285 P.3d 686
N.M. Ct. App.2012Background
- Worker sustained a compensable right shoulder injury on March 27, 2008 with temporary total disability through April 2009.
- Employer provided a modified-duty job at pre-injury wage until Worker retired on April 17, 2008.
- Worker had planned retirement, eligible at 55 with 30 years, and retired to obtain union pension benefits.
- Worker left union employment upon retirement; post-retirement, injuries impeded returning to work outside the union.
- Maximum Medical Improvement occurred April 30, 2009; Worker sought modifier-based PPD benefits under Sections 52-1-26 through -26.4.
- WCJ held Worker entitled to modifier-based PPD despite retirement; denied TTD from retirement date to MMI.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retirement precludes modifier-based PPD | Cordova argues retirement should not bar modifiers. | KSL-Union argues retirement precludes post-MMI modifiers. | Yes, modifiers apply despite retirement. |
| Whether failure to offer post-MMI work negates modifiers | Cordova contends lack of offer does not change entitlement. | KSL-Union argues no post-MMI offer means no modifiers. | Employer not required to offer post-MMI work; modifiers may still apply. |
| Whether retirement reasonableness supports modifiers | Cordova's retirement reasonable for pension timing and finances. | KSL-Union argues reasonableness should balance employer and worker interests. | Retirement reasonable supports modifier entitlement. |
Key Cases Cited
- Jeffrey v. Hays Plumbing & Heating, 118 N.M. 60 (1994) (rejection of post-MMI offer may still trigger 52-1-26(D) with reasonableness)
- Connick v. Cnty. of Bernalillo, 1998-NMCA-060 (1998) (modifiers assess return-to-work likelihood; futile offers not required)
- Madrid v. St. Joseph Hosp., 1996-NMSC-064 (1996) (modifiers reflect purpose to promote return to gainful employment)
- Gonzalez v. Performance Painting, Inc., 2011-NMCA-025 (2011) (employer encouraged to offer rehire; modifiers may be avoided if wage preserved)
- State v. Vargas, 2008-NMSC-019 (2008) ("right for any reason" doctrine allows affirming on alternative grounds)