MICHELLE LYNN HAWKINS, Worker-Appellee, v. MCDONALD‘S and FOOD INDUSTRY SELF INSURANCE FUND OF NEW MEXICO, Employer/Insurer-Appellants.
No. 32,635
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
December 17, 2013
VANZI, Judge.
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION, Terry S. Kramer, Workers’ Compensation Judge
Victor A. Titus
Farmington, NM
for Appellee
Maestas & Suggett, P.C.
Paul Maestas
Albuquerque, NM
for Appellants
OPINION
VANZI, Judge.
{1} McDonald‘s (Employer) appeals from a compensation order entered pursuant to the Workers’ Compensation Act (the WCA),
BACKGROUND
{2} The parties do not dispute the essential facts. Worker was employed as a shift manager by Employer prior to and on May 26, 2011. Worker suffered an accident arising out of and in the course of her employment on May 26, 2011, wherein she injured her low back. Worker was released to return to work with a twenty-pound lifting limitation on May 27, 2011, and again on May 31, 2011. Employer offered and provided Worker a light/modified duty job as a shift manager that paid Worker a wage equal to or greater than her pre-injury wage of $8.50 per hour. She worked in that modified capacity for approximately four weeks until she was terminated from employment on July 13, 2011. The reasons for Worker‘s termination follow.
{3} Employer had a zero-tolerance policy in place prohibiting sexual harassment. The policy required shift managers to immediately notify certain named supervisors if the shift manager was made aware of an incident of sexual harassment. It was not the shift manager‘s responsibility to investigate any reports of sexual harassment or to determine the validity of the accusation.
{4} Sometime in May 2011, Worker‘s son and a friend were visiting Worker‘s home. The son‘s friend was also employed by Employer. While they were having dinner, the employee reported that she had received a sexually inappropriate message from Employer‘s store manager. Worker did not witness the alleged sexual harassment, nor did she see the allegedly offending text message. Further, it was Worker‘s opinion that, based
{5} On September 28, 2011, Worker filed a complaint seeking to recover TTD or temporary partial disability benefits accrued after her termination on July 13, 2011, as a result of the May 26, 2011 injury she sustained in the workplace accident. Worker‘s low back injury reached maximum medical improvement (MMI) on January 11, 2012, at which point she was assigned a two percent whole-person impairment as a result of the injury. During the course of the proceedings, she subsequently also sought the modifier portion of any PPD benefits that she may have been entitled to after reaching MMI.
{6} Following a trial, the WCJ issued a compensation order finding that Worker‘s termination did not disqualify her from receiving TTD benefits prior to reaching MMI and PPD benefits subsequent to reaching MMI. The WCJ found that Employer was acting within its authority when it terminated Worker for violating company policy. However, the WCJ stated, “Not every action giving rise to termination of employment is of a nature or character or quality sufficient to warrant a denial of indemnity benefits” and that, therefore, Employer could not avoid paying benefits to Worker in this case. Based upon her average weekly wage of $275.61, the WCJ awarded Worker TTD benefits at a compensation rate of $183.74 from July 14, 2011 to January 11, 2012. The WCJ also concluded that Worker was entitled to PPD benefits at “eleven percent . . . of her compensation rate commencing on January 11, 2012[,] and continuing until conclusion of the benefit period or until further order.” The PPD benefits included, among other things, the two percent permanent physical impairment, plus additional modifier benefits based upon Worker‘s age, education, and physical capacity. Finally, the WCJ determined that Worker was entitled to ongoing reasonable and necessary medical benefits and attorney fees. This appeal followed.
DISCUSSION
Standard of Review
{7} The issues on appeal concern the scope of
{8} We review workers’ compensation cases under a whole record standard of review. Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926. We review statutory interpretation de novo. Kahrs v. Sanchez, 1998-NMCA-037, ¶ 11, 125 N.M. 1, 956 P.2d 132. When construing a statute, “our guiding principle is to determine and give effect to legislative intent.” N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm‘n, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105. “[T]he plain language of a statute is the primary indicator of legislative intent. Courts are to give the words used in the statute their ordinary meaning unless the [L]egislature indicates a different intent.” Johnson v. N.M. Oil Conservation Comm‘n, 1999-NMSC-021, ¶ 27, 127 N.M. 120, 978 P.2d 327 (internal quotation marks and citations omitted). However, we also recognize that the “beguiling simplicity [of the plain meaning rule] may mask a host of reasons why a statute, apparently clear and unambiguous on its face, may for one reason or another give rise to legitimate (i.e., nonfrivolous) differences of opinion concerning the statute‘s meaning.” State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352; see Draper v. Mountain States Mut. Cas. Co., 1994-NMSC-002, ¶ 4, 116 N.M. 775, 867 P.2d 1157 (explaining that the intention of the Legislature will prevail over the strict meaning of the literal language).
A Worker‘s Termination From Employment Does Not Limit Her Entitlement to TTD Benefits Under Section 52-1-25.1(B)
{9}
{10} Employer argues that it “complied” with the provisions of
{11} The statute does not explicitly address whether an employee is entitled to benefits in a situation where she has been offered employment at her pre-injury wage and has been subsequently terminated, whether for misconduct or otherwise. The reading Employer advocates is technically consistent with the plain language of
{12} The WCA was created to offset the lost wages of a worker injured by a work-related accident, while promoting a policy in which workers would not become dependent on state welfare programs. See Casias v. Zia Co., 1979-NMCA-068, ¶ 4, 93 N.M. 78, 596 P.2d 521. Put simply, the WCA seeks to ensure that an employee is adequately compensated for income lost due to an injury, thereby enabling her to provide the necessities of life for herself and her dependents. We recognize that the WCA is a delicate balance between the rights and interests of the worker and the employer, see
{13} The application of
{14} Further, such an interpretation would allow employers to create a job accommodating the restrictions placed on an injured employee, pay the employee her pre-injury wage and then fire that employee, for any reason or no reason, thereby avoiding the obligation to pay benefits. No other statutory provision in the WCA serves to cut off a worker‘s benefits if she is terminated, and such an anomaly cannot be justified here. Even a worker who is injured on the job as a result of intoxication or drug use—unless proved to be willful or intentional conduct—only has his compensation reduced by ten percent. See
{15} Our case law, moreover, has required employers to pay benefits to workers who have been fired for misconduct in other factual circumstances. For example, in Ortiz v. BTU Block & Concrete Co., 1996-NMCA-097, ¶ 2, 122 N.M. 381, 925 P.2d 1, the worker was repeatedly reprimanded for failing to obey instructions and for other deficiencies in her job performance. The “last straw” was an accident, for which the worker sought workers’ compensation benefits. Id. We held that the worker was entitled to full TTD benefits because her employer never extended an offer of employment under either
{16} We cannot countenance a statutory interpretation that requires an employer to pay benefits to a worker who has been terminated under the circumstances in Ortiz and Lackey and that yet allows the employer to escape that obligation simply by offering work at the worker‘s pre-injury wage before she is terminated. Under such an interpretation, every injured employee who is terminated from employment would continue to receive compensation benefits except the employee who was offered a job at her pre-injury wage. Such a result cannot be harmonized with the WCA‘s purpose and cannot be what the Legislature intended. See Eldridge, 1997-NMCA-022, ¶ 29.
{17} The more difficult question to answer is the amount of TTD benefits due a worker who was making a pre-injury wage under
{18} Employer‘s reliance on Lackey is unavailing, and we reject its characterization of that decision. Lackey did not hold that a
{19} We hold that an employer‘s obligation to pay TTD benefits to an injured employee does not cease because the employee has been terminated—whether or not the termination was for cause. When an injured employee has been discharged by her employer, the determinative inquiry for deciding entitlement to TTD benefits remains whether the worker‘s condition has stabilized. If the injured employee is able to show that she continues to be temporarily totally disabled as a result of her work-related injury, she is entitled to TTD benefits. Here, the WCJ found that even after her termination, Worker continued to be temporarily totally disabled as a result of the May 26, 2011 accident, and that she had a compensation rate of $183.74. We affirm the award of TTD benefits at Worker‘s compensation rate from July 14, 2011, to January 11, 2012.
A Worker‘s Termination From Employment Does Not Necessarily Preclude Her From Obtaining the Modifier Portion of PPD Benefits Under Section 52-1-26(C) and Sections 52-1-26.1 to -26.4
{20} Once an injured worker reaches MMI, a different statutory provision of the WCA takes effect. Under
{21} As it argued with respect to the payment of TTD benefits, Employer contends that its termination of Worker for misconduct also renders her ineligible for post-MMI modified benefits. We disagree.
{22} Worker‘s claim for post-MMI PPD benefits arose seven months after her termination and, therefore, her eligibility for these benefits requires consideration of the facts at the time she reached MMI. It is undisputed that Employer did not make Worker any post-MMI offer of employment. After her termination on July 13, 2011, and before reaching MMI, Worker was unemployed for about a month and then got a job at Blake‘s Lotaburger. She worked there for a few months but ultimately left because of too much pain in her back. Worker then worked for a home healthcare facility for a few months. By the time she reached MMI on January 11, 2012, Worker was not employed. She continued to have the twenty-pound lifting restriction after reaching MMI, which placed her in a light duty capacity. Although she has not applied for any work since January 11, 2012, Worker started taking classes at the University of Phoenix in May 2012 in order to better herself and get an education so that she could eventually get a job.
{23} The WCJ concluded that Worker‘s nonaction in failing to report the allegation of
{24} The issue of whether a discharged worker is eligible for the statutory-based modifier adjustment has not been squarely decided in New Mexico. However, we glean some guidance from our decisions in Jeffrey, Connick v. County of Bernalillo, 1998-NMCA-060, 125 N.M. 119, 957 P.2d 1153, and most recently, Cordova v. KSL-Union, 2012-NMCA-083, 285 P.3d 686, cert. denied, 2012-NMCERT-007, 295 P.3d 599. All of these cases have reiterated that
{25} Worker‘s sole “occupation” for the ten years prior to her injury had been in the fast food restaurant business. All of those previous jobs were similar to the work she did at McDonald‘s and Blake‘s Lotaburger. Worker knew of no permanent job at a fast food restaurant that could be done with a twenty-pound lifting restriction. Given that Worker continues to be injured and has lifting restrictions, we cannot say that Worker‘s decision not to seek employment at a fast food restaurant and to further her education means she is voluntarily unemployed or that she refuses “to take reasonable steps to help [her]self.” See Jeffrey, 1994-NMCA-071, ¶ 14 (noting that a worker should not be permitted to benefit by voluntarily remaining unemployed or underemployed). In fact, Worker‘s decision to acquire skills that will make her employable in the future is in accordance with the policy expressed in
CONCLUSION
{26} For the reasons set forth above, we affirm the compensation order entered by the WCJ.
{27} IT IS SO ORDERED.
LINDA M. VANZI, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
CYNTHIA A. FRY, Judge