N.M. Stat. § 52-1-26 (2026)

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.

History: 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.

                                     ANNOTATIONS

Repeals and reenactments. — Laws 1987, ch. 235, § 12 repealed former 52-1-26
NMSA 1978, relating to temporary total disability and enacted a new 52-1-26 NMSA,
effective June 19, 1987. For present comparable provisions, see 52-1-25 NMSA 1978.
Compiler's notes. — Laws 1987, ch. 235, § 54A, effective June 19, 1987, repealed
Laws 1986, ch. 22, § 105 which had formerly repealed this section effective July 1,
1987.

The 2017 amendment, effective June 16, 2017, clarified the determination of an injured
worker’s permanent partial disability rating, provided the workers’ compensation judge
with the authority to impose certain fines and with the responsibility of settling certain
disputes between the parties regarding return to work; in Subsection C, after "modified
by", deleted "his" and added "the worker’s"; in Subsection D, deleted "If", after
"maximum medical improvement", deleted "an injured worker returns to work at a wage
equal to or greater than the worker’s pre-injury wage", and after "NMSA 1978", added
"if"; added Paragraphs F(1) through F(4); added a new Subsection E and redesignated
former Subsection E as Subsection F; and added Subsection G.

The 1990 (2nd S.S.) amendment, effective January 1, 1991, added "permanent" in the
catchline and in Subsection B; deleted "and is unable to some percentage extent to
perform any work for which he is fitted by age, education, and training" following
"impairment" in Subsection B; rewrote Subsection C; and added Subsections D and E.

                          I.     GENERAL CONSIDERATION.

Status as undocumented worker as a defense to payment of modifier benefits. —
Employers who cannot demonstrate good faith compliance with federal law in the hiring
process cannot use their workers’ undocumented status as a defense to continued
payment of modifier benefits under the Workers’ Compensation Act. Gonzalez v.
Performance Painting, Inc., 2013-NMSC-021, rev’g 2011-NMCA-025, 150 N.M. 306,
258 P.3d 1098.

Status as undocumented worker was not a defense to payment of modifier
benefits. — Where, when worker, who was an undocumented immigrant, was initially
hired by employer as a painter’s helper, employer failed to follow appropriate hiring
procedures as required by federal law, and failed to fill out an I-9 form and keep it on file
for the requisite time; worker was permanently partially disabled when worker fell off a
ladder; employer offered worker a job with modified duty that took into account worker’s
injury-related restrictions; and worker was unable to complete a new job application,
which included verification of worker’s eligibility for employment, because worker could
not produce a social security card, employer could not use worker’s undocumented
status as a defense to continued payment of modifier benefits. Gonzalez v.
Performance Painting, Inc., 2013-NMSC-021, rev’g 2011-NMCA-025, 150 N.M. 306,
258 P.3d 1098.

Application to undocumented, illegal immigrants. — Subsections C and D of
Section 52-1-26 NMSA 1978 do not apply to cases involving workers with
undocumented, illegal immigration status. Gonzalez v. Performance Painting, Inc.,
2011-NMCA-025, 150 N.M. 306, 258 P.3d 1098, rev’d, 2013-NMSC-021.
Where worker was an undocumented worker who provided a false social security
number on an employment application with employer; employer did not ask worker to
produce a social security card, investigate the worker’s status, or complete an
employment verification form; employer had no reason to believe worker was an
undocumented worker during the time worker worked for employer; and the workers’
compensation judge awarded worker partial disability benefits, worker was not entitled
to modifier benefits because employer was legally forbidden by the Immigration Reform
and Control Act of 1986, 8 U.S.C. § 1324, to rehire worker because worker was an
undocumented, illegal immigrant. Gonzalez v. Performance Painting, Inc., 2011-NMCA-
025, 150 N.M. 306, 258 P.3d 1098, rev’d, 2013-NMSC-021.

Workers' compensation judge properly denied modifier benefits where worker
knowingly provided false identification documents. — Where worker filed for
workers' compensation benefits following a work-related accident while employed with
defendant's construction company, the district court did not err in denying worker's
modifier benefits when worker knowingly presented false identification documentation
while filling out his employment eligibility verification forms, because employer
reasonably relied upon worker's representations and there was no reasonable basis for
employer to have known worker was undocumented. Melendez v. Salls Bros. Constr.,
Inc., 2018-NMCA-028.

Employer and workman (worker) must comply with spirit of this act, i.e., a
common sense concept of fairness in the view of a subjective eye that reviews the facts.
Purcella v. Navajo Freight Lines, 1980-NMCA-182, 95 N.M. 306, 621 P.2d 523,
overruled on other grounds by Varos v. Union Oil Co. of Cal., 1984-NMCA-091, 101
N.M. 713, 688 P.2d 31.

Compensation benefits are not based on physical injury itself but on disability
produced by the injury and a claim for workmen's (workers') compensation is properly
denied where there is a failure to establish that the claimant's wage-earning ability had
been decreased as a result of the alleged accidental injury. Gallegos v. Kennedy, 1968-
NMSC-170, 79 N.M. 590, 446 P.2d 642; Anaya v. N.M. Steel Erectors, Inc., 1980-
NMSC-057, 94 N.M. 370, 610 P.2d 1199; Cardenas v. United Nuclear Homestake
Partners, 1981-NMCA-117, 97 N.M. 46, 636 P.2d 317.

Disability necessary for compensation. — To entitle an injured workman (worker) to
compensation, impairment is not enough; there must be disability. Pacheco v. Springer
Corp., 1972-NMCA-044, 83 N.M. 622, 495 P.2d 800.

In order to be entitled to an award of compensation benefits a workman (worker) must
not only suffer a physical impairment, but also be unable to perform work. Cardenas v.
United Nuclear Homestake Partners, 1981-NMCA-117, 97 N.M. 46, 636 P.2d 317.

Disability is defined in terms of inability to perform usual tasks of his employment
or work for which the workman (worker) is fitted. Anaya v. Big Three Indus., Inc., 1974-
NMCA-027, 86 N.M. 168, 521 P.2d 130.
The primary test for disability is the capacity to perform work. Medina v. Zia Co.,
1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71
(1976); Klindera v. Worley Mills, Inc., 1981-NMCA-104, 96 N.M. 743, 634 P.2d 1295,
cert. denied, 97 N.M. 140, 637 P.2d 571.

Change in primary test of disability. — The 1963 amendment of the 1959 definition
changed the primary test of disability from wage-earning ability to capacity to perform
work as delineated in the section. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615,
544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71 (1976); Smith v. Trailways Bus
Sys., 1981-NMCA-041, 96 N.M. 79, 628 P.2d 324 (decided under former law).

Two tests in definition of disability. — The definition of total and partial disability
under Section 52-1-24 NMSA 1978 (now Section 52-1-25 NMSA 1978)and this section
contain two tests: (1) the workman (worker) must be totally or partially unable to perform
the work he was doing at the time of the injury, and (2) he must be wholly or partially
unable to perform any work for which he is fitted. Medina v. Zia Co., 1975-NMCA-137,
88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71 (1976); Aranda v.
Miss. Chem. Corp., 1979-NMCA-097, 93 N.M. 412, 600 P.2d 1202, cert. denied, 93
N.M. 683, 604 P.2d 821; Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376,
630 P.2d 1231; Smith v. City of Albuquerque, 1986-NMCA-113, 105 N.M. 125, 729 P.2d
1379.

Showing of two things necessary for partial disability. — To be partially disabled
under this section plaintiff contends there must be a showing of two things: (1) an
inability, to some percentage extent, to perform the usual work the workman (worker)
was performing when injured and (2) an inability, to some percentage extent, to perform
any work for which the workman (worker) is fitted. Cordova v. Union Baking Co., 1969-
NMCA-037, 80 N.M. 241, 453 P.2d 761.

Partial disability is measured by the extent to which the worker is unable to perform
work for which he or she was fitted before the injury; if the jobs for which a worker is
fitted are reduced in number, then the worker's percentage of disability is increased.
Barnett & Casbarian, Inc. v. Ortiz, 1992-NMCA-071, 114 N.M. 322, 838 P.2d 476.

Qualifications to be "fitted" for job. — The workers' compensation judge could
properly find that employee who had entered post-injury job was fitted for the job if he
possessed strong qualifications in some areas and was passable in other areas in
which he could improve with experience and training. Barnett & Casbarian, Inc. v. Ortiz,
1992-NMCA-071, 114 N.M. 322, 838 P.2d 476.

Worker not disabled until unable to work. — Where a worker is able to, and does,
perform the work she was doing at the time of an injury, albeit with constant pain, as
well as work for which she is fitted by her training and experience, and files her claim for
compensation well within the time limitation after she knows or has reason to know she
has suffered a compensable injury when so advised by her own doctor, she is not
disabled until she is unable to work. Sedillo v. Levi-Strauss Corp., 1982-NMCA-069, 98
N.M. 52, 644 P.2d 1041, cert. denied, 98 N.M. 336, 648 P.2d 794.

If a workman (worker) is partially unable to perform the work he was doing at the
time of injury because of weight lifting limitations, but is totally able to perform work for
which he is fitted and does not return to work, the workman (worker) is not entitled to
compensation. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert.
denied, 89 N.M. 6, 546 P.2d 71 (1976).

Finding that worker is no longer disabled means that she has the capacity to
perform work in the sense that she is wholly able to perform the usual tasks in the work
she was performing at the time of her injury, and is wholly able to perform any work for
which she is fitted by age, education, training, general physical and mental capacity and
previous work experience. Klindera v. Worley Mills, Inc., 1981-NMCA-104, 96 N.M. 743,
634 P.2d 1295, cert. denied, 97 N.M. 140, 637 P.2d 571.

Evidence of other disability awards. — Evidence of disability awards received by a
claimant under other statutory laws are generally inadmissible to establish the extent
and degree of disability of the claimant in a workers' compensation action. Trujillo v. City
of Albuquerque, 1993-NMCA-114, 116 N.M. 640, 866 P.2d 368, cert. denied, 116 N.M.
364, 862 P.2d 1223.

Not entitled to compensation where totally able to perform fitted work. — If a
workman (worker) is partially unable to perform the work he was doing at the time of
injury because of weight lifting limitations, but is totally able to perform work for which he
is fitted and does not return to work, the workman (worker) is not entitled to
compensation. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert.
denied, 89 N.M. 6, 546 P.2d 71 (1976).

Worker must be capable of performing work. — It is implicit in the language of this
section that the legislature intended that where a worker is given a release to return to
work, the release anticipates that the worker return to the type of work he was doing
prior to the accident or work which he or she is otherwise physically capable of
performing. If the work involves duties which are more strenuous than those involved in
his prior work assignment, and the worker remains injured, the new duties must involve
work he is capable of performing. The employer cannot offer any work that has the
same pre-injury wage, and thereby make the worker ineligible to receive disability
benefits, even though the worker is unable to perform the work. Garcia v. Borden, Inc.,
1993-NMCA-047, 115 N.M. 486, 853 P.2d 737, cert. denied, 115 N.M. 409, 852 P.2d
682.

Where workman (worker) unable to obtain only kind of work ever known. — If a
workman (worker), even though only partially disabled, is unable to obtain the only kind
of work he has ever known, he is therefore entitled to total disability. Churchill v. City of
Albuquerque, 1959-NMSC-101, 66 N.M. 325, 347 P.2d 752.
Loss in earning capacity. — A finding that plaintiff did not suffer a loss in earning
capacity is not determinative on the issue of disability. Chavira v. Gaylord Broad. Co.,
1980-NMCA-154, 95 N.M. 267, 620 P.2d 1292, cert. denied, 95 N.M. 299, 621 P.2d
516, overruled on other grounds by Chapman v. Jesco, Inc., 1982-NMCA-144, 98 N.M.
707, 652 P.2d 257.

Where disability causes employee to quit job. — Where an employee's disability or
inability to perform his former job on production causes him to quit the job, for purposes
of determining his rights to compensation benefits, the employee did not voluntarily
leave his employment. Aranda v. Mississippi Chem. Corp., 1979-NMCA-097, 93 N.M.
412, 600 P.2d 1202, cert. denied, 93 N.M. 683, 604 P.2d 821.

Evidence of termination of employment is strong evidence that the claimant was
totally incapacitated, but it may be overcome by considerations of claimant's other
training, experience, his educational background and the fact that his injury was not so
serious as to prevent his satisfactorily performing his job for approximately a year and a
half after the jury's verdict. Churchill v. City of Albuquerque, 1959-NMSC-101, 66 N.M.
325, 347 P.2d 752 (decided under former law).

Permanent partial disability calculated pursuant to statutory formula. — Even if a
worker can still perform the duties of his or her job, the worker may still be entitled to
compensation for a "permanent impairment". Permanent partial disability is calculated
pursuant to the statutory formula of Subsection C of this section, and not in accordance
with the worker’s ability or inability to function at work. Smith v. Arizona Pub. Serv. Co.,
2003-NMCA-097, 134 N.M. 202, 75 P.3d 418, cert. denied, 2003-NMCERT–008, 134
N.M. 71, 74 P.3d 600.

A claim for compensation for partial disability is properly denied where there is a
failure to establish that the claimant has been to some percentage-extent disabled as
defined by this section. Pacheco v. Springer Corp., 1972-NMCA-044, 83 N.M. 622, 495
P.2d 800.

Certain percentage of functional disability is not necessarily the same percentage of
disability attributable to an injury under the Workmen's (Workers') Compensation Act.
Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78
N.M. 198, 429 P.2d 657.

Impairment not necessarily disability. — Compensation, apart from the scheduled
injury section, is based on disability to work, and a physical impairment is not
necessarily a "disability" under the section. Pacheco v. Springer Corp., 1972-NMCA-
044, 83 N.M. 622, 495 P.2d 800.

Preexisting physical impairment. — The legislature, in enacting Sections 52-1-26 to