1998 -NMCA- 60, Connick v. County of Bernalillo, 17227

• Docket Nº: No. 17227
• Citation: 1998 NMCA 60, 125 N.M. 119, 957 P.2d 1153
• Case Date: February 09, 1998
• Court: Court of Appeals of New Mexico

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957 P.2d 1153 125 N.M. 119, 1998 -NMCA- 60 Howard CONNICK, Worker-Appellee,
v.
COUNTY OF BERNALILLO, Self-Insured, Employer/Insurer-Appellant. No. 17227. Court of Appeals of New Mexico. Feb. 9, 1998.

Richard B. Walker, Richard B. Walker, P.A., Albuquerque, for Appellee.

Christopher W. Nickels, Julie A. Wittenberger, Sturges, Houston & Johanson, P.C., John H. Sinclair, Jr., Hatch, Allen & Shepherd, P.A., Albuquerque, for Appellant.

OPINION

BOSSON, Judge.

¶1 This workers' compensation case presents a question of first impression. We decide

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whether a worker who is receiving permanent partial disability benefits may legally continue to receive those benefits, in whole or in part, after being convicted and incarcerated for the commission of a felony. We hold that during the period of his incarceration, the worker may continue to receive that portion of benefits attributed to his physical impairment, but he is not entitled to have those benefits enhanced by the statutory modifiers of NMSA 1978, Section 52-1-26 (1990) (effective Jan. 1, 1991) which are designed to measure employment capacity. Because the Claimant in this case was awarded full benefits to continue even while in prison, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. 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)(l )(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, 117 N.M. 346, 871 P.2d 1352 (1994). We look first to the legislative purpose implicit in the statutory scheme.

¶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, 1996-NMCA-095, p 30, 122 N.M. 401, 925 P.2d 518. New Mexico has adopted a workers' compensation scheme based on evaluating the loss of earning capacity. See Madrid v. St. Joseph Hosp., 1996-NMSC-064, p 29, 122 N.M. 524, 928 P.2d 250. Loss of earning capacity attempts to reconcile a pure wage-loss theory and a pure physical-impairment theory. See Varela v. Arizona Pub. Serv., 109 N.M. 306, 308, 784 P.2d 1049, 1051 (Ct.App.1989). In essence, the New Mexico scheme is an industry insurance plan to compensate injured workers for loss of earning capacity as determined by statute.

¶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

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after the injury, which is designed to assess the likelihood of the worker being able to return to work in the future [hereafter "statutory modifiers"]. See NMSA 1978, §§ 52-1-24 to -26.4 (1990) (effective Jan. 1, 1991). However, if a worker returns to work at a wage equal to or greater than the pre-injury wage, the permanent partial disability rating remains at the level of the worker's impairment rating and is not subject to the statutory modifiers, no matter what his age, education and physical capacity. Similarly, the worker's benefits are not decreased below impairment level despite worker's gainful employment. In pertinent part, the Act states at Section 52-1-26:

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, 118 N.M. 60, 63, 878 P.2d 1009, 1012 (Ct.App.1994). In Jeffrey, the worker decided not to return to work because he preferred to start his own business, and he rejected the employer's job offer. Nonetheless, the worker claimed that Section 52-1-26(C) entitled him to receive compensation without qualification, at the impairment rating plus the statutory modifiers, because Section 52-1-26(D) only allowed elimination of statutory modifiers if "an injured worker returns to work," and he had not done so. Jeffrey, 118 N.M. at 62, 878 P.2d at 1011.

¶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 52-1-26(D) by voluntary unemployment or underemployment. We were not dissuaded by the absence from the Act of any express provision to that effect. Jeffrey, 118 N.M. at 64, 878 P.2d at 1013. To the contrary, this Court concluded that "[w]e should not attribute to the legislature an undue precision in drafting and thereby frustrate legislative intent when we construe a statute." Id. at 63, 878 P.2d at 1012. Relying upon our Supreme Court's opinion in Gallegos, we reasoned from the public policy expressed in the Act favoring reemployment, combined with the generally accepted proposition "that one should not be permitted to benefit by refusing to take reasonable steps to help oneself." Jeffrey at 64, 878 P.2d at 1013. We cited case law to the same general effect: "In New Mexico, disability benefits are denied if a claimant, through voluntary conduct unconnected with his injury, takes himself out of the labor market." Feese v. United States West Serv. Link, Inc., 113 N.M. 92, 94, 823 P.2d 334, 336 (Ct.App.1991). Thus, after Jeffrey, disability benefits (other than impairment) may be denied, reduced, or suspended if a claimant voluntarily and...