Jeffrey v. Hays Plumbing & Heating, 15181
| Citation | 878 P.2d 1009,1994 NMCA 71,118 N.M. 60 |
| Decision Date | 01 June 1994 |
| Docket Number | No. 15181,15181 |
| Court | Court of Appeals of New Mexico |
| Parties | David W. JEFFREY, Sr., Claimant-Appellant, v. HAYS PLUMBING & HEATING and Sedgwick-James of New Mexico, Inc., Respondents-Appellees. |
Page 1009
v.
HAYS PLUMBING & HEATING and Sedgwick-James of New Mexico,
Inc., Respondents-Appellees.
Page 1010
[118 N.M. 61] Jeffrey C. Brown, Law Offices of Jeffrey C. Brown, Albuquerque, for claimant-appellant.
Carlos G. Martinez, Emily A. Franke, Butt, Thornton & Baehr, P.C., Albuquerque, for respondents-appellees.
HARTZ, Judge.
David W. Jeffrey, Sr., (Claimant) was injured at work on May 18, 1992. Therefore, the amendments to the Workers' Compensation Act enacted in 1990 govern his entitlement to benefits. See NMSA 1978, Sec. 52-1-48 (Repl.Pamp.1991); Jojola v. Aetna Life & Casualty, 109 N.M. 142, 144, 782 P.2d 395, 397 (Ct.App.1989). Under NMSA 1978, Section 52-1-26(C) and 52-1-26.1 (Repl.Pamp.1991) (Effective Jan. 1, 1991), a worker's permanent partial disability is determined by first calculating the worker's impairment, as defined by NMSA 1978, Section 52-1-24 (Repl.Pamp.1991) (Effective Jan. 1, 1991), and then adding a percentage based on an age modification, Section 52-1-26.2, an education modification, Section 52-1-26.3, and a physical capacity modification, Section 52-1-26.4. If, however, the worker returns to work after the date of maximum medical improvement at a wage equal to or greater than the worker's pre-injury wage, Section 52-1-26(D) provides that the partial disability rating is equal to the worker's impairment, without consideration of any modifications.
Hays Plumbing & Heating (Employer) offered Claimant a job at his pre-injury wage after Claimant had reached maximum medical improvement. Claimant rejected the offer in order to start his own business. The Workers' Compensation Judge ruled that Claimant's rejection was not reasonable and awarded Claimant a permanent partial disability rating equal to his ten-percent physical impairment rather than applying the age, education, and physical capacity modifications, which would have resulted in a disability rating of fifteen percent. Claimant appeals. We affirm.
The pertinent provisions of Section 52-1-26 are:
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.
B. As used in the Workers' Compensation Act [this article], "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.
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
Page 1011
[118 N.M. 62] shall not be subject to the modifications calculated pursuant to Sections 52-1-26.1 through 52-1-26.4 NMSA 1978.Claimant argues that Subsection C entitles workers to the disability modifications without qualifications of any kind. Implicit in his argument is the contention that Subsection D does not apply in this case because it does not explicitly provide that the modifications are unavailable to a worker who receives a suitable job offer but refuses it. Claimant contrasts Section 52-1-26(D) with NMSA 1978, Section 52-1-25.1 (Repl.Pamp.1991) (Effective Jan. 1, 1991), which explicitly provides for the consequences of an offer of work prior to the time that the worker reaches maximum medical improvement, while temporary disability benefits are accruing. Section 52-1-25.1(B) states:
If, prior to the date of maximum medical improvement, an injured worker's health care provider releases the worker to return to work and the employer offers work at the worker's pre-injury wage, the worker is not entitled to temporary total disability benefits.
Claimant concludes that an offer is all that is required to reduce benefits prior to the date of maximum medical improvement, whereas an actual job is necessary to reduce benefits after that date.
To reinforce his view that the 1990 amendments distinguish between offers of employment made prior to the date of maximum medical improvement and offers made after that date, Claimant points to two other statutory provisions. Section 52-1-25.1(C) states:
If, prior to the date of maximum medical improvement, an injured worker's health care provider releases the worker to return to work and the employer offers work at less than the worker's pre-injury wage, the worker is disabled and shall receive temporary total disability compensation benefits equal to sixty-six and two-thirds percent of the difference between the worker's pre-injury wage and his post-injury wage.
NMSA 1978, Section 52-1-50.1 (Repl.Pamp.1991) (Effective Jan. 1, 1991) states:
A. If an employer is hiring, the employer shall offer to rehire the employer's worker who has stopped working due to an injury for which the worker has received, or is due to receive, benefits under the Workers' Compensation Act [this article] and who applies for his pre-injury job or modified job similar to the pre-injury job, subject to the following conditions:
(1) the worker's treating health care provider certifies that the worker is fit to carry out the pre-injury job or modified work similar to the pre-injury job without significant risk of reinjury; and
(2) the employer has the pre-injury job or modified work available.
B. If an employer is hiring, that employer shall offer to rehire a worker who applies for any job that pays less than the pre-injury job and who has stopped...
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Taylor v. Waste Mgmt. of N.M.., Inc., A-1-CA-37503
...or above the worker's preinjury wage—even if the worker declines the offer. See Jeffrey v. Hays Plumbing & Heating , 1994-NMCA-071, ¶ 6, 118 N.M. 60, 878 P.2d 1009 (explaining that, under the 1990 version of the statute, "Section 52-1-25.1 applies so long as the worker is offered the positi......
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Gonzalez v. Performance Painting, Inc., 32,844.
...Jeffrey v. Hays Plumbing & Heating, the injured worker refused an employer's return-to-work offer in favor of starting his own business. 118 N.M. 60, 61, 878 P.2d 1009, 1010 (Ct.App.1994). The Court of Appeals held that rewarding voluntary unemployment or underemployment—by allowing a worke......
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Gonzalez v. Performance Painting Inc., 29,629.
...him from the labor market and it would have been futile for the employer to offer the worker a job); Jeffrey v. Hays Plumbing & Heating, 118 N.M. 60, 63–65, 878 P.2d 1009, 1012–14 (Ct.App.1994) (holding that the worker's refusal to accept an offer of employment based on his desire to start ......
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Sanchez v. Zanio's Foods, Inc., 24,315.
...(holding evidence sufficient for finding that worker was physically able to perform the job duties); Jeffrey v. Hays Plumbing & Heating, 118 N.M. 60, 61, 878 P.2d 1009, 1010 (Ct.App.1994) (holding that worker's refusal to take the modified duty position because he wanted to start his own bu......