It is the disability caused by the accident — not the accident itself — that triggers liability for compensation benefits. Salinas-Kendrick v. Mario Esparza Law Office, 118 N.M. 164, 165-66, 879 P.2d 796, 797-98 (Ct.App. 1994); Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 502, 760 P.2d 793, 795 (Ct.App. 1988). Generally, a worker becomes disabled on the day the accident occurs.
In other words, the job market by which disability is to be measured should be the general market in which workers are being employed. Although no case is directly in point, Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 760 P.2d 793 (Ct.App. 1988), supports this view. That opinion considered a claim of disability under the 1986 amendments to the Workmen's Compensation Act, commonly referred to as the Interim Act.
See NMSA 1978, §§ 52-1-1 to -69 (Orig.Pamp. Cum.Supp. 1986) (Interim Act); Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 760 P.2d 793 (Ct.App. 1988). We affirm.
The relevant statute, and that considered by the hearing examiner and the court of appeals, is the one in effect at the time the cause of action accrued, i.e. when the employee knew or should have known of the existence of a compensable injury. Noffsker v. Barnett Sons, 72 N.M. 471, 384 P.2d 1022 (1963); Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 760 P.2d 793 (Ct.App.), cert. denied 107 N.M. 413, 759 P.2d 200 (1988). Accordingly, we apply the statutory provisions in effect on July 1, 1986, and statutory references are to provisions contained in the original 1978 compilation.
This case arises under the Workers' Compensation Act, NMSA 1978, Sections 52-1-1 to -69 (Cum.Supp. 1986) [hereinafter Interim Act of 1986], as the disability occurred on May 11, 1987. See Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 760 P.2d 793 (Ct.App.) (applicable law is one in effect on date disability begins), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988). We granted the petition of claimant, Robert E. Cass, to issue a writ of certiorari to the court of appeals to review those portions of the opinion that reverse (1) the hearing officer's determination that the employer's insurer acted in bad faith and (2) the award of $10,000.00 attorney fees for representation at the trial level.
We disagree because the law in effect at the time of injury applies. See Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 502, 760 P.2d 793, 795 (Ct.App. 1988) (stating that the provisions of the Act in force at the time the cause of action accrues govern). Worker was injured in 2004.
The interpretation of the amended provision is what is at issue in this appeal. Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 502, 760 P.2d 793, 795 (Ct.App.) (legislative scheme in effect at time cause of action arose controls worker's right to compensation), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988). Employer contends that, because the legislature deleted the word injury, the amended provision required notice to be given within fifteen days of the accidental occurrence, regardless of whether the injury was evident at the time of the occurrence.
1991) (Effective January 1, 1991) [hereinafter Section 52-1-29] is the applicable law governing the requirement of notice of accidents. See Herman, 111 N.M. at 552 n. 1, 807 P.2d at 736 n. 1 (The law to be applied in a Workers' Compensation proceeding is that "in effect at the time the cause of action accrued, i.e. when the employee knew or should have known of the existence of a compensable injury."); see also Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 502, 760 P.2d 793, 795 (Ct.App.), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988). Under Section 52-1-29(A), a worker is required to
Compensation is paid only when a work-related accidental injury becomes disabling. See id., 112 N.M. at 599-600, 817 P.2d at 1241-42; see also Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 502, 760 P.2d 793, 795 (Ct.App.), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988); Pena v. New Mexico Highway Dep't, Mountain States Mut. Ins. Co., 100 N.M. 408, 412, 671 P.2d 656, 660 (Ct.App. 1983). See generally 4 Arthur Larson, The Law of Workmen's Compensation § 95.00 at 17-115 (1993) ("When a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance earlier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.").
Pamp. 1987); see also NMSA 1978, § 52-1-48 (Repl.Pamp. 1987); Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 502, 760 P.2d 793, 795 (Ct.App.) (claim for workers' compensation benefits is controlled by legislative provisions in force at time cause of action accrued), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988). Absent misapplication of law or lack of substantial evidence, the determination of the degree of disability is a factual issue to be decided by the judge in a workers' compensation proceeding, and a reviewing court will not substitute its judgment for that of the trial judge.