323 P.3d 932
N.M. Ct. App.2013Background
- Michelle Hawkins (Worker) injured her low back in a work-related accident on May 26, 2011 while employed as a McDonald’s shift manager; she was released to return with a 20-lb lifting restriction and was offered light/modifed duty at her pre-injury wage.
- Worker performed modified duty for ~4 weeks but McDonald’s terminated her on July 13, 2011 for failing to report an allegation of sexual harassment (policy required immediate reporting); Worker had not witnessed the harassment nor seen the alleged message.
- Worker filed for benefits seeking TTD (temporary total disability) after termination and PPD (permanent partial disability) after reaching MMI; MMI was reached January 11, 2012 with a 2% whole-person impairment.
- The WCJ awarded TTD from July 14, 2011 to January 11, 2012 at the statutory compensation rate, PPD at 11% including the 2% physical impairment plus statutory modifiers (age, education, residual capacity), ongoing medical benefits, and attorney fees.
- Employer appealed, arguing (1) that offering work at the pre-injury wage under Section 52-1-25.1(B) cut off TTD once Worker was later terminated, and (2) that termination for misconduct disqualified Worker from modifier-enhanced PPD under Section 52-1-26(D).
Issues
| Issue | Plaintiff's Argument (Hawkins) | Defendant's Argument (McDonald’s) | Held |
|---|---|---|---|
| Whether post-injury termination (for cause) cuts off entitlement to TTD under §52-1-25.1(B) | Termination does not eliminate TTD; she remained disabled after discharge | Employer complied with §52-1-25.1(B) by offering work at pre-injury wage; once terminated, Worker not entitled to TTD | Termination does not bar TTD; if Worker remains temporarily totally disabled after discharge she is entitled to full TTD benefits (affirmed) |
| If TTD is due after termination, whether benefits should be reduced because Employer had offered pre-injury wage | Worker entitled to full statutory TTD; no reduction because she was not receiving wages post-termination | Employer contends compliance with §25.1(B) should eliminate TTD after termination | Court holds full TTD is payable (statute silent; policy requires full benefits) |
| Whether termination for misconduct bars receipt of modifier-enhanced PPD under §52-1-26(D) | Worker eligible for PPD modifiers because she was not employed at or above pre-injury wage at MMI and did not unreasonably refuse suitable work | Employer argues misconduct and termination render Worker ineligible for modifier benefits | Court affirms modifier awards: modifiers denied only if worker is employed at/above pre-injury wage or unreasonably refuses suitable work; Worker was unemployed at MMI and did not voluntarily remain unemployed |
| Proper standard for denying modifier-based PPD benefits when worker is out of workforce | Modifiers apply unless worker voluntarily and unreasonably removes herself from labor market | Employer seeks forfeiture based on termination for misconduct | Held that modifiers are denied only when worker "takes herself out of the labor market" or makes no bona fide effort to obtain suitable work; facts do not show that here |
Key Cases Cited
- Moya v. City of Albuquerque, 175 P.3d 926 (N.M. 2008) (whole-record standard of review for workers’ compensation cases)
- Kahrs v. Sanchez, 956 P.2d 132 (N.M. Ct. App. 1998) (statutory interpretation reviewed de novo)
- State ex rel. Helman v. Gallegos, 871 P.2d 1352 (N.M. 1994) (plain-meaning rule may give rise to legitimate statutory interpretation questions)
- Draper v. Mountain States Mut. Cas. Co., 867 P.2d 1157 (N.M. 1994) (legislative intent controls over strict literalism)
- Jeffrey v. Hays Plumbing & Heating, 878 P.2d 1009 (N.M. Ct. App. 1994) (PPD modifiers denied where worker voluntarily removes self from labor market)
- Eldridge v. Circle K Corp., 934 P.2d 1074 (N.M. Ct. App. 1997) (statutory construction must harmonize language to effect legislative purpose)
- Ortiz v. BTU Block & Concrete Co., 925 P.2d 1 (N.M. Ct. App. 1996) (worker entitled to TTD when employer did not offer post-injury work)
- Lackey v. Darrell Julian Construction, 964 P.2d 153 (N.M. Ct. App. 1998) (TTD reductions under §25.1(C) where employer offered work at less than pre-injury wage)
- Connick v. County of Bernalillo, 957 P.2d 1153 (N.M. Ct. App. 1998) (PPD modifiers relate to return-to-work status and unreasonable refusal of suitable work)
- Cordova v. KSL-Union, 285 P.3d 686 (N.M. Ct. App. 2012) (clarifying §52-1-26(D) application regarding employment at/above pre-injury wage)
- Casias v. Zia Co., 596 P.2d 521 (N.M. Ct. App. 1979) (WCA policy: compensate work-related income loss)