Gonzalez v. Performance Painting, Inc.

CourtSupreme Court of New Mexico
Citation303 P.3d 802
Docket NumberNo. 32,844.,32,844.
PartiesJesus GONZALEZ, Worker–Petitioner, v. PERFORMANCE PAINTING, INC., and Builders Trust of New Mexico, Employer–Insurer–Respondents.
Decision Date30 May 2013

303 P.3d 802

Jesus GONZALEZ, Worker–Petitioner,
PERFORMANCE PAINTING, INC., and Builders Trust of New Mexico, Employer–Insurer–Respondents.

No. 32,844.

Supreme Court of New Mexico.

May 30, 2013.

[303 P.3d 803]

James Rawley, Albuquerque, NM, for Petitioner.

Miller Stratvert, P.A., Nathan A. Cobb, Erica R. Neff, Thomas R. Mack, Albuquerque, NM, for Respondents.


BOSSON, Justice.

{1} Undocumented workers injured on the job present a special challenge under the Workers' Compensation Act. All workers are encouraged to return to work when medically feasible, yet federal law may preclude some employers from extending rehire offers to undocumented workers once they learn of their status. Federal law also requires employers to hire in good faith and demand documentation of prospective employees showing their lawful status. Because an offer to rehire must be a legitimate offer, we hold that employers who cannot demonstrate such good faith compliance with federal law in the hiring process cannot use their workers' undocumented status as a defense to continue payment of modifier benefits under the Workers' Compensation Act. The Court of Appeals having decided to the contrary, we reverse.


{2} Jesus Gonzalez (Worker) is an undocumented immigrant, coming to this country from Mexico for the first time in 2003 and again in 2005. In early February of 2006, he was hired by Performance Painting, Inc. (Employer) as a painter's helper. By all accounts, Worker was a good employee and worked without incident until August 31, 2006. On that date, Worker fell off a ladder, injuring his shoulder. As a result of the injury, Worker was temporarily totally disabled and unable to work. The injury required multiple surgeries and months of physical therapy.

{3} Worker reached maximum medical improvement on August 30, 2007. He was assigned a 3 percent permanent base impairment rating based upon his shoulder injury and its effect upon his whole body. He was also permanently restricted in the type of work he could perform, including no lifting above his head, all lifting limited to ten pounds occasionally or up to five pounds frequently, and no climbing ladders or extended bending.

{4} Worker temporarily returned to work with Employer in January of 2008. By early February, however, Worker stopped going to work, due at least in part to Employer's inability to accommodate his injury-related work restrictions. Worker also claims that he stopped working because of a slowdown in the amount of work available. Worker then filed a complaint for workers' compensation on February 18, 2008.

{5} Sometime in late April, Worker received a letter through his attorney offering Worker a chance to return to work for Employer. The letter was written by and on the letterhead of legal counsel for Employer's Insurer. The employment offer was for modified duty, taking into account Worker's injury-related restrictions. As will be discussed later in more detail, an injured worker with a permanent partial disability is entitled to additional modifier benefits based upon the worker's age, education, and physical capacity but only until the worker returns to work at the same or better wage. NMSA 1978, § 52–1–26(C) & (D) (1990). Hence, Employer's offer among other things was an attempt to limit its continuing obligation to pay modifier benefits. The offer required Worker to fill out a new application which would explicitly “include verification of his

[303 P.3d 804]

eligibility for employment.” Worker received at least three such letters.

{6} On June 20, 2008, Worker appeared in Employer's office to fill out the necessary paperwork to return to work. Worker began filling out the application packet and was asked to produce a social security card, which Employer had not requested previously. Unable to complete the verification, Worker left the office and never returned.

{7} In early August of 2008, Worker began working elsewhere and continued to work there through trial. For the week ending on August 16, 2008, for the first time since his injury, Worker made a wage in excess of his pre-injury wage.

{8} During the proceedings before the Workers' Compensation Administration, Employer argued that Worker's failure to prove eligibility to work on June 20, 2008, constituted an unreasonable refusal to return to work, thereby limiting Worker's benefits to the base impairment rating without any modifier benefits. The Workers' Compensation Judge (WCJ) agreed. The WCJ concluded that Worker was entitled to partial disability benefits commencing August 30, 2007, Worker's date of maximum medical improvement, at the rate of 51 percent, (3 percent permanent physical impairment plus 48 percent modifier points), but only until June 20, 2008. After that date, Worker was only entitled to his 3 percent permanent impairment rating because “Worker could not accept a bona fide return to work offer made by Employer” due to his immigration status, and therefore “Worker unreasonably refused a return-to-work offer from Employer.” Worker appealed and the Court of Appeals affirmed but for slightly different reasons which we will discuss in turn. See Gonzalez v. Performance Painting, Inc., 2011–NMCA–025, ¶ 1, 150 N.M. 306, 258 P.3d 1098. We granted certiorari to review an important point of law that potentially affects numerous undocumented workers across this state.

DISCUSSIONWorkers' Compensation Act

{9} The purpose of the Workers' Compensation Act (WCA) is to provide “quick and efficient delivery of indemnity and medical benefits to injured and disabled workers at a reasonable cost to the employers who are subject to [its] provisions.” NMSA 1978, § 52–5–1 (1990). The WCA is a delicate balance between the rights and interests of the worker and the employer. See id. Thus, “any judicial analysis under the [WCA] must balance equally the interests of the worker and the employer without showing bias or favoritism toward either.” Salazar v. Torres, 2007–NMSC–019, ¶ 10, 141 N.M. 559, 158 P.3d 449.

{10} Both parties agree that the WCA generally applies to undocumented workers, at least since legislative action taken to that effect in 1984. See Performance Painting, 2011–NMCA–025, ¶ 15, 150 N.M. 306, 258 P.3d 1098 (noting the Legislature's 1984 deletion from the WCA of the denial of benefits for a worker's nonresident alien dependents). Accordingly, the benefits awarded prior to Worker reaching maximum medical improvement are not at issue. Neither does Employer dispute Worker's entitlement, despite his undocumented status, to the 3 percent permanent partial disability benefits based on his physical impairment rating. The dispute in this case focuses instead on whether Worker's status as an undocumented immigrant prevents him from receiving permanent partial disability modifier benefits which were calculated at 48 percent of his pre-injury wage. We proceed to that question, and begin with the WCA itself.

Permanent Partial Disability

{11} As previously stated, once an injured worker reaches maximum medical improvement, the worker may be eligible for permanent partial disability benefits if the worker has suffered a “permanent impairment.” NMSA 1978, § 52–1–26(B) (1990). The amount of benefits are “determined by calculating the worker's impairment as modified by his age, education and physical capacity.” Section 52–1–26(C). The age and education modifiers are added together and then multiplied by the physical capacity modifier. NMSA 1978, § 52–1–26.1(B) (1990). This number is then added to the base impairment rating to determine the total award. NMSA 1978, § 52–1–26.1(C) (1990). This

[303 P.3d 805]

case illustrates the significance of both benefits, where Worker's base impairment was only 3 percent, but his modifier benefits added another 48 percent.

{12} As noted earlier, modifier benefits are not permanent. Section 52–1–26(D) states that “[i]f, 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 modifications.” In other words, the WCA provides the employer with an incentive to reemploy the injured worker, and the worker has an incentive to accept a reasonable return-to-work offer, both of which relieve the worker's compensation system.

{13} It could be argued that the plain meaning of the statute is clear, in that an injured worker is entitled to modifier benefits until the worker actually “returns to work,” which would allow the worker to decide whether to work at all. Under this theory, an injured worker could refuse even a reasonable and legitimate return-to-work offer and continue collecting modifier benefits, even if the worker simply did not feel like working.

{14} But, this Court has cautioned in the past against reading the WCA too literally. As this Court stated in Chavez v. Mountain States Constructors, “New Mexico appellate courts have previously recognized that the provisions of the [WCA] are imprecise.... This serves as a warning that the plain language rule may not be the best approach to interpreting this statute.” 1996–NMSC–070, ¶ 25, 122 N.M. 579, 929 P.2d 971. Therefore, a literal interpretation of the WCA is not always appropriate.

{15} Such an interpretation would upset the delicate balance between workers and employer interests present in the WCA. It would give sole control over how long a worker collects modifier benefits to the worker. As this case demonstrates, with Worker's base impairment rating of 3 percent and modifier benefits of 48 percent, modifier benefits can be a significant portion of the total amount of permanent partial disability benefits. Allowing a worker to refuse a reasonable and legitimate return-to-work offer in favor of continuing to collect modifier benefits, is simply not the scheme the Legislature intended.

{16} Finally, this...

To continue reading

Request your trial
19 cases
  • Harjo v. City of Albuquerque, CIV 16-1113 JB/JHR
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 30, 2018
    ...to provide healthcare." 2013-NMSC-043, ¶ 21, 309 P.3d at 1052-53. See Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, ¶¶ 16-17, 303 P.3d 802, 805 ("Thus, a scheme in which a worker could refuse an employment opportunity in favor of receiving more benefits would directly contradict th......
  • Taylor v. Waste Mgmt. of N.M.., Inc.
    • United States
    • Court of Appeals of New Mexico
    • April 6, 2021
    ...v. Four-Four, Inc. , 2001-NMCA-056, 130 N.M. 633, 29 P.3d 533, overruled by Gonzalez v. Performance Painting, Inc. , 2013-NMSC-021, ¶ 39, 303 P.3d 802. See Fowler , 2014-NMSC-019, ¶ 13, 329 P.3d 630 (considering "the history, background, and overall structure of [a statute] as well as its f......
  • Martinez v. Cont'l Tire the Ams., LLC
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 4, 2020
    ...Mexico Supreme Court would follow to bar compensation for lost earnings. See Gonzalez v. Performance Painting, Inc. , 2013-NMSC-021, ¶ 25, 303 P.3d 802, 807 and Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). The Court disagrees. Gonzalez invol......
  • Lopez v. Am. Baler Co.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 27, 2014
    ...toward either." Salazar v. Torres, 2007-NMSC-019, ¶ 10, 141 N.M. 559, 158 P.3d 449. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, 804. The Court concludes that the Supreme Court of New Mexico may follow Michigan's approach, precluding breach-of-contract claims based o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT