2 N.M. 343
N.M. Ct. App.2012Background
- Worker sustained a compensable right shoulder injury on March 27, 2008, resulting in temporary total disability through April 30, 2009.
- Employer provided a modified-duty job at preinjury wage from the accident date until Worker’s retirement on April 17, 2008.
- Worker had pre-injury retirement eligibility and chose to retire on April 17, 2008 to receive union pension benefits, terminating employment to maintain eligibility.
- Post-retirement, Worker alleged post-MMI employment opportunities were unavailable due to injuries, preventing a second paycheck alongside the pension.
- MMI was reached on April 30, 2009, making Worker eligible for PPD with modifiers; WCJ awarded modifier-based PPD despite retirement and denied TTD from retirement to MMI.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retirement precludes modifier-based PPD. | Worker should receive modifier-based PPD under 52-1-26 due to impairment plus modifiers, despite retirement. | Retirement precludes post-MMI modifiers unless an offer was made or unreasonably refused; retirement evades the return-to-work incentive. | Affirmed modifier-based PPD despite retirement. |
Key Cases Cited
- Jeffrey v. Hays Plumbing & Heating, 118 N.M. 60, 878 P.2d 1009 (Ct. App. 1994) (evasion of 52-1-26(D) by voluntary unemployment improper; reasonable refusals allowed)
- Connick v. Cnty. of Bernalillo, 125 N.M. 119, 957 P.2d 1153 (1998-NMCA-060) (incarceration or futile offers can preclude post-MMI offers; return-to-work incentives apply)
- Madrid v. St. Joseph Hosp., 122 N.M. 524, 928 P.2d 250 (1996-NMSC-064) (statutory modifiers assess return-to-work likelihood; purpose of PPD)
- Gonzalez v. Performance Painting, Inc., 150 N.M. 306, 258 P.3d 1098 (2011-NMCA-025) (employer encouraged to offer to restore pre-injury wage; rejection affects modifiers)