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:

1. 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;
2. 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;

3. 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. (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. (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. (3) if there is a widow or widower and children:

      1. (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
      2. (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. (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;
4. 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;
5. 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;
6. 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
7. 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.

History: 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.

ANNOTATIONS

Cross references. — For dependents, see 52-1-17 NMSA 1978.

For child, see 52-1-18 NMSA 1978.

The 2013 amendment, effective July 1, 2013, provided for payment of compensation if there is a widow or widower and children; and in Subparagraph C, deleted former Paragraph (3), which provided for payment of compensation to widows and widowers if there are or are not children living with the widow or widower; and added Paragraph (3).

The 1999 amendment, effective June 18, 1999, substituted "seven thousand five hundred dollars ($7,500)" for "three thousand dollars ($3,000)" in Subsections A and B.

Greater benefits for dependents not violative of equal protection. — This section setting greater benefits for dependent survivors of a deceased workman (worker) than for nondependent survivors is well within legislative prerogatives and is not violative of equal protection. Sanchez v. M.M. Sundt Constr. Co., 1985-NMCA-087, 103 N.M. 294, 706 P.2d 158.

This section and Section 52-1-31 NMSA 1978 must be read and applied together and do not provide two separate and unrelated methods by which dependents may obtain benefits on the basis of the death of a worker. Shaw v. Warner, 1984-NMCA-010, 101 N.M. 22, 677 P.2d 635, cert. denied, 101 N.M. 11, 677 P.2d 624.

Claim for increased disability benefits not abated by employee's death. — Where employee had sought an increase in disability benefits prior to death and was appealing an adverse summary judgment at time of his death, claim for increased compensation did not abate by reason of his death since Subsections A and B authorize payment, after death, of benefits that should have been paid prior to death. Holliday v. Talk of Town, Inc., 1985-NMCA-024, 102 N.M. 540, 697 P.2d 959.

Separate classes of dependents not unconstitutional. — Establishment of surviving parents as a separate class for purposes of awarding death benefits, apart from that of surviving spouses and dependent children, is not an unconstitutional distinction, nor violative of equal protection of the laws. Gallegos v. Homestake Mining Co., 1982-NMCA-052, 97 N.M. 717, 643 P.2d 281.

Surviving spouse and children coequal dependents. — Under the statutory scheme adopted in this section for distribution of death benefits to worker's survivors, the surviving spouse and children of the deceased worker are of the same coequal class of dependents eligible for death benefits. Employers Nat'l Ins. Co. v. Winters, 1984-NMCA-038, 101 N.M. 315, 681 P.2d 741.

Stepchildren and natural children treated equally. — Under this section, for purposes of awarding survivor's benefits, dependent minor stepchildren, whether adopted or not, and natural children are treated equally, and each is entitled to share alike. Schall v. Schall, 1982-NMCA-045, 97 N.M. 665, 642 P.2d 1124.

Legislative intent of 52-1-17 NMSA 1978 and this section is to give benefits only to those who are "eligible dependents" and not "heirs" as in the case of descent and distribution. Clauss v. Electronic City, 1979-NMCA-066, 93 N.M. 75, 596 P.2d 518.

Intent of legislature was to create at least two and possibly three classes: the class of dependent widow, widower or children, Subsection C; the class of dependent father and mother or the survivor thereof, Subsection D; and possibly the class of dependent brother and sister, Subsection E. Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388 P.2d 382.

Legislature's policy favoring periodic over lump sum payments in Subsection A of Section 52-5-12 NMSA 1978 also applies to compensation due a deceased worker's dependents under this section. Paradiso v. Tipps Equip., 2004-NMCA-009, 134 N.M. 814, 82 P.3d 985, cert. denied, 2004-NMCERT-001, 135 N.M. 160, 85 P.3d 802.

Legislative purpose in changing law. — The court does not see in this section any legislative purpose to make any fundamental or basic changes in the law as it existed, but rather an effort to make it more readable and understandable. This being true, it becomes clear that the provision for payment to a dependent mother in D is included within the language of C, providing for payment to several dependents in various classifications following, now numbered (1) to (6) and D, E and F, but previously being numbered (1) to (7). Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388 P.2d 382.

Beginning of two-year period. — The two-year time limit for bringing claims for death benefits begins to accrue from the date the worker knew or should have known that he suffered a compensable injury, rather than from the date of the accident. Gambrel v. Marriott Hotel, 1991-NMCA-100, 112 N.M. 668, 818 P.2d 869.

Claim for death benefits was timely. — Where worker sought and obtained an award of workers' compensation disability benefits after she contracted allergic bronchopulmonary aspergillosis (ABPA) as a result of exposure to aspergillus mold while employed with the Albuquerque public schools, and where worker died from pneumonia and chronic pneumonitis which was likely caused by the ABPA, the district court did not err in determining that claimant's claim for death benefits was within the two-year limitations period, because although worker's respiratory problems began shortly after her exposure to aspergillus mold in August of 2011 and died in November of 2014, the limitation period does not begin to run until the disability occurs and thereby entitles the worker to benefits under the act, even if the worker is aware that an injury was suffered earlier. Petitioner filed a claim for death benefits in January of 2015, less than two years after worker knew or should have known that she suffered a compensable injury. Lewis v. Albuquerque Public Schools, 2019-NMSC-022, aff'g in part and rev'g in part 2018-NMCA-049, 424 P.3d 643.

Expert testimony regarding the cause of death. — In a contested death benefits workers' compensation case, the parties can agree upon an independent medical examination (IME) examiner to perform an IME, the purpose of which is to determine the causal connection, if any, between the worker's injury and the worker's death, and the workers' compensation judge has the authority to order an IME for this purpose on the motion of a party or on its own motion. Lewis v. Albuquerque Public Schools, 2019-NMSC-022, aff'g in part and rev'g in part 2018-NMCA-049, 424 P.3d 643.

Two-year limitations period. — Where worker sought and obtained an award of workers’ compensation disability benefits after she contracted allergic bronchopulmonary aspergillosis (ABPA) as a result of exposure to aspergillus mold while employed with the Albuquerque public schools, and where worker died from pneumonia and chronic pneumonitis which was likely caused by the ABPA, the district court did not err in determining that claimant’s claim for death benefits was within the two-year limitations period, because worker knew or should have known that she had an injury and was entitled to compensation for that injury on April 1, 2013, which was within two years of worker’s death on November 12, 2014. Lewis v. Albuquerque Pub. Schs., 2018-NMCA-049, cert. granted.

Testimony about the cause of death. — Where worker sought and obtained an award of workers’ compensation disability benefits after she contracted allergic bronchopulmonary aspergillosis (ABPA) as a result of exposure to aspergillus mold while employed with the Albuquerque public schools, and where claimant, worker’s widower, sought workers’ compensation death benefits following worker’s death, the workers’ compensation judge (WCJ) erred in determining that 52-1-51(C) NMSA 1978 barred admission and consideration of cancer treatment records and the testimony of worker’s oncologist in determining the cause of worker’s death, because 52-1-51(C) NMSA 1978 does not apply to a WCJ’s cause of death determination pursuant to 52-1-46 NMSA 1978, and therefore does not limit expert testimony regarding the circumstances and cause of a worker’s death in connection with a claim for death benefits. Lewis v. Albuquerque Pub. Schs., 2018-NMCA-049, cert. granted.

Amount of death benefits. — Where worker sought and obtained an award of workers’ compensation disability benefits after she contracted allergic bronchopulmonary aspergillosis (ABPA) as a result of exposure to aspergillus mold while employed with the Albuquerque public schools, and where claimant, worker’s widower, sought workers’ compensation death benefits following worker’s death, the workers’ compensation judge (WCJ) erred in determining that the amount of death benefits should equal the amount of worker’s permanent partial disability benefits. Section 52-1-46(C)(2) NMSA 1978 provides without qualification for a weekly death benefit to a widow or widower in the amount of sixty-six and two-thirds percent of the worker’s average weekly wage. Lewis v. Albuquerque Pub. Schs., 2018-NMCA-049, cert. granted.

Act contains no exception tolling limitation by reason of minority or incompetency. The court, on numerous occasions, has held that the limitation for the filing of a workmen's (workers') compensation claim is jurisdictional and that failure to file the same within the statutory period requires a dismissal of the action. Selgado v. N.M. State Hwy. Dep't, 1960-NMSC-010, 66 N.M. 369, 348 P.2d 487.

Dependent compensation only where workman (worker) entitled. — Considering the Workmen's (Workers') Compensation Act as a whole, it was not intended that there should be compensation to dependents who were not able to make out a case which would have entitled the workman (worker) to compensation if death had not ensued. The basis of every claim, whether by the workman (worker) or by his dependent, is an injury for which public policy, as declared by the section casts responsibility upon the employer or upon the industry. Sanchez v. Bernalillo Cnty., 1953-NMSC-038, 57 N.M. 217, 257 P.2d 909 (decided under former law).

Partial dependency where employee contributed to support and claimant relied thereon. — Actual partial dependency may exist even if the evidence shows that the claimant could have existed without the contributions of the deceased employee. It depends upon whether the deceased employee had actually contributed to claimant's support and whether he relied upon such earnings in whole or in part for his livelihood. Ferris v. Thomas Drilling Co., 1957-NMSC-029, 62 N.M. 283, 309 P.2d 225 (decided under former law).

Existence of actual partial dependency is a question of fact to be proved by the evidence. Ferris v. Thomas Drilling Co., 1957-NMSC-029, 62 N.M. 283, 309 P.2d 225 (decided under former law).

Whether partial dependency under Subsection D exists is a question of fact to be decided in each case and to be proven under the evidence. Gallegos v. Homestake Mining Co., 1982-NMCA-052, 97 N.M. 717, 643 P.2d 281.

Dependency, under the Act, is a question of fact to be decided in each case upon the particular facts of that case. Lopez v. Schultz & Lindsay Constr. Co., 1968-NMCA-064, 79 N.M. 485, 444 P.2d 996, cert. denied, 79 N.M. 448, 444 P.2d 775.

Determination of dependency turns upon whether the deceased workman (worker) had actually contributed to his parents' support and whether his parents relied upon such contributions in whole or in part for their livelihood. Gallegos v. Homestake Mining Co., 1982-NMCA-052, 97 N.M. 717, 643 P.2d 281.

Payments to several dependents in portions and amounts. — It is clear from the language used in this section that payments are to be made to several dependents in "portions and amounts" as should be determined by the court, with consideration being given to "the necessities of the case and the best interests of the dependents and of the public." Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388 P.2d 382.

Payments to dependent minor daughter do not foreclose right of dependent mother, so long as the total payments do not exceed the maximum provided in the section. Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388 P.2d 382.

Evidence to support finding of not dependent. — If there is substantial support in the evidence for the finding that plaintiffs were not dependent to any extent upon the decedent within the meaning, purpose and intent of the Workmen's (Workers') Compensation Act, then plaintiffs must fail on appeal. Lopez v. Schultz & Lindsay Constr. Co., 1968-NMCA-064, 79 N.M. 485, 444 P.2d 996, cert. denied, 79 N.M. 448, 444 P.2d 775.

Where employee died from causes other than injury, the dependents of a deceased workman (worker) may not recover that portion of a compensation award which was payable after the death of the workman (worker). Cranford v. Farnsworth & Chambers Co., 261 F.2d 8 (10th Cir. 1958) (decided under former law).

Sections provide for continuing jurisdiction over award. — Both this section and Section 52-1-56 NMSA 1978 provide for a continuing jurisdiction of the court over a compensation award. Clauss v. Elec. City, 1979-NMCA-066, 93 N.M. 75, 596 P.2d 518.

Subsection F provision for continued payment of compensation benefits to surviving eligible children of a deceased workman (worker) is subject to the entitlement of a surviving spouse on remarriage to the payment of lump sum benefits provided in Subdivision C(4). Employers Nat'l Ins. Co. v. Winters, 1984-NMCA-038, 101 N.M. 315, 681 P.2d 741.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 65, 251, 252, 591, 707.

Competency of witness in wrongful death action as affected by dead man statute, 77 A.L.R.2d 680.

When time period commences as to claim under workers' compensation or occupational diseases act for death of worker due to contraction of disease, 100 A.L.R.5th 567.

99 C.J.S. Workmen's Compensation §§ 321 to 329.