5 N.M. 766
N.M. Ct. App.2014Background
- Worker (shift manager) injured her low back in a work accident on May 26, 2011; released with a 20-lb lifting restriction and returned to light/modified duty at her pre-injury wage.
- Employer (McDonald’s) terminated Worker on July 13, 2011 for failing to report a coworker’s allegation of sexual harassment (policy required immediate reporting by shift managers).
- Worker filed for workers’ compensation seeking TTD benefits after termination (July 14, 2011–Jan 11, 2012) and, after reaching MMI on Jan 11, 2012, PPD benefits (2% whole-person impairment) plus statutory modifiers for age/education/physical capacity.
- WCJ awarded TTD at statutory compensation rate through MMI and PPD benefits including the statutory modifiers; Employer appealed arguing termination for cause cut off both TTD and modifier-enhanced PPD.
- Court of Appeals affirmed: termination (even for misconduct) does not bar TTD under §52-1-25.1(B), and under the facts Worker remained eligible for modifier-enhanced PPD because she made reasonable efforts toward future employability and Employer made no post-MMI offer.
Issues
| Issue | Hawkins' Argument | McDonald’s Argument | Held |
|---|---|---|---|
| Whether termination after an employer offered light duty at pre-injury wage bars TTD under §52-1-25.1(B) | Termination does not cut off TTD; she remained temporarily totally disabled after discharge | Once employer offered work at pre-injury wage, statutory text precludes TTD, so termination ends entitlement | Termination (for any reason) does not bar TTD; Worker entitled to full TTD if still temporarily totally disabled (affirmed) |
| Whether termination bars statutory modifier increases to PPD under §52-1-26(C)–(D) | Modifiers apply because by MMI Worker was unemployed, Employer made no post-MMI offer, and she pursued education instead of unreasonably remaining unemployed | Termination for misconduct should disqualify Worker from modifier benefits | Modifiers apply here: denial under §52-1-26(D) only when worker accepts at/above pre-injury wage or unreasonably refuses suitable work; Worker’s conduct was not voluntary/unreasonable nonparticipation (affirmed) |
Key Cases Cited
- Ortiz v. BTU Block & Concrete Co., 925 P.2d 1 (N.M. Ct. App. 1996) (TTD awarded where employer did not offer post-injury work under §52-1-25.1)
- Lackey v. Darrell Julian Constr., 964 P.2d 153 (N.M. Ct. App. 1998) (distinguishes reduced TTD under §52-1-25.1(C) when employer offers below-pre-injury wage)
- Jeffrey v. Hays Plumbing & Heating, 878 P.2d 1009 (N.M. Ct. App. 1994) (PPD modifiers may be denied when worker voluntarily takes themself out of labor market)
- Connick v. County of Bernalillo, 957 P.2d 1153 (N.M. Ct. App. 1998) (§52-1-26(D) relieves employer of modifiers when worker accepts or unreasonably refuses work at/above pre-injury wage)
- Cordova v. KSL-Union, 285 P.3d 686 (N.M. Ct. App. 2012) (reiterates limits of modifier adjustments under §52-1-26(D) when worker remains in labor market)