Cordova v. KSL–Union

• Decision Date: 19 July 2012
• Docket Number: No. 30,870.,30,870.
• Citation: 2012 -NMCA- 083,285 P.3d 686
• Parties: Jesse CORDOVA, Worker–Appellee, v. KSL–UNION and CCMSI, Employer/Insurer–Appellants.
• Court: Court of Appeals of New Mexico

285 P.3d 686

2012 -NMCA- 083

Jesse CORDOVA, Worker–Appellee,

v.KSL–UNION and CCMSI, Employer/Insurer–Appellants.

No. 30,870.

Court of Appeals of New Mexico.

May 14, 2012.

Certiorari Denied, July 19, 2012, No. 33,663.

Peter D. White, Santa Fe, NM, for Appellee.

David L. Skinner, 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), NMSA 1978, §§ 52–1–1 to –70 (1929, as amended through 2007). We affirm on the basis that Worker's decision to retire was reasonable.

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 § 52–1–24.1 (stating that MMI is “the date after which further recovery from or lasting improvement to an injury can no longer be reasonably anticipated based upon reasonable medical probability as determined by a health care provider”). At that time, Worker was entitled to PPD benefits pursuant to Section 52–1–26(B). See id. (stating that partial disability “means a condition whereby a worker, by reason of injury arising out of and in the course of employment, suffers a permanent impairment”).

{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 from the date he retired (April 17, 2008) to the date he reached MMI (April 30, 2009), because Worker “walked away” from the temporary modified-duty employment provided to him by Employer. These conclusions were incorporated in the compensation order, which set forth the WCJ's findings of fact and conclusions of law.

{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 Sections 52–1–26.1 through Section 52–1–26.4, for a total PPD impairment of fifty-two percent. Employer appeals.

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 Section 52–1–26 of the Act when a worker suffers a permanent impairment resulting from an injury arising out of and in the course of employment. Section 52–1–26(B) (defining “partial disability” as “a condition whereby a worker, by reason of injury arising out of and in the course of employment, suffers a permanent impairment”). In construing the statute, the Legislature has directed us to consider its declaration of policy and intent as follows:

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.

Section 52–1–26(A). In succeeding subsections, Section 52–1–26 in pertinent part provides:

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.

{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 Sections 52–1–26.1 through 52–1–26.4 based on the worker's age, education, and physical capacity. This is what we refer to herein as modifier-based PPD benefits. Sections 52–1–26.1 through Section 52–1–26.4 provide more modifier points to older workers lacking education, skills, and physical capacity than to younger workers with higher efficiencies in those areas, resulting in a higher calculation of benefits for the older, less-educated, less-skilled, and less physically able workers.

{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 Sections 52–1–26.1 through Section 52–1–26.4 are “designed to assess the likelihood of the worker being able to return to work in the future”).

{12} Likewise, in accordance with the policy expressed in Section 52–1–26(A), to provide workers the “opportunity to return to gainful employment as soon as possible with minimal dependence on compensation awards,” the Legislature has included a return-to-work provision in Section 52–1–26(D). Connick, 1998–NMCA–060, ¶ 6, 125 N.M. 119, 957 P.2d 1153 (stating that the statutory incentive to return to work in Section 52–1–26 is “unmistakable”). Under this provision, if the worker returns to work at a wage equal to or greater than the worker's pre-injury wage after reaching MMI, the employer must only pay PPD benefits in the amount of the worker's impairment rating and is relieved of paying the statutory modifiers.

{13} We have construed Section 52–1–26(D) as relieving the employer of the liability to pay modifier-based PPD benefits if the worker either (1) accepts employment with...