N.M. Stat. § 52-1-42 (2026)

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.

History: 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.

                                    ANNOTATIONS

Cross references. — For partial disability, see 52-1-26 NMSA 1978.

The 2015 amendment, effective June 19, 2015, amended the Workers’ Compensation
Act to change the maximum period of benefits; in Subsection A, Paragraph (3), after
"the maximum period is", deleted "one hundred weeks" and added "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"; in Subsection A, Paragraph (4), after "physical
impairment", deleted "or one hundred weeks, whichever is greater" and added "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"; and
in Subsection B, after "an award of", added "permanent", after "maximum period for",
added "permanent", and after the second occurrence of "temporary", deleted "total".

The 1990 (2nd S.S.) amendment, effective January 1, 1991, inserted "permanent" in
the catchline and rewrote the section to such an extent that a detailed comparison
would be impracticable, adding the Subsection A designation and Subsection B.
Combining benefit periods to exceed 500 weeks. — Where worker suffers a
scheduled and a non-scheduled injury at the same time, the benefit period for the
scheduled member can be added to the benefits period for the non-scheduled injury.
Gutierrez v. Intel Corp., 2009-NMCA-106, 147 N.M. 267, 219 P.3d 524.

Where worker fell off of a ladder and injured worker’s left foot and back, the workers'
compensation judge properly added the allocation of 500 weeks for the back injury and
the allocation of 113 weeks for the foot injury, for a total award of 615 weeks of benefits.
Gutierrez v. Intel Corp., 2009-NMCA-106, 147 N.M. 267, 219 P.3d 524.

Commencement of benefits period. — Where worker fell off of a ladder and injured
worker’s left foot and back; worker continued to be consistently symptomatic from the
time of the accident until back surgery eight years after the accident; and the back
surgery was performed to address a progressive deterioration, the workers'
compensation judge properly used the date of the accident, rather than the date of the
back surgery, to begin the benefits for the worker’s back injury. Gutierrez v. Intel Corp.,
2009-NMCA-106, 147 N.M. 267, 219 P.3d 524.

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.

Credit for temporary total disability benefits. — An employer is entitled to credit for
payment of partial temporary total disability benefits equal to a reduction of one week of
permanent partial disability benefits for each week of partial temporary total disability
benefits, regardless of the percentage of partial temporary total disability benefits
actually paid. Gurule v. Dicaperl Minerals Corp., 2006-NMCA-054, 139 N.M. 521, 134
P.3d 808.

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.

Statutory obfuscation legitimated. — Sections 52-1-41, 52-1-42 and 52-1-43 NMSA
1978 may seem inconsistent and hard to understand to some lay and professional
people, but these provisions are the law in New Mexico. Maschio v. Kaiser Steel Corp.,
1983-NMCA-119, 100 N.M. 455, 672 P.2d 284, cert. denied, 100 N.M. 439, 671 P.2d
1150.

For there to be workmen's (workers') compensation award, there must be
disability and the compensation payable is measured in terms of disability. McCleskey
v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M.
317, 454 P.2d 974.

Compensation based on decreased earning ability. — The Workmen's (Workers')
Compensation Act under Laws 1959, ch. 67 provided that compensation payments not
be based upon the injury itself, but rather upon the decreased earning ability produced
by the injury. Brownlee v. Lincoln Cnty. Livestock Co., 1966-NMSC-060, 76 N.M. 137,
412 P.2d 562.

This section provided for partial 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.

Definition of "disability" is the disablement of the workman (worker) to earn wages in
the same kind of work, or work of a similar nature for which he is trained, or is
accustomed to perform, or any other kind of work which a person of his mentality and
attainments could do. Brownlee v. Lincoln Cnty. Livestock Co., 1966-NMSC-060, 76
N.M. 137, 412 P.2d 562.

Statute must be construed in its entirety, and the words "he earns or is able to earn"
should be considered together to arrive at "wage earning ability." Batte v. Stanley's,
1962-NMSC-105, 70 N.M. 364, 374 P.2d 124 (decided under former law).

Construed in pari materia. — All of the three sections, Sections 52-1-41, 52-1-42, and
52-1-43, 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).

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; 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.

When one invokes section, one also invokes the limitation on partial disability benefits
stated in this section. Newhoff v. Good Housekeeping, Inc., 1980-NMCA-090, 94 N.M.
621, 614 P.2d 33, cert. denied, 94 N.M. 674, 615 P.2d 991, overruled on other grounds
by Candelaria v. Hise Constr., 1981-NMCA-145, 98 N.M. 763, 652 P.2d 1214.

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.

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,
Section 52-1-41 NMSA 1978 and this section are properly invoked. Ameriican Tank &
Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

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

Disability "separate and distinct" from scheduled injury. — In order for a court to
award a worker benefits under the partial disability benefits section, there must be a
separate and distinct impairment to other parts of the body in addition to the disability
resulting from injury to a scheduled member. Ranville v. J.T.S. Enters., Inc., 1984-
NMCA-100, 101 N.M. 803, 689 P.2d 1274.
In order to obtain partial disability benefits and not be limited to scheduled injury
benefits, plaintiff was required to establish a separate and distinct impairment to other
body parts in addition to the injury to her knee. Beltran v. Van Ark Care Ctr., 1988-
NMCA-043, 107 N.M. 273, 756 P.2d 1.

The separate and distinct injury necessary to remove a plaintiff from the scheduled
injury section must result from or be attributable to the accident or injury to the
scheduled member. The question of whether a separate and distinct impairment exists
is one for the finder of fact to determine. Beltran v. Van Ark Care Ctr., 1988-NMCA-043,
107 N.M. 273, 756 P.2d 1.

Since an injured worker proved separate and distinct impairment to other parts of his
body in addition to his scheduled member injuries, he was entitled to partial disability
benefits under this section, and not just to benefits under Section 52-1-43 NMSA 1978
(specific body members). Harrison v. Animas Valley Auto & Truck Repair, 1988-NMSC-
055, 107 N.M. 373, 758 P.2d 787.

For a worker to receive permanent partial disability benefits under this section, rather
than scheduled injury benefits under Section 52-1-43 NMSA 1978, she must show that:
(1) she is totally disabled; or (2) she has suffered a separate and distinct impairment to
a nonscheduled body part. Jurado v. Levi Strauss & Co., 1995-NMCA-129, 120 N.M.
801, 907 P.2d 205, cert. denied, 120 N.M. 715, 905 P.2d 1119.

Secondary mental impairment. — A worker is not required to have a current physical
impairment in order to have a secondary mental impairment; thus, when a worker was
paid total temporary disability benefits for 89 weeks, after which a judge found she no
longer had any physical impairment, she was entitled to benefits for secondary mental
impairment for 11 weeks under Subsection B. Peterson v. N. Home Care, 1996-NMCA-
030, 121 N.M. 439, 912 P.2d 831.

Intermediary secondary mental impairment. — Substantial evidence supported the
determination that the claimant's chronic pain disability was the result of both physical
and mental impairment and that the benefits cap in Paragraph A(4) did not apply, since
physical strain always remained in the diagnosis and since even the company physician
gave the claimant an impairment rating based in part on a positive x-ray finding. Crespin
v. Consol. Constructors, Inc., 1993-NMCA-109, 116 N.M. 334, 862 P.2d 442, cert.
denied, 116 N.M. 364, 862 P.2d 1223.

Wages earned after injury are not necessarily determinative of the question of post-
injury earning ability. Batte v. Stanley's, 1962-NMSC-105, 70 N.M. 364, 374 P.2d 124.

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.
Finding of disability as ultimate fact. — A finding that a workman (worker), to a
stated percentage extent, is partially and permanently disabled is a finding of an
ultimate fact. McClesky v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d
849, cert. denied, 80 N.M. 317, 454 P.2d 974.

Failure to make findings not error where ultimate findings support judgment. — In
a workman's (worker's) compensation case, the failure of the trial court to make findings
as to functional disability, employability in the open market, ability to pass
preemployment physicals, pain and suffering while engaged in gainful employment and
employer's sympathy did not constitute fundamental error. Findings made as to
decrease in wages, reduction of earning capacity and medical disability were sufficient
under Rule 52(B)(a)(2), N.M.R. Civ. P. (see now Rule 1-052A), and such ultimate
findings amply sustained the judgment under the provisions of this section. Scott v.
Homestake-Sapin, 1963-NMSC-122, 72 N.M. 268, 383 P.2d 239.

No compensation outside schedule where no finding of disability. — Where court
finds a 30% physical impairment to the body as a whole, but it also finds that plaintiff did
not suffer a "partial disability," then not having established a "disability," plaintiff is not
entitled to compensation outside the scheduled injury section. Willcox v. United Nuclear
Homestake Sapin Co., 1971-NMCA-126, 83 N.M. 73, 488 P.2d 123.

Although payment of full wages following injury is not conclusive on the question
of earning ability, it may be indicative. Brownlee v. Lincoln Cnty. Livestock Co., 1966-
NMSC-060, 76 N.M. 137, 412 P.2d 562.

Question whether there is additional bodily injury giving rise to award beyond that
specifically provided for in 52-1-43 NMSA 1978 is for the jury to decide. Reck v. Robert
E. McKee Gen. Contractors, Inc., 1955-NMSC-074, 59 N.M. 492, 287 P.2d 61 (decided
under former law).

No deduction of non-schedule benefits from disability received for scheduled
injury. — The number of weeks an injured worker received benefits for the disabilities
caused by injuries to a scheduled body part, his knees, could not be deducted from the
number of weeks he was entitled to receive benefits for the subsequent injury to his
shoulder, a non-scheduled part, which was caused by his original knee injury. Baca v.
Complete Drywall Co., 2002-NMCA-002, 131 N.M. 413, 38 P.3d 181, cert. denied, 131
N.M. 564, 40 P.3d 1008.

Award not justified where earning more in other kind of work. — That claimant is
disabled to some extent for a former occupation of ranch work does not justify an award
for partial disability when, from a factual standpoint, he is receiving a higher weekly
wage than he was earning prior to the injury in another kind of work, which a person of
his mentality and attainments can do. Brownlee v. Lincoln Cnty. Livestock Co., 1966-
NMSC-060, 76 N.M. 137, 412 P.2d 562.
To support conclusion that earning ability is less than actual earnings, there must
be a finding of fact to support that conclusion. Brownlee v. Lincoln Cnty. Livestock Co.,
1966-NMSC-060, 76 N.M. 137, 412 P.2d 562.

Failure of trial court to find concerning plaintiff's ability to perform usual tasks of
the work performed when injured was not a failure to find an ultimate fact. McCleskey v.
N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M.
317, 454 P.2d 974.

Finding of reduction in earning capacity does not follow from a finding of
impairment of body function. Batte v. Stanley's, 1962-NMSC-105, 70 N.M. 364, 374
P.2d 124.

It is not improper to award only 15% disability where the decrease in earning
capacity has been shown to be 30%. Pies v. Bekins Van & Storage Co., 1962-NMSC-
104, 70 N.M. 361, 374 P.2d 122.

Failure to show evidence of wages earned after notice of disability does not
preclude a finding of partial disability under this section. Sanchez v. City of
Albuquerque, 1965-NMSC-043, 75 N.M. 137, 401 P.2d 583.

Return to previous employment relieves employer of duty to pay. — A return to
previous employment and payment of regular wages for the performance of usual
duties, absent any suspicious circumstances, relieves the employer of the duty of
making compensation payments during such period of regular employment and
payment of regular wages. Cordova v. City of Albuquerque, 1962-NMSC-148, 71 N.M.
491, 379 P.2d 781.

Where injury is confined to member with the remainder of the body being unaffected,
compensation is limited to that provided for injury to the hand, even though age, lack of
training for other work "or other conditions peculiar" to appellant has resulted in reduced
ability in him to perform his duties with a resultant reduction of earnings. Lee v. United
States Fid. & Guar. Co., 1960-NMSC-003, 66 N.M. 351, 348 P.2d 271.

Recovery limited for knee disability. — A plaintiff whose sole injury is a 50% disability
to one knee has a recovery which is limited to the scheduled injury provision in Section
52-1-43 NMSA 1978. Maschio v. Kaiser Steel Corp., 1983-NMCA-119, 100 N.M. 455,
672 P.2d 284, cert. denied, 100 N.M. 439, 671 P.2d 1150.

Lost eye compensated under scheduled injury section following recovery from
"separate and distinct" disability. — Plaintiff who was legally blind in his injured eye
had "lost his eye" and, upon recovery from traumatic neurosis, no longer suffering from
impairment "separate and distinct" from loss of that eye, should be compensated under
the scheduled injury section. Ranville v. J.T.S. Enters., Inc., 1984-NMCA-100, 101 N.M.
803, 689 P.2d 1274.
Law reviews. — 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' Compensation
§§ 380 to 384, 431, to 434.

99 C.J.S. Workmen's Compensation §§ 301 to 303.