N.M. Stat. § 52-3-1 (2026)

   This act shall be known as the "New Mexico Occupational Disease Disablement
Law".

History: 1941 Comp., § 57-1101, enacted by Laws 1945, ch. 135, § 1; 1953 Comp., §
59-11-1.

                                     ANNOTATIONS

Compiler’s notes. — The words "this act" refer to Laws 1945, ch. 135, compiled herein
as 52-3-1 to 52-3-5, 52-3-7 to 52-3-14, 52-3-32, 52-3-34 to 52-3-41, 52-3-43 to 52-3-46,
52-3-48 to 52-3-54 NMSA 1978.

Cross references. — For Occupational Health and Safety Act not to supersede or
affect this act, see 50-9-21 NMSA 1978.

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.

Calculation for total disablement. — In calculating a worker’s disability benefits for
total disablement, the date of disablement shall be used in determining the worker’s
compensation rate, not the date of last employment or the date of last injurious
exposure to the hazards of the employment. Di Luzio v. City of Santa Fe, 2015-NMCA-
042.

Where worker was employed as a firefighter for the city of Santa Fe for twenty-one
years and was diagnosed with mantle cell non-Hodgkin’s lymphoma twelve years after
his service as a firefighter, the worker’s compensation judge erred in using the date of
worker’s last employment as a firefighter to calculate disability benefits, and not the date
of the occurrence of the disablement as required by this section. Di Luzio v. City of
Santa Fe, 2015-NMCA-042.

Application of rules of procedure. — Language in Section 52-3-18 NMSA 1978 is
comparable to Section 52-1-34 NMSA 1978 of the present Workmen's (Workers')
Compensation Law and under the rules noted above requires application of the rules of
civil procedure in cases arising under the Occupational Disease Disablement Law
unless not reasonable to do so. Holman v. Oriental Refinery, 1965-NMSC-029, 75 N.M.
52, 400 P.2d 471 (decided under former law).

Rule for leave to amend applicable. — Rule 15(a), N.M.R. Civ. P., (now Rule 1-015 A
NMRA) providing for freely granting of leave to amend when justice requires, is
applicable to proceedings under the Occupational Disease Disablement Law. Holman v.
Oriental Refinery, 1965-NMSC-029, 75 N.M. 52, 400 P.2d 471.

Applicability of estoppel doctrine in Occupational Disease Disablement Law. —
Even though the Workmen's (Workers') Compensation Act does not specifically provide
for equitable defenses, nevertheless, the appellate court has considered equitable
claims and defenses in workmen's (workers') compensation proceedings; therefore, by
analogy, if the elements of estoppel are established, the doctrine can be applied in a
case arising under the New Mexico Occupational Disease Disablement Law. McDonald
v. Kerr-McGee Corp., 1979-NMCA-088, 93 N.M. 192, 598 P.2d 654.

Disease must be peculiar to worker's occupation. — In order for the Occupational
Disease Disablement Law to apply, it must be established that the disease is peculiar to
the worker's occupation and not merely to his workplace. Rader v. Don J. Cummings
Co., 1989-NMCA-079, 109 N.M. 219, 784 P.2d 38, cert. denied, 109 N.M. 131, 782
P.2d 384.

Unusual hazard must be shown. — In order for there to be an occupational disease,
in addition to the requirement that it be peculiar to claimant's occupation, the conditions
must attach to that occupation a hazard that distinguishes it from the usual run of
occupations and is in excess of the hazards attending employment in general. Rader v.
Don J. Cummings Co., 1989-NMCA-079, 109 N.M. 219, 784 P.2d 38, cert. denied, 109
N.M. 131, 782 P.2d 384.

Standard for admitting expert testimony established by Daubert v. Merrel Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), as adopted in New Mexico by State v.
Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, does not apply to the
testimony of a health care provider pursuant to 52-1-28(B) or 52-3-32 NMSA 1978.
Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d
1014.

Asbestosis as occupational disease. — By analogy to silicosis, asbestosis is an
occupational disease contracted gradually in the course of employment, and not a
physical harm compensable under the doctrine of strict liability in tort. Bassham v.
Owens-Corning Fiber Glass Corp., 327 F. Supp. 1007 (D.N.M. 1971).

Reinstatement of act. — The decision in State ex rel. Hovey Concrete Prods. Co. v.
Mechem, 1957-NMSC-075, 63 N.M. 250, 316 P.2d 1069 in effect reinstated the
Occupational Disease Disablement Act. 1959 Op. Att'y Gen. No. 59-125.

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

For annual survey of New Mexico Workers' Compensation Law, see 20 N.M.L. Rev. 459
(1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d, Workers' Compensation
§§ 326, 327.

30 C.J.S. Employers' Liability §§ 4 to 11; 99 C.J.S. Workmen's Compensation §§ 4,
169.
52-3-2. Employers who come within the New Mexico Occupational
Disease Disablement Law.
    A. The following employers, when the conditions and hazards inherent in the
occupation involved are such as to expose the employees to any of the hazards of
occupational disease, shall be subject to the provisions of the New Mexico Occupational
Disease Disablement Law: the state and each county, municipality, school district,
drainage, irrigation or conservancy district and public institution and administrative
board thereof, every charitable organization and every private person, firm or
corporation engaged in carrying on business or trade within the state having in service
four or more employees regularly employed in the same business or in or about the
same establishment under any contract of hire, express or implied, oral or written,
except employers of ranching or agricultural laborers and employers of private domestic
servants; provided, however, effective January 1, 1978, the provisions of the New
Mexico Occupational Disease Disablement Law shall apply to employers of three or
more employees, except employers of ranching or agricultural laborers and employers
of private domestic servants and, effective January 1, 1990, the provisions of the New
Mexico Occupational Disease Disablement Law shall apply to all employers of
employees, except employers of ranching or agricultural laborers and employers of
private domestic servants. Employers who have in service less than four employees
and after January 1, 1978 less than three employees, employers of ranching or
agricultural laborers, employers of private domestic servants and partners and self-
employed persons and, effective January 1, 1990, employers of ranching or agricultural
laborers, employers of private domestic servants and partners and self-employed
persons shall have the right to come under the terms of the New Mexico Occupational
Disease Disablement Law by complying with the provisions hereof.

   B. The term "regularly employed", as herein used, unless the context otherwise
requires, shall include all employments in the usual course of the trade, business,
profession or occupation of the employer, whether continuous throughout the year or for
only a portion of the year.

    C. Any person, firm or corporation engaged in the performance of work as an
independent contractor shall be deemed an employer within the meaning of this section.
The term "independent contractor", as herein used, is defined to be any person,
association or corporation engaged in the performance of any work for another, who,
while so engaged, is independent of the employer in all that pertains to the execution of
the work, is not subject to the rule or control of the employer, is engaged only in the
performance of a definite job or piece of work and is subordinate to the employer only in
effecting a result in accordance with the employer's design.

    D. For the purposes of the New Mexico Occupational Disease Disablement Law, an
individual who performs services as a qualified real estate salesperson shall not be
treated as an employee and the person for whom the services are performed shall not
be treated as an employer.
   E. For the purpose of Subsection D of this section, a "qualified real estate
salesperson" means an individual who:

      (1)     is a licensed real estate salesperson, associate broker or broker under
contract with a real estate firm;

        (2)    receives substantially all of his remuneration, whether or not paid in cash,
for the services performed as a real estate salesperson, associate broker or broker
under contract with a real estate firm in direct relation to sales or other output, including
the performance of services, rather than to the number of hours worked; and

       (3)      performs services pursuant to written contract between himself and the
person for whom the services are performed, and the contract provides that the
individual will not be treated as an employee with respect to such services.

History: 1941 Comp., § 57-1102, enacted by Laws 1945, ch. 135, § 2; 1953 Comp., §
59-11-2; Laws 1971, ch. 261, § 6; 1972, ch. 65, § 3; 1973, ch. 239, § 1; 1975, ch. 317, §
1; 1987, ch. 260, § 2; 1989, ch. 263, § 48.

                                      ANNOTATIONS

Subject to act until notice of rejection. — Once an employer has come under the act
he remains subject thereto until he complies with giving notice of rejection in the manner
by the act provided. 1945 Op. Att'y Gen. No. 45-4778.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 27 Am. Jur. 2d Employment
Relationship §§ 241, 265.