Gonzalez v. PERFORMANCE PAINTING, INC., 258 P.3d 1098

Background

Gonzalez, an undocumented immigrant, was hired by Performance Painting in February 2006 after providing a false SSN; employer did not verify immigration status and office staff did not review legal work status or maintain I-9 forms.
Jinzo submitted the social security numbers to New Mexico New Hires; no evidence of employment eligibility verification was produced; employer did not discuss immigration status during hiring.
Gonzalez was injured in August 2006, became temporarily totally disabled, was placed at MMI on August 30, 2007 with a 3% whole-person impairment and lifting restrictions; he returned to work in January 2008 in a modified capacity but stopped soon thereafter due to medical and work availability factors.
Between February and April 2008 Gonzalez found part-time work within his restrictions (~$250/week); employer reduced workforce over 2007-2008, and extended two return-to-work offers (April 30 and June 16, 2008).
On June 20, 2008 Gonzalez went to obtain an employment application but was instead given an immigration status verification form; he did not fill it out and left after his SSN and license were requested.
Gonzalez began working for Hi-Lo Market in August 2008, earning about $359/week; his first period of earnings above pre-injury wage occurred after August 16, 2008.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 52-1-26(C)/(D) apply to undocumented workers	Gonzalez argues modifiers should apply; employer’s undocumented status should not bar benefits.	Employer contends these sections are inapplicable where the worker is undocumented and cannot accept a bona fide rehire offer.	Modifier benefits are inapplicable to undocumented workers under 52-1-26(C)/(D).
IRCA impact on workers' compensation modifiers	IRCA does not preempt workers' compensation or bar benefits for undocumented workers.	IRCA permits enforcement and may render rehire illusory; preemption not argued to bar modifiers here.	IRCA does not preempt state workers' compensation modifiers; undocumented status precludes modifier eligibility here.
Estoppel and pretext in hiring/rehire	Employer should be estopped from asserting undocumented status due to unlawful hiring practices.	Employer did not rely on estoppel; arguments focus on whether status barred modifiers irrespective of estoppel.	Estoppel and pretext arguments do not change inapplicability of modifiers to undocumented workers.
Effect of earnings with a different employer after MMI on modifiers	Worker earned more post-MMI with another employer, which should not nullify potential modifiers.	Under 52-1-26(D), earning above pre-injury wage after MMI can affect modifier eligibility; combined with undocumented status, modifiers are barred.	Because 52-1-26 is inapplicable to undocumented workers, post-MMI earnings do not trigger modifiers here.
Equal protection or fairness concerns	Denying modifiers to undocumented workers is unfair and violates equal protection.	No equal protection violation; undocumented status is not a suspect class and rational basis applies.	No equal protection violation; undocumented status does not trigger extended scrutiny.

Key Cases Cited

Connick v. County of Bernalillo, 1998-NMCA-060, 125 N.M. 119, 957 P.2d 1153 (N.M. Ct. App. 1998) (return-to-work modifiers depend on employer offer and worker's acceptance)
Jeffrey v. Hays Plumbing & Heating, 118 N.M. 60, 878 P.2d 1009 (Ct. App. 1994) (unreasonable refusal to accept offered work defeats modifier benefits)
Reinforced Earth Co. v. Workers' Compensation Appeal Board, 810 A.2d 99 (Pa. 2002) (employer's illegal hiring may subvert public policy against illegal immigration)
Lackey v. Darrell Julian Constr., 1998-NMCA-121, 125 N.M. 592, 964 P.2d 153 (N.M. Ct. App. 1998) (statutory incentives to return to work and effect on modifiers)
Breen v. Carlsbad Municipal Schools, 2005-NMSC-028, 138 N.M. 331, 120 P.3d 413 (N.M. 2005) (equal protection arguments in workers' compensation context)