Gonzalez v. Performance Painting Inc
| Decision Date | 10 January 2011 |
| Docket Number | Docket No. 29,629 |
| Parties | JESUS GONZALEZ, Worker-Appellant, v. PERFORMANCE PAINTING, INC. and BUILDERS TRUST OF NEW MEXICO, Employer/Insurer-Appellees. |
| Court | Court of Appeals of New Mexico |
APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Terry S. Kramer, Workers' Compensation Judge
James Rawley Albuquerque, NM for Appellant.
Miller Stratvert P.A. Thomas R. Mack Nathan A. Cobb Albuquerque, NM for Appellees.
{1} Worker Jesus Gonzalez appeals the decision of the Workers' Compensation Judge (WCJ) denying him modifier benefits from his employer Performance Painting, Inc. (Employer) under NMSA 1978, Section 52-1-26(C) (1990), of the New Mexico Workers' Compensation Act (the Act), NMSA 1978, §§ 52-1-1 to-70 (1929, as amended through 2007). The WCJ denied modifier benefits because Worker's undocumented immigrationstatus precluded rehire, thereby constituting an unreasonable refusal of Employer's return-to-work offer. The WCJ also denied Worker modifier benefits under Section 52-1-26(D) after he returned to the workforce with a different employer and earned a wage equal to or greater than his pre-injury wage after maximum medical improvement (MMI). Worker contended that Employer should be estopped from asserting a bar to his recovery under Section 52-1-26(C) of modifier benefits because Employer knew or should have known that Worker was undocumented. The WCJ made no explicit ruling on that issue. The WCJ rejected Worker's claim that Employer's return-to-work offer was pretextual and that Worker was denied equal protection of the law. We hold that Worker was not entitled to modifier benefits because Section 52-1-26(C) and (D) are inapplicable to cases involving workers with undocumented, illegal immigration status, and because the Act does not provide for modifier benefits except under the provisions of those statutory subsections.
{2} Worker is an undocumented worker who came from Mexico in 2003. He was hired by Employer in February 2006, after providing a false social security number on his employment application. Teri Jinzo, Employer's office manager, gave persons seeking employment, including Worker, an application to fill out, and she received the application from the applicants when they returned it. Ms. Jinzo never had conversations with anyone, including workers, and including Employer's owner, Joe Spiess, to whom she directly reported, about the need to review documents showing an applicant's legal status to work in the United States. She did not take it upon herself to look into the legal status, nor did she attend any training or seminars, or receive any written materials in that regard. She would simply give the applicant an application, who would take it, fill it out, and return it to her, and she would then give the application to a foreman and from there the foreman "just hired" the applicant.
{3} Ms. Jinzo's practice for new hires was to take the social security numbers they provided in the application and submit them to New Mexico New Hires, an agency about which Employer provides no explanation as to whether it has any duty or conducts any activity or investigation in regard to a worker's undocumented status.1 New Mexico New Hires never informed her that any submitted social security numbers were illegitimate. She never handed out employment eligibility verification forms. As we discuss later in thisopinion, employers are required under federal law to complete an employment eligibility verification form, also known as an I-9 form.
{4} Worker testified that a friend called "Panda," who worked for Employer, helped him fill out the employment application at Employer's office. According to Worker, Panda wrote in Worker's false social security number that Worker provided, and no one requested Worker to produce a social security card.
{5} Mr. Spiess testified that immigration was never discussed. Mr. Spiess stated that "[i]f [the application] looked good, then they would go ahead and hire." Mr. Spiess was not involved in the hiring of Worker. Mr. Spiess stated that he had no reason to believe that Worker was undocumented during the time Worker worked for Employer. Employer's files did not contain a copy of Worker's social security card.
{6} In August 2006, Worker was injured while working for Employer, rendering Worker temporarily totally disabled. Worker was placed at MMI on August 30, 2007, was assigned a 3% whole-person impairment based upon his injury, and was released back to work with permanent lifting restrictions, as well as "no climbing of ladders and no extended bending." Worker did not return to work with Employer until January 2008, when Employer offered him employment in a modified capacity. A few weeks later, in late January or early February 2008, Worker stopped working for Employer. The WCJ found that this was due to a combination of Worker's inability to perform the tasks required of him, which often exceeded his medical restrictions, and a slow down in work available. On February 18, 2008, Worker filed a complaint for workers' compensation.
{7} Sometime between February and April 2008, Worker found part-time employment that would accommodate his medical restrictions cleaning a baseball stadium and earned approximately $250 per week. Because the work would be over once the baseball season ended around September, Worker began looking for another job in the summer of 2008.
{8} During 2007, Employer had a slow down of business and laid off half of its twenty-eight workers. By October 21, 2008, Employer only had four workers left. Employer offered Worker a return to work by letter from its attorneys on two separate occasions, first on April 30, 2008, and a second time on June 16, 2008. Worker testified that after receiving one of the letters, he went by Employer's office and one of Employer's workers communicated to Worker that they had absolutely no work for Worker whatsoever. Then, Worker's attorney asked Worker to go by Employer's office once more to pick up an employment application. On or about June 20, 2008, Worker went to Employer's office to pick up the application, but instead of an application, Worker was given an immigration status verification form. Without knowing what it was, Worker took the form to a person that could assist him in filling out documents in English and that person informed Worker that the document was not an employment application. Worker took the form back to Employer without filling it out and requested an employment application and, at that time, Mr. Spiess asked to see Worker's social security card and driver's license. Worker did not provide any documents and left.
{9} Mr. Spiess testified that he did not find out that Worker was undocumented until the date Mr. Spiess was deposed in October 2008. Mr. Spiess further testified that even when Employer's workforce had been reduced to six or seven, or even, perhaps, four employees when it made the offer, Worker was a good employee and "well requested," and Employer would have been able to make room for Worker had Worker been able to provide proper documentation.
{10} Worker found employment at the Hi-Lo Market in August 2008, which continued at least through trial on April 16, 2009. Worker was earning a weekly average salary of $359.38 at the time he was injured while working for Employer. The first time that Worker earned in excess of $359.38 after MMI was the week ending on August 16, 2008, when he earned $587.75 at his new employment with Hi-Lo Market.
{11} Employer filed a motion for partial summary judgment arguing that because Worker was undocumented and could not accept Employer's return to work offer, Worker's partial permanent disability benefits should be limited to Worker's physical impairment. The WCJ denied the motion, and the case proceeded to a trial on the merits. The WCJ addressed whether Worker's illegal immigration status prevented him from receiving modifier benefits, whether Worker was entitled to permanent partial disability benefits based on return to work, and the rate at which Worker should be paid if Worker were entitled to benefits.
{12} The WCJ concluded that Worker was entitled to partial disability benefits commencing August 30, 2007, Worker's MMI date, at the rate of 51% (3% impairment plus 48% modifier points) until June 20, 2008. After June 20, 2008, the WCJ concluded, Worker was entitled to receive benefits at the rate of 3% impairment until conclusion of the benefit period. The WCJ reasoned that Worker was not entitled to modifier points after June 20, 2008, because Worker could not accept a bonafide return-to-work offer by Employer due to Worker's undocumented status, which was equivalent to an unreasonable refusal to a return-to-work offer. The WCJ further found that Worker was also not entitled to modifiers after August 10, 2008, because, although he was employed by a different employer, Worker began earning in excess of his pre-injury wage after this date. Employer did not in the district court and does not on appeal contest Worker's entitlement to permanent partial disability benefits under the Act.
{13} Worker appeals arguing that (1) Employer should be estopped from raising the issue of Worker's immigration status because Employer illegally hired Worker; (2) Worker is not barred from receiving modifier benefits because he is working for a different employer earning more than he was when employed by Employer; (3) Employer's offer to return to work was pretextual; and (4) the decision of the WCJ violates Worker's equal protection rights.
{14} "We review workers' compensation orders using the whole record standard of review." Leonard v. Payday Profl, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 P.3d 177. "In applying whole record review, this Court reviews both favorable and unfavorable evidence to determine whether there is evidence that a reasonable mind could accept as adequate to...
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