2023 New Mexico Statutes › Chapter 52 - Workers' Compensation › Article 1 - Workers' Compensation › Section 52-1-38 - Judgment; provisions; execution; subrogation; contempts.

A. All judgments based upon a supplementary compensation order pursuant to Section 52-5-10 NMSA 1978 shall be against the defendants and each of them for the amount then due and shall also contain an order upon the defendants for the payment to the worker, at regular intervals during the continuance of his disability, the further amounts he is entitled to receive. The judgment shall be so framed as to accomplish the purpose and intent of the Workers' Compensation Act in all particulars. In addition to executions for any amount already due in the judgment, executions for amounts to become due in the future shall be issued by the clerk of the court at any time after the time provided in the judgment for the payment thereof if the worker files his affidavit with the clerk that the same is unpaid and that his disability still continues; provided, however, if application is made for a physical examination of the worker under Section 52-1-51 NMSA 1978, issuance of execution shall await the further order of a workers' compensation judge.
B. All judgments and executions based upon a supplementary compensation order pursuant to Section 52-5-10 NMSA 1978 issued in workers' compensation cases shall be governed by the laws of this state with respect to judgments or executions in civil cases and shall have the same force and effect.
C. When a judgment or execution based upon a supplementary compensation order pursuant to Section 52-5-10 NMSA 1978 is paid or satisfied by a defendant who has an agreement that the judgment or execution should have been paid or satisfied by another party as insurer, guarantor, surety or otherwise, the defendant is entitled to judgment over against the party in the same case. Application for judgment shall be made within ninety days after judgment is paid or execution satisfied. Notice shall be given to the party against whom judgment over is sought, and the application shall be heard according to the procedures for notice and hearing of motions in other civil actions.
D. In any case where the employer has failed to file the undertaking or certificate required by Section 52-1-4 NMSA 1978, the court has power to enforce compliance with any judgment or order granted in a case against the employer by proceedings in contempt against a party failing or refusing to comply.
History:
Laws 1929, ch. 113, § 15; C.S. 1929, § 156-115; 1941 Comp., § 57-916; 1953 Comp., § 59-10-16; Laws 1959, ch. 67, § 17; 1986, ch. 22, § 10; 1989, ch. 263, § 21.
ANNOTATIONS
Cross references.
— For executions and foreclosures,
see
39-4-1 NMSA 1978 et seq.
For judgments,
see
Rules 1-054 to 1-063 NMRA.
Right to benefits in reaching jurisdictional minimum for removal.
— A possibility that payments of workmen's (workers') compensation benefits will terminate before the total reaches the jurisdictional minimum necessary for the federal district court to entertain the case after removal is immaterial if the right to all the payments is in issue, since future payments under the act are not in any proper sense contingent, although they may be decreased or cut off altogether by the operation of conditions subsequent.
Valencia v. Stearns Roger Mfg. Co.
, 124 F. Supp. 670 (D.N.M. 1954).
Doctrine of de minimis.
— Even though the court recognizes the doctrine of de minimis, still, this being a workmen's (workers') compensation case, appellant must be granted all compensation to which he is entitled.
Stolworthy v. Morrison-Kaiser F & S
, 1963-NMSC-053, 72 N.M. 1, 380 P.2d 13.
Rules of civil procedure applicable.
— The rules of civil procedure relative to the methods of presentation and reservation in lower court of grounds of review are applicable to actions under the Workmen's (Workers') Compensation Act.
Cavins v. Armstrong & Armstrong
, 1933-NMSC-023, 37 N.M. 141, 19 P.2d 747;
Moore v. Phillips Petroleum Co.
, 1932-NMSC-025, 36 N.M. 153, 9 P.2d 692 (decided under prior law).
Where there is conflicting evidence as to date claimant gave his employer notice
of his injury, it was for the trial court to resolve this conflict.
Rohrer v. Eidal Int'l
, 1968-NMCA-089, 79 N.M. 711, 449 P.2d 81.
For the trial court to resolve conflict in plaintiff's testimony
concerning the date he had knowledge of his compensable injury.
Rohrer v. Eidal Int'l
, 1968-NMCA-089, 79 N.M. 711, 449 P.2d 81.
In determining right of compensation
the court must find whether the employee's injury resulted in a disability that terminated before judgment was entered or whether the employee's injury resulted in total or partial disability in existence at the time judgment was entered.
Sena v. Gardner Bridge Co.
, 1979-NMCA-042, 93 N.M. 358, 600 P.2d 304, cert. denied, 92 N.M. 675, 593 P.2d 1078.
Postjudgment interest.
— Granting of interest is within discretion of trial court and is not a matter of right under this section.
Trujillo v. Beaty Elec. Co.
, 1978-NMCA-021, 91 N.M. 533, 577 P.2d 431.
There is nothing which indicates that Section 56-8-4A NMSA 1978, providing a basis for computing interest on judgments, should not apply in workmen's (workers') compensation cases.
Candelaria v. General Elec. Co.
, 1986-NMCA-016, 105 N.M. 167, 730 P.2d 470, cert. quashed, 105 N.M. 111, 729 P.2d 1365.
The court in its discretion may allow postjudgment interest on compensation benefits payable by the subsequent injury fund and awarded to an injured or disabled workman (worker). Allowance of interest, however, is limited to that portion of a judgment against the fund in favor of an injured worker, and the fund is not liable for the payment of interest on that portion of reimbursement payable by the fund to an employer or its carrier. Additionally, any award of postjudgment interest does not commence to run upon compensation benefits until the time fixed for their payment.
Mares v. Valencia Cnty. Sheriff's Dep't
, 1988-NMCA-003, 106 N.M. 744, 749 P.2d 1123.
Payment of maximum weeks until condition subsequent.
— Under the Workmen's (Workers') Compensation Act the court requires the person liable to continue to pay the amount due the workman (worker) for a maximum of 550 weeks, subject to its termination, should the court subsequently adjudge that the disability had ceased, this latter provision coming into play in a manner analogous to a condition subsequent in the contract.
Valencia v. Stearns Roger Mfg. Co.
, 124 F. Supp. 670 (D.N.M. 1954).
Increase of payments due to increase of disability.
— In absence of authority in the compensation act allowing an increase in payments because of an increase of disability after judgment has been entered, the courts cannot aid the injured workman (worker) in obtaining such increase except under procedures permissible under statute or general law.
Hudson v. Herschbach Drilling Co.
, 1942-NMSC-041, 46 N.M. 330, 128 P.2d 1044.
Sufficiency of evidence establishing disability.
— In action by employee for injuries sustained in driving a truck for his employer, the evidence was sufficient to establish serious and permanent injuries to claimant's back, totally disabling him from doing anything but very light work sitting down, and that such injuries were not caused by an old injury from which he had entirely recovered.
Robinson v. Mittry Bros.
, 1939-NMSC-038, 43 N.M. 357, 94 P.2d 99.
Judgments in workmen's (workers') compensation cases must be drawn to carry out purposes
of the Workmen's (Workers') Compensation Act.
Johnson v. C & H Constr. Co.
, 1967-NMCA-013, 78 N.M. 423, 432 P.2d 267,
overruled on other grounds by
Kelly Inn No. 102, Inc. v. Kapnison
, 1992-NMSC-005, 113 N.M. 231, 824 P.2d 1033.
Judgment absolute in form.
— As right to contest question of total and permanent disability is statutory, it exists even though judgment awarding compensation for total and permanent disability is absolute in form, and judgment instead of being absolute in form should provide that claimant was entitled to recover for 550 weeks, subject to termination, should the court subsequently determine that the disability had ceased.
La Rue v. Johnson
, 1943-NMSC-031, 47 N.M. 260, 141 P.2d 321.
More than one judgment or order.
— Under the provisions of the Workmen's (Workers') Compensation Act, there may be more than one judgment or order on issues under the act.
Johnson v. C & H Constr. Co.
, 1967-NMCA-013, 78 N.M. 423, 432 P.2d 267,
overruled on other grounds by
Kelly Inn No. 102, Inc. v. Kapnison
, 1992-NMSC-005, 113 N.M. 231, 824 P.2d 1033.
Findings sustained by substantial evidence not disturbed on appeal.
— Where judgment has been rendered against a claimant under this act and the findings of the court denying the claim are sustained by substantial evidence, it will not be disturbed on appeal.
Courtney v. Nev. Consol. Copper Corp.
, 1940-NMSC-036, 44 N.M. 390, 103 P.2d 118.
Judgment complies with section.
— Where a judgment provides for the payment of weekly benefits of a specified amount from the date of the accident to entry of the judgment and plaintiff is to receive temporary total disability payments until some change occurs in his condition, the judgment complies with this section.
Pacheco v. Alamo Sheet Metal Works, Inc.
, 1978-NMCA-057, 91 N.M. 730, 580 P.2d 498.
Findings of trial court conclusive.
— In compensation proceedings for the death of a workman (worker) who fell from a platform while engaged in his ordinary work of roofing, where there was a dispute as to whether the death was caused by the fall or by a heart attack preceding the fall, the findings of the trial court on this point are conclusive.
Christensen v. Dysart
, 1938-NMSC-008, 42 N.M. 107, 76 P.2d 1.
Subsection A plainly mandates that a quantifiable sum be specified for medical expenses
proved at trial.
DiMatteo v. County of Dona Ana
, 1985-NMCA-099, 104 N.M. 599, 725 P.2d 575.
Jurisdiction to reopen award.
— Under Workmen's (Workers') Compensation Act district court retains jurisdiction after expiration of 30-day period during which it generally retains jurisdiction over its judgments to reopen its award for disability and to suspend or reduce the amount awarded by reason of claimant's refusal to undergo proposed surgery to reduce the percentage of his disability.
Fowler v. W.G. Constr. Co.
, 1947-NMSC-049, 51 N.M. 441, 188 P.2d 160.
Mandamus would not lie to review granting of new trial in workmen's (workers') compensation case
even though grounded on lack of jurisdiction.
State ex rel. Gallegos v. MacPherson
, 1957-NMSC-068, 63 N.M. 133, 314 P.2d 891.
Cause remanded where court failed to make finding on compensation.
— Where, although requested to do so, the trial court failed to find one way or another on compensation to be paid between the time defendant ceased paying benefits and the entry of judgment for plaintiff, the cause was remanded for a finding on compensation, if any, payable to plaintiff during this time period.
Escobedo v. Agriculture Prods. Co.
, 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393.
Appellate court cannot weigh testimony on appeal.
Robinson v. Mittry Bros.
, 1939-NMSC-038, 43 N.M. 357, 94 P.2d 99.
Appellate court will not substitute its judgment for that of trial court
as to the credibility of the witnesses.
Rohrer v. Eidal Int'l
, 1968-NMCA-089, 79 N.M. 711, 449 P.2d 81.
Law reviews.
— For comment on Johnson v. C & H Constr. Co., 78 N.M. 423, 432 P.2d 267 (Ct. App. 1967), see 8 Nat. Resources J. 522 (1968).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
82 Am. Jur. 2d Workers' Compensation §§ 634 to 673.
Review of findings as to dependency of beneficiary, 13 A.L.R. 722, 30 A.L.R. 1253, 35 A.L.R. 1066, 39 A.L.R. 313, 53 A.L.R. 218, 62 A.L.R. 160, 86 A.L.R. 865, 100 A.L.R. 1090.
General or special employer as employer of injured employee, review of findings as to, 34 A.L.R. 775, 58 A.L.R. 1467, 152 A.L.R. 816.
Denial of review of facts on appeal under Workmen's Compensation Act as denial of due process of law, 39 A.L.R. 1064.
Notice of injury, review of finding as to excuse for failure to give, or as to prejudice to employer because of failure to give, 78 A.L.R. 1281, 92 A.L.R. 505, 107 A.L.R. 816, 145 A.L.R. 1263.
Constitutionality, construction, application and effect of provisions of Workmen's Compensation Act in relation to costs or expenses on appeal or review, 79 A.L.R. 678.
Res judicata as regards decisions or awards under act, 122 A.L.R. 550.
Retroactive application of statutes regarding enforcement of awards under Workmen's Compensation Act, 155 A.L.R. 558.
100 C.J.S. Workmen's Compensation §§ 638 to 659; 101 C.J.S. Workmen's Compensation § 846.