Lead Opinion
OPINION
1. This workers’ compensation case presents a question of first impression. We decide
BACKGROUND
2. Claimant was injured in 1991. Eventually, Claimant was assigned an impairment rating of 22%, and he received additional benefits based on the statutory modifiers of Section 52-1-26, for a total compensation calculated at 46% of his pre-injury wage. Subsequently, Claimant pleaded guilty to the second-degree murder of his wife, and on May 15, 1995 Claimant was sentenced to a six-year term in prison and was incarcerated. Prior to being imprisoned, Claimant had received a favorable determination from the Social Security Administration which had awarded him total disability benefits. By operation of federal law, however, those benefits were suspended for the duration of Claimant’s incarceration. See 42 U .S.C.A. § 402(x)G)(A)(I) (1994).
3. Upon Claimant’s incarceration, Employer reduced Claimant’s benefits to 22%, reflecting Claimant’s physical impairment rating. Claimant filed a complaint with the Workers’ Compensation Administration to increase the benefits back to 46%. The workers’ compensation judge (WCJ) entered a finding of undisputed fact that, prior to his incarceration, Claimant had attempted to return to work at a comparable wage but could not perform the job offered because of his physical limitations. Claimant’s petition stated that he had not been able to return to work since his injury in 1991. On cross-motions for summary judgment, the WCJ awarded Claimant permanent partial disability benefits of 46% to continue during his incarceration. Employer appeals that judgment, arguing that Claimant’s incarceration should have suspended all benefits during the period of his incarceration, or, in the alternative, that if Claimant remains entitled to any benefits, they should be restricted to those based solely on the impairment rating of 22%.
ANALYSIS
4. The Workers’ Compensation Act (the Act) does not offer explicit guidance in this situation. Claimant argues there is no affirmative, statutory authority for Employer suspending benefits during incarceration. While silence in the Act with respect to this specific situation may be significant, the Act does not leave us totally without guidance, and further, we are not persuaded that the Act should be read so literally that its legislative intent is frustrated. See State ex rel. Helman v. Gallegos,
5. The Act is the result of a legislative balancing in which employers are subject to liability without fault for work-related injuries and a worker’s remedy against an employer, for a work-related injury, is limited to the compensation provided in the Act. See NMSA 1978, § 52-1-9 (1973); Mieras v. Dyncorp,
6. For workers who have suffered permanent partial disability, the Act provides, 1) a determination of physical impairment rating, and 2) a potential modification of that impairment rating based on the worker’s age, education, job skills, and residual physical capacity
C. Permanent partial disability shall be determined by calculating the worker’s impairment as modified by his age, education and physical capacity, pursuant to Sections 52-1-26.1 through 52-1-26.4 NMSA 1978; provided that, regardless of the actual calculation of impairment as modified by the worker’s age, education and physical capacity, the percentage of disability awarded shall not exceed ninety-nine percent.
D. If, on or after the date of maximum medical improvement, an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his impairment and shall not be subject to the modifications calculated pursuant to Sections 52-1-26 .1 through 52-1-26.4 NMSA 1978.
The statutory incentive to return to work is unmistakable. The legislature has explicitly stated that the policy and purpose behind this legislation is to provide “every person who suffers a compensable injury with resulting permanent partial disability ... the opportunity to return to gainful employment as soon as possible with minimal dependence on compensation awards.” Section 52-1-26(A).
7. This Court has previously had occasion to interpret Section 52-1-26 in a somewhat similar context. See Jeffrey v. Hays Plumbing & Heating,
8. Understandably, this Court was not impressed with such slavish adherence to textualism. In rejecting the worker’s argument and affirming an award of benefits limited to the worker’s impairment rating, we reasoned that a worker could not intentionally evade the provisions of Section 52-l-26(D) by voluntary unemployment or underemployment. We were not dissuaded by the absence from the Act of any express provision to that effect. Jeffrey,
9. In the present case, Claimant was convicted of a serious felony resulting in his incarceration. Based on the purpose and intent behind Section 52-1-26, and the statutory provision in Subsection D eliminating statutory modifiers in certain circumstances, we believe the legislature intended that the present Claimant would be denied the benefit
10. In either case, an award beyond the basic impairment level would directly contradict the fundamental policy and purpose behind the entire statutory scheme, and this we refuse to do. Of equal importance, an award beyond impairment level would implicitly contradict the language of the Act, as it has been interpreted by us in Jeffrey, which now treats an unreasonably rejected job offer the same as if worker were reemployed in fact. Obviously, any such offer to Claimant in this case would have been “rejected” by virtue of Claimant’s incarceration, and to require such an empty gesture of Employer in this case, as a condition to reducing benefits pursuant to Section 52-l-26(D), would be absurd. Accordingly, we hold that Claimant is not entitled to the benefit of the statutory modifiers during the period of his incarceration.
11. On the other hand, Claimant has suffered a permanent physical impairment which is unchanged by his incarceration. Claimant remains limited by the Act in what he can recover for his injuries; for example, he could not file a lawsuit in tort to recover from his Employer because the Act remains his exclusive remedy even while he is incarcerated. Thus, the impairment aspect of his claim stands in a different light from the statutory modifiers under Section 52-1-26 which are awarded for a different consideration.
12. Because the Act adopts a loss of earning capacity theory of recovery that reconciles a pure lost-wages theory and a pure physical-impairment theory, we believe the legislature intended to provide some measure of benefits for physical impairment alone, independent of lost wages or ability to return to work. Significantly, Section 52-1-26 provides for disability payments based on impairment even when a worker returns to work at a wage greater than pre-injury wage. This indicates a legislative intent to provide some compensation for the injury apart from the loss of wages.
13. It is only when a worker intentionally causes the injury that he loses benefits for impairment. See NMSA 1978, §§ 52-1-11 to -12 (1989) (no compensation benefits due when the injury is caused by a worker’s intoxication or willful, intentional infliction of injury). Similarly, when a worker fails to use a safety device or follow safety regulations, the compensation awarded is reduced. See NMSA 1978, § 52-l-10(A) (1989). Compensation benefits may also be reduced or suspended when a worker persists in unsanitary or injurious practice that impairs recovery or increases disability. See NMSA 1978, § 52-1-51(1) (1990) (effective Jan. 1, 1991). None of these situations apply here. Because the Act evinces a legislative intent to
14. Shortly after the parties filed their briefs, our Supreme Court issued its opinion in Benavidez v. Sierra Blanca Motors,
15. We recognize that the WCJ entered a conclusion of law stating that Claimant did not have the ability or capacity to earn his pre-injury wage even if he were not incarcerated. The WCJ was persuaded by the parties’ stipulation that Claimant could not perform work whether or not incarcerated and, thus, incarceration was irrelevant to continued receipt of compensation benefits. The parties stipulated that Claimant had attempted to return to work at a comparable wage but was unable to do so because of his physical condition; that Claimant was found to be totally disabled by the Social Security Administration; that there was no showing that Claimant had returned to work at a wage equal to or greater than his pre-injury wage, or that Employer had offered him jobs within his physical restrictions that would earn a wage equal to or greater than his pre-injury wage. We believe the WCJ read Section 52-1-26 too narrowly in light of its .legislative purpose.
16. The parties have cited case law from numerous jurisdictions in their briefs. While these cases are instructive, they are ultimately inapposite to the present case because they involve awards of total disability benefits, temporary disability benefits, or are based on legislation specific to the jurisdiction. See, e.g ., Crawford v. Midwest Steel Co.,
CONCLUSION
17. We determine that during the period of his incarceration Claimant is not entitled to disability benefits based on the statutory modification of his impairment rating. Conversely, because the Act evinces a legislative intent to compensate workers for impairment independently of lost wages and this ease does not fall within any provision that would reduce or eliminate impairment benefits, Claimant is entitled to continue receiving benefits based on his impairment rating. We affirm in part, reverse in part, and remand this case for entry of an order awarding Claimant benefits based solely on his impairment rating.
18. IT IS SO ORDERED.
Notes
. In construing the language of Section 52-1-26 we do not grasp intuitively for "a general sense of the legislative policy” as the dissent implies. With respect, we note that the legislature itself has codified that policy at Section 52-l-26(A). We apply only that policy — not what we think the policy might be — but what the legislature has decreed, to an ambiguous situation in Section 52-1-26(D), no differently in our view from what this Court did in Jeffrey and consistent with Ortiz v. Block & Concrete Co.,
Concurrence Opinion
(Specially Concurring).
19. I concur with the portion of the majority’s opinion that holds Defendant is not entitled to the benefits of the workers’ compensation statutory modifiers. NMSA 1978, Section 52-1-26 (1990) (effective Jan 1,1991). Defendant, by committing a felony, has voluntarily removed himself from the job market and therefore, is not eligible for this portion of workers’ compensation. See Jeffrey v. Hays Plumbing & Heating,
20. I am of the opinion that New Mexico should adopt a policy like that of the Federal Government’s Social Security program which tolls workers’ compensation benefits while individuals are incarcerated. Under 42 U.S.C. § 402(x)(A)(l) benefits paid for old age, survivors, auxiliary and disability insurance benefits are not paid to individuals while they are incarcerated. The rationale behind the Federal Government’s exclusion of such benefits is that the needs of the incarcerated are not as great as the needs of others. Hopper v. Schweiker,
21. The rationale that incarcerated individuals’ needs are being met by the state, coupled with the notion that the benefits should be tolled during incarceration, better serves the interests of the injured worker/incarcerated individual. I would recommend tolling workers’ compensation benefits for permanent partial disability during the term of incarceration. The incarcerated individual does not need this payment to meet his basic needs as they are provided for by the state. However, if the worker receives these payments while incarcerated, he may use up all of his eligibility years and once released, will not have the security of those payments, when he will most likely be in need of them. If the payments are tolled and resume upon release, the payments may help the worker in the tenuous period of reassimilation into society after release when the state is no longer providing for the worker’s needs. In fact, it may help those workers from becoming repeat offenders. If the worker has a permanent disability, obtaining full employment may prove to be difficult, especially just after release from prison. The transition would not be as difficult if the worker was to receive his back worker’s compensation payments for his permanent partial disability.
Concurrence in Part
(concurring in part and dissenting in part).
22. I concur in that portion of the opinion that affirms the award of benefits based on a 22% impairment rating, and I dissent from that portion of the opinion that reverses the remainder of the award. In my view, there is nothing in the statutory text that would allow a court to construe the Workers’ Compensation Act to deny full benefits to a prisoner who is stipulated to be unable to perform work, whether incarcerated or not.
23. I acknowledge that both Jeffrey v. Hays Plumbing & Heating,
24. The error in relying on general legislative policy was made clear by the limitations placed on Jeffrey in Ortiz v. BTU Block & Concrete Co.,
25. In this ease, the legislative text is clear. It requires, at a minimum, the offer of a job at equal or greater wages and an unreasonable refusal of the offer, if not actual employment in such a job, before compensation benefits may be reduced by elimination of the statutory modifiers. Jeffrey,
26. Finally, even if the legislation at issue here were ambiguous within itself and thus arguably allowed interpretation, as was the case in both Jeffrey and Helman, I cannot say that the legislative design points so clearly in one direction that it would deny application of the statutory modifiers to people solely because of their incarceration. The purpose of the Workers’ Compensation Act is to provide a substitute for lost wages — to keep both workers and their dependents off the public welfare rolls and to make industry bear the burden of injured workers. See Wylie Corp. v. Mowrer,
27.The majority holding otherwise, I respectfully dissent.