0001| SENATE BILL 120
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| DON KIDD
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO WORKERS' COMPENSATION; NARROWING THE DEFINITION OF
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0012| A CONTRACTOR; EXTENDING TEMPORARY TOTAL DISABILITY BENEFITS;
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0013| AMENDING AND REPEALING SECTIONS OF THE WORKERS' COMPENSATION
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0014| ACT.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. Section 52-1-22 NMSA 1978 (being Laws 1965,
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0018| Chapter 295, Section 15, as amended) is amended to read:
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0019| "52-1-22. WORK NOT CASUAL EMPLOYMENT.--
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0020| A. As used in the Workers' Compensation Act,
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0021| except as provided in Subsection B of this section, or
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0022| unless the context otherwise requires, where any employer
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0023| procures any work to be done wholly or in part for him by a
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0024| contractor other than an independent contractor and the work
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0025| so procured to be done is a part or process in the trade or
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0001| business or undertaking of [such] the employer, then
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0002| [such] the employer shall be liable to pay all
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0003| compensation under the Workers' Compensation Act to the same
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0004| extent as if the work were done without the intervention of
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0005| such contractor. The work so procured to be done shall not be
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0006| construed to be "casual employment".
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0007| B. When a contractor has contracted directly with
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0008| an owner or owner's agent, and the contractor procures a
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0009| subcontractor to perform any part of that contract whether
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0010| wholly or in part:
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0011| (1) the contractor shall be considered an
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0012| employer of the subcontractor's employees;
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0013| (2) the contractor shall have the immunity of
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0014| an employer provided by the Workers' Compensation Act; and
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0015| (3) unless the subcontractor has provided
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0016| compensation to his employees, the contractor shall be liable
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0017| for payment of compensation to the employees of the
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0018| subcontractor for the work performed.
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0019| C. The contractor or his insurer may recover the
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0020| amount of the compensation and the cost of expenses incurred
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0021| in the recovery from the subcontractor."
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0022| Section 2. Section 52-1-25.1 NMSA 1978 (being Laws 1990
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0023| (2nd S.S.), Chapter 2, Section 10) is amended to read:
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0024| "52-l-25.l. TEMPORARY TOTAL DISABILITY--RETURN TO WORK.--
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0025| A. As used in the Workers' Compensation Act,
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0001| "temporary total disability" means the inability of [the]
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0002| a worker, by reason of accidental injury arising out of and
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0003| in the course of his employment, to perform his duties [prior
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0004| to the date of his maximum medical improvement] from the
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0005| date of injury until thirteen weeks following maximum medical
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0006| improvement.
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0007| B. If, [prior to the date of maximum medical
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0008| improvement] while temporarily totally disabled, an injured
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0009| worker's health care provider releases the worker to return to
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0010| work and the employer offers work at the worker's pre-injury
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0011| wage, the worker is not entitled to temporary total disability
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0012| benefits.
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0013| C. If, [prior to the date of maximum medical
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0014| improvement] while temporarily totally disabled, an injured
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0015| worker's health care provider releases the worker to return to
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0016| work and the employer offers work at less than the worker's
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0017| pre-injury wage, the worker is disabled and shall receive
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0018| temporary total disability compensation benefits equal to
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0019| sixty-six and two-thirds percent of the difference between the
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0020| worker's pre-injury wage and his post-injury wage.
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0021| D. For injuries occurring on or after January 1,
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0022| 1999, if on or after the initial date of maximum medical
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0023| improvement, the employer does not offer work to the injured
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0024| worker at ninety-six percent of his pre-injury wage within his
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0025| permanent physical restrictions from the work-related injury
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0001| as determined by a designated health care provider, the worker
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0002| shall be eligible to receive bi-weekly temporary total
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0003| disability benefits for a period not to exceed thirteen weeks
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0004| for any one work-related injury. The worker shall not be
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0005| entitled to the additional temporary total disability benefits
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0006| if he is employed or if he refuses the employer's job offer.
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0007| [D.] E. If the worker returns to work pursuant
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0008| to the provisions of Subsection B of this section, the
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0009| employer shall continue to provide reasonable and necessary
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0010| medical care pursuant to Section 52-l-49 NMSA l978."
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0011| Section 3. Section 52-1-41 NMSA 1978 (being Laws 1959,
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0012| Chapter 67, Section 20, as amended) is amended to read:
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0013| "52-l-41. COMPENSATION BENEFITS--TOTAL DISABILITY.--
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0014| A. For total disability, the worker shall receive,
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0015| during the period of that disability, sixty-six and two-thirds
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0016| percent of his average weekly wage, not to exceed a maximum
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0017| compensation of ninety dollars ($90.00) a week, effective July
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0018| 1, 1975; and not to exceed a maximum compensation of sixty-six
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0019| and two-thirds percent of the average weekly wage in the
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0020| state, a week, effective January l, 1976; and not to exceed a
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0021| maximum compensation of seventy-eight percent of the average
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0022| weekly wage in the state, a week, effective July l, 1976; and
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0023| not to exceed a maximum compensation of eighty-nine percent of
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0024| the average weekly wage in the state, a week, effective July
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0025| l, 1977; and not to exceed a maximum compensation of one
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0001| hundred percent of the average weekly wage in the state, a
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0002| week, effective July l, 1978; and not to exceed a maximum
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0003| compensation of eighty-five percent of the average weekly wage
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0004| in the state, a week, effective July l, 1987; and not to
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0005| exceed a maximum compensation of one hundred percent of the
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0006| average weekly wage in the state, a week, effective January 1,
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0007| 1999; and to be not less than a minimum compensation of
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0008| thirty-six dollars ($36.00) a week. Except as provided in
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0009| Subsections B and C of this section, the worker shall receive
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0010| compensation benefits for the remainder of his life.
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0011| B. For disability resulting from primary mental
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0012| impairment, the maximum period of compensation is one hundred
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0013| weeks. For disability resulting in secondary mental
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0014| impairment, the maximum period of compensation is the maximum
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0015| period allowable for the disability produced by the physical
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0016| impairment or one hundred weeks, whichever is greater.
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0017| C. For the purpose of paying compensation benefits
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0018| for death, pursuant to Section 52-l-46 NMSA 1978, the worker's
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0019| maximum disability recovery shall be deemed to be seven
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0020| hundred weeks.
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0021| D. Where the worker's average weekly wage is less
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0022| than thirty-six dollars ($36.00) a week, the compensation to
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0023| be paid the worker shall be his full weekly wage.
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0024| E. For the purpose of the Workers' Compensation
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0025| Act, the average weekly wage in the state shall be determined
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0001| by the employment security division of the labor department on
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0002| or before June 30 of each year [and]. The average weekly
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0003| wage shall be computed from all wages reported to the
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0004| employment security division from employing units, including
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0005| reimbursable employers, in accordance with the regulations of
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0006| the division for the preceding calendar year, divided by the
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0007| total number of covered employees divided by fifty-two.
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0008| F. The average weekly wage in the state,
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0009| determined as provided in Subsection E of this section, shall
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0010| be applicable for the full period during which compensation is
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0011| payable when the date of the occurrence of an accidental
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0012| injury falls within the calendar year commencing January l
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0013| following the June 30 determination.
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0014| G. Unless the computation provided for in
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0015| Subsection E of this section results in an increase or
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0016| decrease of two dollars ($2.00) or more, raised to the next
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0017| whole dollar, the statewide average weekly wage determination
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0018| shall not be changed for any calendar year."
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0019| Section 4. Section 52-1-46 NMSA 1978 (being Laws 1959,
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0020| Chapter 67, Section 25, as amended) is amended to read:
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0021| "52-1-46. COMPENSATION BENEFITS FOR DEATH.--Subject to
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0022| the limitation of compensation payable under Subsection G of
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0023| this section, if an accidental injury sustained by a worker
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0024| proximately results in his death within the period of two
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0025| years following his accidental injury, compensation shall be
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0001| paid in the amount and to the persons entitled thereto as
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0002| follows:
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0003| A. if there are no eligible dependents, except as
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0004| provided in Subsection C of Section 52-l-l0 NMSA 1978 of the
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0005| Workers' Compensation Act, the compensation shall be limited
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0006| to the funeral expenses, not to exceed [three thousand
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0007| dollars ($3,000)] five thousand dollars ($5,000), and the
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0008| expenses provided for medical and hospital services for the
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0009| deceased, together with all other sums which the deceased
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0010| should have been paid for compensation benefits up to the time
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0011| of his death; provided that, commencing January 1, 1999 and
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0012| continuing each year thereafter, the funeral expense benefit
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0013| shall be adjusted by an amount equal to the change in the
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0014| consumer price index during the most recent calendar year.
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0015| For the purpose of this section, "consumer price index" means
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0016| the average of the monthly consumer price indexes for a
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0017| calendar year for the entire United States for all items as
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0018| published by the United States department of labor;
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0019| B. if there are eligible dependents at the time of
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0020| the worker's death, payment shall consist of a sum not to
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0021| exceed [three thousand dollars ($3,000)] five thousand
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0022| dollars ($5,000) for funeral expenses and expenses provided
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0023| for medical and hospital services for the deceased, together
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0024| with such other sums as the deceased should have been paid for
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0025| compensation benefits up to the time of his death and
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0001| compensation benefits to the eligible dependents as
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0002| hereinafter specified, subject to the limitations on maximum
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0003| periods of recovery provided in Sections 52-1-41 through
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0004| 52-1-43 and 52-1-47 NMSA 1978; provided that, commencing
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0005| January 1, 1999 and continuing each year thereafter the
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0006| funeral expense benefit shall be adjusted by an amount equal
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0007| to the change in the consumer price index for the most recent
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0008| calendar year;
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0009| C. if there are eligible dependents entitled
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0010| thereto, compensation shall be paid to the dependents or to
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0011| the person authorized by the director or appointed by the
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0012| court to receive the same for the benefit of the dependents in
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0013| such portions and amounts, to be computed and distributed as
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0014| follows:
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0015| (1) to the child or children, if there is no
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0016| widow or widower entitled to compensation, sixty-six and two-
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0017| thirds percent of the average weekly wage of the deceased;
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0018| (2) to the widow or widower, if there are no
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0019| children, sixty-six and two-thirds percent of the average
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0020| weekly wage of the deceased, until remarriage; or
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0021| (3) to the widow or widower, if there is a
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0022| child or children living with the widow or widower, forty-five
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0023| percent of the average weekly wage of the deceased, or forty
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0024| percent if such child is not or all such children are not
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0025| living with a widow or widower and, in addition thereto,
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0001| compensation benefits for the child or children [which]
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0002| that shall make the total benefits for the widow or widower
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0003| and child or children sixty-six and two-thirds percent of the
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0004| average weekly wage of the deceased. When there are two or
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0005| more children, the compensation benefits payable on account of
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0006| such children shall be divided among such children, share and
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0007| share alike; and
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0008| (4) two years' compensation benefits in one
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0009| lump sum shall be payable to a widow or widower upon
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0010| remarriage; however, the total benefits shall not exceed the
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0011| maximum compensation benefit as provided in Subsection B of
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0012| this section;
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0013| D. if there is neither widow, widower nor
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0014| children, compensation may be paid to the father and mother or
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0015| the survivor of them, if dependent to any extent upon the
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0016| worker for support at the time of the worker's death, twenty-
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0017| five percent of the average weekly wage of the deceased, and
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0018| in no event shall the maximum compensation to such dependents
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0019| exceed the amounts contributed by the deceased worker for
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0020| their care; provided that if the father and mother or the
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0021| survivor of them was totally dependent upon such worker for
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0022| support at the time of the worker's death, he or they shall be
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0023| entitled to fifty percent of the average weekly wage of the
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0024| deceased;
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0025| E. if there is neither widow, widower nor children
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0001| nor dependent parent, then to the brothers and sisters and
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0002| grandchildren if actually dependent to any extent upon the
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0003| deceased worker for support at the time of the worker's death,
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0004| thirty-five percent of the average weekly wage of the deceased
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0005| worker with fifteen percent additional for brothers and
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0006| sisters and grandchildren in excess of two, with a maximum of
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0007| sixty-six and two-thirds percent of the average weekly wage of
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0008| the deceased, and in no event shall the maximum compensation
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0009| to partial dependents exceed the respective amounts
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0010| contributed by the deceased worker for their care;
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0011| F. in the event of the death or remarriage of the
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0012| widow or widower entitled to compensation benefits as provided
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0013| in this section, the surviving children shall then be entitled
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0014| to compensation benefits computed and paid as provided in
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0015| Paragraph (1) of Subsection C of this section for the
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0016| remainder of the compensable period. In the event
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0017| compensation benefits payable to children as provided in this
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0018| section are terminated as provided in Subsection E of Section
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0019| 52-l-l7 NMSA l978, a surviving widow or widower shall then be
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0020| entitled to compensation benefits computed and paid as
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0021| provided in Paragraphs (2) and (4) of Subsection C of this
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0022| section for the remainder of the compensable period; and
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0023| G. no compensation benefits payable by reason of a
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0024| worker's death shall exceed the maximum weekly compensation
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0025| benefits as provided in Sections 52-1-41 through 52-1-43 and
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0001| 52-1-47 NMSA l978, and no dependent or any class thereof,
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0002| other than a widow, widower or children, shall in any event be
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0003| paid total benefits in excess of seven thousand five hundred
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0004| dollars ($7,500) exclusive of funeral expenses and the
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0005| expenses provided for medical and hospital services for the
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0006| deceased paid for by the employer."
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0007| Section 5. Section 52-3-14 NMSA 1978 (being Laws 1945,
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0008| Chapter 135, Section 14, as amended) is amended to read:
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0009| "52-3-14. COMPENSATION--LIMITATIONS.--
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0010| A. The compensation to which an employee who has
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0011| suffered disablement, or his dependents, shall be entitled
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0012| under the New Mexico Occupational Disease Disablement Law is
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0013| limited to the provisions of that law. No compensation shall
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0014| be due or payable under the New Mexico Occupational Disease
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0015| Disablement Law for any disablement which does not result in
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0016| either the temporary disablement of the employee lasting for
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0017| more than seven days or in his permanent disablement as herein
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0018| described or in death; provided, however, that if the period
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0019| of temporary disablement of the employee lasts for more than
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0020| four weeks from the date of the disablement, compensation
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0021| under the New Mexico Occupational Disease Disablement Law
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0022| shall be payable in addition to the amount hereinafter stated
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0023| in a like amount for the first seven days after the date of
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0024| disablement. But for any such disablement for which
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0025| compensation is payable under the New Mexico Occupational
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0001| Disease Disablement Law, the employer shall in all proper
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0002| cases, as herein provided, pay to the disabled employee or to
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0003| some person authorized by the director to receive the same,
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0004| for the use and benefit of the beneficiaries entitled thereto,
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0005| compensation at regular intervals of no more than sixteen days
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0006| apart, in accordance with the following, less proper
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0007| deductions on account of default in failure to give notice of
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0008| such disablement as required in Section 52-3-19 NMSA 1978.
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0009| B. For total disablement, the employee shall
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0010| receive sixty-six and two-thirds percent of his average weekly
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0011| wage, not to exceed a maximum compensation of:
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0012| (1) ninety dollars ($90.00) a week, effective
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0013| July 1, 1975;
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0014| (2) sixty-six and two-thirds percent of the
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0015| average weekly wage in the state, a week, effective January 1,
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0016| 1976;
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0017| (3) seventy-eight percent of the average
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0018| weekly wage in the state, a week, effective July 1, 1976;
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0019| (4) eighty-nine percent of the average weekly
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0020| wage in the state, a week, effective July 1, 1977;
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0021| (5) one hundred percent of the average weekly
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0022| wage in the state, a week, effective July 1, 1978; [and]
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0023| (6) eighty-five percent of the average weekly
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0024| wage in the state, a week, effective July 1, 1987; and
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0025| (7) one hundred percent of the average weekly
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0001| wage in the state, a week, effective January 1, 1999;
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0002| or to be less than a minimum compensation of thirty-six
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0003| dollars ($36.00) a week, during the period of such
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0004| disablement, but in no event to exceed a period of seven
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0005| hundred weeks; provided, however, that where his wages are
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0006| less than thirty-six dollars ($36.00) a week, then the
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0007| compensation to be paid such employee shall be the full amount
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0008| of such weekly wages; provided further that the benefits paid
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0009| or payable during a employee's entire period of disablement
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0010| shall be based on and limited to the benefits in effect on the
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0011| date of the occurrence of the disablement.
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0012| C. For partial disablement, the benefits shall be
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0013| a percentage of the benefits payable for total disablement
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0014| calculated under Subsection B of this section as that
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0015| percentage is determined pursuant to the provisions of Section
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0016| 52-3-4 NMSA 1978. In no event shall the duration of benefits
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0017| extend longer than five hundred weeks.
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0018| D. For the purpose of the New Mexico Occupational
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0019| Disease Disablement Law, the average weekly wage in the state
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0020| shall be determined by the employment security division of the
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0021| labor department on or before June 30 of each year and shall
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0022| be computed from all wages reported to the employment security
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0023| division from employing units, including reimbursable
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0024| employers, in accordance with the regulations of the
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0025| employment security division for the preceding calendar year,
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0001| divided by the total number of covered employees divided by
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0002| fifty-two. The first such determination by the employment
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0003| security division of the average weekly wage in the state
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0004| shall be made on or before June 30, 1975 from reported wages
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0005| and covered employees for the calendar year ending December
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0006| 31, 1974.
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0007| E. The average weekly wage in the state,
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0008| determined as provided in Subsection D of this section, shall
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0009| be applicable for the full period during which compensation is
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0010| payable when the date of the occurrence of the disablement
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0011| falls within the calendar year commencing January 1 following
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0012| the June 30 determination.
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0013| F. Unless the computation provided for in
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0014| Subsection D of this section results in an increase or
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0015| decrease of two dollars ($2.00) or more, raised to the next
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0016| whole dollar, the statewide average weekly wage determination
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0017| shall not be changed for any calendar year.
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0018| G. In case death proximately results from the
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0019| disablement within the period of two years, compensation
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0020| benefits to be paid such employee shall be in the amounts and
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0021| to the persons as follows:
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0022| (1) if there are no dependents, the
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0023| compensation shall be limited to the funeral expenses not to
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0024| exceed [three thousand dollars ($3,000)] five thousand
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0025| dollars ($5,000) and the expenses provided for medical and
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0001| hospital services for the deceased, together with such other
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0002| sums as the deceased may have been paid for disablement;
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0003| provided that, commencing January 1, 1999 and continuing each
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0004| year thereafter, the funeral expense benefit shall be adjusted
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0005| by an amount equal to the change in the consumer price index
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0006| during the calendar year most recently completed. For the
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0007| purpose of this section, "consumer price index" means the
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0008| average of the monthly consumer price indexes for a calendar
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0009| year for the entire United States for all items as published
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0010| by the United States department of labor; or
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0011| (2) if there are dependents at the time of
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0012| death, the payment shall consist of a sum not to exceed
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0013| [three thousand dollars ($3,000)] five thousand dollars
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0014| ($5,000) for funeral expenses and expenses provided for
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0015| medical and hospital services for the deceased, together with
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0016| such other sums as the deceased may have been paid for
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0017| disability, and a percentage [hereinafter] specified in
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0018| this paragraph for average weekly wages subject to the
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0019| limitations of the New Mexico Occupational Disease Disablement
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0020| Law to continue for the period of seven hundred weeks from the
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0021| date of death of such employee; provided that the total death
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0022| compensation, unless otherwise specified, payable in any of
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0023| the cases [hereinafter] mentioned in this section shall
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0024| not be less than the minimum weekly compensation provided in
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0025| Subsection B of this section or more than the maximum weekly
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0001| compensation provided in Subsection B of this section and
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0002| shall be based on and limited to the benefits in effect on the
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0003| date of the occurrence of the disablement. If there are
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0004| dependents entitled thereto, compensation shall be paid to the
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0005| dependents or to the person authorized by the director or the
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0006| court to receive the same for the benefit of the dependents in
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0007| such portions and amounts as the director or the court,
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0008| bearing in mind the necessities of the case and the best
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0009| interests of the dependents and of the public, may determine,
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0010| to be computed on the following basis and distributed to the
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0011| following persons; provided that, commencing January 1, 1999
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0012| and continuing each year thereafter the funeral expense
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0013| benefit shall be adjusted by an amount equal to the change in
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0014| the consumer price index:
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0015| (a) to the child or children, if there
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0016| is no widow or widower entitled to compensation, sixty-six and
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0017| two-thirds percent of the average weekly wage of the deceased;
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0018| (b) to the widow or widower, if there
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0019| are no children, sixty-six and two-thirds percent of the
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0020| average weekly wage of the deceased, until remarriage;
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0021| (c) to the widow or widower, if there
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0022| is a child or children living with the widow or widower,
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0023| forty-five percent of the average weekly wage of the deceased,
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0024| or forty percent, if such child is not or all such children
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0025| are not living with a widow or widower, and in addition
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0001| thereto, compensation benefits for the child or children which
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0002| shall make the total benefits for the widow or widower and
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0003| child or children sixty-six and two-thirds percent of the
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0004| average weekly wage of the deceased. When there are two or
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0005| more children, the compensation benefits payable on account of
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0006| such children shall be divided among such children, share and
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0007| share alike;
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0008| (d) two years' compensation benefits in
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0009| one lump sum shall be payable to a widow or widower upon
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0010| remarriage; however, the total benefits shall not exceed the
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0011| maximum compensation benefits as provided in Paragraph (2) of
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0012| this subsection;
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0013| (e) if there is neither widow, widower
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0014| nor children, then to the father and mother or the survivor of
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0015| them if dependent to any extent upon the employee for support
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0016| at the time of his death, twenty-five percent of the average
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0017| weekly wage of the deceased; provided that if such father and
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0018| mother or the survivor of them was totally dependent upon such
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0019| employee for support at the time of his death, he or they
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0020| shall be entitled to fifty percent of the average weekly wage
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0021| of the deceased, subject to the maximum weekly compensation
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0022| provided for in Subsection B of this section;
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0023| (f) no disablement benefits payable by
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0024| reason of an employee's death shall exceed the maximum weekly
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0025| compensation provided for in Subsection B of this section, and
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0001| no dependent or any class thereof other than a widow or
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0002| widower or children shall in any event be paid total benefits
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0003| in excess of seven thousand five hundred dollars ($7,500)
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0004| exclusive of funeral expenses and the expenses provided for
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0005| medical and hospital services for the deceased paid for by the
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0006| employer.
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0007| If there is neither widow, widower nor children nor
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0008| dependent parent, then to the brothers and sisters, if
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0009| actually dependent to any extent upon the deceased for support
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0010| at the time of his death, thirty-five percent of the average
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0011| weekly wage of the deceased, with fifteen percent additional
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0012| for brothers or sisters in excess of two, with a maximum of
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0013| sixty-six and two-thirds percent to be paid to their guardian;
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0014| provided that the maximum compensation to partial dependents
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0015| shall not exceed the respective amounts therefor contributed
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0016| by the deceased employee or the maximum weekly compensation
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0017| provided for in Subsection B of this section; and
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0018| (g) in the event of the death or
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0019| remarriage of the widow or widower entitled to compensation
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0020| under this subsection, the surviving children shall then be
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0021| entitled to compensation computed and paid as in Subparagraph
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0022| (a) of this paragraph for the remainder of the compensable
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0023| period, and in the event compensation benefits payable to
|
0024| children as provided in this section are terminated as
|
0025| provided in Paragraph (5) of Subsection A of Section 52-3-13
|
- 18 -
0001| NMSA 1978, a surviving widow or widower shall then be entitled
|
0002| to compensation benefits computed and paid as provided in
|
0003| Subparagraphs (b) and (d) of this paragraph for the remainder
|
0004| of the compensable period."
|
0005| Section 6. Section 52-5-7 NMSA 1978 (being Laws 1986,
|
0006| Chapter 22, Section 33, as amended) is amended to read:
|
0007| "52-5-7. HEARING PROCEDURE.--
|
0008| A. It is the intent of the legislature that the
|
0009| workers' compensation administration shall have original
|
0010| jurisdiction to hear a claim alleging that the complaining
|
0011| party suffered an injury that occurred while in the course and
|
0012| scope of his employment and the person from whom recovery is
|
0013| sought is the complaining party's employer. For the purpose
|
0014| of determining jurisdiction, the allegation that the injury
|
0015| occurred in the course and scope of employment may be made by
|
0016| either the complaining party or the party from which benefits
|
0017| are sought.
|
0018| [A.] B. When matters in dispute cannot be
|
0019| resolved by informal conference or other techniques, the
|
0020| director shall transmit a copy of the claim to the other
|
0021| parties with notice to respond by written answer. The other
|
0022| parties shall respond with a written answer within twenty days
|
0023| after receiving a notice or within such extension of that time
|
0024| as the director may allow. If no timely answer is filed by a
|
0025| party after notice, a workers' compensation judge may, if he
|
- 19 -
0001| determines it to be appropriate, grant the relief sought
|
0002| against that party. However, if in order to enable the
|
0003| workers' compensation judge to enter an order and carry out
|
0004| its effect it is necessary to take an account, determine the
|
0005| amount of benefits due, establish the truth of any claims by
|
0006| evidence or make an investigation of any matter, the workers'
|
0007| compensation judge may conduct such hearings as he deems
|
0008| necessary and proper.
|
0009| [B.] C. A hearing shall be held for
|
0010| determining the questions at issue within sixty days of the
|
0011| filing of the answer. All parties in interest shall be given
|
0012| at least twenty days' notice of the hearing and of the issues
|
0013| to be heard, served personally or by mail. Following the
|
0014| presentation of the evidence, the workers' compensation judge
|
0015| shall determine the questions at issue and file the decision
|
0016| with the director within thirty days, unless the time for
|
0017| filing the decision is extended by the mutual agreement of the
|
0018| parties. At the time of filing, a certified copy of the
|
0019| decision shall be sent by first class mail to all interested
|
0020| parties at the last known address of each. The decision of
|
0021| the workers' compensation judge shall be made in the form of a
|
0022| compensation order, appropriately titled to show its purpose
|
0023| and containing a report of the case, findings of fact and
|
0024| conclusions of law and, if appropriate, an order for the
|
0025| payment of benefits under the Workers' Compensation Act or the
|
- 20 -
0001| New Mexico Occupational Disease Disablement Law.
|
0002| [C.] D. The decision of the workers'
|
0003| compensation judge shall be final and conclusive as to all
|
0004| matters adjudicated by him upon the expiration of the
|
0005| thirtieth day after a copy of the decision has been mailed to
|
0006| the parties, unless prior to that day a party in interest
|
0007| seeks judicial review of the decision pursuant to Section 52-
|
0008| 5-8 NMSA 1978.
|
0009| [D.] E. All hearings before the workers'
|
0010| compensation judge shall be open to the public. The director
|
0011| shall by regulation provide for the preparation of a record of
|
0012| each hearing.
|
0013| [E.] F. The director may authorize a workers'
|
0014| compensation judge or his duly authorized representative to
|
0015| enter at any reasonable time the premises where an injury or
|
0016| death has occurred and to make such examination of any tool,
|
0017| appliance, process, machinery or environmental or other
|
0018| condition as may be relevant to a determination of the cause
|
0019| and circumstances of the injury, disablement or death.
|
0020| [F.] G. The testimony of any witness may be
|
0021| taken by deposition or interrogatories according to the rules
|
0022| of civil procedure for the district courts and may be taken
|
0023| before any workers' compensation judge or any person
|
0024| authorized to take testimony, but discovery procedure shall be
|
0025| conducted only upon the workers' compensation judge's findings
|
- 21 -
0001| that good cause exists. The cost and expense of any discovery
|
0002| procedure allowed by the workers' compensation judge shall be
|
0003| paid as provided in Section 52-1-54 NMSA 1978. No costs shall
|
0004| be charged, taxed or collected by the workers' compensation
|
0005| judge except fees for witnesses who testify under subpoena.
|
0006| The witnesses shall be allowed the same fee for attendance and
|
0007| mileage as is fixed by the law in civil actions, except that
|
0008| the workers' compensation judge may assess against the
|
0009| employer the fees allowed any expert witness, as provided in
|
0010| Section 38-6-4 NMSA 1978, whose examination of the claimant,
|
0011| report or hearing attendance the workers' compensation judge
|
0012| deems necessary for resolution of matters at issue."
|
0013| Section 7. Section 52-5-17 NMSA 1978 (being Laws 1986,
|
0014| Chapter 22, Section 43, as amended) is amended to read:
|
0015| "52-5-l7. SUBROGATION.--
|
0016| A. The right of any worker or, in case of his
|
0017| death, of those entitled to receive payment or damages for
|
0018| injuries or disablement occasioned to him by the negligence or
|
0019| wrong of any person other than the employer or any other
|
0020| employee of the employer, including a management or
|
0021| supervisory employee, shall not be affected by the Workers'
|
0022| Compensation Act or the New Mexico Occupational Disease
|
0023| Disablement Law, but the claimant shall not be allowed to
|
0024| receive payment or recover damages for those injuries or
|
0025| disablement and also claim compensation from the employer
|
- 22 -
0001| except as provided in Subsection [C] D of this section.
|
0002| B. In a circumstance covered by Subsection A of
|
0003| this section, the receipt of compensation from the employer
|
0004| shall operate as an assignment to the employer or his insurer,
|
0005| guarantor or surety of any cause of action, to the extent of
|
0006| payment by the employer to or on behalf of the worker for
|
0007| compensation or any other benefits to which the worker was
|
0008| entitled under the Workers' Compensation Act or the New Mexico
|
0009| Occupational Disease Disablement Law and that were occasioned
|
0010| by the injury or disablement, that the worker or his legal
|
0011| representative or others may have against any other party for
|
0012| the injury or disablement.
|
0013| C. An employer, or his insurer, guarantor or
|
0014| surety, who incurs compensation benefit costs in connection
|
0015| with a workers' compensation claim resulting from an injury
|
0016| caused by the negligence of a person other than the employer
|
0017| or another employee, including a supervisory employee, may
|
0018| pursue a civil action in his own name against the third party
|
0019| to recover costs directly related to payment of the claim,
|
0020| including legal fees, discovery and expert witness costs,
|
0021| medical expenses and indemnity benefits. The claim of an
|
0022| employer, or his insurer, guarantor or surety, for subrogation
|
0023| recovery against an employee who has recovered against a third
|
0024| party shall be reduced to the extent of the amount directly
|
0025| recovered by the employer, or his insurer, guarantor or
|
- 23 -
0001| surety, from that third party.
|
0002| [C.] D. The worker or his legal representative
|
0003| may retain any compensation due under the uninsured motorist
|
0004| coverage provided in Section 66-5-30l NMSA l978 if the worker
|
0005| paid the premium for that coverage. If the employer paid the
|
0006| premium, the worker or his legal representative may not retain
|
0007| any compensation due under Section 66-5-30l NMSA l978, and
|
0008| that amount shall be due to the employer. For the purposes of
|
0009| this section, the employer shall not be deemed to pay the
|
0010| premium for uninsured motorist coverage in a lease arrangement
|
0011| in which the employer pays the worker an expense or mileage
|
0012| reimbursement amount that may include as one factor an
|
0013| allowance for insurance coverage."
|
0014| Section 8. REPEAL.--Sections 52-1-4.1 and 52-3-9.1 NMSA
|
0015| 1978 (being Laws 1979, Chapter 368, Section 2 and Laws 1980,
|
0016| Chapter 88, Section 4, as amended) are repealed.
|
0017|
|