A. The compensation to which a worker who has suffered disablement, or the worker's dependents, shall be entitled under the New Mexico Occupational Disease Disablement Law is limited to the provisions of that law. No compensation shall be due or payable under the New Mexico Occupational Disease Disablement Law for any disablement that does not result in either the temporary disablement of the worker lasting for more than seven days or in the worker's permanent disablement as herein described or in death; provided, however, that if the period of temporary disablement of the worker lasts for more than four weeks from the date of the disablement, compensation under the New Mexico Occupational Disease Disablement Law shall be payable in addition to the amount hereinafter stated in a like amount for the first seven days after the date of disablement. But for any such disablement for which compensation is payable under the New Mexico Occupational Disease Disablement Law, the employer shall in all proper cases, as herein provided, pay to the disabled worker or to some person authorized by the director to receive the same, for the use and benefit of the beneficiaries entitled thereto, compensation at regular intervals of no more than sixteen days apart, in accordance with this section, less proper deductions on account of default in failure to give notice of such disablement as required in Section 52-3-19 NMSA 1978.

B. For total disablement, the worker shall receive sixty-six and two-thirds percent of the worker's average weekly wage, not to exceed a maximum compensation of eighty-five percent of the average weekly wage in the state, a week, effective July 1, 1987, continuing through December 31, 1999, and thereafter not to exceed a maximum of one hundred percent of the average weekly wage in the state, a week, but not to be less than a minimum compensation of thirty-six dollars ($36.00) a week, during the period of such disablement, but in no event to exceed a period of seven hundred weeks; provided, however, that when the workers' wages are less than thirty-six dollars ($36.00) a week, then the compensation to be paid such worker shall be the full amount of such weekly wages; provided further that the benefits paid or payable during a worker's entire period of disablement shall be based on and limited to the benefits in effect on the date of the occurrence of the disablement.

C. For partial disablement, the benefits shall be a percentage of the benefits payable for total disablement calculated under Subsection B of this section as that percentage is determined pursuant to the provisions of Section 52-3-4 NMSA 1978. In no event shall the duration of partial benefits extend longer than five hundred weeks.

D. In no event shall the duration of any combination of disablements, whether temporary or partial disablements, and death be payable for a period in excess of seven hundred weeks.

E. For the purpose of the New Mexico Occupational Disease Disablement Law, 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 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. The first such determination by the employment security division of the average weekly wage in the state shall be made on or before June 30, 1975 from reported wages and covered employees for the calendar year ending December 31, 1974.

F. The average weekly wage in the state, determined as provided in Subsection E of this section, shall be applicable for the full period during which compensation is payable when the date of the occurrence of the disablement falls within the calendar year commencing January 1 following the June 30 determination.

G. Unless the computation provided for in Subsection E 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.

H. In case death proximately results from the disablement within the period of two years, compensation benefits to be paid such worker shall be in the amounts and to the persons as follows:

1. (1) if there are no dependents, 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 such other sums as the deceased may have been paid for disablement; or

2. (2) if there are dependents at the time of death, the 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 may have been paid for disability, and a percentage specified in this paragraph for average weekly wages subject to the limitations of the New Mexico Occupational Disease Disablement Law to continue for the period of seven hundred weeks from the date of death of such worker; provided that the total death compensation, unless otherwise specified, payable in any of the cases mentioned in this section shall not be less than the minimum weekly compensation provided in Subsection B of this section or more than the maximum weekly compensation provided in Subsection B of this section and shall be based on and limited to the benefits in effect on the date of the occurrence of the disablement. If there are dependents entitled thereto, compensation shall be paid to the dependents or to the person authorized by the director or the court to receive the same for the benefit of the dependents in such portions and amounts as the director or the court, bearing in mind the necessities of the case and the best interests of the dependents and of the public, may determine, to be computed on the following basis and distributed to the following persons:

   1. (a) to the child or children, if there is no widow or widower entitled to compensation, sixty-six and two-thirds percent of the average weekly wage of the deceased;
   2. (b) to the widow or widower, if there are no children, sixty-six and two-thirds percent of the average weekly wage of the deceased, until remarriage;
   3. (c) to the widow or widower, if there is a child or children living with the widow or widower, forty-five percent of the compensation rate, as provided in Subsection B of this section, of the deceased, or forty percent, if such child is not or all such children are not living with a widow or widower, and in addition thereto, compensation benefits for the child or children, which shall make the total benefits for the widow or widower and child or children sixty-six and two-thirds percent of the average weekly wage of the deceased. When there are two or more children, the compensation benefits payable on account of such children shall be divided among such children, share and share alike;
   4. (d) 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 benefits as provided in Paragraph (2) of this subsection;
   5. (e) if there is neither widow, widower nor children, then 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; provided that if such 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, subject to the maximum weekly compensation provided for in Subsection B of this section;
   6. (f) no disablement benefits payable by reason of a worker's death shall exceed the maximum weekly compensation provided for in Subsection B of this section, and no dependent or any class thereof other than a widow or 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. If there is neither widow, widower nor children nor dependent parent, then to the brothers and sisters, if actually dependent to any extent upon the deceased for support at the time of the deceased's death, thirty-five percent of the average weekly wage of the deceased, with fifteen percent additional for brothers or sisters in excess of two, with a maximum of sixty-six and two-thirds percent to be paid to their guardian; provided that the maximum compensation to partial dependents shall not exceed the respective amounts therefor contributed by the deceased employee or the maximum weekly compensation provided for in Subsection B of this section; and
   7. (g) in the event of the death or remarriage of the widow or widower entitled to compensation under this subsection, the surviving children shall then be entitled to compensation computed and paid as in Subparagraph (a) of this paragraph for the remainder of the compensable period, and in the event compensation benefits payable to children as provided in this section are terminated as provided in Paragraph (5) of Subsection A of Section 52-3-13 NMSA 1978, a surviving widow or widower shall then be entitled to compensation benefits computed and paid as provided in Subparagraphs (b) and (d) of this paragraph for the remainder of the compensable period.

History: 1941 Comp., § 57-1114, enacted by Laws 1945, ch. 135, § 14; 1949, ch. 113, § 1; 1951, ch. 184, § 1; 1953 Comp., § 59-11-14; Laws 1965, ch. 299, § 2; 1967, ch. 152, § 1; 1969, ch. 247, § 1; 1971, ch. 261, § 8; 1973, ch. 239, § 5; 1975, ch. 317, § 5; 1977, ch. 276, § 2; 1986, ch. 22, § 57; 1987, ch. 235, § 36; 1989, ch. 263, § 51; 1999, ch. 172, § 3; 2015, ch. 70, § 4.

ANNOTATIONS

The 2015 amendment, effective June 19, 2015, specified that the limitation on compensation benefits for any combination of disablements, whether temporary or partial disablements, and death is seven hundred weeks; references to "employee" were changed to "worker", references to "him" were changed to "worker", and references to "his" were changed to "the worker’s" throughout the section; in Subsection A, after the second occurrence of "disablement", deleted "which" and added "that", and after "in accordance with", deleted "the following" and added "this section"; in Subsection B, after "and thereafter", added "not to exceed", and after "however, that", deleted "where his" and added "when the worker’s"; in Subsection C, after "duration of", added "partial"; added Subsection D and redesignated the succeeding subsections accordingly; in Subsection E, after "determined by the", deleted "employment security division of the labor" and added "workforce solutions", after "wages reported to the", deleted "employment security division" and added "department", after "in accordance with the", deleted "regulations" and added "rules", and after "of the", deleted "employment security division" and added "department"; in Subsection G, after "Subsection", changed "D" to "E"; in Paragraph (2)(c) of Subsection H, after "forty-five percent of the", deleted "average weekly wage" and added "compensation rate, as provided in Subsection B of this section"; in Paragraph (2)(e) of Subsection H, after "death", deleted "he or"; and in Paragraph (2)(f) of Subsection H, after "support at the time of", deleted "his" and added "the deceased’s".

The 1999 amendment, effective June 18, 1999, in Subsection B deleted Paragraphs (1) through (5), relating to the maximum compensation on certain effective dates, deleted the Paragraph (6) designation and substituted the language beginning "continuing through" and ending "but not" for "eighty-five percent of the average weekly wage in the state, effective July 1, 1987"; and in Subsection G substituted "seven thousand five hundred dollars ($7,500)" for "three thousand dollars ($3,000)" in Paragraphs (1) and (2) and made minor stylistic changes in Paragraph (2).

Liberal construction applies to law. — Liberal construction under the Workmen's (Workers') Compensation Act applies only to the law and not to the facts. Ojinaga v. Dressman, 1972-NMCA-017, 83 N.M. 508, 494 P.2d 170.

Release not bar to dependents' death claim. — A worker's dependents are entitled to an award of death benefits if death arises or proximately results from an occupational disease, notwithstanding what the worker received or was deemed entitled to receive during his lifetime; thus, surviving dependents were entitled to death benefits notwithstanding any release the worker may have executed in his lifetime. Buchanan v. Kerr-McGee Corp., 1995-NMCA-131, 121 N.M. 12, 908 P.2d 242, cert. denied, 120 N.M. 715, 905 P.2d 1119.