2019 New Mexico Statutes
Chapter 52 - Workers' Compensation
Article 5 - Workers' Compensation Division
Section 52-5-9 - Application for modification of compensation order.

A. Compensation orders are reviewable subject to the conditions stated in this section upon application of any party in interest in accordance with the procedures relating to hearings. The workers' compensation judge, after a hearing, may issue a compensation order to terminate, continue, reinstate, increase, decrease or otherwise properly affect compensation benefits provided by the Workers' Compensation Act [Chapter 52, Article 1 NMSA 1978] or the New Mexico Occupational Disease Disablement Law [52-3-1 NMSA 1978] or in any other respect, consistent with those acts, modify any previous decision, award or action.

B. A review may be obtained upon application of a party in interest filed with the director at any time within two years after the date of the last payment or the denial of benefits upon the following grounds:

(1) change in condition;

(2) mistake, inadvertence, surprise or excusable neglect;

(3) clerical error or mistake in mathematical calculations;

(4) newly discovered evidence which by due diligence could not have been discovered prior to the issuance of the compensation order;

(5) fraud, misrepresentation or other misconduct of an adverse party;

(6) the compensation order is void; or

(7) the compensation order has been satisfied, released or discharged or a prior order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the order should have prospective application.

History: Laws 1986, ch. 22, § 35; 1989, ch. 263, § 78.

Compiler's notes. — For the New Mexico Occupational Disease Disablement Law, see 52-3-1 NMSA 1978 and compiler's notes thereto.

Applicability. — This section was intended to govern all proceedings before the workers' compensation administration. It would make no sense for the implementing statutes setting forth the procedures of the administration not to apply to every case heard by the administration from the administration's inception; otherwise there would be a gap in the law. Lucero v. Yellow Freight Sys., 1991-NMCA-087, 112 N.M. 662, 818 P.2d 863.

This section applied where the cause of action arose in October 1986 and claimant filed his claim with the workers' compensation administration on June 25, 1987. Lucero v. Yellow Freight Sys., 1991-NMCA-087, 112 N.M. 662, 818 P.2d 863.

Modifications of lump-sum settlements. — The workers' compensation administration has continuing jurisdiction over both modification and enforcement of lump-sum settlement agreements. Cruz v. Liberty Mut. Ins. Co., 1995-NMSC-006, 119 N.M. 301, 889 P.2d 1223.

A compensation order is modifiable even when premised on a lump-sum settlement agreement. Fasso v. Sierra Healthcare Ctr., 1994-NMCA-170, 119 N.M. 132, 888 P.2d 1014.

Mistake, surprise or excusable neglect. — Mistake or excusable neglect, as used in Subsection B(2) of this section, does not, as a matter of law, constitute a valid basis to subsequently seek to contest a recommended resolution once the time limits specified in Subsection C of Section 52-5-5 NMSA 1978 have expired. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.

Examination of Subsection C of Section 52-5-5 NMSA 1978 in context with the act as a whole indicates that the legislature intended that a party's failure to timely respond to a recommended resolution would preclude a later attempt to contest the recommended resolution for mistake, inadvertence, surprise or excusable neglect under Subsection B(2) of this section. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.

To the extent that the provisions of Subsection C of Section 52-5-5 NMSA 1978 and Subsection B(2) of Section 52-5-9 NMSA 1978 are conflicting, the former section is the more specific and governs. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.

Allowing a party up to two years to assert mistake or excusable neglect as a basis for filing a rejection to the recommended resolution would make a nullity of the time limits in Subsection C of Section 52-5-5 NMSA 1978. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.

Since respondents failed to notify the workers' compensation judge of excusable neglect within the time limit specified in Subsection C of Section 52-5-5 NMSA 1978, they could not subsequently file a rejection to the recommended resolution under the two-year time limit provided in this section. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.

Failure of judge to enter order. — Employer properly sought relief under Subsection B(2), where the judge had apparently intended to enter a compensation order in accordance with what he had orally stated at a prior hearing but, given the fading of memories, had failed to do so. Lucero v. Yellow Freight Sys., 1991-NMCA-087, 112 N.M. 662, 818 P.2d 863.

Mistaken acceptance of mediator's recommendation. — An employer who mistakenly notifies the workers' compensation administration of its acceptance of a mediator's recommended resolution may not obtain relief from the binding effect of the recommended resolution pursuant to Subsection B(2) of this section. Medina v. Hunemuller Constr., Inc., 2005-NMCA-123, 138 N.M. 472, 122 P.3d 839.

Incomplete diagnosis as mistake of fact. — An incorrect diagnosis or a complete failure to diagnose an injury constitutes a mutual mistake of fact which can be a sufficient basis for setting aside a settlement agreement. Curliss v. B & C Auto Parts, 1993-NMCA-139, 116 N.M. 668, 866 P.2d 396.

Under the facts and circumstances of the instant case, the worker's brain injury was not diagnosed until sixteen months after the settlement and the failure to diagnose the injury was based on the failure of the insurer to secure the neurological examination recommended by the university of New Mexico hospital. Furthermore, the worker agreed to the lump sum settlement based on the insurer's negligent misrepresentations regarding the provisions of the New Mexico Workers' Compensation Act. Since the worker entered into the settlement under the mistaken belief that he had suffered no brain injury, the lump sum settlement is set aside for mistake. Curliss v. B & C Auto Parts, 1993-NMCA-139, 116 N.M. 668, 866 P.2d 396.

Change in condition. — The term "change in condition" refers to a change in a worker's medical or physical condition. Fasso v. Sierra Healthcare Ctr., 1994-NMCA-170, 119 N.M. 132, 888 P.2d 1014.

A compensation order may be modified under the change in condition criteria of Subsection B(1) even if the compensation order is the result of a recommended resolution following a settlement conference. Fasso v. Sierra Healthcare Ctr., 1994-NMCA-170, 119 N.M. 132, 888 P.2d 1014.

Although a change in condition must relate to a worker's physical or medical condition, a change in condition may occur when the worker's physical or medical condition may change due to a worker's election to undergo different treatment. Laughlin v. Convenient Mgmt. Servs., Inc., 2013-NMCA-088, cert. denied, 2013-NMCERT-007.

Worker's condition changed due to worker's election to have surgery. — Where worker filed a petition for partial lump sum payment for debts at a time when worker had elected not to undergo surgery to treat worker's work-related injury; the workers compensation judge determined that worker had reached maximum medical improvement and granted worker a partial lump sum payment for debts; five months later, worker decided to undergo surgery to treat the injury; and worker did not claim that worker's physical condition had changed, the workers compensation judge did not err in determining that worker had a change of condition by electing to undergo surgery and that worker was no longer at maximum medical improvement. Laughlin v. Convenient Mgmt. Servs., Inc., 2013-NMCA-088, cert. denied, 2013-NMCERT-007.

Judicial estoppel and the law-of-the-case did not bar change of position regarding medical improvement. — Where worker filed a petition for partial lump sum payment for debts, claiming that worker's injuries were at maximum medical improvement; at that time, worker had elected not to undergo surgery to treat worker's injuries; the workers compensation judge determined that worker had reached maximum medical improvement and granted worker a partial lump sum payment for debts; five months later, worker decided to undergo surgery to treat the injury and took the position that worker was no longer at maximum medical improvement; and the workers compensation judge determined that worker had a change of condition by electing to undergo surgery and that worker was no longer at maximum medical improvement, neither judicial estoppel nor the law-of-the-case doctrine barred worker's change of position regarding whether worker was at maximum medical improvement despite the worker's compensation judge's previous finding that worker was at maximum medical improvement at the time worker was awarded a lump sum payment for debts. Laughlin v. Convenient Mgmt. Servs., Inc., 2013-NMCA-088, cert. denied, 2013-NMCERT-007.

Evidence not presented to judge not reviewable. — A judicial review of an order from which a worker appeals cannot be based on evidence in a supplemental record on appeal, evidence that had not been presented to the worker's compensation judge at the time the order was issued. Gallegos v. City of Albuquerque, 1993-NMCA-050, 115 N.M. 461, 853 P.2d 163, cert. denied, 115 N.M. 535, 854 P.2d 362.

Modification of binding resolution. — A conclusively binding recommendation under Section 52-5-5 NMSA 1978, after the running of the time for contesting the recommendation, is synonymous with and constitutes an "award" within the meaning of Subsection A of this section. Thus, jurisdiction vests with the workers' compensation judge (W.C.J.) to modify a conclusively binding recommended resolution under this section, and the W.C.J. erred in concluding that a conclusively binding recommended resolution is not a "compensation order" as used in this section. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.

The grounds for modification listed in Subsection B of this section do not permit a party to file a delayed response to a recommended resolution once the resolution has become final. Norman v. Lockheed Eng'g & Science Co., 1991-NMCA-101, 112 N.M. 618, 817 P.2d 1260.

Failure to respond to recommended resolution. — A party who fails to file a response to a recommended resolution is governed by the time limits of Section 52-5-5C NMSA 1978 when seeking to modify compensation order based on mistake or excusable neglect; when considering other grounds for modification under this section, excluding mistake or excusable neglect, the two-year limitation period of this section applies as with any other compensation order. Fasso v. Sierra Healthcare Ctr., 1994-NMCA-170, 119 N.M. 132, 888 P.2d 1014.

No abuse of discretion in denying increase. Bustamante v. City of Las Cruces, 1992-NMCA-065, 114 N.M. 179, 836 P.2d 98, cert. denied, 114 N.M. 82, 835 P.2d 80.

Compensation order not "void". — A compensation order rendered by a workers' compensation judge who improperly failed to honor a peremptory challenge was not a "void" compensation order that could be set aside pursuant to Paragraph B(6). Alvarez v. County of Bernalillo, 1993-NMCA-034, 115 N.M. 328, 850 P.2d 1031, cert. denied, 115 N.M. 408, 852 P.2d 138.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 651 to 667.

Workers' compensation: incarceration as terminating benefits, 54 A.L.R.4th 241.

100 C.J.S. Workmen's Compensation § 849 to 890.