JESSE CORDOVA, Worker-Appellee, v. KSL-UNION and CCMSI, Employer/Insurer-Appellants.
Docket No. 30,870
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
May 14, 2012
Opinion Number: 2012-NMCA-083; Certiorari Denied, July 19, 2012, No. 33,663
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Gregory D. Griego, Workers’ Compensation Judge
Santa Fe, NM
for Appellee
David L. Skinner
Albuquerque, NM
Kelly A. Genova, P.C.
Kelly A. Genova
Albuquerque, NM
for Appellants
OPINION
VIGIL, Judge.
{1} The Workers’ Compensation Judge (WCJ) entered a compensation order ruling that, notwithstanding Worker’s voluntary retirement, Worker is entitled to statutory modifier-based permanent partial disability (PPD) benefits under the Workers’ Compensation Act (the Act),
I. BACKGROUND
{2} On March 27, 2008, Worker was injured when he fell down a slope while cutting wood and suffered a compensable injury to his right shoulder. As a consequence of the injury, Worker was temporarily, totally disabled from March 27, 2008, to April 30, 2009. Employer gave Worker a modified-duty job at his pre-injury wage from the date of the accident until his retirement on April 17, 2008.
{3} Prior to the March 27, 2008 injury, Worker had begun paperwork and preparations for retirement. Worker was eligible to retire and begin receiving his union retirement pension in April 2008 because he satisfied the eligibility requirements of reaching the age of fifty-five and completing thirty years of work with the union. Worker would receive his maximum retirement benefit, and additional time working for the union would not increase his retirement pension. Worker chose to retire on April 17, 2008, and left his temporary modified-duty employment on that date. In order to remain entitled to his union retirement pension, Worker was required to terminate his employment with Employer effective the date he chose to retire, and he was prohibited from working as a union member at any time in the future.
{4} Testimony was presented at trial that Worker had been offered a position at a non-union contracting company as a working foreman after retirement, but he was unable to accept the offer because of the injuries he had sustained while working for Employer. Worker testified that he was unable to perform the type of heavy duty work for which he was qualified due to his injuries and that his injuries impeded his ability to return to work at a non-union job after his retirement in order to collect a second paycheck in addition to his pension. Worker testified that he knew of several companies where he could have applied for post-retirement employment had his injuries not interfered with his ability to work and that he would go back to work if he were able to do so.
{5} Worker reached maximum medical improvement (MMI) on April 30, 2009. See
{6} A key issue presented to the WCJ was whether Worker was precluded from receiving modifier-based PPD benefits and temporary total disability (TTD) benefits because Worker had decided to retire. Following trial, the WCJ entered a memorandum opinion in which he concluded that because no permanent return-to-work offer was made by Employer, Worker was entitled to receive modifier-based PPD benefits despite his decision to retire. However, the WCJ ruled that Worker was not entitled to TTD benefits
{7} Pertinent to this appeal, the WCJ findings are that “[w]orker has voluntarily removed himself from the work force by reason of retirement” and that the retirement “was reasonable because retirement was financially rational in order to receive union retirement benefits.” The WCJ calculated that Worker is permanently partially disabled with a whole body impairment rating of seven percent. In addition, the WCJ calculated that Worker is entitled to forty-five additional statutory PPD modifiers under
II. ANALYSIS
{8} On appeal, Employer challenges only the WCJ’s award of modifier-based PPD benefits to Worker. Employer asserts, “Worker should not be allowed to obtain PPD based on formula modification as of the date he reached MMI because Worker effectively prevented Employer from making a post-MMI job offer by way of the union retirement on April 17, 2008.” We review issues of statutory interpretation and application of the law de novo. See Att’y Gen. v. N.M. Pub. Regulation Comm’n, 2011-NMSC-034, ¶ 10, 150 N.M. 174, 258 P.3d 453. “Once we determine the meaning of the statute, we review the record to determine whether the [WCJ’s] findings and award are supported by substantial evidence.” Rivera v. Flint Energy, 2011-NMCA-119, ¶ 4, 268 P.3d 525.
A. Permanent Partial Disability Benefits
{9} PPD benefits are payable under
A. As a guide to the interpretation and application of this section, the policy and intent of this legislature is declared to be that every person who suffers a compensable injury with resulting permanent partial disability should be provided with the opportunity to return to gainful employment as soon as possible with minimal dependence on compensation awards.
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 through52-1-26.4 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 through52-1-26.4 NMSA 1978 .
{10} Thus, PPD benefits are calculated by determining the level of impairment to the worker and adding to the impairment rating a calculation of statutorily defined modifiers under
{11} In recognition of the statutory scheme, our Supreme Court has previously stated, “The formula incorporates the worker’s impairment rating, age, education, and residual physical capacity in order to arrive at a disability rating, which determines the level of benefits available. This complex evaluation scheme was designed to achieve the purpose for which workers’ compensation was first enacted, which was to protect injured workers from becoming dependent on public welfare and to provide them with some financial security.” Madrid v. St. Joseph Hosp., 1996-NMSC-064, ¶¶ 7-8, 122 N.M. 524, 928 P.2d 250 (footnote and citations omitted). Moreover, this method for calculating PPD benefits reflects the intention of the Legislature to address problems associated with a worker’s projected difficulty in obtaining and returning to work after reaching MMI. See Connick v. Cnty. of Bernalillo, 1998-NMCA-060, ¶ 6, 125 N.M. 119, 957 P.2d 1153 (stating that the statutory modifiers in
{12} Likewise, in accordance with the policy expressed in
{13} We have construed
{14} The terms of Worker’s retirement effectively prevented Employer from offering employment to Worker to reduce its liability for modified PPD benefits. Thus, Employer argues that it should not be liable to pay modifier-based PPD benefits because Worker voluntarily removed himself from the workforce. We turn to cases addressing similar issues for guidance, mindful that they are not directly on point.
{15} In Jeffrey, the employer offered the worker a job at his pre-injury wage after he reached MMI, and the worker rejected the offer in order to start his own business. 118 N.M. at 61, 878 P.2d at 1010. Accordingly, the WCJ applied
{16} In Connick, we concluded that a worker who was convicted of killing his wife and incarcerated was not entitled to modifier-based PPD benefits because his criminal act effectively removed him from the job market. 1998-NMCA-060, ¶¶ 9-10. We held that the employer was not required to offer the worker a job because the worker’s incarceration prevented him from being able to accept the employer’s offer. Id. ¶ 10. We stated that “to require such an empty gesture of [the e]mployer in this case, as a condition to reducing benefits pursuant to
{17} In this case, the WCJ concluded that because Employer did not make Worker an offer of a permanent return to work, Worker is entitled to receive modifier-based PPD benefits, despite Worker’s decision to retire. While we disagree with the WCJ’s reasoning, we nevertheless affirm the award of modifier-based PPD benefits under the right for any reason doctrine. See State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d 684 (“Under the ‘right for any reason’ doctrine, ‘we may affirm the district court’s order on grounds not relied upon by the district court if those grounds do not require us to look beyond the factual allegations that were raised and considered below.’”).
{18} It is undisputed that Employer did not make Worker a post-MMI offer of employment at a wage equal to or greater than Worker’s pre-injury wage. However, Employer’s failure to do so does not, by itself, give rise to liability for modifier-based PPD benefits because
{19} We disagree with Employer’s argument that because Worker’s voluntary decision to retire precluded it from making an offer to return to work, Employer should be relieved of its liability to pay Worker modifier-based PPD benefits. While a worker’s decision to retire may make an offer of post-MMI employment inconsequential, the result
{20} An employer is relieved of paying modifier-based PPD benefits only when a worker returns to work at or above his pre-injury wage, or voluntarily and unreasonably removes himself from the workforce. See Jeffrey, 118 N.M. at 62-63, 878 P.2d at 1011-12. A worker may reasonably refuse a return-to-work offer and remain eligible for modifier-based PPD benefits. See id. In accordance with a worker’s ability to reasonably refuse a return-to-work offer, it follows that a worker is also permitted to take reasonable action that precludes an employer from making a return-to-work offer. For example, if Employer had offered Worker permanent employment and Worker reasonably refused the offer due to Worker’s plans to retire, Worker would have nevertheless been entitled to recover modifier-based PPD benefits under our existing case law. The mere timing of Worker’s retirement by itself does not prevent Worker from receiving modifier-based PPD benefits. Accordingly, we conclude that because the WCJ’s finding of fact establishes that Worker’s retirement was reasonable, Worker is entitled to modifier-based PPD benefits despite his decision to retire before reaching MMI.
{21} Employer challenges the finding of fact that Worker’s retirement was reasonable on the ground that the decision to retire was reasonable only from Worker’s financial perspective. Employer therefore argues that the WCJ’s finding that Worker’s decision was reasonable violates the policy of the Act in providing fairness to both Worker and Employer. See
{22} Jeffrey clearly states that there may be sound, appropriate reasons, from the worker’s perspective, for rejecting an employer’s offer to return worker to work at a wage equal to or greater than the worker’s pre-injury wage. See Jeffrey, 118 N.M. at 64, 878 P.2d at 1013. Furthermore, there is nothing in Jeffrey which requires a worker to consider the employer’s interest in deciding whether to accept the employer’s offer. Worker testified that he would gain nothing by remaining at his union employment with Employer because he was already going to receive his maximum retirement benefit. We therefore decline to engage in a reasonableness analysis which requires Worker to consider Employer’s interest in making his own employment decision under these circumstances, and we will not overturn the WCJ’s finding that Worker’s decision to retire was reasonable.
{23} Applying the policies and directives of
{24} In his answer brief, Worker argues that the WCJ committed reversible error in concluding Worker is not entitled to TTD benefits from the date he retired to the date he reached MMI on the basis that Worker “walked away” from the temporary employment offered him by Employer. We decline to address this issue because Worker failed to file a cross appeal requesting this relief. See State ex rel. State Highway Dep’t v. Yurcic, 85 N.M. 220, 224, 511 P.2d 546, 550 (1973) (declining to address appellee’s attack on award of attorney fees where no cross appeal was filed), modified on other grounds by Cnty. of Doña Ana ex rel. Bd. of Cnty. Comm’rs v. Bennett, 116 N.M. 778, 867 P.2d 1160 (1994); Reynolds v. Ruidoso Racing Ass’n, 69 N.M. 248, 258, 365 P.2d 671, 678 (1961) (declining to address questions attempted to be raised in answer brief where no cross appeal was filed).
III. CONCLUSION
{25} The compensation order is affirmed.
{26} IT IS SO ORDERED.
MICHAEL E. VIGIL, Judge
WE CONCUR:
CYNTHIA A. FRY, Judge
LINDA M. VANZI, Judge
Topic Index for Cordova v. KSL-Union, Docket No. 30,870;
STATUTES
Interpretation
Legislative Intent
WORKERS COMPENSATION
Disability, Partial
Rate of Compensation