Salazar v. Bernalillo Cnty. Water Util. Auth.

CourtCourt of Appeals of New Mexico
PartiesHENRY P. SALAZAR, Worker-Appellant, v. BERNALILLO COUNTY WATER UTILITY AUTHORITY and CCMSI, Employer/Insurer-Appellees.
Docket NumberA-CA-38393
Decision Date18 October 2021

HENRY P. SALAZAR, Worker-Appellant,


No. A-CA-38393

Court of Appeals of New Mexico

October 18, 2021

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.


Fogel Law Firm

Patrick L. Fogel

Albuquerque, NM

for Appellant

Kimberly A. Syra

Veguita, NM

for Appellees



{¶1} After Henry P. Salazar (Worker) retired from working for Bernalillo County Water Utility Authority (Employer), he petitioned for modifications (statutory modifiers) to permanent partial disability (PPD) benefits, as provided for by NMSA


1978, Section 52-1-26 (1990, amended 2017)[1] of the Workers' Compensation Act (the Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2017). The workers' compensation judge (WCJ) denied Worker statutory modifiers, and Worker appeals. Because Worker has not convinced us that the WCJ erred, we affirm.


{¶2} The facts relevant to this appeal are undisputed. In September 2016 Worker suffered injuries to his left shoulder, left elbow, and low back when he tripped and fell at work. Worker returned to work the following week. He reached maximum medical improvement (MMI) about a year later and, shortly thereafter, filed a complaint with the Workers' Compensation Administration for basic PPD benefits, which Employer paid. See Cordova v. KSL-Union, 2012-NMCA-083, ¶ 5, 285 P.3d 686 (providing that at the time a worker, who suffers a compensable injury resulting in PPD, reaches MMI, the worker is entitled to PPD benefits).

{¶3} Worker remained employed with Employer through July 2018, at which point he notified Employer he was retiring. Worker's decision to retire after twenty-seven


years of work was based solely on a pulmonary health condition he developed while working for a previous employer. In retiring, Worker was following the advice of his doctor, who had reasoned that Worker's job with Employer exposed him to chemicals exacerbating his pulmonary condition. Worker waived any claim that his preexisting pulmonary condition was aggravated while working for Employer. As of the WCJ's decision in this case, Worker had not worked since his retirement; nor did Worker claim that he sought, but was unable to obtain, other employment.[2]

{¶4} After retiring, Worker filed a complaint seeking statutory modifiers under Section 52-1-26(C), which increase the base award of PPD benefits. See Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, ¶ 11, 303 P.3d 802. The case went to trial, and the WCJ issued a compensation order ruling, among other things, that Worker was not entitled to statutory modifiers. Worker appeals only the WCJ's denial of statutory modifiers.



{¶5} Before we address Worker's contention that the WCJ erred in denying statutory modifiers, we first review the relevant law on PPD benefits for needed context.

I. PPD Benefits and Statutory Modifiers

{¶6} "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." Cordova, 2012-NMCA-083, ¶ 9. 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), (D) (conditionally providing for modifications pursuant to Sections 52-1-26.1 through -.26.4). Statutory modifiers are designed to "address problems associated with a worker's projected difficulty in obtaining and returning to work after reaching MMI." Cordova, 2012-NMCA-083, ¶ 11.

{¶7} A permanently disabled worker, however, is not always entitled to statutory modifiers; under certain circumstances, the worker's PPD benefits are based on the impairment alone. Namely, "[i]f, on or after the date of [MMI], an injured worker returns to work at a wage equal to or greater than the worker's pre-injury wage, the worker's [PPD] 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."


Section 52-1-26(D). Thus, "if a worker returns to work at a wage equal to or greater than the pre-injury wage, the [PPD] rating remains at the level of the worker's impairment rating and is not subject to the statutory modifiers, no matter what his [or her] age, education and physical capacity." Connick v. Cnty. of Bernalillo, 1998-NMCA-060, ¶ 6, 125 N.M. 119, 957 P.2d 1153. A plain reading of Section 52-1-26(D) might suggest that a worker could intentionally evade this limitation on statutory modifiers by voluntary unemployment or underemployment. See Connick, 1998-NMCA-060, ¶ 8.

{¶8} This Court, however, has repeatedly rejected such a reading because it would be contrary to the Act and would "violate the policy of encouraging employment and independence from compensation benefits[.]" Jeffrey v. Hays Plumbing & Heating, 1994-NMCA-071, ¶¶ 11, 14, 118 N.M. 60, 878 P.2d 1009 (citing Section 52-1-26(A), which provides that the policy and intent of the Legislature is that "every person who suffers a compensable injury with resulting [PPD] should be provided with the opportunity to return to gainful employment as soon as possible with minimal dependence on compensation awards"); see also Ruiz v. Los Lunas Pub. Schs., 2013-NMCA-085, ¶ 24, 308 P.3d 983 ("Permitting a worker to evade application of [Section 52-1-26(D)] by voluntary unemployment or underemployment is contrary to the purposes of the [Act]."); Connick, 1998-NMCA-060, ¶ 6 ("The statutory incentive to return to work is unmistakable."). Thus,


"[statutory modifiers] should be denied if a claimant, through voluntary conduct unconnected with his [or her] injury, takes himself [or herself] out of the labor market." Gonzalez, 2013-NMSC-021, ¶ 17 (internal quotation marks and citation omitted); see also Jeffrey, 1994-NMCA-071, ¶ 12 (same). This Court, however, has taken the view that not every rejection of an offer of employment will amount to voluntary unemployment or underemployment. Jeffrey, 1994-NMCA-071, ¶ 15. Rather, a worker's rejection of an offer will preclude statutory modifiers if the rejection was unreasonable. Id.

{¶9} This Court does not mechanically apply the concepts from Jeffrey-of voluntary unemployment or underemployment and unreasonable rejections of work offers-in determining whether a worker is entitled to statutory modifiers. Instead, this Court considers these concepts in light of the legislative policies of encouraging employment and independence from compensation benefits and the purpose at which statutory modifiers are aimed. See, e.g., Cordova, 2012-NMCA-083, ¶ 23 ("[a]pplying the policies and directives of Section 52-1-26 and the reasoning of our case law" to determine whether the claimant was entitled to statutory modifiers); Connick, 1998-NMCA-060, ¶ 9 ("Based on the purpose and intent behind Section 52-1-26, and the statutory provision in Subsection D eliminating statutory...

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