NM Stat § 52-1-26.4 (2021)
2021 New Mexico Statutes|Chapter 52 - Workers' Compensation|Article 1 - Workers' Compensation|Section 52-1-26.4 - Partial disability determination; physical capacity modification.

A. The range of the physical capacity modification is one to eight. B. The award of points to a worker shall be based upon the difference between the physical capacity necessary to perform the worker's usual and customary work and the worker's residual physical capacity. The award of points shall be based upon the following table: || RESIDUAL PHYSICAL CAPACITY   ||   S    L    M    H   || PRE-INJURY    S    1    1    1    1   || PHYSICAL CAPACITY    L    3    1    1    1   || (USUAL AND    M    5    3    1    1   || CUSTOMARY WORK)    H    8    5    3    1.   |C. For the purposes of this section: (1) "H" or "heavy" means the ability to lift over fifty pounds occasionally or up to fifty pounds frequently; (2) "M" or "medium" means the ability to lift up to fifty pounds occasionally or up to twenty-five pounds frequently; (3) "L" or "light" means the ability to lift up to twenty pounds occasionally or up to ten pounds frequently. Even though the weight lifted may be only a negligible amount, a job is in this category when it requires walking or standing to a significant degree or when it involves sitting most of the time with a degree of pushing and pulling of arm or leg controls or both; and (4) "S" or "sedentary" means the ability to lift up to ten pounds occasionally or up to five pounds frequently. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required only occasionally and other sedentary criteria are met. D. The determination of a worker's residual physical capacity shall be made by a health care provider defined in Subsection C, E or G of Section 52-4-1 NMSA 1978. If the worker or employer disagrees on who shall make this determination, the dispute shall be resolved in accordance with the provisions set forth in Section 52-1-51 NMSA 1978. History: 1978 Comp., § 52-1-26.4, enacted by Laws 1990 (2nd S.S.), ch. 2, § 15; 2003, ch. 265, § 2. ANNOTATIONSThe 2003 amendment, effective June 20, 2003, in the section heading added "Partial" at the beginning and deleted "calculation" near the middle; and made several changes in the "Residual Physical Capacity" table in Subsection B. Job description. — Where the worker's job description as a correctional officer required the worker to have the capacity to lift more than fifty pounds, the worker's work required "heavy" physical capacity. Moya v. City of Albuquerque, 2008-NMSC-004, 143 N.M. 258, 175 P.3d 926. Correctional officer. — The workers' compensation judge correctly classified the level of physical capacity that was necessary in the usual and customary course of a correctional officer's job as medium where the job description stated that a correctional officer was required to lift up to thirty-five pounds frequently and more than thirty-five pounds rarely. Moya v. City of Albuquerque, 2007-NMCA-057, 141 N.M. 617, 159 P.3d 266, cert. granted, 2007-NMCERT-005, rev'd, 2008-NMSC-004, 143 N.M. 258, 175 P.3d 926. Requirements mandatory for classification at certain level. — Reading the provisions of this section, together with the provisions of the other statutory modifiers, the legislature intended that a worker must be able to meet all the lifting requirements for each level in order to be classified at that level. Medina v. Berg Constr., Inc., 1996-NMCA-087, 122 N.M. 350, 924 P.2d 1362. Light duty classification was supported by sufficient evidence. — Where worker, who was employed as a school bus driver and who injured worker's back and shoulder, had been released to work twice in a light duty capacity by worker's treating physicians; and two independent medical examiners agreed that worker's abilities were consistent with a light duty designation, there was sufficient evidence to support the workers' compensation judge's determination that worker's residual physical capacity was light duty. Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085. "Usual and customary" work is not limited to the job held by the worker at the time of injury, or to the worker's job within a specific time frame. Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, 120 N.M. 734, 906 P.2d 266. Consideration of evidence of health care provider. — Even though evidence must be presented by a qualified health provider on the issue of a worker's residual physical capacity, a worker's compensation judge is free to consider this evidence in the same manner, and to the same degree, as any other expert testimony. Slygh v. RMCI, Inc., 1995-NMCA-081, 120 N.M. 358, 901 P.2d 776. Worker unable to "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. Medina v. Berg Constr., Inc., 1996-NMCA-087, 122 N.M. 350, 924 P.2d 1362. Inability to perform heavy labor. — 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 at least four points for physical capacity modification. 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).