NM Stat § 52-1-26.3 (2021)
2021 New Mexico Statutes|Chapter 52 - Workers' Compensation|Article 1 - Workers' Compensation|Section 52-1-26.3 - Partial disability determination; education modification.

A. The range of the education modification is one to eight. The modification shall be based upon the worker's formal education, skills and training at the time of the disability rating. B. A worker shall be awarded points based on the formal education that the worker has received. A worker who: (1) has completed no higher than the fifth grade shall be awarded three points; (2) has completed the sixth grade but has completed no higher than the eleventh grade shall be awarded two points; (3) has completed the twelfth grade or has obtained a high school equivalency credential but has not completed a college degree shall be awarded one point; and (4) has completed a college degree or more shall receive zero points. C. A worker shall be awarded points based upon the worker's skills. Skills shall be measured by reviewing the jobs that the worker has successfully performed during the ten years preceding the date of disability determination. For the purposes of this section, "successfully performed" means having remained on the job the length of time necessary to meet the specific vocational preparation (SVP) time requirement for that job as established in the dictionary of occupational titles published by the United States department of labor. The appropriate award of points shall be based upon the highest SVP level demonstrated by the worker in the performance of the jobs that the worker has successfully performed in the ten-year period preceding the date of disability determination, as follows: (1) a worker with an SVP of one to two shall be awarded four points; (2) a worker with an SVP of three to four shall be awarded three points; (3) a worker with an SVP of five to six shall be awarded two points; and (4) a worker with an SVP of seven to nine shall be awarded one point. D. A worker shall be awarded points based upon the training that the worker has received. A worker who cannot competently perform a specific vocational pursuit shall be awarded one point. A worker who can perform a specific vocational pursuit shall not receive any points. E. The sum of the points awarded the worker in Subsections B, C and D of this section shall constitute the education modification. History: 1978 Comp., § 52-1-26.3, enacted by Laws 1990 (2nd S.S.), ch. 2, § 14; 2001, ch. 87, § 3; 2015, ch. 122, § 20. ANNOTATIONSThe 2015 amendment, effective July 1, 2015, replaced "GED certificate" with "high school equivalency credential" relating to worker's compensation benefits; in the introductory sentence of Subsection B, after "formal education", deleted "he" and added "that the worker"; in Paragraph (3) of Subsection B, after "obtained a", deleted "GED certificate" and added "high school equivalency credential"; in the introductory paragraph of Subsection C, after "awarded points based upon", deleted "his" and added "the worker's", after "reviewing the jobs", deleted "he" and added "that the worker", and after "performance of the jobs", deleted "he" and added "that the worker"; and in Subsection D, after "upon the training", deleted "he" and added "that the worker". The 2001 amendment, effective July 1, 2001, changed the range of the education modification from "zero to seven" to "one to eight" in Subsection A and increased the point values by one throughout Subsection B. Construction with Section 52-1-56 NMSA 1978. — The term "disability," as used in Section 52-1-56 NMSA 1978 for purposes of modification of a compensation order, refers to a worker's physical condition and does not include the education modifier used pursuant to this section to determine disability rating. Herrera v. Quality Imports, 1999-NMCA-140, 128 N.M. 300, 992 P.2d 313. Worker could not "competently perform". — Since the worker's residual physical capacity had been classified as "light," he could not "competently perform" any of his previous vocations, and there was insufficient evidence in the record to support the workers' compensation judge's finding that the worker could perform a specific vocational pursuit. The worker should have been awarded one point under subsection D. Medina v. Berg Constr., Inc., 1996-NMCA-087, 122 N.M. 350, 924 P.2d 1362. Diminished physical abilities. — Where there was ample evidence that the worker could not perform heavy labor, including the employer's admission that the worker's physical capacity was medium and restrictions placed by physicians, and his previous occupations as carpenter and farm worker involved heavy labor, he was entitled to a vocational pursuit point because he could not perform any of his previous work. Rodriguez v. La Mesilla Constr. Co., 1997-NMCA-062, 123 N.M. 489, 943 P.2d 136. Law reviews. — For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).