A. The purpose of this section is the restoration of the disabled employee to gainful employment, preferably that for which he has had training or experience.

B. Vocational rehabilitation services are those services designed to return the employee to gainful employment, in the following priority:

(1) pre-injury job with the same employer;

(2) modified work with the same employer;

(3) job related to former employment; or

(4) suitable employment in a nonrelated work field.

C. Subject to the requirements imposed upon the employee and the other limitations of this section, the employer shall furnish vocational rehabilitation services for the employee who has suffered disablement that is covered by the New Mexico Occupational Disease Disablement Law. When, as a result of the injury, the employee is unable to perform the pre-injury job with the same employer or unable to perform modified work with the same employer, he shall be entitled to vocational rehabilitation evaluation, counseling and training if necessary to return the employee to either a job related to his former employment or suitable employment in a nonrelated field. The total amount required to be paid by an employer for vocational evaluation and counseling shall not exceed two thousand five hundred dollars ($2,500).

D. The employer shall notify the employee in writing of the provisions of this section within thirty days of the first report of disablement required to be filed by the employer under Section 52-3-51 NMSA 1978 if the employee is at the time disabled.

E. To be entitled to vocational rehabilitation services or benefits, a disabled employee must notify the employer in writing that he has been released within one hundred twenty days from the date that he is released from regular treatment by his primary treating health care provider as defined in Section 52-4-1 NMSA 1978. In the event the employee fails to notify the employer, the employer shall not be liable for any vocational rehabilitation benefits.

F. A referral for an evaluation of a [an] employee for suitability for vocational rehabilitation services shall be made by the employer of an employee who notifies the employer under Subsection E of this section. If the evaluation or vocational rehabilitation services are requested and these services are not voluntarily offered by the employer or if offered but not accepted by the employee, the workers' compensation judge upon application affording the parties an opportunity to be heard may determine whether the employee needs evaluation or vocational rehabilitation services and shall cooperate with and refer promptly all cases in need of such services to the appropriate public or private agencies in this state or where necessary in any other state for such services.

G. An employee who is entitled to vocational rehabilitation training shall receive payment for board, lodging, tuition, travel and all other expenses, including the cost or charges for the vocational rehabilitation training, for a period of time not to exceed two years from the date vocational rehabilitation training is determined to be necessary. Any benefits to which an employee is entitled under this section shall not be considered or paid as part of any lump sum settlement of a claim by an employee and payment by the employer shall only be required as services are incurred.

H. It shall be the responsibility of the employee to submit to all reasonable requests for evaluations made by the employer or required by the workers' compensation judge, as may be necessary, to determine the need for or to develop a plan for vocational rehabilitation. However, the employee shall not be required to bear the cost of any evaluation requested by the employer, notwithstanding the limitation on expenditures specified in Subsection C of this section. If the employee refuses to submit to evaluation or to accept vocational rehabilitation training pursuant to an order of a workers' compensation judge, the employer's liability to the employee shall be limited to medical and disability benefits under the New Mexico Occupational Disease Disablement Law.

History: 1978 Comp., § 52-3-17, enacted by Laws 1987, ch. 235, § 38; 1989, ch. 263, § 53.

Repeals and reenactments. — Laws 1987, ch. 235, ch. 38 repealed former 52-3-17 NMSA 1978, as amended by Laws 1986, ch. 22, § 59 and enacted a new 52-3-17 NMSA 1978, effective June 19, 1987.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Bookkeeping not "suitable employment" for sheet-metal fabricator. — A bookkeeping position was not "suitable employment" for a worker who, prior to his injury, was a sheet-metal fabricator. Bryant v. Lear Siegler Mgmt. Servs. Corp., 1993-NMCA-052, 115 N.M. 502, 853 P.2d 753, cert. denied, 115 N.M. 535, 854 P.2d 362.