N.M. Stat. § 52-3-4 (2026)

As used in the New Mexico Occupational Disease Disablement Law:

   A. "award" means the final compensation order made by the workers' compensation
judge pursuant to Section 52-5-7 NMSA 1978;

  B. "compensation" means the payments and benefits provided for in the New
Mexico Occupational Disease Disablement Law;

   C. "compensation order" means a compensation order of the workers'
compensation division issued by a workers' compensation judge pursuant to Section 52-
5-7 NMSA 1978; and

   D. "disablement" means:

      (1)     the total physical incapacity, by reason of an occupational disease, of an
employee to perform any work for remuneration or profit in the pursuit in which the
employee was engaged, provided that silicosis, when complicated by active
tuberculosis of the lungs, shall be presumed to result in disablement; or
        (2)    the partial physical incapacity of an employee, by reason of an
occupational disease, to perform to some percentage extent any work for which he is
fitted by age, education and training.

History: 1978 Comp., § 52-3-4, enacted by Laws 1987, ch. 235, § 31; 1989, ch. 263, §
49.

                                      ANNOTATIONS

Repeals and reenactments. — Laws 1987, ch. 235, § 31 repealed former 52-3-4
NMSA 1978, as amended by Laws 1986, ch. 22, §§ 53, 54, and enacted a new 52-3-4,
effective June 19, 1987.

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 — Laws 1987, ch. 235, § 54A, effective June 19, 1987, repealed
Laws 1986, ch. 22, § 105 which had formerly repealed this section effective July 1,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.

Cross references. — For the definitions of "director" and "hearing officer", see 52-1-1.1
NMSA 1978.

Benefits payable for occupational disease. — The reference in 52-3-49 NMSA 1978
to any kind of work does not change the provision that benefits are payable for
disablement by reason of an occupational disease. Vincent v. United Nuclear-
Homestake Partners, 1976-NMCA-105, 89 N.M. 704, 556 P.2d 1180, cert. denied, 90
N.M. 7, 558 P.2d 619.

"Disablement" under this section, giving an ordinary meaning to "incapacity," may
mean total physical unfitness, by reason of occupational disease, to perform any work
for remuneration in the pursuit in which the workman (worker) was engaged. Salazar v.
Kaiser Steel Corp., 1973-NMCA-068, 85 N.M. 254, 511 P.2d 580, cert. denied, 85 N.M.
229, 511 P.2d 555 (decided under prior law).

Construed in pari materia. — The provisions in Sections 52-3-14 and 52-3-15 NMSA
1978 which refer to total and partial disablement, do not change the definition of
disablement and do not provide that compensation is payable for partial disablement;
the word "total" in Section 52-3-14 NMSA 1978 is a redundancy since the only
disablement under the section is for total physical incapacity by reason of an
occupational disease. Vincent v. United Nuclear-Homestake Partners, 1976-NMCA-105,
89 N.M. 704, 556 P.2d 1180, cert. denied, 90 N.M. 7, 558 P.2d 619 (decided under prior
law).

Workman (Worker) able to perform other work. — If the proof brings plaintiff within
the statutory definition of disablement, the fact that he is still able to work in other fields
does not alter this situation. A finding that plaintiff had worked as an underground miner
for 27 years, and that he became totally disabled from work as an underground miner,
supported the conclusion of disablement, and his work since the date of disablement,
other than as an underground miner, had no legal effect on the judgment of
disablement. Vincent v. United Nuclear-Homestake Partners, 1976-NMCA-105, 89 N.M.
704, 556 P.2d 1180, cert. denied, 90 N.M. 7, 558 P.2d 619 (decided under prior law).

When the employee was disabled from working as a filling station operator because of
the occupational disease, he was disabled from following "the pursuit in which he was
engaged" and the court did not err in so ruling. That he is still able to work in other fields
does not alter this situation. Holman v. Oriental Refinery, 1965-NMSC-029, 75 N.M. 52,
400 P.2d 471 (decided under prior law).

Under prior law, to be totally disabled, a worker had to prove that he or she was
completely unable to perform the tasks comprising the work performed at the time of
injury and also was unable to perform any work for which he or she was fitted, based
upon his or her age, education, and experience. Under present law, the inquiry is limited
to whether the worker is totally unable to perform any work in the occupation in which
the worker was engaged. Thus, in determining whether a worker is totally incapacitated,
other occupations for which the worker might be fitted are not considered. Bryant v.
Lear Siegler Mgmt. Servs. Corp., 1993-NMCA-052, 115 N.M. 502, 853 P.2d 753, cert.
denied, 115 N.M. 535, 854 P.2d 362.

Work after finding of disability. — A workman (worker) may, from a clinical
standpoint, be totally and permanently disabled but through sheer drive of willpower and
habit continue for some time at his job; therefore, that employees worked for varying
periods of time after the date the trial court found them to be disabled does not require a
ruling that the men were not disabled as a matter of law. Salazar v. Kaiser Steel Corp.,
1973-NMCA-068, 85 N.M. 254, 511 P.2d 580, cert. denied, 85 N.M. 229, 511 P.2d 555
(decided under prior law).

Suffer entire loss of earning ability not mean helplessness. — Although the
requirements of this section are more definite and specific than the requirements for
total disability under the workmen's (workers') compensation law, to suffer an entire loss
of wage earning ability does not mean that a workman (worker) must be in a state of
absolute helplessness, or unable to do work of any kind. Salazar v. Kaiser Steel Corp.,
1973-NMCA-068, 85 N.M. 254, 511 P.2d 580, cert. denied, 85 N.M. 229, 511 P.2d 555
(decided under prior law).

Plaintiff who developed an allergic disorder after inhaling paint fumes and was
thus unable to work any longer as a painter was entitled to compensation under this act,
even though he might possibly have obtained work in another field. Herrera v. Fluor
Utah, Inc., 1976-NMCA-045, 89 N.M. 245, 550 P.2d 144, cert. denied, 89 N.M. 321, 551
P.2d 1368.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation
§§ 380 to 386.
30 C.J.S. Employers' Liability §§ 35 to 37; 99 C.J.S. Workmen's Compensation §§ 299
to 305.