease disablement system. In performing these responsibilities, the council's role shall be strictly advisory, but it may: (1) make recommendations relating to the adoption of rules and legislation; (2) make recommendations regarding the method and form of statistical data collections; and (3) monitor the performance of the workers' compensation and occupational disease disablement system in the implementation of legislative directives. D. The advisory council on workers' compensation and occupational disease disablement shall appoint a committee composed of three members representing workers and three members representing employers to designate an approved list of health care providers who are authorized to conduct independent medical examinations. The committee shall, to the greatest extent possible, designate only health care providers whose judgments are respected, or not objected to, by recognized representatives of both employer and worker interests and whose judgments are not perceived to favor any particular interest group. Members of the committee shall be immune from personal liability for any official action taken in establishing the approved list of health care providers. The committee shall review and revise the list annually. The terms of the original members shall be two years, and thereafter the terms of the members shall be staggered so that each year the committee appoints one member who represents workers and one member who represents employers. The members shall annually elect a chairman. No member representing employers or workers shall be an attorney. E. The workers' compensation administration shall cooperate with the council and shall provide information and staff support as reasonably necessary and required by the council and by the committee appointed pursuant to Subsection D of this section. Laws 1990 (2nd S.S.), ch. 2, § 28; 1993, ch. 193, § 1.

NMSA 1978, § 52-1-2 Employers who come within act

52-1-2. Employers who come within act The state and each county, municipality, school district, drainage, irrigation or conservancy district, public institution and administrative board thereof employing workers, every charitable organization employing workers and every private person, firm or corporation engaged in carrying on for the purpose of business or trade within this state, and which employs three or more workers, except as provided in Section 52-1-6 NMSA 1978, shall become liable to and shall pay to any such worker injured by accident arising out of and in the course of his employment and, in case of his death being occasioned thereby, to such person as may be authorized by the director or appointed by a court to receive the same for the benefit of his dependents, compensation in the manner and amount at the times required in the Workers' Compensation Act. Laws 1929, ch. 113, § 2; C.S. 1929, § 156-102; Laws 1933, ch. 178, § 1; 1937, ch. 92, § 1; 1941 Comp., § 57-902; 1953 Comp., § 59-10-2; Laws 1971, ch. 261, § 1; 1973, ch. 240, § 1; 1975, ch. 284, § 1; 1987, ch. 235, § 3; 2003, ch. 259, § 2.

NMSA 1978, § 52-1-3 Workers' compensation coverage; coverage by state agencies

52-1-3. Workers' compensation coverage; coverage by state agencies A. The risk management division of the general services department shall provide workers' compensation coverage for all public employees, as defined in the Workers' Compensation Act, of all state agencies regardless of the hazards of their employment. B. The director of the risk management division shall ascertain the most economical means of providing such coverage and may secure a policy or policies of insurance to provide the coverage required. The director of the risk management division shall collect or transfer funds from each agency to cover the agency's respective share of the cost of the coverage. C. The director of the risk management division shall determine the possibilities for including school districts under uniform coverage and the methods of administration therefor. D. For purposes of this section, "state" or "state agency" means the state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions. 1953 Comp., § 59-10-2.1, enacted by Laws 1977, ch. 385, § 15; 1978, ch. 166, § 15; 1979, ch. 199, § 1; 1987, ch. 235, § 4.

NMSA 1978, § 52-1-3.1 Public employee

52-1-3.1. Public employee A. As used in the Workers' Compensation Act, unless otherwise provided, "public employee" means any person receiving a salary from, and acting in the service of, the state or any county, municipality, school district, drainage, irrigation or conservancy district, public institution or administrative board, including elected or appointed public officers. B. "Public employee" includes an unpaid health professional deployed by the department of health within New Mexico in response to a declared public emergency or public health emergency or deployed by the department of health outside New Mexico in response to a request for emergency health personnel made pursuant to the Emergency Management Assistance Compact [12-10-14, 12-10-15 NMSA 1978]; provided that, for purposes of the Workers' Compensation Act: (1) the department of health shall be considered to be the employer of the person; (2) the person's average weekly wage, for the purpose of calculating compensation, shall be considered to be the average weekly wage for similar services performed by paid workers in like employment; and (3) the person shall not be considered an employee in the calculation of any fee pursuant to Section 52-5-19 NMSA 1978. C. "Public employee" does not include an independent contractor. 1978 Comp., § 52-1-3.1, enacted by Laws 1979, ch. 199, § 2; 1989, ch. 263, § 3; 2007, ch. 328, § 1.

NMSA 1978, § 52-1-4 Filing certificate of insurance coverage or other evidence of coverage with workers' compensation administration; exemptions from requirement

52-1-4. Filing certificate of insurance coverage or other evidence of coverage with workers' compensation administration; exemptions from requirement A. Every employer subject to the Workers' Compensation Act shall direct his insurance carrier to file, and the insurance carrier shall file, in the office of the director evidence of workers' compensation insurance coverage in the form of a certificate containing that information required by regulation of the director. The required certificate must be provided by an authorized insurer as defined in Section 59A-1-8 NMSA 1978. In case any employer is able to show to the satisfaction of the director that he is financially solvent and that providing insurance coverage is unnecessary, the director shall issue him a certificate to that effect, which shall be filed in lieu of the certificate of insurance. The director shall provide by regulations the procedures for reviewing, renewing and revoking any certificate excusing an employer from filing a certificate of insurance, including provisions permitting the director to condition the issuance of the certificate upon the employer's proving adequate security. B. Any certificate of the director filed under the provisions of this section shall show the post office address of such employer. C. Every contract or policy insuring against liability for workers' compensation benefits or certificate filed under the provisions of this section shall provide that the insurance carrier or the employer shall be directly and primarily liable to the worker and, in event of his death, his dependents, to pay the compensation and other workers' compensation benefits for which the employer is liable. D. In the event of an insurance policy cancellation, the workers' compensation insurance carrier shall file notice to the director within ten days of such cancellation on a form approved by the director. 1978 Comp., § 52-1-4, enacted by Laws 1987, ch. 235, § 5; 1989, ch. 263, § 4; 1990 (2nd S.S.), ch. 2, § 2.

NMSA 1978, § 52-1-4.2 Controlled insurance plan; penalty

52-1-4.2. Controlled insurance plan; penalty A. An owner or the principal contractor of a construction project may establish and administer a controlled insurance plan, provided the covered project is a construction project, a plant expansion or real property improvements within New Mexico with an aggregate construction value in excess of one hundred fifty million dollars ($150,000,000) expended within a five-year period. As used in this section, "aggregate construction value" includes design, utilities, site excavation, construction costs of improvements to real property and acquisition of equipment and furnishings but does not include the cost of fees or charges associated with financing the construction project. B. Rolling wrap-ups are prohibited. Controlled insurance plans covering non-contiguous construction sites are prohibited. C. The owner shall include in any request for proposals for bids a notice that participation in a controlled insurance plan is a requirement of the bid and shall provide a copy of the specifications of the controlled insurance plan. The specifications shall include a statement of the bidding contractor's or subcontractor's responsibilities relative to the plan. D. A dispute regarding which workers' compensation coverage or insurer is responsible shall be resolved by the administration. An administrative or judicial finding shall include appropriate reimbursement of benefit payments and expenses. For disputed cases as described herein, initial benefits shall be provided by the controlled insurance plan until such time as the coverage dispute is resolved. E. An owner or principal contractor who enters into a contract for a controlled insurance plan shall file a copy of the contract and evidence of compliance with the requirements of this section with the superintendent of insurance and the workers' compensation administration at least thirty days before the date on which the owner is to begin receiving bids or requests for proposals on the project. F. An owner or principal contractor using a controlled insurance plan shall distribute any project performance-based refunded premium or dividend to each participating contractor and subcontractor on a proportional basis if provided in the construction contract. G. An owner or principal contractor shall provide for a safety plan for an employee engaged in the construction project when the employee is present at the construction project site. The owner or principal contractor of the construction project shall develop and carry out a health and safety program approved by the workers' compensation administration. The plan shall include a protocol that encourages return to work guidelines pursuant to the Workers' Compensation Act. H. The owner or principal contractor of a construction project that uses a controlled insurance plan shall: (1) establish a method for timely reporting of job-related injuries to the employer, the insured and the administration; (2) provide modifier experienced units statistical rating information and any other statistical information required by the superintendent of insurance for all contractors and subcontractors, including losses and payroll, to the appropriate rating service within six months following the end of the annual policy period; (3) provide contractors or subcontractors or their representatives with actual and specific payroll audit data generated under the controlled insurance plan, as would be customarily provided to the employer from a non-controlled insurance plan; and (4) provide the same access to information on injured employees as would customarily be available to the employer from a non-controlled insurance plan. I. In addition to any other penalties provided under the law, a person found to have violated any requirement of this section shall be subject to a penalty pursuant to Section 52-1-61 NMSA 1978. Laws 2003, ch. 263, § 2.

NMSA 1978, § 52-1-5 Destruction of policies, bonds and undertakings

52-1-5. Destruction of policies, bonds and undertakings From and after the expiration of three years following the date of filing of any insurance policy or certificate thereof, bond or undertaking, pursuant to the provisions of Section 52-1-4 NMSA 1978, the director may, in his discretion, authorize the destruction of such insurance policies, certificates, bonds and undertakings. 1953 Comp., § 59-10-3.1, enacted by Laws 1955, ch. 137, § 1; 1965, ch. 255, § 2; 1979, ch. 368, § 3; 1987, ch. 235, § 7.

NMSA 1978, § 52-1-6 Application of provisions of act

52-1-6. Application of provisions of act A. The provisions of the Workers' Compensation Act shall apply to employers of three or more workers; provided that act shall apply to all employers engaged in activities required to be licensed under the provisions of the Construction Industries Licensing Act [Chapter 60, Article 13 NMSA 1978] regardless of the number of employees. The provisions of the Workers' Compensation Act shall not apply to employers of private domestic servants and farm and ranch laborers. B. An election to be subject to the Workers' Compensation Act by employers of private domestic servants or farm and ranch laborers, by persons for whom the services of qualified real estate sales persons are performed or by a partner or self-employed person may be made by filing, in the office of the director, either a sworn statement to the effect that the employer accepts the provisions of the Workers' Compensation Act or an insurance or security undertaking as required by Section 52-1-4 NMSA 1978. C. Every worker shall be conclusively presumed to have accepted the provisions of the Workers' Compensation Act if his employer is subject to the provisions of that act and has complied with its requirements, including insurance. D. Such compliance with the provisions of the Workers' Compensation Act, including the provisions for insurance, shall be, and construed to be, a surrender by the employer and the worker of their rights to any other method, form or amount of compensation or determination thereof or to any cause of action at law, suit in equity or statutory or common-law right to remedy or proceeding whatever for or on account of personal injuries or death of the worker than as provided in the Workers' Compensation Act and shall be an acceptance of all of the provisions of the Workers' Compensation Act and shall bind the worker himself and, for compensation for his death, shall bind his personal representative, his surviving spouse and next of kin, as well as the employer and those conducting his business during bankruptcy or insolvency. E. The Workers' Compensation Act provides exclusive remedies. No cause of action outside the Workers' Compensation Act shall be brought by an employee or dependent against the employer or his representative, including the insurer, guarantor or surety of any employer, for any matter relating to the occurrence of or payment for any injury or death covered by the Workers' Compensation Act. Nothing in the Workers' Compensation Act, however, shall affect or be construed to affect, in any way, the existence of or the mode of trial of any claim or cause of action that the worker has against any person other than his employer or another employee of his employer, including a management or supervisory employee, or the insurer, guarantor or surety of his employer. 1978 Comp., § 52-1-6, enacted by Laws 1990 (2nd S.S.), ch. 2, § 4.

NMSA 1978, § 52-1-6.1 Worker's compensation; definition

52-1-6.1. Worker's compensation; definition For the purposes of Section 52-1-6 NMSA 1978 "farm and ranch laborers" shall include those persons providing care for animals in training for the purpose of competition or competitive exhibition. Employees of a veterinarian and laborers at a treating facility or a facility used solely for the boarding of animals, which is not an intrinsic part of a farm or ranch operation, are not covered by this provision. Laws 1984, ch. 127, § 988.3.

NMSA 1978, § 52-1-6.2 Safety programs; inspections; penalties; bonuses

52-1-6.2. Safety programs; inspections; penalties; bonuses A. Every employer subject to the provisions of the Workers' Compensation Act who has an annual workers' compensation premium liability of fifteen thousand dollars ($15,000) or more or who is a certified self-insurer shall receive an annual safety inspection. The director shall determine the adequacy and structure of the safety inspection, including establishing procedures for appropriate self-inspection. For any employer who is not self-insured, inspections and recommendations for creating a safer workplace shall be provided upon request by every insurer providing workers' compensation insurance in this state to its workers' compensation insurance policyholders. To enforce this provision, the director may assess a penalty not to exceed five thousand dollars ($5,000) against any employer. B. The administration shall develop safety programs for employers with an annual workers' compensation premium liability of less than fifteen thousand dollars ($15,000). C. The superintendent of insurance may assess a penalty against an insurer that refuses to provide annual safety inspections and recommendations. The penalty shall not exceed five thousand dollars ($5,000) per insurer per violation. D. Any employer who is subject to the provisions of the Workers' Compensation Act may implement a safety program, as approved by the superintendent of insurance, that provides for bonuses of up to ten percent of a worker's wage to be paid to a worker who fulfills criteria established by the employer for eligibility for the bonus. The criteria shall incorporate the concept of bonuses based upon a stated number of accident-free work days completed by the worker. Any bonus paid under a program authorized by this section shall not be included in computing a worker's average wage for establishing workers' compensation insurance premiums or benefits. E. The administration shall develop a program to identify extra-hazardous employers. The administration shall notify each identified extra-hazardous employer and the insurance carrier for that employer that the employer has been identified as an extra-hazardous employer. F. An employer that receives notification under Subsection E of this section shall obtain a safety consultation within thirty days from the administration's safety consultants, the employer's insurer or another professional source approved by the director for that purpose. The safety consultant shall file a written report with the director and the employer setting out any hazardous conditions or practices identified by the safety consultation. G. The employer, in consultation with the safety consultant, shall, within a reasonable time, formulate a specific accident-prevention plan that addresses the hazards identified by the consultant. An employer that fails to formulate, implement or otherwise comply with the accident-prevention plan shall be subject to a penalty not to exceed five thousand dollars ($5,000). Laws 1989, ch. 263, § 92; 1990 (2nd S.S.), ch. 2, § 5; 2013, ch. 134, § 2.

NMSA 1978, § 52-1-7 Application of provisions of act to certain executive employees or sole proprietors

52-1-7. Application of provisions of act to certain executive employees or sole proprietors A. Notwithstanding any provisions to the contrary in the Workers' Compensation Act, an executive employee of a professional or business corporation or limited liability company, employed by the professional or business corporation or limited liability company as a worker as defined in the Workers' Compensation Act, or a sole proprietor may affirmatively elect not to accept the provisions of the Workers' Compensation Act. B. Each executive employee or sole proprietor desiring to affirmatively elect not to accept the provisions of the Workers' Compensation Act may do so by filing an election in the office of the director. C. Each executive employee or sole proprietor desiring to revoke his affirmative election not to accept the provisions of the Workers' Compensation Act may do so by filing a revocation of the affirmative election with the workers' compensation insurer and in the office of the director. The revocation shall become effective thirty days after filing. An executive employee shall cause a copy of the revocation to be mailed to the board of directors of the professional or business corporation or limited liability company. D. The filing of an affirmative election not to accept the provisions of the Workers' Compensation Act shall create a conclusive presumption that an executive employee or sole proprietor is not covered by the Workers' Compensation Act until the effective date of a revocation filed pursuant to this section. The filing of an affirmative election not to accept the provisions of the Workers' Compensation Act shall apply to all corporations or limited liability companies in which the executive employee has a financial interest. E. In determining the number of workers of an employer to determine who comes within the Workers' Compensation Act, an executive employee who has filed an affirmative election not to be subject to the Workers' Compensation Act shall be counted for determining the number of workers employed by such employer. F. For purposes of this section: (1) "executive employee" means the chairman of the board, president, vice president, secretary, treasurer or other executive officer, if he owns ten percent or more of the outstanding stock, of the professional or business corporation or a ten percent ownership interest in the limited liability company; and (2) "sole proprietor" means a single individual who owns all the assets of a business, is solely liable for its debts and employs in the business no person other than himself. 1953 Comp., § 59-10-4.1, enacted by Laws 1975, ch. 284, § 4; 1979, ch. 368, § 5; 1987, ch. 235, § 8; 1993, ch. 193, § 2; 2003, ch. 259, § 3.

NMSA 1978, § 52-1-8 Defenses to action by employee

52-1-8. Defenses to action by employee In an action to recover damages for a personal injury sustained by an employee while engaged in the line of his duty as such or for death resulting from personal injuries so sustained in which recovery is sought upon the ground of want of ordinary care of the employer, or of the officer, agent or servant of the employer, it shall not be a defense: A. that the employee, either expressly or impliedly, assumed the risk of the hazard complained of as due to the employer's negligence; B. that the injury or death was caused, in whole or in part, by the want of ordinary care of a fellow servant; and C. that the injury of [or] death was caused, in whole or in part by the want of ordinary care of the injured employee where such want of care was not willful. Any employer who has complied with the provisions of the Workers' Compensation Act relating to insurance or any of the employees of the employer, including management and supervisory employees, shall not be subject to any other liability whatsoever for the death of or personal injury to any employee, except as provided in the Workers' Compensation Act, and all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common-law rights and remedies for and on account of such death of, or personal injury to, any such employee and accruing to any and all persons whomsoever, are hereby abolished except as provided in the Workers' Compensation Act. Laws 1937, ch. 92, § 3; 1941 Comp., § 57-905; 1953 Comp., § 59-10-5; Laws 1971, ch. 253, § 2; 1973, ch. 240, § 3; 1989, ch. 263, § 6.

NMSA 1978, § 52-1-9 Right to compensation; exclusive

52-1-9. Right to compensation; exclusive The right to the compensation provided for in this act [Chapter 52, Article 1 NMSA 1978], in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur: A. at the time of the accident, the employer has complied with the provisions thereof regarding insurance; B. at the time of the accident, the employee is performing service arising out of and in the course of his employment; and C. the injury or death is proximately caused by accident arising out of and in the course of his employment and is not intentionally self-inflicted. Laws 1937, ch. 92, § 4; 1941 Comp., § 57-906; 1953 Comp., § 59-10-6; Laws 1973, ch. 240, § 4.

NMSA 1978, § 52-1-9.1 Uninsured employers' fund; workers' compensation administration; additional duties

52-1-9.1. Uninsured employers' fund; workers' compensation administration; additional duties A. The "uninsured employers' fund" is created in the state treasury. The fund shall be administered by the workers' compensation administration as a separate account. The administration shall adopt rules to administer the fund pursuant to the provisions of this section. B. The fund shall consist of thirty cents ($.30) per employee covered by the Workers' Compensation Act on the last working day of each quarter for the fee assessed against employers pursuant to Section 52-5-19 NMSA 1978 and all income derived from investment of the fund. The fund shall also consist of any other money appropriated, distributed or otherwise allocated to the fund for the purpose of this section. C. Money in the fund is appropriated to the workers' compensation administration to pay workers' compensation benefits to a person entitled to the benefits when that person's employer has failed to maintain workers' compensation coverage because of fraud, misconduct or other failure to insure or otherwise make compensation payments. For purposes of this subsection, a worker who has affirmatively elected not to accept the provisions of the Workers' Compensation Act shall not be eligible for payment of workers' compensation from the uninsured employers' fund. The director may pay reasonable costs of administering the uninsured employers' fund from the fund, but money in the fund shall not be used for administrative costs unrelated to the fund or any activity of the workers' compensation administration other than as provided in this section. The superintendent of insurance shall examine and audit the fund pursuant to the provisions of Chapter 59A, Article 4 NMSA 1978. D. The director may authorize payments to a person from the uninsured employers' fund if the injury or cause of incapacity occurs in New Mexico and would be compensable under the Workers' Compensation Act. E. The uninsured employers' fund, by subrogation, has all the rights, powers and benefits of the employee or the employee's dependents against the employer failing to make the compensation payments. F. The uninsured employers' fund, subject to approval of the director, shall discharge its obligations by contracting with an independent adjusting company that is licensed and principally located in New Mexico as prescribed by Section 59A-13-11 NMSA 1978 or Chapter 59A, Article 12A NMSA 1978. G. For the purpose of ensuring the health, safety and welfare of the public, the director or a workers' compensation judge shall: (1) order the uninsured employer to reimburse the uninsured employers' fund for all benefits paid to or on behalf of an injured employee by the uninsured employers' fund along with interest, costs and attorney fees; and (2) impose a penalty against the uninsured employer of not less than fifteen percent nor more than fifty percent of the value of the total award in connection with the claim that shall be paid into the uninsured employers' fund. H. The liability of the state, the workers' compensation administration and the state treasurer, with respect to payment of any compensation benefits, expenses, fees or disbursement properly chargeable against the uninsured employers' fund, is limited to the assets in the uninsured employers' fund, and they are not otherwise liable for any payment. I. The uninsured employers' fund shall be considered a payor of last resort within the workers' compensation system. No other payor liable for payments under the Workers' Compensation Act shall have its liabilities affected or discharged by payments from the uninsured employers' fund. Any payments to workers paid by the uninsured employers' fund shall be subject to subrogation and apportionment to the same extent as payments to an injured worker from a third party tortfeasor. J. In any claim against an employer by the uninsured employers' fund, or by or on behalf of the employee to whom or to whose dependents compensation and other benefits are paid or payable from the uninsured employers' fund, the burden of proof is on the employer or other party in interest objecting to the claim. The claim is presumed to be valid up to the full amount of workers' compensation benefits paid to the employee or the employee's dependents. This subsection applies whether the claim is filed in court or in an adjudicative proceeding under the authority of the workers' compensation administration. K. Nothing in this section shall be construed to extend exclusive remedy protection pursuant to Section 52-1-6 or 52-1-9 NMSA 1978 to any employer whose injured worker is paid by the uninsured employers' fund. L. Nothing in this section shall be construed to supersede Section 52-5-10 NMSA 1978. Laws 2003, ch. 258, § 1; 2004, ch. 36, § 1.

NMSA 1978, § 52-1-10 Increase or reduction in compensation based on failure of employer to provide or failure of employee to use safety devices

52-1-10. Increase or reduction in compensation based on failure of employer to provide or failure of employee to use safety devices A. In case an injury to, or death of, a worker results from his failure to observe statutory regulations appertaining to the safe conduct of his employment or from his failure to use a safety device provided by his employer, then the compensation otherwise payable under the Workers' Compensation Act shall be reduced ten percent. B. In case an injury to, or death of, a worker results from the failure of an employer to provide safety devices required by law or, in any industry in which safety devices are not prescribed by statute, if an injury to, or death of, a worker results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the worker, then the compensation otherwise payable under the Workers' Compensation Act shall be increased ten percent. C. In case the death of a worker results from the failure of an employer to provide safety devices required by law or, in any industry in which safety devices are not prescribed by statute, if the death of a worker results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the worker, and the deceased worker leaves no eligible dependents under the Workers' Compensation Act, in addition to the benefits provided for in Subsection A of Section 52-1-46 NMSA 1978, compensation in the amount of five thousand dollars ($5,000) shall be paid to the surviving father and mother of the deceased or, if either of them be deceased, to the survivor of them. The surviving father and mother, or either of them, may file a claim for the five thousand dollars ($5,000) compensation, provided the father or mother has given notice in the manner and within the time required by Section 52-1-29 NMSA 1978 and the claim is filed within one year from the date of the worker's death. If there be no surviving father or mother, then the five thousand dollars ($5,000) compensation provided for in this subsection shall not be payable. D. Any increased liability resulting from negligence on the part of the employer shall be recoverable from the employer only and not from the insurer, guarantor or surety of the employer under the Workers' Compensation Act, except that this provision shall not be construed to prohibit an employer from insuring against such increased liability. E. No employee shall file a claim for increased compensation under the Workers' Compensation Act on the basis of an injury suffered because of the lack of a safety device nor shall a dependent of a deceased employee or the father or mother as provided in Subsection C of this section file a claim on the basis of the death of a worker suffered because of the lack of a safety device, unless the claim identifies the specific safety device which it is claimed was not furnished by the employer. The employer is under a like duty to allege the specific safety device which it is claimed an employee failed to use before the employer may claim a reduction of compensation as herein provided. Laws 1929, ch. 113, § 7; C.S. 1929, § 156-107; Laws 1937, ch. 92, § 5; 1941 Comp., § 57-907; Laws 1953, ch. 96, § 1; 1953 Comp., § 59-10-7; Laws 1955, ch. 29, § 1; 1959, ch. 67, § 3; 1967, ch. 148, § 1; 1989, ch. 263, § 7.

NMSA 1978, § 52-1-10.1 Allocation of fault; reimbursement

52-1-10.1. Allocation of fault; reimbursement Notwithstanding anything in the worker's compensation law to the contrary, if the fault of the worker's employer or those for whom the employer is legally responsible, other than the injured worker, is found to have proximately caused the worker's injury, the employer's right to reimbursement from the proceeds of the worker's recovery in any action against any wrongdoer shall be diminished by the percentage of fault, if any, attributed to the employer or those for whom the employer is responsible, other than the injured worker. Laws 1987, ch. 141, § 4.

NMSA 1978, § 52-1-11 Injuries caused by the willfulness or intention of worker are noncompensable

52-1-11. Injuries caused by the willfulness or intention of worker are noncompensable No compensation shall become due or payable from any employer under the terms of the Workers' Compensation Act in the event such injury was willfully suffered by the worker or intentionally inflicted by the worker. Laws 1929, ch. 113, § 8; C.S. 1929, § 156-108; 1941 Comp., § 57-908; 1953 Comp., § 59-10-8; 1989, ch. 263, § 8; 2016, ch. 24, § 1.

NMSA 1978, § 52-1-12.1 Reduction in compensation when alcohol or drugs contribute to injury or death; exceptions

52-1-12.1. Reduction in compensation when alcohol or drugs contribute to injury or death; exceptions A. As used in this section, "intoxication" or "influence" means a temporary state or condition of impaired physical, mental or cognitive function by means of alcohol, a drug, a controlled substance or a combination of two or more substances at the time of injury or death. "Drug" or "controlled substance" pursuant to this section does not include medications prescribed to a worker by the worker's licensed health care provider and taken in accordance with directions of the prescribing health care provider or dispensing pharmacy, unless such medication is combined with alcohol or a non-prescribed drug or controlled substance to cause intoxication or influence. B. Except as otherwise provided in this section, compensation benefits otherwise due and payable from an employer to the worker under the terms of the Workers' Compensation Act shall be reduced by the degree to which the intoxication or influence contributes to the worker's injury or death; provided that the reduction shall be a minimum of ten percent but no more than ninety percent. C. Test results relied on as evidence of a worker's intoxication or influence shall not be considered in making a reduction in compensation determination unless the test and testing procedures conform with standard testing procedures generally accepted in the medical community and the test is performed by a laboratory certified to do the testing by an organization nationally recognized to do such certification. Testing may include testing methods for urine, breath or blood. D. The director shall adopt rules regarding tests, testing and the cutoff levels for intoxication or influence. E. If a post-accident test pursuant to Subsection C of this section is required of a worker and the worker refuses to submit to the test or to release the post-accident test results to the employer, no compensation otherwise payable from an employer under the terms of the Workers' Compensation Act shall be paid to the worker claiming compensation. F. Testing shall be at the employer's expense and shall not be used as evidence in a criminal proceeding against the worker. Test samples shall be taken as a split sample. One part of the sample shall be held by the testing facility for twelve months from the date of the original test. Within this twelve-month period, the worker has the right to request a second test of the original sample at the worker's expense. G. An employer shall be barred from claiming a reduction in compensation pursuant to this section if, before the accident, the employer has actual or constructive knowledge of the worker's intoxication or influence and a reasonable opportunity to take appropriate measures in response to the intoxication or influence but fails to take those measures. H. An employer shall be barred from claiming a reduction in compensation pursuant to this section if the employer fails to implement a written policy that declares a drug- and alcohol-free workplace, which may include post-accident testing in accordance with this section, and that gives its employees notice that workers' compensation benefits may be reduced in the event intoxication or influence contributes to a workplace injury. I. Reduction or denial of compensation benefits authorized under this section shall not affect payment of medical benefits provided for pursuant to Section 52-1-49 NMSA 1978. J. Reduction or denial of compensation benefits authorized under this section shall not affect payments of benefits to the dependents of a deceased worker pursuant to Section 52-1-46 NMSA 1978. 1978 Comp., § 52-1-12.1, enacted by Laws 2001, ch. 87, § 1; 2016, ch. 24, § 2.

NMSA 1978, § 52-1-13 Termination of agreements

52-1-13. Termination of agreements Any agreement made between such employer and any such worker to be bound by the provisions of the Workers' Compensation Act may be terminated by either party upon giving thirty days notice to the other in writing, prior to any accidental injury suffered by such worker. Laws 1929, ch. 113, § 9; C.S. 1929, § 156-109; 1941 Comp., § 57-909; 1953 Comp., § 59-10-9; Laws 1989, ch. 263, § 10.

NMSA 1978, § 52-1-14 [Interstate commerce not subject to state legislation exempted.]

52-1-14. [Interstate commerce not subject to state legislation exempted.] This act [Chapter 52, Article 1 NMSA 1978] shall not be construed to apply to business or pursuits or employments which according to law are so engaged in interstate commerce as to be not subject to the legislative power of the state, nor to persons injured while they are so engaged. Laws 1929, ch. 113, § 11; C.S. 1929, § 156-111; 1941 Comp., § 57-911; 1953 Comp., § 59-10-11.

NMSA 1978, § 52-1-15 Employer

52-1-15. Employer As used in the Workers' Compensation Act, unless the context otherwise requires, "employer" includes any person or body of persons, corporate or incorporate, and the legal representative of a deceased employer or the receiver or trustee of a person, corporation, association or partnership engaged in or carrying on for the purpose of business or trade, charitable organizations, except as provided in Section 52-1-6 NMSA 1978, and also includes the state and each county, municipality, school district, drainage, irrigation or conservancy district and public institution and administrative board thereof employing workers under the terms of the Workers' Compensation Act. 1953 Comp., § 59-10-12.8, enacted by Laws 1965, ch. 295, § 8; 1975, ch. 284, § 5; 1989, ch. 263, § 11.

NMSA 1978, § 52-1-16 Worker; real estate salesperson excepted

52-1-16. Worker; real estate salesperson excepted A. As used in the Workers' Compensation Act, unless the context otherwise requires, "worker" means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business. The term "worker" shall include "employee" and shall include the singular and plural of both sexes. "Worker" includes public employee, as defined in the Workers' Compensation Act, including salaried public officers. B. For the purposes of the Workers' Compensation Act, an individual who performs services as a qualified real estate salesperson shall not be treated as an employee and the person for whom the services are performed shall not be treated as an employer. C. For the purpose of Subsection B of this section, a "qualified real estate salesperson" means an individual who: (1) is a licensed real estate salesperson, associate broker or broker under contract with a real estate firm; (2) receives substantially all of his remuneration, whether or not paid in cash, for the services performed as a real estate salesperson, associate broker or broker under contract with a real estate firm in direct relation to sales or other output, including the performance of services, rather than to the number of hours worked; and (3) performs services pursuant to a written contract between himself and the person for whom the services are performed, and the contract provides that the individual will not be treated as an employee with respect to such services. 1953 Comp., § 59-10-12.9, enacted by Laws 1965, ch. 295, § 9; 1979, ch. 199, § 3; 1986, ch. 17, § 1; 1989, ch. 263, § 12.

NMSA 1978, § 52-1-17 Dependents

52-1-17. Dependents As used in the Workers' Compensation Act, unless the context otherwise requires, the following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of the Workers' Compensation Act: A. a child under eighteen years of age or incapable of self-support and unmarried or under twenty-three years of age if enrolled as full-time student in any accredited educational institution; B. the widow or widower, only if living with the deceased at the time of his death or legally entitled to be supported by him, including a divorced spouse entitled to alimony; C. a parent or grandparent only if actually dependent, wholly or partially, upon the deceased; and D. a grandchild, brother or sister only if under eighteen years of age or incapable of self-support, and wholly dependent upon the deceased. The relation of dependency must exist at the time of the injury. E. Questions as to who constitute dependents and the extent of their dependency shall be determined as of the date of the injury, and their right to any death benefit shall cease upon the happening of any one of the following contigencies [contingencies]: (1) upon the marriage of the widow or widower; (2) upon a child, grandchild, brother or sister reaching the age of eighteen years, unless the child, grandchild, brother or sister at such time is physically or mentally incapacitated from earnings, or upon a dependent child, grandchild, brother or sister becoming self-supporting prior to attaining that age or if a child, grandchild, brother or sister over eighteen years of age who is enrolled as a full-time student in any accredited educational institution ceases to be so enrolled or reaches the age of twenty-three. A child, grandchild, brother or sister who originally qualified as a dependent by virtue of being less than eighteen years of age may, upon reaching age eighteen, continue to qualify if physically or mentally incapable of self-support, actually dependent or enrolled in an educational institution; or (3) upon the death of any dependent. 1953 Comp., § 59-10-12.10, enacted by Laws 1965, ch. 295, § 10; 1973, ch. 47, § 1; 1977, ch. 275, § 1; 1989, ch. 263, § 13.

NMSA 1978, § 52-1-18 Child

52-1-18. Child As used in the Workers' Compensation Act, unless the context otherwise requires, "child" includes stepchildren, adopted children, posthumous children and acknowledged illegitimate children but does not include married children unless dependent. The words "adopted" or "adoption" as used in the Workers' Compensation Act shall include cases where persons are treated as adopted as well as those of legal adoption. 1953 Comp., § 59-10-12.11, enacted by Laws 1965, ch. 295, § 11; 1989, ch. 263, § 14.

NMSA 1978, § 52-1-19 Injury by accident; course of employment

52-1-19. Injury by accident; course of employment As used in the Workers' Compensation Act, unless the context otherwise requires, "injury by accident arising out of and in the course of employment" shall include accidental injuries to workers and death resulting from accidental injury as a result of their employment and while at work in any place where their employer's business requires their presence but shall not include injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer's negligence. 1953 Comp., § 59-10-12.12, enacted by Laws 1975, ch. 284, § 6; 1986, ch. 22, § 3; 1987, ch. 235, § 9.

NMSA 1978, § 52-1-20 Determination of average weekly wage

52-1-20. Determination of average weekly wage As used in the Workers' Compensation Act, unless the context otherwise requires, the average weekly wage of an injured employee shall be taken as the basis upon which to compute compensation payments and shall be determined as follows: A. "average weekly wage" means the weekly wage earned by the worker at the time of the worker's injury, including overtime pay and gratuities but excluding all fringe or other employment benefits and bonuses. The term "average weekly wage" shall include the reasonable value of board, rent, housing or lodging received from the employer, which shall be fixed and determined from the facts in each particular case. The term "average weekly wage" shall include those gratuities reported to the federal internal revenue service by or for the worker for the purpose of filing federal income tax returns; B. the average weekly wage shall be determined by computing the total wages paid to the worker during the twenty-six weeks immediately preceding the date of injury and dividing by twenty-six, provided that: (1) if the worker worked less than twenty-six weeks in the employment in which the worker was injured, the average weekly wage shall be based upon the total wage earned by the worker in the employment in which the worker was injured, divided by the total number of weeks actually worked in that employment; (2) if a worker sustains a compensable injury before completing his first work week, the average weekly wage shall be calculated as follows: (a) if the contract was based on hours worked, by determining the number of hours for each week contracted for by the worker multiplied by the worker's hourly rate; (b) if the contract was based on a weekly wage, by determining the weekly salary contracted for by the worker; or (c) if the contract was based on a monthly salary, by multiplying the monthly salary by twelve and dividing that figure by fifty-two; and (3) if the hourly rate of earnings of the worker cannot be ascertained, or if the pay has not been designated for the work required, the average weekly wage, for the purpose of calculating compensation, shall be taken to be the average weekly wage for similar services performed by other workers in like employment for the past twenty-six weeks; C. provided, further, however, that in any case where the foregoing methods of computing the average weekly wage of the employee by reason of the nature of the employment or the fact that the injured employee has been ill or in business for himself or where for any other reason the methods will not fairly compute the average weekly wage, in each particular case, computation of the average weekly wage of the employee in such other manner and by such other method as will be based upon the facts presented fairly determine such employee's average weekly wage; and D. provided that in case such earnings have been unusually large on account of the employer's necessity temporarily requiring him to pay extraordinary high wages, such average weekly earnings shall be based upon the usual earnings in the same community for labor of the kind of worker was performing at the time of the injury. In any event, the weekly compensation allowed shall not exceed the maximum or be less than the minimum provided by law. 1953 Comp., § 59-10-12.13, enacted by Laws 1965, ch. 295, § 13; 1989, ch. 263, § 15; 1990 (2nd S.S.), ch. 2, § 6.

NMSA 1978, § 52-1-22 Work not casual employment

52-1-22. Work not casual employment As used in the Workers' Compensation Act, unless the context otherwise requires, where any employer procures any work to be done wholly or in part for him by a contractor other than an independent contractor and the work so procured to be done is a part or process in the trade or business or undertaking of such employer, then such employer shall be liable to pay all compensation under the Workers' Compensation Act to the same extent as if the work were done without the intervention of such contractor. The work so procured to be done shall not be construed to be "casual employment". 1953 Comp., § 59-10-12.15, enacted by Laws 1965, ch. 295, § 15; 1989, ch. 263, § 16.

NMSA 1978, § 52-1-23 Contractor becoming employer in casual employment

52-1-23. Contractor becoming employer in casual employment For purposes of the Workers' Compensation Act, where any employer procures any work to be done wholly or in part for him by a contractor where the work so procured to be done is casual employment as to such employer, then such contractor shall become the employer. 1953 Comp., § 59-10-12.16, enacted by Laws 1965, ch. 295, § 16; 1989, ch. 263, § 17.

NMSA 1978, § 52-1-24 Impairment; definition

52-1-24. Impairment; definition As used in the Workers' Compensation Act: A. "impairment" means an anatomical or functional abnormality existing after the date of maximum medical improvement as determined by a medically or scientifically demonstrable finding and based upon the most recent edition of the American medical association's guide to the evaluation of permanent impairment or comparable publications of the American medical association. Impairment includes physical impairment, primary mental impairment and secondary mental impairment; B. "primary mental impairment" means a mental illness arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances, but is not an event in connection with disciplinary, corrective or job evaluation action or cessation of the worker's employment; and C. "secondary mental impairment" means a mental illness resulting from a physical impairment caused by an accidental injury arising out of and in the course of employment. 1978 Comp., § 52-1-24, enacted by Laws 1987, ch. 235, § 10; 1990 (2nd S.S.), ch. 2, § 7.

NMSA 1978, § 52-1-24.1 Date of maximum medical improvement

52-1-24.1. Date of maximum medical improvement As used in the Workers' Compensation Act, "date of maximum medical improvement" means the date after which further recovery from or lasting improvement to an injury can no longer be reasonably anticipated based upon reasonable medical probability as determined by a health care provider defined in Subsection C, E or G of Section 52-4-1 NMSA 1978. 1978 Comp., § 52-1-24.1, enacted by Laws 1990 (2nd S.S.), ch. 2, § 8.

NMSA 1978, § 52-1-25 Permanent total disability

52-1-25. Permanent total disability A. As used in the Workers' Compensation Act, "permanent total disability" means: (1) the permanent and total loss or loss of use of both hands or both arms or both feet or both legs or both eyes or any two of them; or (2) a brain injury resulting from a single traumatic work-related injury that causes, exclusive of the contribution to the impairment rating arising from any other impairment to any other body part, or any preexisting impairments of any kind, a permanent impairment of thirty percent or more as determined by the current American medical association guide to the evaluation of permanent impairment. B. In considering a claim for total disability, a workers' compensation judge shall not receive or consider the testimony of a vocational rehabilitation provider offered for the purpose of determining the existence or extent of disability. 1978 Comp., § 52-1-25, enacted by Laws 1987, ch. 235, § 11; 1990 (2nd S.S.), ch. 2, § 9; 2003, ch. 265, § 1.

NMSA 1978, § 52-1-25.1 Temporary total disability; return to work

52-1-25.1. Temporary total disability; return to work A. As used in the Workers' Compensation Act, "temporary total disability" means the inability of a worker, by reason of accidental injury arising out of and in the course of the worker's employment, to perform the duties of that employment prior to the date of the worker's maximum medical improvement. B. If, prior to the date of maximum medical improvement, an injured worker's health care provider releases the worker to return to work and the employer does not make a reasonable work offer at the worker's pre-injury wage, the worker shall receive temporary total disability compensation benefits equal to two-thirds of the worker's pre-injury wage. C. If, prior to the date of maximum medical improvement, an injured worker's health care provider releases the worker to return to work and the worker returns to work at less than the worker's pre-injury wage, the worker shall receive temporary total disability compensation benefits equal to two-thirds of the difference between the worker's pre-injury wage and the worker's post-injury wage. D. A worker is not entitled to temporary total disability benefits as set forth in Subsection B or C of this section if: (1) the employer makes a reasonable work offer at or above the worker's pre-injury wage, within medical restrictions, if any, as stated by the health care provider pursuant to Section 52-1-49 NMSA 1978, and the worker rejects the offered employment; (2) the worker accepts employment with another employer at or above the worker's pre-injury wage; or (3) the worker is terminated for misconduct connected with the employment that is unrelated to the workplace injury; if the workers' compensation judge finds that an employer terminated the worker for pretextual reasons as a way of attempting to avoid payment of benefits to the worker or as retaliation against the worker for seeking benefits, the worker shall be entitled to temporary total disability benefits and the employer shall be subject to penalties as set forth in Sections 52-1-28.1 and 52-1-28.2 NMSA 1978. E. Upon a finding that an employer has terminated a worker for pretextual reasons, the workers' compensation judge at the judge's discretion may also impose an additional fine, not to exceed ten thousand dollars ($10,000), on the employer, to be paid to the worker. F. Notwithstanding the provisions of this section, the employer shall continue to provide reasonable and necessary medical care pursuant to Section 52-1-49 NMSA 1978. G. If there is a dispute between the parties regarding the reasonableness of the employer's work offer or the worker's refusal to return to work, the workers' compensation judge shall decide if the work offer or the worker's refusal to return to work is reasonable based on all of the circumstances. 1978 Comp., § 52-1-25.1, enacted by Laws 1990 (2nd S.S.), ch. 2, § 10; 2005, ch. 151, § 1; 2017, ch. 32, § 1.

NMSA 1978, § 52-1-26 Permanent partial disability

52-1-26. Permanent partial disability A. As a guide to the interpretation and application of this section, the policy and intent of this legislature is declared to be that every person who suffers a compensable injury with resulting permanent partial disability should be provided with the opportunity to return to gainful employment as soon as possible with minimal dependence on compensation awards. B. As used in the Workers' Compensation Act, "partial disability" means a condition whereby a worker, by reason of injury arising out of and in the course of employment, suffers a permanent impairment. C. Permanent partial disability shall be determined by calculating the worker's impairment as modified by the worker's age, education and physical capacity, pursuant to Sections 52-1-26.1 through 52-1-26.4 NMSA 1978; provided that, regardless of the actual calculation of impairment as modified by the worker's age, education and physical capacity, the percentage of disability awarded shall not exceed ninety-nine percent. D. On or after the date of maximum medical improvement, the worker's permanent partial disability rating shall be equal to the worker's impairment and shall not be subject to the modifications calculated pursuant to Sections 52-1-26.1 through 52-1-26.4 NMSA 1978 if: (1) the worker returns to work at a wage at or above the worker's pre-injury wage; (2) the worker accepts employment with another employer at or above the worker's pre-injury wage; (3) the employer makes a reasonable work offer, at or above the worker's pre-injury wage, within medical restrictions, if any, as stated by the health care provider pursuant to Section 52-1-49 NMSA 1978, and the worker rejects the offered employment; or (4) the worker is terminated for misconduct connected with the employment that is unrelated to the workplace accident; if the workers' compensation judge finds that an employer terminates the worker for pretextual reasons to avoid payment of benefits to the worker or as retaliation against the worker for seeking benefits, the worker shall be entitled to modifier benefits and the employer shall be subject to penalties as set forth in Sections 52-1-28.1 and 52-1-28.2 NMSA 1978. E. Upon a finding that an employer has terminated a worker for pretextual reasons, the workers' compensation judge at the judge's discretion may also impose an additional fine, not to exceed ten thousand dollars ($10,000), on the employer, to be paid to the worker. F. In considering a claim for permanent partial disability, a workers' compensation judge shall not receive or consider the testimony of a vocational rehabilitation provider offered for the purpose of determining the existence or extent of disability. G. If there is a dispute between the parties regarding the reasonableness of the employer's work offer or the worker's refusal to return to work, the workers' compensation judge shall decide if the work offer or the worker's refusal to return to work is reasonable based on all of the circumstances. 1978 Comp., § 52-1-26, enacted by Laws 1987, ch. 235, § 12; 1989, ch. 263, § 18; 1990 (2nd S.S.), ch. 2, § 11; 2017, ch. 32, § 2.

NMSA 1978, § 52-1-26.1 Partial disability determination; calculation of modifications

52-1-26.1. Partial disability determination; calculation of modifications A. For the purpose of determining the percentage of disability pursuant to Section 52-1-26 NMSA 1978, impairment shall constitute the base value. B. The appropriate values for the age modification, as determined in Section 52-1-26.2 NMSA 1978, and the education modification, as determined by Section 52-1-26.3 NMSA 1978, shall be added together. If this sum is less than zero, the sum shall be deemed to be zero for the purposes of this calculation. This sum shall be multiplied by the appropriate value of the physical capacity modification, determined in Section 52-1-26.4 NMSA 1978. C. The product calculated in Subsection B of this section shall be added to the base value. This sum represents the percentage of unscheduled partial disability to be awarded. 1978 Comp., § 52-1-26.1, enacted by Laws 1990 (2nd S.S.), ch. 2, § 12.

NMSA 1978, § 52-1-26.2 Partial disability determination; age modification

52-1-26.2. Partial disability determination; age modification A. The range of the age modification is one to five. The modification is based upon the worker's age at the time of the disability rating. B. For a worker who is: (1) forty-four years old or younger, one point shall be awarded; (2) forty-five to forty-nine years old, two points shall be awarded; (3) fifty to fifty-four years old, three points shall be awarded; (4) fifty-five to fifty-nine years old, four points shall be awarded; and (5) sixty years old or older, five points shall be awarded. 1978 Comp., § 52-1-26.2, enacted by Laws 1990 (2nd S.S.), ch. 2, § 13; 2001, ch. 87, § 2.

NMSA 1978, § 52-1-26.3 Partial disability determination; education modification

52-1-26.3. Partial disability determination; education modification A. The range of the education modification is one to eight. The modification shall be based upon the worker's formal education, skills and training at the time of the disability rating. B. A worker shall be awarded points based on the formal education that the worker has received. A worker who: (1) has completed no higher than the fifth grade shall be awarded three points; (2) has completed the sixth grade but has completed no higher than the eleventh grade shall be awarded two points; (3) has completed the twelfth grade or has obtained a high school equivalency credential but has not completed a college degree shall be awarded one point; and (4) has completed a college degree or more shall receive zero points. C. A worker shall be awarded points based upon the worker's skills. Skills shall be measured by reviewing the jobs that the worker has successfully performed during the ten years preceding the date of disability determination. For the purposes of this section, "successfully performed" means having remained on the job the length of time necessary to meet the specific vocational preparation (SVP) time requirement for that job as established in the dictionary of occupational titles published by the United States department of labor. The appropriate award of points shall be based upon the highest SVP level demonstrated by the worker in the performance of the jobs that the worker has successfully performed in the ten-year period preceding the date of disability determination, as follows: (1) a worker with an SVP of one to two shall be awarded four points; (2) a worker with an SVP of three to four shall be awarded three points; (3) a worker with an SVP of five to six shall be awarded two points; and (4) a worker with an SVP of seven to nine shall be awarded one point. D. A worker shall be awarded points based upon the training that the worker has received. A worker who cannot competently perform a specific vocational pursuit shall be awarded one point. A worker who can perform a specific vocational pursuit shall not receive any points. E. The sum of the points awarded the worker in Subsections B, C and D of this section shall constitute the education modification. 1978 Comp., § 52-1-26.3, enacted by Laws 1990 (2nd S.S.), ch. 2, § 14; 2001, ch. 87, § 3; 2015, ch. 122, § 20.

NMSA 1978, § 52-1-26.4 Partial disability determination; physical capacity modification

52-1-26.4. Partial disability determination; physical capacity modification A. The range of the physical capacity modification is one to eight. B. The award of points to a worker shall be based upon the difference between the physical capacity necessary to perform the worker's usual and customary work and the worker's residual physical capacity. The award of points shall be based upon the following table: RESIDUAL PHYSICAL CAPACITY S L M H PRE-INJURY S 1 1 1 1 PHYSICAL CAPACITY L 3 1 1 1 (USUAL AND M 5 3 1 1 CUSTOMARY WORK) H 8 5 3 1. RESIDUAL PHYSICAL CAPACITY S L M H PRE-INJURY S 1 1 1 1 PHYSICAL CAPACITY L 3 1 1 1 (USUAL AND M 5 3 1 1 CUSTOMARY WORK) H 8 5 3 1. C. For the purposes of this section: (1) "H" or "heavy" means the ability to lift over fifty pounds occasionally or up to fifty pounds frequently; (2) "M" or "medium" means the ability to lift up to fifty pounds occasionally or up to twenty-five pounds frequently; (3) "L" or "light" means the ability to lift up to twenty pounds occasionally or up to ten pounds frequently. Even though the weight lifted may be only a negligible amount, a job is in this category when it requires walking or standing to a significant degree or when it involves sitting most of the time with a degree of pushing and pulling of arm or leg controls or both; and (4) "S" or "sedentary" means the ability to lift up to ten pounds occasionally or up to five pounds frequently. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required only occasionally and other sedentary criteria are met. D. The determination of a worker's residual physical capacity shall be made by a health care provider defined in Subsection C, E or G of Section 52-4-1 NMSA 1978. If the worker or employer disagrees on who shall make this determination, the dispute shall be resolved in accordance with the provisions set forth in Section 52-1-51 NMSA 1978. 1978 Comp., § 52-1-26.4, enacted by Laws 1990 (2nd S.S.), ch. 2, § 15; 2003, ch. 265, § 2.

NMSA 1978, § 52-1-28 Compensable claims; proof

52-1-28. Compensable claims; proof A. Claims for workers' compensation shall be allowed only: (1) when the worker has sustained an accidental injury arising out of and in the course of his employment; (2) when the accident was reasonably incident to his employment; and (3) when the disability is a natural and direct result of the accident. B. In all cases where the employer or his insurance carrier deny that an alleged disability is a natural and direct result of the accident, the worker must establish that causal connection as a probability by expert testimony of a health care provider, as defined in Section 52-4-1 NMSA 1978, testifying within the area of his expertise. 1953 Comp., § 59-10-13.3, enacted by Laws 1959, ch. 67, § 7; 1987, ch. 235, § 13.

NMSA 1978, § 52-1-28.1 Unfair claim-processing practices; bad faith

52-1-28.1. Unfair claim-processing practices; bad faith A. Claims may be filed under the Workers' Compensation Act alleging unfair claim-processing practices or bad faith by an employer, insurer or claim-processing representative relating to any aspect of the Workers' Compensation Act. The director may also investigate allegations of unfair claim processing or bad faith on his own initiative. B. If unfair claim processing or bad faith has occurred in the handling of a particular claim, the claimant shall be awarded, in addition to any benefits due and owing, a benefit penalty not to exceed twenty-five percent of the benefit amount ordered to be paid. C. If an employer, insurer or claim-processing representative has a history or pattern of repeated unfair claim-processing practices or bad faith, the director or a workers' compensation judge may impose a civil penalty of up to one thousand dollars ($1,000) for each violation. The civil penalty shall be deposited in the workers' compensation administration fund. D. Any person aggrieved by an order under this section may request a hearing pursuant to the Workers' Compensation Act. E. The director shall adopt by regulation definitions of unfair claim-processing practices and bad faith. F. This section shall not be construed as limiting or interfering with the authority of the superintendent of insurance as provided by law to regulate any insurer, including his jurisdiction over unfair claim settlement practices. Laws 1990 (2nd S.S.), ch. 2, § 29.

NMSA 1978, § 52-1-28.2 Retaliation against employee seeking benefits; civil penalty

52-1-28.2. Retaliation against employee seeking benefits; civil penalty A. An employer shall not discharge, threaten to discharge or otherwise retaliate in the terms or conditions of employment against a worker who seeks workers' compensation benefits for the sole reason that that employee seeks workers' compensation benefits. B. Any person who discharges a worker in violation of Subsection A of this section shall rehire that worker pursuant to the provisions of the Workers' Compensation Act and the New Mexico Occupational Disease Disablement Law, provided the worker agrees to be rehired. C. The director or a workers' compensation judge shall impose a civil penalty of up to five thousand dollars ($5,000) for each violation of the provisions of Subsection A or B of this section. D. The civil penalty shall be deposited in the workers' compensation administration fund. Laws 1990 (2nd S.S.), ch. 2, § 32.

NMSA 1978, § 52-1-28.3 False statements or representations with regard to physical condition; forfeiture

52-1-28.3. False statements or representations with regard to physical condition; forfeiture A. When an employer asks by written questionnaire for the disclosure of a worker's medical condition, no compensation is payable from that employer for an injury to that worker under the provisions of the Workers' Compensation Act if: (1) the worker knowingly and willfully concealed information or made a false representation of his medical condition; (2) the employer: (a) was not aware of the concealed information that, if known, would have been a substantial factor in the initial or continued employment of the worker; or (b) relied upon the false representation, and this reliance was a substantial factor in the initial or continued employment of the worker; and (3) a medical condition that was concealed or falsely represented substantially contributed to the injury or disability. B. The provisions of this section do not apply unless, in the written questionnaire, the employer clearly and conspicuously discloses that the worker shall be entitled to no future compensation benefits if he knowingly and willfully conceals or makes a false representation about the information requested. C. Nothing in this section shall be construed to deny or limit compensation benefits paid or being paid for prior injuries. D. This section shall apply only prospectively. It shall not alter, as to prior reports, the law governing questionnaires and information reported that was in effect prior to the effective date of this section. Laws 1990 (2nd S.S.), ch. 2, § 31.

NMSA 1978, § 52-1-29 Notice of accident to employer; employer to post clear notice of requirement

52-1-29. Notice of accident to employer; employer to post clear notice of requirement A. Any worker claiming to be entitled to compensation from any employer shall give notice in writing to his employer of the accident within fifteen days after the worker knew, or should have known, of its occurrence, unless, by reason of his injury or some other cause beyond his control, the worker is prevented from giving notice within that time, in which case he shall give notice as soon as may reasonably be done and at all events not later than sixty days after the occurrence of the accident. No written notice is required to be given where the employer or any superintendent or foreman or other agent in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence. B. Each employer shall post, and keep posted in conspicuous places upon his premises where notices to employees and applicants for employment are customarily posted, a notice that advises workers of the requirement specified in Subsection A of this section to give the employer notice in writing of an accident within fifteen days of its occurrence. The notice shall be prepared or approved by the director. The failure of an employer to post the notice required in this subsection shall toll the time a worker has to give the notice in writing specified in Subsection A of this section up to but no longer than the maximum sixty-day period. C. The notice required in Subsection B of this section shall include as an attachment to it a preprinted form, which shall be approved by the director, that allows the worker to note and briefly describe the accident and sign his name. The employer, any superintendent or foreman, or any agent of the employer in charge of the work where the accident occurred shall also sign the preprinted form that describes the accident. That signature shall not be a concession by the employer of any rights or defenses. It merely acknowledges receipt by the employer or his agent of the form signed by the worker. The preprinted form shall be prepared in duplicate so that both the worker and the employer can retain copies. 1953 Comp., § 59-10-13.4, enacted by Laws 1959, ch. 67, § 8; 1989, ch. 263, § 19; 1990 (2nd S.S.), ch. 2, § 16.

NMSA 1978, § 52-1-30 Payment of compensation benefits; installments

52-1-30. Payment of compensation benefits; installments Compensation shall be paid by the employer to the worker in installments. The first installment shall be paid not later than fourteen days after the worker has missed seven days of lost time from work, whether or not the days are consecutive. Remaining installments shall be paid twice a month at intervals not more than sixteen days apart in sums as nearly equal as possible, except as provided in Section 52-5-12 NMSA 1978. 1978 Comp., § 52-1-30, enacted by Laws 1987, ch. 235, § 14; 1993, ch. 193, § 3; 2003, ch. 259, § 4.

NMSA 1978, § 52-1-31 Claim to be filed for workers' compensation; effect of failure to give required notice or to file claim within time allowed

52-1-31. Claim to be filed for workers' compensation; effect of failure to give required notice or to file claim within time allowed A. If an employer or his insurer fails or refuses to pay a worker any installment of compensation to which the worker is entitled under the Workers' Compensation Act, after notice has been given as required by Section 52-1-29 NMSA 1978, it is the duty of the worker insisting on the payment of compensation to file a claim therefor as provided in the Workers' Compensation Act not later than one year after the failure or refusal of the employer or insurer to pay compensation. This one-year period of limitations shall be tolled during the time a worker remains employed by the employer by whom he was employed at the time of such accidental injury, not to exceed a period of one year. If the worker fails to give notice in the manner and within the time required by Section 52-1-29 NMSA 1978 or if the worker fails to file a claim for compensation within the time required by this section, his claim for compensation, all his right to the recovery of compensation and the bringing of any proceeding for the recovery of compensation are forever barred. B. In case of the death of a worker who would have been entitled to receive compensation if death had not occurred, claim for compensation may be filed on behalf of his eligible dependents to recover compensation from the employer or his insurer. Payment may be received or claim filed by any person whom the director or the court may authorize or permit on behalf of the eligible beneficiaries. No claim shall be filed, however, to recover compensation benefits for the death of the worker unless he or someone on his behalf or on behalf of his eligible dependents has given notice in the manner and within the time required by Section 52-1-29 NMSA 1978 and unless the claim is filed within one year from the date of the worker's death. 1953 Comp., § 59-10-13.6, enacted by Laws 1959, ch. 67, § 10; 1963, ch. 269, § 6; 1967, ch. 151, § 1; 1986, ch. 22, § 8; 1987, ch. 235, § 15.

NMSA 1978, § 52-1-36 Effect of failure of worker to file claim by reason of conduct of employer

52-1-36. Effect of failure of worker to file claim by reason of conduct of employer The failure of any person entitled to compensation under the Workers' Compensation Act to give any notice or file any claim within the time fixed by the Workers' Compensation Act shall not deprive such person of the right to compensation where the failure was caused in whole or in part by the conduct of the employer or insurer which reasonably led the person entitled to compensation to believe the compensation would be paid. Laws 1937, ch. 92, § 13; 1941 Comp., § 57-914; 1953 Comp., § 59-10-14; Laws 1959, ch. 67, § 15; 1986, ch. 22, § 9; 1989, ch. 263, § 20.

NMSA 1978, § 52-1-38 Judgment; provisions; execution; subrogation; contempts

52-1-38. Judgment; provisions; execution; subrogation; contempts A. All judgments based upon a supplementary compensation order pursuant to Section 52-5-10 NMSA 1978 shall be against the defendants and each of them for the amount then due and shall also contain an order upon the defendants for the payment to the worker, at regular intervals during the continuance of his disability, the further amounts he is entitled to receive. The judgment shall be so framed as to accomplish the purpose and intent of the Workers' Compensation Act in all particulars. In addition to executions for any amount already due in the judgment, executions for amounts to become due in the future shall be issued by the clerk of the court at any time after the time provided in the judgment for the payment thereof if the worker files his affidavit with the clerk that the same is unpaid and that his disability still continues; provided, however, if application is made for a physical examination of the worker under Section 52-1-51 NMSA 1978, issuance of execution shall await the further order of a workers' compensation judge. B. All judgments and executions based upon a supplementary compensation order pursuant to Section 52-5-10 NMSA 1978 issued in workers' compensation cases shall be governed by the laws of this state with respect to judgments or executions in civil cases and shall have the same force and effect. C. When a judgment or execution based upon a supplementary compensation order pursuant to Section 52-5-10 NMSA 1978 is paid or satisfied by a defendant who has an agreement that the judgment or execution should have been paid or satisfied by another party as insurer, guarantor, surety or otherwise, the defendant is entitled to judgment over against the party in the same case. Application for judgment shall be made within ninety days after judgment is paid or execution satisfied. Notice shall be given to the party against whom judgment over is sought, and the application shall be heard according to the procedures for notice and hearing of motions in other civil actions. D. In any case where the employer has failed to file the undertaking or certificate required by Section 52-1-4 NMSA 1978, the court has power to enforce compliance with any judgment or order granted in a case against the employer by proceedings in contempt against a party failing or refusing to comply. Laws 1929, ch. 113, § 15; C.S. 1929, § 156-115; 1941 Comp., § 57-916; 1953 Comp., § 59-10-16; Laws 1959, ch. 67, § 17; 1986, ch. 22, § 10; 1989, ch. 263, § 21.

NMSA 1978, § 52-1-40 Waiting period

52-1-40. Waiting period No compensation benefits shall be allowed under the provisions of the Workers' Compensation Act for any accidental injury which does not result in the workers' death or in a disability which lasts for more than seven days; provided, however, if the period of the workers' disability lasts for more than four weeks from the date of his accidental injury, compensation benefits shall be allowed from the date of disability. 1953 Comp., § 59-10-18.1, enacted by Laws 1959, ch. 67, § 19; 1989, ch. 263, § 22.

NMSA 1978, § 52-1-41 Compensation benefits; total disability

52-1-41. Compensation benefits; total disability A. For total disability, the worker shall receive, during the period of that disability, sixty-six and two-thirds percent of the worker's average weekly wage, and not to exceed a maximum compensation of eighty-five percent of the average weekly wage in the state, a week, effective July 1, 1987 through December 31, 1999, and thereafter not to exceed a maximum compensation of one hundred percent of the average weekly wage in the state, a week; and to be not less than a minimum compensation of thirty-six dollars ($36.00) a week. B. For permanent total disability as set forth in Section 52-1-25 NMSA 1978, the worker shall receive compensation benefits for the remainder of the worker's life. For temporary disability as set forth in Section 52-1-25.1 NMSA 1978, the maximum period of compensation is subject to the maximum duration and limitation on compensation benefits set forth in Section 52-1-47 NMSA 1978. C. For disability resulting from primary mental impairment, the maximum period of compensation is the maximum period allowable for a physical injury, as set forth in Sections 52-1-26 and 52-1-42 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978. For disability resulting in secondary mental impairment, the maximum period of compensation is the maximum period allowable for the disability produced by the physical impairment, as set forth in Section 52-1-26 or 52-1-43 NMSA 1978 and Section 52-1-42 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978. D. For the purpose of paying compensation benefits for death, pursuant to Section 52-1-46 NMSA 1978, the worker's maximum disability recovery shall be deemed to be seven hundred weeks. E. Where the worker's average weekly wage is less than thirty-six dollars ($36.00) a week, the compensation to be paid the worker shall be the worker's full weekly wage. F. For the purpose of the Workers' Compensation Act, the average weekly wage in the state shall be determined by the workforce solutions department on or before June 30 of each year and shall be computed from all wages reported to the workforce solutions department from employing units, including reimbursable employers, in accordance with the rules of the department for the preceding calendar year, divided by the total number of covered employees divided by fifty-two. G. The average weekly wage in the state, determined as provided in Subsection F of this section, shall be applicable for the full period during which compensation is payable when the date of the occurrence of an accidental injury falls within the calendar year commencing January 1 following the June 30 determination. H. Unless the computation provided for in Subsection F of this section results in an increase or decrease of two dollars ($2.00) or more, raised to the next whole dollar, the statewide average weekly wage determination shall not be changed for any calendar year. 1953 Comp., § 59-10-18.2, enacted by Laws 1959, ch. 67, § 20; 1965, ch. 252, § 1; 1967, ch. 151, § 2; 1969, ch. 173, § 1; 1971, ch. 261, § 3; 1973, ch. 240, § 5; 1975, ch. 284, § 8; 1986, ch. 22, § 11; 1987, ch. 235, § 16; 1989, ch. 263, § 23; 1990 (2nd S.S.), ch. 2, § 17; 1993, ch. 193, § 4; 1999, ch. 172, § 1; 2015, ch. 70, § 1.

NMSA 1978, § 52-1-42 Compensation benefits; permanent partial disability; maximum duration of benefits

52-1-42. Compensation benefits; permanent partial disability; maximum duration of benefits A. For permanent partial disability, the workers' compensation benefits not specifically provided for in Section 52-1-43 NMSA 1978 shall be a percentage of the weekly benefit payable for total disability as provided in Section 52-1-41 NMSA 1978. The percentage of permanent partial disability shall be determined pursuant to the provisions of Sections 52-1-26 through 52-1-26.4 NMSA 1978. The duration of partial disability benefits shall depend upon the extent and nature of the partial disability, subject to the following: (1) where the worker's percentage of disability is equal to or greater than eighty, the maximum period is seven hundred weeks; (2) where the worker's percentage of disability is less than eighty, the maximum period is five hundred weeks; (3) where the partial disability results from a primary mental impairment, the maximum period is the maximum period allowable for a physical injury, as set forth in Section 52-1-26 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978; and (4) where the partial disability results from a secondary mental impairment, the maximum period is the maximum period allowable for the disability produced by the physical impairment, as set forth in Section 52-1-26 or 52-1-43 NMSA 1978, and subject to the maximum duration and limitations on compensation benefits set forth in Section 52-1-47 NMSA 1978. B. If an injured worker receives temporary disability benefits prior to an award of permanent partial disability benefits, the maximum period for permanent partial disability benefits shall be reduced by the number of weeks the worker actually receives temporary disability benefits. 1953 Comp., § 59-10-18.3, enacted by Laws 1959, ch. 67, § 21; 1963, ch. 269, § 2; 1965, ch. 252, § 2; 1975, ch. 284, § 9; 1986, ch. 22, § 12; 1987, ch. 235, § 17; 1989, ch. 263, § 24; 1990 (2nd S.S.), ch. 2, § 18; 2015, ch. 70, § 2.

NMSA 1978, § 52-1-43 Compensation benefits; injury to specific body members

52-1-43. Compensation benefits; injury to specific body members 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 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. (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. 1978 Comp., § 52-1-31, enacted by Laws 1987, ch. 235, § 18; 1989, ch. 263, § 25; 2003, ch. 259, § 5.

NMSA 1978, § 52-1-44 Compensation benefits; facial disfigurement

52-1-44. Compensation benefits; facial disfigurement For serious permanent disfigurement about the face or head, the workers' compensation judge may allow, in addition to other compensation benefits that may be allowed under the Workers' Compensation Act, an additional sum for compensation on account of the serious permanent disfigurement as he deems just but not to exceed a maximum of twenty-five hundred dollars ($2,500). 1953 Comp., § 59-10-18.5, enacted by Laws 1959, ch. 67, § 23; 1967, ch. 151, § 4; 1986, ch. 22, § 14; 1989, ch. 263, § 26.

NMSA 1978, § 52-1-45 Compensation benefits; hernia; proof of claim; failure to be operated [upon]; examination; medical care

52-1-45. Compensation benefits; hernia; proof of claim; failure to be operated [upon]; examination; medical care A worker, in order to be entitled to compensation for a hernia, must clearly prove: A. that the hernia is of recent origin; B. that its appearance was accompanied by pain; C. that it was immediately preceded by some accidental strain suffered in the course of the employment; and D. that it did not exist prior to the date of the alleged injury. If a worker, after establishing his right to compensation for a hernia as above provided, elects to be operated upon, the operating fee and reasonable hospital expenses shall be paid by the employer or his or its insurer. In case such worker elects not to be operated upon and the hernia becomes strangulated in the future, the results from the strangulation shall not be compensated; provided, before the worker is compelled to prove the facts above mentioned, in order to be entitled to compensation for hernia, the employer must first prove that he caused the worker to be physically examined, previous to his employment, for the existence of a hernia; and, provided further, that where the employer has not made provisions for and does not have at the service of the worker adequate surgical, hospital and medical facilities and attention or fails to offer them during the period necessary, the worker shall have the right to select the surgeon to operate upon him and the hospital where the operation is to be performed and the worker is to be treated therefor. 1953 Comp., § 59-10-18.6, enacted by Laws 1959, ch. 67, § 24; 1963, ch. 269, § 4; 1989, ch. 263, § 27.

NMSA 1978, § 52-1-46 Compensation benefits for death

52-1-46. Compensation benefits for death Subject to the limitation of compensation payable under Subsection G of this section, if an accidental injury sustained by a worker proximately results in the worker's death within the period of two years following the worker's accidental injury, compensation shall be paid in the amount and to the persons entitled thereto as follows: A. if there are no eligible dependents, except as provided in Subsection C of Section 52-1-10 NMSA 1978 of the Workers' Compensation Act, the compensation shall be limited to the funeral expenses, not to exceed seven thousand five hundred dollars ($7,500), and the expenses provided for medical and hospital services for the deceased, together with all other sums that the deceased should have been paid for compensation benefits up to the time of the worker's death; B. if there are eligible dependents at the time of the worker's death, payment shall consist of a sum not to exceed seven thousand five hundred dollars ($7,500) for funeral expenses and expenses provided for medical and hospital services for the deceased, together with such other sums as the deceased should have been paid for compensation benefits up to the time of the worker's death and compensation benefits to the eligible dependents as hereinafter specified, subject to the limitations on maximum periods of recovery provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978; C. if there are eligible dependents entitled thereto, compensation shall be paid to the dependents or to the person authorized by the director or appointed by the court to receive the same for the benefit of the dependents in such portions and amounts, to be computed and distributed as follows: (1) if there is no widow or widower entitled to compensation, sixty-six and two-thirds percent of the average weekly wage of the deceased to the child or children; (2) if there are no children, sixty-six and two-thirds percent of the average weekly wage of the deceased to the widow or widower, until remarriage; or (3) if there is a widow or widower and children: (a) if all the children are living with the widow or widower, forty-five percent of the weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978 to the widow or widower and fifty-five percent divided equally to the children; or (b) if no child is living with a widow or widower, forty percent of the weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978 to the widow or widower and sixty percent divided equally to the children; and (4) two years' compensation benefits in one lump sum shall be payable to a widow or widower upon remarriage; however, the total benefits shall not exceed the maximum compensation benefit as provided in Subsection B of this section; D. if there is neither widow, widower nor children, compensation may be paid to the father and mother or the survivor of them, if dependent to any extent upon the worker for support at the time of the worker's death, twenty-five percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to such dependents exceed the amounts contributed by the deceased worker for their care; provided that if the father and mother, or the survivor of them, was totally dependent upon such worker for support at the time of the worker's death, they shall be entitled to fifty percent of the average weekly wage of the deceased; E. if there is neither widow, widower nor children nor dependent parent, then to the brothers and sisters and grandchildren if actually dependent to any extent upon the deceased worker for support at the time of the worker's death, thirty-five percent of the average weekly wage of the deceased worker with fifteen percent additional for brothers and sisters and grandchildren in excess of two, with a maximum of sixty-six and two-thirds percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to partial dependents exceed the respective amounts contributed by the deceased worker for their care; F. in the event of the death or remarriage of the widow or widower entitled to compensation benefits as provided in this section, the surviving children shall then be entitled to compensation benefits computed and paid as provided in Paragraph (1) of Subsection C of this section for the remainder of the compensable period. In the event compensation benefits payable to children as provided in this section are terminated as provided in Subsection E of Section 52-1-17 NMSA 1978, a surviving widow or widower shall then be entitled to compensation benefits computed and paid as provided in Paragraphs (2) and (4) of Subsection C of this section for the remainder of the compensable period; and G. no compensation benefits payable by reason of a worker's death shall exceed the maximum weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978, and no dependent or any class thereof, other than a widow, widower or children, shall in any event be paid total benefits in excess of seven thousand five hundred dollars ($7,500) exclusive of funeral expenses and the expenses provided for medical and hospital services for the deceased paid for by the employer. 1953 Comp., § 59-10-18.7, enacted by Laws 1959, ch. 67, § 25; 1963, ch. 269, § 5; 1965, ch. 252, § 3; 1967, ch. 151, § 5; 1969, ch. 173, § 3; 1972, ch. 65, § 2; 1973, ch. 240, § 7; 1975, ch. 284, § 11; 1977, ch. 275, § 2; 1986, ch. 22, § 15; 1987, ch. 235, § 19; 1999, ch. 172, § 2; 2013, ch. 134, § 3.

NMSA 1978, § 52-1-47 Limitations on compensation benefits

52-1-47. Limitations on compensation benefits 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. 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.

NMSA 1978, § 52-1-47.1 Compensation benefits limit

52-1-47.1. Compensation benefits limit 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. Laws 1990 (2nd S.S.), ch. 2, § 30.

NMSA 1978, § 52-1-48 Additional limitation on benefits

52-1-48. Additional limitation on benefits The benefits that the worker shall receive during the entire period of disability and the benefits for death shall be based on and limited to the benefits in effect on the date of the accidental injury resulting in the disability or death. 1953 Comp., § 59-10-18.9, enacted by Laws 1975, ch. 284, § 13; 1989, ch. 263, § 28.

NMSA 1978, § 52-1-49 Medical and related benefits; selection of health care provider; artificial members

52-1-49. Medical and related benefits; selection of health care provider; artificial members A. After an injury to a worker and subject to the requirements of the Workers' Compensation Act, and continuing as long as medical or related treatment is reasonably necessary, the employer shall, subject to the provisions of this section, provide the worker in a timely manner reasonable and necessary health care services from a health care provider. B. The employer shall initially either select the health care provider for the injured worker or permit the injured worker to make the selection. Subject to the provisions of this section, that selection shall be in effect during the first sixty days from the date the worker receives treatment from the initially selected health care provider. C. After the expiration of the initial sixty-day period set forth in Subsection B of this section, the party who did not make the initial selection may select a health care provider of his choice. Unless the worker and employer otherwise agree, the party seeking such a change shall file a notice of the name and address of his choice of health care provider with the other party at least ten days before treatment from that health care provider begins. The director shall adopt rules and regulations governing forms, which employers shall post in conspicuous places, to enable this notice to be promptly and efficiently provided. This notice may be filed on or after the fiftieth day of the sixty-day period set forth in Subsection B of this section. D. If a party objects to the choice of health care provider made pursuant to Subsection C of this section, then he shall file an objection to that choice pursuant to Subsection E of this section with a workers' compensation judge within three days from receiving the notice. He shall also provide notice of that objection to the other party. If the employer does not file his objection within the three-day period, then he shall be liable for the cost of treatment provided by the worker's health care provider until the employer does file his objection and the workers' compensation judge has rendered his decision as set forth in Subsection F of this section. If the worker does not file his objection within the three-day period, then the employer shall only be liable for the cost of treatment from the health care provider selected by the employer, subject to the provisions of Subsections E, F and G of this section. Nothing in this section shall remove the employer's obligation to provide reasonable and necessary health care services to the worker so long as the worker complies with the provisions of this section. E. If the worker or employer disagrees with the choice of the health care provider of the other party at any time, including the initial sixty-day period, and they cannot otherwise agree, then he shall submit a request for a change of health care provider to a workers' compensation judge. The director shall adopt rules and regulations governing forms, which employers shall post in conspicuous places, to submit to a workers' compensation judge a request for change of a health care provider. F. The request shall state the reasons for the request and may state the applicant's choice for a different health care provider. The applicant shall bear the burden of proving to the workers' compensation judge that the care being received is not reasonable. The workers' compensation judge shall render his decision within seven days from the date the request was submitted. If the workers' compensation judge grants the request, he shall designate either the applicant's choice of health care provider or a different health care provider. G. If the worker continues to receive treatment or services from a health care provider rejected by the employer and not in compliance with the workers' compensation judge's ruling, then the employer is not required to pay for any of the additional treatment or services provided to that worker by that health care provider. H. In all cases where the injury is such as to permit the use of artificial members, including teeth and eyes, the employer shall pay for the artificial members. 1953 Comp., § 59-10-19.1, enacted by Laws 1959, ch. 67, § 27; 1963, ch. 269, § 3; 1965, ch. 252, § 4; 1971, ch. 261, § 5; 1973, ch. 240, § 9; 1977, ch. 275, § 3; 1987, ch. 235, § 21; 1990 (2nd S.S.), ch. 2, § 20.

NMSA 1978, § 52-1-50.1 Rehiring of injured workers

52-1-50.1. Rehiring of injured workers A. If an employer is hiring, the employer shall offer to rehire the employer's worker who has stopped working due to an injury for which the worker has received, or is due to receive, benefits under the Workers' Compensation Act and who applies for his pre-injury job or modified job similar to the pre-injury job, subject to the following conditions: (1) the worker's treating health care provider certifies that the worker is fit to carry out the pre-injury job or modified work similar to the pre-injury job without significant risk of reinjury; and (2) the employer has the pre-injury job or modified work available. B. If an employer is hiring, that employer shall offer to rehire a worker who applies for any job that pays less than the pre-injury job and who has stopped working due to an injury for which he has received, or is due, benefits under the Workers' Compensation Act, provided that the worker is qualified for the job and provided that the worker's treating health care provider certifies that the worker is fit to carry out the job offered. Compensation benefits of a worker rehired prior to maximum medical improvement and pursuant to this subsection shall be reduced as provided in Section 52-1-25.1 NMSA 1978. C. As used in this section, "rehire" includes putting the injured worker back to active work, regardless of whether he was carried on the employer's payroll during the period of his inability to work. D. The exclusive remedy for a violation of the section shall be a fine as specified in Section 52-1-61 NMSA 1978. 1978 Comp., § 52-1-50.1, enacted by Laws 1990 (2nd S.S.), ch. 2, § 21.

NMSA 1978, § 52-1-51 Physical examinations of worker; independent medical examination; unsanitary or injurious practices by worker; testimony of health care providers

52-1-51. Physical examinations of worker; independent medical examination; unsanitary or injurious practices by worker; testimony of health care providers A. In the event of a dispute between the parties concerning the reasonableness or necessity of medical or surgical treatment, the date upon which maximum medical improvement was reached, the correct impairment rating for the worker, the cause of an injury or any other medical issue, if the parties cannot agree upon the use of a specific independent medical examiner, either party may petition a workers' compensation judge for permission to have the worker undergo an independent medical examination. If a workers' compensation judge believes that an independent medical examination will assist the judge with the proper determination of any issue in the case, including the cause of the injury, the workers' compensation judge may order an independent medical examination upon the judge's own motion. The independent medical examination shall be performed immediately, pursuant to procedures adopted by the director, by a health care provider other than the designated health care provider, unless the employer and the worker otherwise agree. B. In deciding who may conduct the independent medical examination, the workers' compensation judge shall not designate the health care provider initially chosen by the petitioner. The workers' compensation judge shall designate a health care provider on the approved list of persons authorized by the committee appointed by the advisory council on workers' compensation to create that list. The decision of the workers' compensation judge shall be final. The employer shall pay for any independent medical examination. C. Only a health care provider who has treated the worker pursuant to Section 52-1-49 NMSA 1978 or the health care provider providing the independent medical examination pursuant to this section may offer testimony at any workers' compensation hearing concerning the particular injury in question. D. If, pursuant to Subsection C of Section 52-1-49 NMSA 1978, either party selects a new health care provider, the other party shall be entitled to periodic examinations of the worker by the health care provider the other party previously selected. Examinations may not be required more frequently than at six-month intervals; except that upon application to the workers' compensation judge having jurisdiction of the claim and after reasonable cause therefor, examinations within six-month intervals may be ordered. In considering such applications, the workers' compensation judge shall exercise care to prevent harassment of the claimant. E. If an independent medical examination or an examination pursuant to Subsection D of this section is requested, the worker shall travel to the place at which the examination shall be conducted. Within thirty days after the examination, the worker shall be compensated by the employer for all necessary and reasonable expenses incidental to submitting to the examination, including the cost of travel, meals, lodging, loss of pay or other like direct expense, but the amount to be compensated for meals and lodging shall not exceed that allowed for nonsalaried public officers under the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978]. F. No attorney shall be present at any examination authorized under this section. G. Both the employer and the worker shall be given a copy of the report of the examination of the worker made by the independent health care provider pursuant to this section. H. If a worker fails or refuses to submit to examination in accordance with this section, the worker shall forfeit all workers' compensation benefits that would accrue or become due to the worker except for that failure or refusal to submit to examination during the period that the worker persists in such failure and refusal unless the worker is by reason of disability unable to appear for examination. I. If any worker persists in any unsanitary or injurious practice that tends to imperil, retard or impair the worker's recovery or increase the worker's disability or refuses to submit to such medical or surgical treatment as is reasonably essential to promote the worker's recovery, the workers' compensation judge may in the judge's discretion reduce or suspend the workers' compensation benefits. Laws 1929, ch. 113, § 19; C.S. 1929, § 156-119; 1941 Comp., § 57-920; Laws 1947, ch. 109, § 1; 1953 Comp., § 59-10-20; Laws 1986, ch. 22, § 17; 1987, ch. 235, § 23; 1989, ch. 263, § 30; 1990 (2nd S.S.), ch. 2, § 22; 2005, ch. 150, § 1; 2013, ch. 134, § 4.

NMSA 1978, § 52-1-52 Exemption from creditors

52-1-52. Exemption from creditors A. Compensation benefits shall be exempt from claims of creditors and from any attachment, garnishment or execution and shall be paid only to such worker or his personal representative or such other persons as the court may, under the terms hereof, appoint to receive or collect compensation benefits. B. Notwithstanding the provisions of Subsection A of this section, compensation benefits being paid or owing to a worker shall be considered wages for the purpose of securing support for a minor dependent. No order may be entered against such benefits which results in the worker retaining less than one hundred dollars ($100) a week or an amount each week equal to forty times the federal minimum wage rate if legally required to support minor dependents other than those for whom the action is brought. Laws 1929, ch. 113, § 20; C.S. 1929, § 156-120; 1941 Comp., § 57-921; 1953 Comp., § 59-10-21; Laws 1983, ch. 78, § 1; 1984, ch. 95, § 1; 1989, ch. 263, § 31.

NMSA 1978, § 52-1-53 [Accident prevention laws not affected.]

52-1-53. [Accident prevention laws not affected.] Nothing in this act [Chapter 52, Article 1 NMSA 1978] contained shall repeal any existing law providing for the installation or maintenance of any device, means or method for the prevention of accidents in any occupational pursuit. Laws 1929, ch. 113, § 21; C.S. 1929, § 156-121; 1941 Comp., § 57-922; 1953 Comp., § 59-10-22.

NMSA 1978, § 52-1-54 Fee restrictions; appointment of attorneys by the director or workers' compensation judge; discovery costs; offer of judgment; penalty for violations

52-1-54. Fee restrictions; appointment of attorneys by the director or workers' compensation judge; discovery costs; offer of judgment; penalty for violations A. It is unlawful for any person to receive or agree to receive any fees or payment directly or indirectly in connection with any claim for compensation under the Workers' Compensation Act except as provided in this section. B. In all cases where the jurisdiction of the workers' compensation administration is invoked to approve a settlement of a compensation claim under the Workers' Compensation Act, the director or workers' compensation judge, unless the claimant is represented by an attorney, may in the director's or judge's discretion appoint an attorney to aid the workers' compensation judge in determining whether the settlement should be approved and, in the event of an appointment, a reasonable fee for the services of the attorney shall be fixed by the workers' compensation judge, subject to the limitation of Subsection I of this section. C. In all cases where the jurisdiction of the workers' compensation administration is invoked to approve a settlement of a compensation claim under the Workers' Compensation Act and the claimant is represented by an attorney, the total amount paid or to be paid by the employer in settlement of the claim shall be stated in the settlement papers. The workers' compensation judge shall determine and fix a reasonable fee for the claimant's attorney, taking into account any sum previously paid, and the fee fixed by the workers' compensation judge shall be the limit of the fee received or to be received by the attorney in connection with the claim, subject to the limitation of Subsection I of this section. D. The cost of discovery shall be borne by the party who requests it. If, however, the claimant requests any discovery, the employer shall advance the cost of paying for discovery up to a limit of three thousand five hundred dollars ($3,500). Beginning January 1, 2027, the limit shall be four thousand dollars ($4,000), and beginning January 1, 2029, the limit shall increase to four thousand five hundred dollars ($4,500). If the claimant substantially prevails on the claim, as determined by a workers' compensation judge, any discovery cost advanced by the employer shall be paid by that employer. If the claimant does not substantially prevail on the claim, as determined by a workers' compensation judge, the employer shall be reimbursed for discovery costs advanced according to a schedule for reimbursement approved by a workers' compensation judge. E. In all cases where compensation to which any person is entitled under the provisions of the Workers' Compensation Act is refused and the claimant thereafter collects compensation through proceedings before the workers' compensation administration or courts in an amount in excess of the amount offered in writing by an employer five business days or more prior to the informal hearing before the administration, the compensation to be paid the attorney for the claimant shall be fixed by the workers' compensation judge hearing the claim or the courts upon appeal in the amount the workers' compensation judge or courts deem reasonable and proper, subject to the limitation of Subsection I of this section. In determining and fixing a reasonable fee, the workers' compensation judge or courts shall take into consideration: (1) the sum, if any, offered by the employer: (a) before the worker's attorney was employed; (b) after the attorney's employment but before proceedings were commenced; and (c) in writing five business days or more prior to the informal hearing; (2) the present value of the award made in the worker's favor; and (3) any failure of a party to participate in a good-faith manner in informal claim resolution methods adopted by the director. F. After a recommended resolution has been issued and rejected, but more than ten days before a trial begins, the employer or claimant may serve upon the opposing party an offer to allow a compensation order to be taken against the employer or claimant for the money or property or to the effect specified in the offer, with costs then accrued, subject to the following: (1) if, within ten days after the service of the offer, the opposing party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof, and thereupon that compensation order may be entered as the workers' compensation judge may direct. An offer not accepted shall be deemed withdrawn, and evidence thereof is not admissible except in a proceeding to determine costs. If the compensation order finally obtained by the party is not more favorable than the offer, that party shall pay the costs incurred by the opposing party after the making of the offer. The fact that an offer has been made but not accepted does not preclude a subsequent offer; (2) when the liability of one party to another has been determined by a compensation order, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than ten days prior to the commencement of hearings to determine the amount or extent of liability; (3) if the employer's offer was greater than the amount awarded by the compensation order, the employer shall not be liable for the employer's fifty percent share of the attorney fees to be paid the worker's attorney and the worker shall pay one hundred percent of the attorney fees due to the worker's attorney; and (4) if the worker's offer was less than the amount awarded by the compensation order, the employer shall pay one hundred percent of the attorney fees to be paid the worker's attorney, and the worker shall be relieved from any responsibility for paying any portion of the worker's attorney fees. G. In all actions arising under the provisions of Section 52-1-56 NMSA 1978 where the jurisdiction of the workers' compensation administration is invoked to determine the question whether the claimant's disability has increased or diminished and the claimant is represented by an attorney, the workers' compensation judge or courts upon appeal shall determine and fix a reasonable fee for the services of the claimant's attorney only if the claimant is successful in establishing that the claimant's disability has increased or if the employer is unsuccessful in establishing that the claimant's disability has diminished. The fee when fixed by the workers' compensation judge or courts upon appeal shall be the limit of the fee received or to be received by the attorney for services in the action, subject to the limitation of Subsection I of this section. H. In determining reasonable attorney fees for a claimant, the workers' compensation judge shall consider only those benefits to the worker that the attorney is responsible for securing. The value of future medical benefits shall not be considered in determining attorney fees. I. Attorney fees, including, but not limited to, the costs of paralegal services, legal clerk services and any other related legal services costs on behalf of a claimant or an employer for a single accidental injury claim, including representation before the workers' compensation administration and the courts on appeal, shall not exceed thirty thousand dollars ($30,000) in calendar year 2025. Beginning January 1, 2027, the maximum allowable attorney fees shall be thirty-two thousand dollars ($32,000), and beginning January 1, 2029, the maximum allowable attorney fees shall increase to thirty-four thousand dollars ($34,000). This limitation applies whether the claimant or employer has one or more attorneys representing the claimant or employer and applies as a cumulative limitation on compensation for all legal services rendered in all proceedings and other matters directly related to a single accidental injury to a claimant. The workers' compensation judge may exceed the maximum amount stated in this subsection in awarding a reasonable attorney fee if the judge finds that a claimant, an insurer or an employer acted in bad faith with regard to handling the injured worker's claim and the injured worker or employer has suffered economic loss as a result. However, in no case shall this additional amount exceed five thousand dollars ($5,000). As used in this subsection, "bad faith" means conduct by the claimant, insurer or employer in the handling of a claim that amounts to fraud, malice, oppression or willful, wanton or reckless disregard of the rights of the worker or employer. Any determination of bad faith shall be made by the workers' compensation judge through a separate fact-finding proceeding. Notwithstanding the provisions of Subsection J of this section, the party found to have acted in bad faith shall pay one hundred percent of the additional fees awarded for representation of the prevailing party in a bad faith action. J. Except as provided in Paragraphs (3) and (4) of Subsection F of this section, the payment of a claimant's attorney fees determined under this section shall be shared equally by the worker and the employer. K. It is unlawful for any person except a licensed attorney to receive or agree to receive any fee or payment for legal services in connection with any claim for compensation under the Workers' Compensation Act. L. Nothing in this section applies to agents, excluding attorneys, representing employers, insurance carriers or the subsequent injury fund in any matter arising from a claim under the Workers' Compensation Act. M. No attorney fees shall be paid until the claim has been settled or adjudged. N. By May 1, 2029, the advisory council on workers' compensation and occupational disease disablement shall review the maximum allowable attorney fees and the limitation on discovery costs that employers are required to advance. By November 1, 2029, the advisory council on workers' compensation and occupational disease disablement shall make recommendations to the legislature on any necessary adjustments to the maximum allowable attorney fees or the limitation on discovery costs that employers are required to advance. O. Every person violating the provisions of this section is guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50.00) or more than five hundred dollars ($500), to which may be added imprisonment in the county jail for a term not exceeding ninety days. P. Nothing in this section shall restrict a claimant from being represented before the workers' compensation administration by a nonattorney as long as that nonattorney receives no compensation for that representation from the claimant. 1978 Comp., § 52-1-54, enacted by Laws 1987, ch. 235, § 24; 1989, ch. 263, § 32; 1990 (2nd S.S.), ch. 2, § 23; 1993, ch. 193, § 5; 2003, ch. 265, § 3; 2013, ch. 168, § 1; 2025, ch. 18, § 1.

NMSA 1978, § 52-1-55 Physical examinations; statements regarding dependents; pre-employment physical condition statements

52-1-55. Physical examinations; statements regarding dependents; pre-employment physical condition statements A. It is the duty of the worker at the time of the worker's employment or thereafter at the request of the employer to submit to examination by a physician or surgeon duly authorized to practice medicine in the state, or by a physician assistant, advanced practice registered nurse or certified nurse-midwife working within that person's scope of practice, who shall be paid by the employer, for the purpose of determining the worker's physical condition. B. It is also the duty of the worker, if required, to give the names, addresses, relationship and degree of dependency of the worker's dependents, if any, or any subsequent change thereof to the employer, and when the employer or the employer's insurance carrier requires, the worker shall make a detailed verified statement relating to such dependents, matters of employment and other information incident thereto. C. It is also the duty of the worker, if requested by the employer or the employer's insurance carrier, to make a detailed verified statement as part of an application for employment disclosing specifically any preexisting permanent physical impairment. Laws 1929, ch. 113, § 23; C.S. 1929, § 156-123; 1941 Comp., § 57-924; 1953 Comp., § 59-10-24; 1987, ch. 235, § 25; 2015, ch. 116, § 14.

NMSA 1978, § 52-1-56 Diminution; termination or increase of compensation

52-1-56. Diminution; termination or increase of compensation 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. 1978 Comp., § 52-1-56, enacted by Laws 1987, ch. 235, § 26; 1989, ch. 263, § 33.

NMSA 1978, § 52-1-58 Reports to be filed with director

52-1-58. Reports to be filed with director A. It is the duty of every employer of labor in this state subject to the provisions of the Workers' Compensation Act or the employer's workers' compensation insurance carrier to make a written report to the director of all accidental injuries or occupational diseases that occur to any of his employees during the course of their employment and that result in lost time of an employee of more than seven days. A copy of the report shall be sent by the employer to the worker. Such reports shall be made within ten days after such accidental injury or ten days after notification to the employer of employee disability, upon forms approved by the director and shall contain such information concerning the accident or injury as may be required by the director. B. Upon request of the director, it is also the duty of every workers' compensation self-insurer and insurance carrier to file with the director closing reports upon the closing of a claim on forms approved by the director. Annual reports will be required on a form approved by the director. Laws 1937, ch. 92, § 14; 1941 Comp., § 57-927; 1953 Comp., § 59-10-27; Laws 1986, ch. 22, § 20; 1987, ch. 235, § 27; 1989, ch. 263, § 34; 1990 (2nd S.S.), ch. 2, § 24.

NMSA 1978, § 52-1-59 Effect of failure to file report

52-1-59. Effect of failure to file report No claim for compensation under the Workers' Compensation Act, as it now provides or as it may hereafter be amended, shall be barred prior to the filing of such report or within thirty days thereafter, but this section does not shorten the time now provided for filing claims with the director. Laws 1937, ch. 92, § 15; 1941 Comp., § 57-928; 1953 Comp., § 59-10-28; Laws 1986, ch. 22, § 21; 1989, ch. 263, § 35.

NMSA 1978, § 52-1-60 Notice to director of date of payment

52-1-60. Notice to director of date of payment A. Every employer's workers' compensation insurance carrier shall notify the director of the date on which the initial payment of any claim for benefits has been made within ten days of such payment. B. The director shall provide on a quarterly basis to the child support enforcement division of the human services department [health care authority department] the name, social security number, home address and employer of all injured workers reported. C. A court order filed by the child support enforcement division of the human services department [health care authority department] in the claim of the workers' compensation administration stating that the claimant owes past due or ongoing support shall constitute a notice that lump sum and partial-lump sum payment of benefits to a claimant are barred contingent on satisfaction of the child support arrearage. No order approving a lump sum or partial-lump sum payment to a claimant pursuant to Section 52-5-12 NMSA 1978 shall be executed or entered until: (1) the arrearage has been satisfied; (2) provision has been made in the order for lump sum or partial-lump sum settlement for direct payment of sufficient funds to the child support enforcement division to satisfy the arrearage; or (3) the workers' compensation judge makes a specific written finding of extreme hardship to the worker excusing the satisfaction of the arrearages from those funds. Laws 1937, ch. 92, § 16; 1941 Comp., § 57-929; 1953 Comp., § 59-10-29; Laws 1983, ch. 78, § 2; 1986, ch. 22, § 22; 1989, ch. 263, § 36; 1990 (2nd S.S.), ch. 2, § 25; 1993, ch. 202, § 1.

NMSA 1978, § 52-1-61 Penalties

52-1-61. Penalties The director shall impose a penalty on any person who fails to file a report required by, or who violates any provision of, the Workers' Compensation Act or any rule or regulation adopted pursuant to that act. Unless specified otherwise in the Workers' Compensation Act, the penalty shall be a fine of not less than twenty-five dollars ($25.00) and not more than one thousand dollars ($1,000) for each occurrence, subject to the director's discretion. 1978 Comp., § 52-1-61, enacted by Laws 1990 (2nd S.S.), ch. 2, § 26.

NMSA 1978, § 52-1-62 Director to enforce Workers' Compensation Act

52-1-62. Director to enforce Workers' Compensation Act For the purpose of enforcing the Workers' Compensation Act, there are hereby conferred upon the director the following powers and duties: A. when any employer subject to the provisions of the Workers' Compensation Act fails to comply with Section 52-1-4 NMSA 1978 relating to the filing of an undertaking in the nature of insurance or security for the payment of benefits under the Workers' Compensation Act, the director is empowered to institute in his own name an action in the district court of Santa Fe county or the county where the employer resides or has his principal office or place of business to enjoin the employer from continuing his business operations until he has complied with the provisions of Section 52-1-4 NMSA 1978, and upon a showing of the facts above recited, the court shall grant such injunction. In any such action, the attorney general or district attorney for the judicial district where the action is brought shall represent the director; and B. for the purpose of ascertaining the correctness of any reported wage expenditure, the number of men employed and other information necessary in the administration of the Workers' Compensation Act, the director may, upon his own initiative or upon request of any interested party, hold hearings and subpoena all books, records and payrolls of any employer subject to the provisions of the Workers' Compensation Act which show or reflect in any way upon the amount of wage expenditures of such employer or other facts, data or statistics appertaining to the purposes of that act. Laws 1937, ch. 92, § 18; 1941 Comp., § 57-931; 1953 Comp., § 59-10-31; Laws 1986, ch. 22, § 24; 1989, ch. 263, § 38.

NMSA 1978, § 52-1-63 Educational institutions exempt

52-1-63. Educational institutions exempt Any educational institution in this state employing student labor in aid of students attending the institution by enabling students to defray their tuition and expenses and in which institution any class of machinery or appliances are [is] used for instruction or otherwise and which would subject the institution to the terms of the Workers' Compensation Act as engaging in a hazardous calling or business as defined by that act is hereby exempted from the terms and operations of the Workers' Compensation Act as to any liability accruing to any student so employed; provided, the terms of that act shall in no way relieve any institution from any liability for damages or injuries to any student which would otherwise be recoverable by law. Laws 1939, ch. 232, § 1; 1941 Comp., § 57-932; 1953 Comp., § 59-10-32; Laws 1989, ch. 263, § 39.

NMSA 1978, § 52-1-64 Extra-territorial coverage

52-1-64. Extra-territorial coverage If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee or, in the event of the employee's death, the employee's dependents would have been entitled to the benefits provided by the Workers' Compensation Act, had such injury occurred within this state, the employee or, in the event of the employee's death resulting from the injury, the employee's dependents shall be entitled to the benefits provided by that act; provided that at the time of the injury: A. the employee's employment is principally localized in this state; B. the employee is working under a contract of hire made in this state in employment not principally localized in any state; C. the employee is working under a contract of hire made in this state in employment principally localized in another state whose workers' compensation law is not applicable to the employee's employer; D. the employee is working under a contract of hire made in this state for employment outside the United States and Canada; or E. the employee is an unpaid health professional deployed outside this state by the department of health in response to a request for emergency health personnel made pursuant to the Emergency Management Assistance Compact [12-10-14, 12-10-15 NMSA 1978]. 1953 Comp., § 59-10-33.1, enacted by Laws 1975, ch. 241, § 1; 1989, ch. 263, § 40; 2007, ch. 328, § 2.

NMSA 1978, § 52-1-65 Credit for benefits furnished or paid under laws of other jurisdictions

52-1-65. Credit for benefits furnished or paid under laws of other jurisdictions The payment or award of benefits under the workers' compensation law of another state, territory, province or foreign nation to an employee or his dependents otherwise entitled on account of such injury or death to the benefits of the Workers' Compensation Act shall not be a bar to a claim for benefits under that act; provided that claim under that act is filed within one year after such injury or death. If compensation is paid or awarded under that act: A. the medical and related benefits furnished or paid for by the employer under such other workers' compensation law on account of such injury or death shall be credited against the medical and related benefits to which the employee would have been entitled under the Workers' Compensation Act had claim been made solely under that act; B. the total amount of all income benefits paid or awarded the employee under such other workers' compensation law shall be credited against the total amount of income benefits which would have been due the employee under the Workers' Compensation Act had claim been made solely under that act; and C. the total amount of death benefits paid or awarded under such other workers' compensation law shall be credited against the total amount of death benefits due under the Workers' Compensation Act. 1953 Comp., § 59-10-33.2, enacted by Laws 1975, ch. 241, § 2; 1989, ch. 263, § 41.

NMSA 1978, § 52-1-66 Nonresident employers employing workers in state; requirement for insurance; enforcement

52-1-66. Nonresident employers employing workers in state; requirement for insurance; enforcement A. Every employer not domiciled in the state who employs workers engaged in activities required to be licensed under the Construction Industries Licensing Act [Chapter 60, Article 13 NMSA 1978] and every other employer not domiciled in the state who employs three or more workers within the state, whether that employment is permanent, temporary or transitory and whether the workers are residents or nonresidents of the state, shall comply with the provisions of Section 52-1-4 NMSA 1978 and, unless self-insured, shall obtain a workers' compensation insurance policy, or an endorsement to an existing policy, issued in accordance with the provisions of Section 59A-17-10.1 NMSA 1978. An employer who does not comply with the foregoing requirement shall be enjoined from doing business in the state pursuant to Section 52-1-62 NMSA 1978 and shall be barred from recovery by legal action for labor or materials furnished during any period of time in which he was not in compliance with the requirements of this section, and, if the noncomplying employment is in an activity for which the employer is licensed under the provisions of the Construction Industries Licensing Act, the employer's license is subject to revocation or suspension for the violation. B. The construction industries division of the regulation and licensing department shall promulgate rules and regulations to insure compliance with Subsection A of this section. 1978 Comp., § 52-1-66, enacted by Laws 1988, ch. 119, § 1; 1990 (2nd S.S.), ch. 2, § 27; 2003, ch. 259, § 6.

NMSA 1978, § 52-1-67 Locale of employment; definitions

52-1-67. Locale of employment; definitions A. A person's employment is principally localized in this or another state when: (1) his employer has a place of business in this or such other state and he regularly works at or from such place of business; or (2) if Paragraph (1) of this subsection is not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state. B. An employee whose duties require him to travel regularly in the service of his employer in this and one or more other states may, by written agreement with his employer, provided [provide] that his employment is principally localized in this or another such state, and, unless such other state refuses jurisdiction, such agreement shall be given effect under the Workers' Compensation Act. C. As used in Sections 52-1-64 through 52-1-67 NMSA 1978: (1) "United States" includes only the states of the United States and the District of Columbia; (2) "state" includes any state of the United States, the District of Columbia or any province of Canada; and (3) "carrier" includes any insurance company licensed to write workers' compensation insurance in any state of the United States or any state or provincial fund which insures employers against their liabilities under a workers' compensation law. 1953 Comp., § 59-10-33.4, enacted by Laws 1975, ch. 241, § 4; 1989, ch. 263, § 42.

NMSA 1978, § 52-1-68 Reciprocal recognition of extra-territorial coverage with other jurisdictions

52-1-68. Reciprocal recognition of extra-territorial coverage with other jurisdictions For the purpose of effecting mutually satisfactory reciprocal arrangements with other states respecting extra-territorial jurisdictions, the director of workers' compensation division is empowered to promulgate special and general regulations not inconsistent with the provisions of the Workers' Compensation Act and, with the approval of the governor, to enter into reciprocal agreements with appropriate boards, commissions, officers or agencies of other states having jurisdiction over workers' compensation claims. 1953 Comp., § 59-10-33.6, enacted by Laws 1975, ch. 241, § 5; 1989, ch. 263, § 43.

NMSA 1978, § 52-1-70 Offset of unemployment compensation benefits

52-1-70. Offset of unemployment compensation benefits A. No total disability benefits shall be payable under the Workers' Compensation Act for any weeks in which the injured worker has received or is receiving unemployment compensation benefits, except as provided in this section. B. If a worker is entitled to receive unemployment compensation benefits and would otherwise be entitled to receive total disability benefits, the unemployment compensation benefits shall be primary and total disability benefits shall be supplemental only, and the sum of the two benefits shall not exceed the amount of total disability benefits that would otherwise be payable. 1978 Comp., § 52-1-70, enacted by Laws 1987, ch. 235, § 28.
Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18555/index.doFetched: 10/20/2026

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