N.M. Stat. § 52-1-41 (2026)

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.
History: 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.

                                     ANNOTATIONS

Cross references. — For total disability, see 52-1-25 NMSA 1978.

The 2015 amendment, effective June 19, 2015, amended the Workers’ Compensation
Act to change temporary disability benefits; in Subsection A, after "two-thirds percent
of", deleted "his" and added "the worker’s", and after "($36.00) a week", deleted the
remainder of the subsection; rewrote Subsection B and designated the language from
former Subsection B as new Subsection C; in new Subsection C, after "period of
compensation is", deleted "one hundred weeks", and added "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", and after "physical impairment", deleted "or
one hundred weeks, whichever is greater"; deleted the designation from former
Subsection C and added "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" to the end of new
Subsection C; designated the language in former Subsection C as Subsection D;
redesignated former Subsections D, E, F and G as Subsections E, F, G and H,
respectively; in Subsection E, after "worker shall be", deleted "his" and added "the
worker’s"; in Subsection F, after "determined by the", deleted "employment security
division of the labor" and added "workforce solutions", after "reported to the", deleted
"employment security division" and added "workforce solutions department", after
"accordance with the", deleted "regulations" and added "rules", and after "of the",
deleted "division" and added "department"; in Subsection G, after "Subsection", deleted
"E" and added "F"; in Subsection H, after "Subsection", deleted "E" and added "F".

The 1999 amendment, effective June 18, 1999, substituted the language beginning
"through" and ending "a week" for the language relating to the maximum compensation
for certain effective dates in the first sentence of Subsection A.

The 1993 amendment, effective June 18, 1993, made a minor stylistic change in
Subsection A; deleted "total" preceding the first two occurrences of "disability" in
Subsection B; and made minor stylistic changes in Subsection D.

The 1990 (2nd S.S.) amendment, effective January 1, 1991, divided former Subsection
A to form Subsections A and B, rewriting some of the provisions therein; added
Subsection C and redesignated former Subsections B through E as Subsections D
through G; and deleted the former last sentence of Subsection E regarding the timing of
the initial determination by the employment security division of the average weekly
wage.
Limitation on benefits does not violate due process. — In view of the overall
economic benefits of the Workmen's (Workers') Compensation Act, the limitation on
disability benefits imposed by this section does have a reasonable relation to the
economic purpose of the act and therefore does not violate due process. Casillas v.
S.W.I.G., 1981-NMCA-045, 96 N.M. 84, 628 P.2d 329, cert. denied, 96 N.M. 116, 628
P.2d 686, and appeal dismissed, 454 U.S. 934, 102 S. Ct. 467, 70 L. Ed. 2d 242 (1981).

This section violates equal protection guarantees of the New Mexico Constitution by
treating mentally disabled workers differently than physically disabled workers. Breen v.
Carlsbad Mun. Sch., 2005-NMSC-028, 138 N.M. 331, 120 P.3d 413.

The compensation limits imposed by the Workers' Compensation Act on the
duration of disability benefits for a secondary mental impairment violate the equal
protection clause. — The Worker's Compensation Act (act), 52-1-1 to 52-1-70 NMSA
1978, creates a class of similarly situated individuals, workers with secondary mental
impairments and workers with subsequent physical impairments, but treats them
differently, in that the act treats a subsequent physical impairment, whether scheduled
or non-scheduled, as a distinct and separate injury from the original physical injury
arising out of and in the course of employment, but the act does not treat a secondary
mental impairment as a separate and distinct injury from the original physical injury for
compensation purposes, but rather tethers the benefits duration to the initial physical
injury. Applying intermediate scrutiny to classifications based on mental disabilities,
petitioner failed to meet its burden to demonstrate that the disparate treatment
occasioned by 52-1-41(C) NMSA 1978 and 52-1-42(A)(4) NMSA 1978 was substantially
related to any important governmental interest. Aztec Mun. Schs. v. Cardenas, 2024-
NMSC-015, aff'g 2022-NMCA-038, 516 P.3d 169.

The Workers' Compensation Act's disparate limits imposed on the duration of
disability benefits for secondary mental impairments and secondary physical
impairments violates equal protection guarantees. — Where worker appealed from
a workers' compensation judge's order limiting the duration of worker's disability benefits
for a secondary mental impairment to 150 weeks for compensation for the primary
scheduled injury to worker's knee, claiming that capping the duration of benefits for a
secondary mental impairment resulting from a scheduled physical injury, when a
secondary physical impairment resulting from a scheduled physical injury is not similarly
capped, violates the New Mexico constitution's equal protection guarantee, the
provisions set forth in § 52-1-41(C) NMSA 1978 and § 52-1-42(A)(4) NMSA 1978 of the
Workers' Compensation Act violate the equal protection clause of the New Mexico
constitution, because workers with secondary mental impairments are similarly situated
to workers with secondary physical impairments, the act's limits on the duration of
benefits are different for workers with secondary mental impairments than they are for
similarly situated workers with secondary physical impairments, and employer has not
carried its burden of showing that the act's disparate treatment of mentally impaired
workers, a sensitive class, is substantially related to an important government interest.
Cardenas v. Aztec Mun. Schs., 2022-NMCA-038, cert. granted.
This section limits basic benefits for persons with mental disabilities. Breen v.
Carlsbad Mun. Sch., 2005-NMSC-028, 138 N.M. 331, 120 P.3d 413.

This section provided for total disability and clarified the statutes theretofore
existing. Boggs v. D & L Constr. Co., 1963-NMSC-044, 71 N.M. 502, 379 P.2d 788,
overruled on other grounds by American Tank & Steel Corp. v. Thompson, 1977-
NMSC-052, 90 N.M. 513, 565 P.2d 1030.

Sections to be read together. — All of the three sections, Sections 52-1-41, 52-1-42,
and 52-1-43 NMSA 1978, are part of the same legislative act and are to be read
together so as to give effect to each of the sections. Witcher v. Capitan Drilling Co.,
1972-NMCA-145, 84 N.M. 369, 503 P.2d 652, cert. quashed, 85 N.M. 380, 512 P.2d
953 (1973).

Compensation based on disability, not physical impairment. — The fact that
compensation is not limited to the scheduled injury section does not, however, mean
that compensation outside the scheduled injury section is to be awarded on the basis of
physical impairment. Compensation, apart from the scheduled injury section, is based
on disability. "Physical impairment" does not automatically equate with "disability."
Willcox v. United Nuclear Homestake Sapin Co., 1971-NMCA-126, 83 N.M. 73, 488
P.2d 123.

Where in fact there is a total disability, compensation under the workmen's (workers')
compensation statute is to be paid for the disability without regard to whether the
workman (worker) has a bodily impairment distinct from scheduled injuries. Witcher v.
Capitan Drilling Co., 1972-NMCA-145, 84 N.M. 369, 503 P.2d 652, cert. quashed, 85
N.M. 380, 512 P.2d 953 (1973).

Impairment and disability contrasted. — If a workman (worker) is able to perform his
usual tasks, despite a defect or infirmity limiting or making useless a member or limb of
the body, the workman (worker) is physically impaired, but not functionally disabled,
because the act is not concerned with a workman's (worker's) physical injury. It is
concerned with capacity to work. Therefore, nondisabling pain does not constitute a
compensable injury. Neither does a psychiatric or mental impairment. Perez v. Int'l
Minerals & Chem. Corp., 1981-NMCA-022, 95 N.M. 628, 624 P.2d 1025, cert. denied,
95 N.M. 669, 625 P.2d 1186.

Impairment does not automatically equate with disability. Gonzales v. Stanke-Brown &
Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.

When impairment equates with disability. — If a member or limb of a body is
defective or infirm and creates a condition whereby a workman (worker) is wholly or
partially unable to perform the usual tasks in the work he was performing at the time of
his injury, and is wholly or partially unable to perform any work for which he is fitted,
"physical impairment" equates with total or partial disability. Perez v. International
Minerals & Chem. Corp., 1981-NMCA-022, 95 N.M. 628, 624 P.2d 1025, cert. denied,
95 N.M. 669, 625 P.2d 1186.

Section invoked when impairment amounts to disability. — If one suffers a
scheduled injury which causes a physical impairment but does not create disability,
Section 52-1-43 NMSA 1978 will apply. When the impairment amounts to a disability,
this section and Section 52-1-42 NMSA 1978 are properly invoked. American Tank &
Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

If a worker is totally disabled due to an injury, then he or she is entitled to disability
under this section, even if the disability results from the loss of or injury to a scheduled
member that is enumerated under Section 52-1-43 NMSA 1978. Hise Constr. v.
Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210.

"Average weekly wage", as used in this section, has statutory meaning. Gilliland v.
Hanging Tree, Inc., 1978-NMCA-061, 92 N.M. 23, 582 P.2d 400, cert. denied, 92 N.M.
180, 585 P.2d 324.

Subsection A means that a workman (worker) cannot be totally disabled doubly. To
construe it otherwise would grant a workman (worker) a "windfall," fundamentally
inconsistent with the nature of the Workmen's (Workers') Compensation Act. Rollins v.
Albuquerque Pub. Schs., 1979-NMCA-039, 92 N.M. 795, 595 P.2d 765, cert. denied, 92
N.M. 675, 593 P.2d 1078.

Total disability may be temporary. — The language of this section contemplates that
total disability may be temporary. Pacheco v. Alamo Sheet Metal Works, Inc., 1978-
NMCA-057, 91 N.M. 730, 580 P.2d 498.

Pain as disability. — A severe pain which does disable a workman (worker) is a
compensable injury. A workman (worker) may retain all of the normal bodily functions of
his organs and still be so weak or be in such pain that he would be totally or partially
disabled from retaining or obtaining remunerative employment. Perez v. International
Minerals & Chem. Corp., 1981-NMCA-022, 95 N.M. 628, 624 P.2d 1025, cert. denied,
95 N.M. 669, 625 P.2d 1186.

Degree of disability is question of fact for trial court, and the primary test for
disability is plaintiff's capacity to perform work. Trujillo v. Tanuz, 1973-NMCA-048, 85
N.M. 35, 508 P.2d 1332.

Medical payments as compensation. — Medical payments have been ruled to be
compensation for the purpose of allowing attorney fees under Section 52-1-54 NMSA
1978, and if they are compensation for one purpose they should be compensation for all
purposes. Since plaintiff's employer had failed to pay a medical bill, the trial court erred
in dismissing his action alleging total disability and seeking a lump-sum award on
grounds of premature filing. Briscoe v. Hydro Conduit Corp., 1975-NMCA-147, 88 N.M.
568, 544 P.2d 283.
Rate of compensation should be based upon applicable law on date of disability,
where total disability commenced in January of 1975, the rate of compensation should
be based upon the statutory rate in effect at that time and not on the rate in effect at the
time of the 1973 accident. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M.
220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Applicable rate of compensation in determining amount of award is that rate in
effect on the date of disability, not the date of the accident. Lamont v. N.M. Military Inst.,
1979-NMCA-047, 92 N.M. 804, 595 P.2d 774, cert. denied, 92 N.M. 675, 593 P.2d
1078.

Date of disability is the date the workman (worker) knows or should know he has
suffered a compensable injury. Turner v. Shop-Rite Foods, Inc., 1982-NMCA-165, 99
N.M. 56, 653 P.2d 887.

Benefits are based upon the rate in effect when the workman (worker) becomes
disabled. After a workman (worker) is disabled the rate does not escalate each time he
returns to work. Turner v. Shop-Rite Foods, Inc., 1982-NMCA-165, 99 N.M. 56, 653
P.2d 887.

Voluntary payment of maximum compensation benefits over period of time does
not establish total permanent disability, and such payment is not an admission by
the employer of the totality or permanency of any injury. Armijo v. Co-Con Constr. Co.,
1978-NMCA-106, 92 N.M. 295, 587 P.2d 442, cert. denied, 92 N.M. 260, 586 P.2d
1089, overruled on other grounds by Maitlen v. Getty Oil Co., 1987-NMCA-002, 105
N.M. 370, 733 P.2d 1 and Raines v. W.A. Klinger & Sons, 1988-NMSC-083, 107 N.M.
668, 763 P.2d 684.

Maximum compensation benefits for total disability cannot exceed that provided
for in this section. Rollins v. Albuquerque Pub. Schs., 1979-NMCA-039, 92 N.M. 795,
595 P.2d 765, cert. denied, 92 N.M. 675, 593 P.2d 1078.

Where a hearing officer concluded that a claimant was entitled to compensation benefits
"until further order of the Workers' Compensation Division," but did not limit benefits to
the statutory limit, the order granting benefits was not overbroad. Cass v. Timberman
Corp., 1990-NMCA-061, 110 N.M. 158, 793 P.2d 288, rev'd on other grounds, 1990-
NMSC-112, 111 N.M. 184, 803 P.2d 669.

No time limits on payment of temporary total disability benefits. — Temporary total
disability benefits are payable during any period of total disability for the remainder of a
worker’s life. The payment of temporary total disability benefits to a worker is not subject
to any of the duration limits found in 52-1-42 NMSA 1978 for permanent partial disability
or 52-1-47 NMSA 1978 for combinations of disabilities. Fowler v. Vista Care, 2014-
NMSC-019, rev'g 2013-NMCA-036, 298 P.3d 491.
Where worker, who suffered a back injury in 2003, began receiving temporary total
disability benefits, and underwent back surgery; in 2006, worker’s physician determined
that worker had reached maximum medical improvement, worker’s temporary total
disability benefits were terminated, and worker received a lump sum payment of
permanent partial disability benefits; and in 2007, worker’s physician determined that
worker’s condition had deteriorated and recommended another surgery, worker was
entitled to reinstatement of temporary total disability benefits as of 2007 when worker’s
physician determined that worker was no longer at maximum medical improvement.
Fowler v. Vista Care, 2014-NMSC-019, rev'g 2013-NMCA-036, 298 P.3d 491.

Durational limits of temporary total disability benefits. — Temporary total disability
benefits are subject to the 700-week durational limit in 52-1-57A NMSA 1978. Fowler v.
Vista Care, 2013-NMCA-036, 298 P.3d 491, rev’d, 2014-NMSC-019.

Where worker suffered a back injury in 2003 and underwent a spinal fusion in 2006; the
workers’ compensation judge determined that worker had reached maximum medical
improvement in 2006 and awarded worker a lump sum payment of permanent partial
disability benefits; in 2007, worker’s physician discovered that worker had a new injury
that related to the original injury; worker underwent surgery in 2010; and in a 2010
compensation order, the workers’ compensation judge concluded that worker was not at
maximum medical improvement as of 2007 and awarded worker temporary total
disability benefits for an indefinite period of time until the date worker reached maximum
medical improvement from the 2010 surgery, worker’s temporary total disability benefits
were subject to the 700-week durational limit in 52-1-57A NMSA 1978. Fowler v. Vista
Care, 2013-NMCA-036, 298 P.3d 491, rev’d, 2014-NMSC-019.

Maximum compensation for secondary mental impairment. — Subsection A(2)
(now Subsections A and B) of this section allows compensation payments for as long as
the physical disability is present; if the physical disability lasts less than 100 weeks, then
a person who is totally disabled by secondary mental impairment can receive
compensation payments for the balance of the 100 weeks but no more. Fitzgerald v.
Open Hands, 1993-NMCA-026, 115 N.M. 210, 848 P.2d 1137 (decided under version
prior to 1991 amendment).

When claim of injury filed prematurely. — Employee's claim for a first injury is filed
prematurely where she is receiving maximum compensation benefits for a second
injury, both arising out of the same employment and the same employer. Rollins v.
Albuquerque Pub. Schs., 1979-NMCA-039, 92 N.M. 795, 595 P.2d 765, cert. denied, 92
N.M. 675, 593 P.2d 1078.

No change in amount of compensation payable during disability. — The amount of
compensation to be paid for disability from the date the disability began, does not
change during the period that disability continues; the maximum compensation payable
is limited to the benefits payable when the disability began, and continues for the full
period of that disability. Casias v. Zia Co., 1980-NMCA-109, 94 N.M. 723, 616 P.2d 436.
Rate of compensation in effect on date of disability applies, not the date of the
accident. Purcella v. Navajo Freight Lines, 1980-NMCA-182, 95 N.M. 306, 621 P.2d
523, overruled by Varos v. Union Oil Co. of Cal., 1984-NMCA-091, 101 N.M. 713, 688
P.2d 31.

Disability resulting from a second accident, regardless of a preexisting condition, is
compensable by the employer and compensation insurer at the time of the second
accident. Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648
P.2d 1192.

Judge's unconcurred opinion on escalating benefits not court of appeal's
decision. — Where a judge's opinion concerning escalating benefits under the
Workmen's (Workers') Compensation Act is not concurred in by another judge, her view
concerning escalating benefits is not a decision of the court of appeals and a judgment
on remand which does not provide for escalating benefits complies with the mandate
and opinion of the court of appeals. Casias v. Zia Co., 1980-NMCA-109, 94 N.M. 723,
616 P.2d 436.

Award of one day's benefits is not contemplated by the Workmen's (Workers')
Compensation Act. Grudzina v. N.M. Youth Diagnostic & Dev. Ctr., 1986-NMCA-047,
104 N.M. 576, 725 P.2d 255.

Law reviews. — For note, "Workmen's Compensation in New Mexico: Preexisting
Conditions and the Subsequent Injury Act," see 7 Nat. Resources J. 632 (1967).

For article, "Survey of New Mexico Law, 1979-80: Workmen's Compensation," see 11
N.M.L. Rev. 235 (1981).

For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers's
Compensation §§ 380 to 384, 406, 413.

99 C.J.S. Workmen's Compensation §§ 289 to 301; 101 C.J.S. Workmen's
Compensation § 896.