Martin v. N.M. Mut. Cas. Co.
| Docket Number | A-1-CA-39609 |
| Decision Date | 21 December 2023 |
| Parties | GABRIELA MARTIN, Worker-Appellant, v. NEW MEXICO MUTUAL CASUALTY COMPANY, Self-Insured c/o INTEGRION GROUP, Employer/Insurer-Appellee. |
| Court | Court of Appeals of New Mexico |
1
GABRIELA MARTIN, Worker-Appellant,
v.
NEW MEXICO MUTUAL CASUALTY COMPANY, Self-Insured c/o INTEGRION GROUP, Employer/Insurer-Appellee.
No. A-1-CA-39609
Court of Appeals of New Mexico
December 21, 2023
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Anthony Couture, Workers' Compensation Judge
Pizzonia Law, LLC Lydia Pizzonia Albuquerque, NM for Appellant
Barry J. Berenberg, Senior Counsel Albuquerque, NM for Appellee
OPINION
JENNIFER L. ATTREP, CHIEF JUDGE
{¶1} Gabriela Martin (Worker) appeals from a compensation order entered pursuant to the Workers' Compensation Act (the Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2017). The Workers' Compensation Judge (WCJ) determined that Worker was not entitled to temporary total disability (TTD) benefits or permanent partial disability (PPD) modifier benefits because Worker was terminated from her employment for misconduct unrelated to her workplace injury. The core dispute in this case concerns the meaning of "misconduct," as that term is used in Section 52-1-25.1(D)(3) (TTD benefits) and Section 52-1-26(D)(4) (PPD modifier benefits). Specifically, we are called on to address whether the term "misconduct" in those sections is to be given its plain, ordinary meaning, or whether, as Worker requests, it should be construed in favor of workers to mean "willful misconduct," as is required in the unemployment compensation context. We hold that, for purposes of Sections 52-1-25.1(D)(3) and 52-1-26(D)(4), "misconduct" is to be given its plain, ordinary meaning: "improper behavior." Because we reject Worker's request to adopt a definition of misconduct more favorable to her, and because Worker's remaining arguments are predicated on us adopting such a definition, we affirm.
BACKGROUND
{¶2} Before setting out the relevant factual and procedural background, we first provide an overview of the relevant statutory background for context.
I. Statutory Background
{¶3} Under Section 52-1-25.1, a worker who has experienced an accidental workplace injury may be eligible for TTD benefits if, because of that injury, they are unable to "perform the duties of that employment" before reaching maximum medical improvement (MMI). Section 52-1-25.1(A). Following MMI, the injured worker may be eligible for PPD benefits under Section 52-1-26 "if the worker has suffered a 'permanent impairment.'" Hawkins v. McDonald's, 2014-NMCA-048, ¶ 20, 323 P.3d 932 (quoting Section 52-1-26(B) (1990, amended 2017)). PPD benefits are "determined by calculating the worker's impairment," which may be increased through statutory modifiers based on the worker's age, education, and physical capacity. Section 52-1-26(C).
{¶4} Prior to 2017, an injured worker otherwise entitled to TTD benefits could be denied those benefits under Section 52-1-25.1 if: "(1) the employer offer[ed] work at the worker's preinjury wage; or (2) the worker accept[ed] employment with another employer at the worker's preinjury wage." Section 52-1-25.1(B) (2005, amended 2017); see also Ruiz v. Los Lunas Pub. Schs., 2013-NMCA-085, ¶¶ 22-23, 308 P.3d 983 (concluding that a worker was still eligible for TTD benefits despite
rejecting her employer's job offers because "medical testing later established that" her release to return to work "was premature and that [the w]orker was in fact unable to return to work at the time [the e]mployer made its job offers"). Similarly, prior to 2017, an employer was relieved of paying PPD modifier benefits under Section 521-26 if "on or after the date of [MMI, the] worker return[ed] to work at a wage equal to or greater than the worker's pre-injury wage." Section 52-1-26(D) (1990, amended 2017); see also Cordova v. KSL-Union, 2012-NMCA-083, ¶ 13, 285 P.3d 686 (providing that Section 52-1-26 (1990, amended 2017) has been construed as relieving an employer of having to pay PPD modifier benefits if the worker accepts employment at or above the pre-injury wage or "unreasonably refuses offered employment at or above [their] pre-injury wage"). Based on these statutory limitations, this Court in Hawkins held that "termination of post-injury employment, whether or not for misconduct, does not affect [a worker's] right to recover TTD benefits." 2014-NMCA-048, ¶ 1. Hawkins also disavowed "that the level of employee misconduct plays any role in the calculation of" PPD modifier benefits, id. ¶ 23, holding that such benefits may be denied only "if a worker, through voluntary conduct unconnected with [their] injury, takes [themselves] out of the labor market," id. ¶ 24 (internal quotation marks and citation omitted).
{¶5} In an apparent response to Hawkins, the Legislature amended both Section 52-1-25.1 and Section 52-1-26 in 2017. See Hawkins, 2014-NMCA-048, ¶ 14 ("It is
not our place to insert language into the [Act] that does not exist. That task falls to the Legislature alone."); see also 3C Shambie Singer, Sutherland Statutory Construction § 75:3 (8th ed. 2023) ("[W]hen a legislature amends a statute following a judicial decision construing the statute, courts presume the legislature amended the statute with that decision in mind."). Following the 2017 amendments, an injured worker is not entitled to TTD or PPD modifier benefits if "the worker is terminated for misconduct connected with the employment that is unrelated to the workplace injury [or accident]."[1] See §§ 52-1-25.1(D)(3), -26(D)(4). The terminated worker, however, continues to be eligible for other workers' compensation benefits, including medical benefits and PPD benefits without modifiers. See § 52-1-25.1(F) (providing that an "employer shall continue to provide reasonable and necessary medical care pursuant to Section 52-1-49" even if a worker is terminated for misconduct); § 52-1-26(D) (providing that a worker will receive a PPD rating "equal to the worker's impairment" even if they are ineligible for PPD modifier benefits due to their termination for misconduct); § 52-1-42(A)(1), (2) (providing that a worker may receive up to 700 weeks of PPD benefits, depending on their percentage of disability). Further, a terminated worker's misconduct will not result in the
forfeiture of TTD and PPD modifier benefits if the WCJ finds that an employer terminated the worker for "pretextual reasons" to avoid paying benefits to the worker or "as retaliation against the worker for seeking benefits." See §§ 52-1-25.1(D)(3), -26(D)(4). Under such circumstances, penalties and fines also may be assessed against the employer. See §§ 52-1-25.1(E), -26(E), -28.1(B), -28.2(B)-(D).
II. Factual and Procedural Background
{¶6} Worker began working as a claims processing clerk for New Mexico Mutual Casualty Company (Employer) in July 2017. In October 2017, Worker experienced a repetitive use injury and filed a notice of injury. Employer provided appropriate medical care, and Worker continued to work for Employer as a claims processing clerk.
{¶7} In December 2017, Employer placed Worker on a performance improvement plan for sixty days due to work performance issues. Although Worker successfully completed the plan, Employer, in March 2018, rated Worker as an "[i]nconsistent [p]erformer" in a 2017 performance review. Worker continued working for Employer until July 2018, when she was terminated for continued deficiencies in work performance, including excessive tardiness and failing to complete tasks on time.[2]
{¶8} In August 2019, over one year after her termination, Worker filed a workers' compensation complaint based on a doctor's order providing that Worker could no longer work at a desk or use a keyboard for long periods of time-thereby preventing her from performing her usual and customary job duties. Worker sought TTD benefits until reaching MMI; PPD benefits, including modifiers, after reaching MMI; and medical benefits. Employer's informal response to Worker's complaint indicated its belief that Worker was ineligible for TTD benefits in part because she had been "terminated for misconduct unrelated to her . . . injury." In the pretrial order, the parties specifically contested the meaning of "misconduct," as that term is used in Sections 52-1-25.1(D)(3) and 52-1-26(D)(4), and whether Worker was terminated for "misconduct."
{¶9} Following trial, the WCJ entered a compensation order. The WCJ determined that Worker suffered a compensable workplace injury, but that Worker's termination "was reasonable and for misconduct unrelated to the workplace injury" and "was not pretextual or retaliatory." In support, the WCJ found that "Worker was excessively tardy," and "Worker's personnel file showed a clear pattern of poor performance." In terms of poor performance, the WCJ found, among other things, that "Worker failed to process five [Centers for Medicare and Medicaid Services (CMS)]
documents in a timely manner," and "[a]s a result, Employer was fined by CMS and had to waive certain defenses in its dispute with CMS."[3] The WCJ concluded that Worker was entitled to medical care and expenses and PPD benefits in the form of a one percent whole person impairment rating, but that, due to her termination for misconduct unrelated to her workplace injury, Worker was not entitled to PPD modifier benefits or TTD benefits.[4] Worker appeals.
DISCUSSION
{¶10} Worker argues that the WCJ erred by applying the wrong definition of "misconduct" in Sections 52-1-25.1(D)(3) and 52-1-26(D)(4), which Worker
contends should be construed in workers' favor to require "willful misconduct" (i.e., deliberate or wanton misbehavior), as is required in the unemployment compensation context. Based on this proposed...
To continue reading
Request your trial