This act shall be known as the "New Mexico Occupational Disease Disablement Law".
History: 1941 Comp., § 57-1101, enacted by Laws 1945, ch. 135, § 1; 1953 Comp., § 59-11-1.
ANNOTATIONSCompiler's notes. — The words "this act" refer to Laws 1945, ch. 135, compiled herein as 52-3-1 to 52-3-5, 52-3-7 to 52-3-14, 52-3-32, 52-3-34 to 52-3-41, 52-3-43 to 52-3-46, 52-3-48 to 52-3-54 NMSA 1978.
Cross references. — For Occupational Health and Safety Act not to supersede or affect this act, see 50-9-21 NMSA 1978.
Liberal construction applies to law. — Liberal construction under the Workmen's (Workers') Compensation Act applies only to the law and not to the facts. Ojinaga v. Dressman, 1972-NMCA-017, 83 N.M. 508, 494 P.2d 170.
Calculation for total disablement. — In calculating a worker's disability benefits for total disablement, the date of disablement shall be used in determining the worker's compensation rate, not the date of last employment or the date of last injurious exposure to the hazards of the employment. Di Luzio v. City of Santa Fe, 2015-NMCA-042.
Where worker was employed as a firefighter for the city of Santa Fe for twenty-one years and was diagnosed with mantle cell non-Hodgkin's lymphoma twelve years after his service as a firefighter, the worker's compensation judge erred in using the date of worker's last employment as a firefighter to calculate disability benefits, and not the date of the occurrence of the disablement as required by this section. Di Luzio v. City of Santa Fe, 2015-NMCA-042.
Application of rules of procedure. — Language in Section 52-3-18 NMSA 1978 is comparable to Section 52-1-34 NMSA 1978 of the present Workmen's (Workers') Compensation Law and under the rules noted above requires application of the rules of civil procedure in cases arising under the Occupational Disease Disablement Law unless not reasonable to do so. Holman v. Oriental Refinery, 1965-NMSC-029, 75 N.M. 52, 400 P.2d 471 (decided under former law).
Rule for leave to amend applicable. — Rule 15(a), N.M.R. Civ. P., (now Rule 1-015 A NMRA) providing for freely granting of leave to amend when justice requires, is applicable to proceedings under the Occupational Disease Disablement Law. Holman v. Oriental Refinery, 1965-NMSC-029, 75 N.M. 52, 400 P.2d 471.
Applicability of estoppel doctrine in Occupational Disease Disablement Law. — Even though the Workmen's (Workers') Compensation Act does not specifically provide for equitable defenses, nevertheless, the appellate court has considered equitable claims and defenses in workmen's (workers') compensation proceedings; therefore, by analogy, if the elements of estoppel are established, the doctrine can be applied in a case arising under the New Mexico Occupational Disease Disablement Law. McDonald v. Kerr-McGee Corp., 1979-NMCA-088, 93 N.M. 192, 598 P.2d 654.
Disease must be peculiar to worker's occupation. — In order for the Occupational Disease Disablement Law to apply, it must be established that the disease is peculiar to the worker's occupation and not merely to his workplace. Rader v. Don J. Cummings Co., 1989-NMCA-079, 109 N.M. 219, 784 P.2d 38, cert. denied, 109 N.M. 131, 782 P.2d 384.
Unusual hazard must be shown. — In order for there to be an occupational disease, in addition to the requirement that it be peculiar to claimant's occupation, the conditions must attach to that occupation a hazard that distinguishes it from the usual run of occupations and is in excess of the hazards attending employment in general. Rader v. Don J. Cummings Co., 1989-NMCA-079, 109 N.M. 219, 784 P.2d 38, cert. denied, 109 N.M. 131, 782 P.2d 384.
Standard for admitting expert testimony established by Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as adopted in New Mexico by State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, does not apply to the testimony of a health care provider pursuant to 52-1-28(B) or 52-3-32 NMSA 1978. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014.
Asbestosis as occupational disease. — By analogy to silicosis, asbestosis is an occupational disease contracted gradually in the course of employment, and not a physical harm compensable under the doctrine of strict liability in tort. Bassham v. Owens-Corning Fiber Glass Corp., 327 F. Supp. 1007 (D.N.M. 1971).
Reinstatement of act. — The decision in State ex rel. Hovey Concrete Prods. Co. v. Mechem, 1957-NMSC-075, 63 N.M. 250, 316 P.2d 1069 in effect reinstated the Occupational Disease Disablement Act. 1959 Op. Att'y Gen. No. 59-125.
Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Workmen's Compensation," see 11 N.M.L. Rev. 235 (1981).
For annual survey of New Mexico Workers' Compensation Law, see 20 N.M.L. Rev. 459 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d, Workers' Compensation §§ 326, 327.
30 C.J.S. Employers' Liability §§ 4 to 11; 99 C.J.S. Workmen's Compensation §§ 4, 169.