January 24, 2022- Ana Lilia Cardenas v. Aztec Municipal Schools, No. A-1-CA-38052

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:	2
Filing Date: January 24, 2022	3
No. A-1-CA-38052	4
ANA LILIA CARDENAS,	5
Worker-Appellant,	6
v.	7
AZTEC MUNICIPAL SCHOOLS	8
and CCMSI,	9
Employer/Insurer-Appellees.	10
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION	11
Reginald C. Woodard, Hearing Officer	12
Titus & Murphy Law Firm	13
Victor A. Titus	14
Farmington, NM	15
for Appellant	16
Allen, Shepherd, Lewis & Syra, P.A.	17
Joshua A. Collins	18
Katrina Bagley Brown	19
Albuquerque, NM	20
for Appellees	21
Court of Appeals of New Mexico
Filed 1/24/2022 10:21 AM

OPINION	1
YOHALEM, Judge.	2
{1} 	This is an appeal by Ana Lilia Cardenas (Worker) from the order of a	3
Workers’ Compensation Judge (WCJ) limiting the duration of her disability benefits	4
for a secondary mental impairment to 150 weeks, the period fixed by the Workers’	5
Compensation Act (the Act) for compensation for the primary scheduled physical	6
injury to her knee. Worker argues that the limit imposed by NMSA 1978, Section	7
52-1-41(C) (2015), on the duration of total disability benefits, and NMSA 1978,	8
Section 52-1-42(A)(4) (2015) on the duration of partial disability benefits, for a	9
secondary mental impairment,1 limits not imposed on disability benefits for workers	10
with a secondary physical impairment,2 violate the Equal Protection Clause of both	11
the New Mexico and the United States Constitutions. In this case, Worker would be	12
1A “ ‘secondary mental impairment’ means a mental illness resulting from a
physical impairment caused by an accidental injury arising out of and in the course
of employment.” NMSA 1978, § 52-1-24(C) (1990).
2We refer to physical disabilities, which like secondary mental disabilities, are
“caused by an accidental injury arising out of and in the course of employment[,]”
id., 	as 	“secondary 	physical 	impairments.” 	Although 	not 	labeling 	them 	as
“secondary” impairments, see § 52-1-24(A), the Act nonetheless recognizes and
compensates physical impairments that result from and are caused by a compensable
work-related accidental injury. See Baca v. Complete Drywall Co., 2002-NMCA-
002, ¶ 16, 131 N.M. 413, 38 P.3d 181 (distinguishing between a work-related sudden
accidental injury and a subsequent injury to another body part that is compensable
if “the resulting disability is causally connected [or secondary] to the original
accidental injury”).

2
entitled to a maximum of 500 weeks of permanent partial disability compensation,	1
under Section 52-1-42(A)(2), if her secondary impairment had been a physical	2
impairment. Instead, she was awarded 150 weeks of compensation solely because	3
her secondary impairment was a mental impairment.	4
{2} 	We agree with Worker that the Act discriminates between secondary mental	5
impairments 	and 	secondary 	physical 	impairments, 	in 	violation 	of 	the 	Equal	6
Protection Clause of the New Mexico Constitution. N.M. Const. art. II, § 18.	7
Because this decision affords Worker the relief she seeks, we do not reach Worker’s	8
claim of discrimination between the Act’s treatment of primary and secondary	9
mental impairments, nor do we address Worker’s claim under the United States	10
Constitution.	11
BACKGROUND	12
{3} 	The facts in this case are undisputed. Worker, a special education teacher,	13
sustained a knee injury in a January 2016 workplace accident. Worker later filed a	14
workers’ compensation claim for both her primary knee injury and for a secondary	15
mental impairment she alleged resulted from and was caused by the original injury	16
to 	her 	knee. 	An 	independent 	psychological 	evaluation 	was 	conducted. 	The	17
evaluating psychologist concluded, to a reasonable psychological probability, that	18
Worker’s psychological impairment was “causally related” to the workplace injury	19

3
to Worker’s knee and that Worker was 15 percent disabled by her psychological	1
impairment.	2
{4} 	Employer Aztec Municipal Schools does not dispute that Worker’s knee	3
injury was caused by a work-related accident or that Worker’s secondary mental	4
impairment was caused by her work-related physical injury. The parties also agree	5
that a knee injury, a scheduled injury listed in NMSA 1978, Section 52-1-43(A)(30)	6
(2003), has a statutory compensation period of 150 weeks.	7
{5} 	The dispute between the parties concerns the length of time Worker will	8
receive compensation benefits for her secondary mental impairment. Pursuant to	9
Section 52-1-42(A)(4), the duration of partial disability benefits for a secondary	10
mental impairment is limited to the number of weeks allowable for the worker’s	11
original physical injury. When the original physical injury is to a scheduled body	12
part, the worker is limited to the duration of benefits listed in Section 52-1-43 for an	13
injury to that body part. The number of weeks a worker will be paid for a scheduled	14
injury ranges from 7 to 200 weeks, depending solely on the body part originally	15
injured.3 In contrast, where the secondary impairment is a physical impairment the	16
3For example, if the original injury is to a distal joint of a finger, the schedule
provides 7 weeks of partial disability benefits for a secondary mental impairment
resulting from and caused by that injury. Section 52-1-43(A)(27). A secondary
mental impairment resulting from and caused by an arm injury near the shoulder
would qualify for 200 weeks of partial disability benefits. Section 52-1-43(A)(1).

4
duration of partial disability benefits depends on the “nature and extent” of the	1
secondary physical injury. Sections 52-1-41(C), -42(A).	2
{6} 	Worker contends that capping the duration of benefits for a secondary mental	3
impairment resulting from a scheduled physical injury, when a secondary physical	4
impairment resulting from a scheduled physical injury is not similarly capped,	5
violates our Constitution’s equal protection guarantee because it treats workers with	6
secondary mental impairments differently than similarly situated workers with	7
secondary physical impairments. Worker points out that if her secondary mental	8
impairment was treated the same as an unscheduled secondary physical impairment,	9
she would be entitled to up to 500 weeks of partial disability benefits, rather than the	10
150 weeks she was awarded.	11
DISCUSSION	12
{7} 	The equal protection clauses of both the United States and New Mexico	13
Constitutions require the government to treat similarly situated persons the same,	14
“absent a sufficient reason to justify the disparate treatment.” Wagner v. AGW	15
Consultants, 2005-NMSC-016, ¶ 21, 137 N.M. 734, 114 P.3d 1050. In Breen v.	16
Carlsbad Municipal Schools, our Supreme Court held that earlier versions of the	17
same sections of the Act that are challenged in this case, Section 52-1-41(B) (1999)	18
and Section 52-1-42 (1990), violated the Equal Protection Clause of the New Mexico	19
Constitution by treating workers with a mental impairment differently, and less	20

5
favorably, than similarly situated workers with a physical impairment. 2005-NMSC-	1
028, ¶¶ 1, 50, 138 N.M. 331, 120 P.3d 413.	2
{8} 	Our Supreme Court in Breen, and later in Rodriguez v. Brand West Dairy,	3
2016-NMSC-029, 378 P.3d 13, defined three steps necessary to determine whether	4
a worker’s equal protection rights under our state Constitution’s Equal Protection	5
Clause are violated by the provisions of the Act. The worker “must first prove that	6
they are similarly situated to another group but are treated dissimilarly” by a	7
legislative classification. Breen, 2005-NMSC-028, ¶ 8. Second, if the worker proves	8
that the two groups are similarly situated, and yet are treated differently by the Act,	9
then this Court “must determine what level of scrutiny should be applied to the	10
legislation they are challenging.” Id. The level of scrutiny depends on the nature of	11
the rights the legislation protects or the status of the group of people it affects. Id.	12
The Court held in Breen that workers with mental impairments or mental disabilities	13
are a “sensitive class” requiring intermediate scrutiny. Id. ¶ 28. Third, where	14
intermediate scrutiny applies, the burden then shifts to the employer to show that the	15
Act’s different treatment of two equivalent groups is “substantially related to an	16
important government interest.” Id. ¶ 13 (internal quotation marks and citations	17
omitted).	18
{9} 	Although Breen guides our analysis, we cannot assume, without engaging in	19
a careful analysis of the challenged provisions of the Act, that these statutory	20

6
provisions violate equal protection. We apply a standard of review deferential to our	1
Legislature when reviewing the constitutionality of legislation. See Rodriguez v.	2
Scotts Landscaping, 2008-NMCA-046, ¶ 8, 143 N.M. 726, 181 P.3d 718. During	3
that review, we will not “question the wisdom, policy, or justness of legislation	4
enacted by our Legislature[,]” and will begin by presuming that the legislation is	5
constitutional. Madrid v. St. Joseph Hosp., 1996-NMSC-064, ¶ 10, 122 N.M. 524,	6
928 P.2d 250. “A statute will not be declared unconstitutional unless the court is	7
satisfied 	beyond 	all 	reasonable 	doubt 	that 	the 	legislature 	went 	outside 	the	8
constitution in enacting the challenged legislation.” Benavides v. E. N.M. Med. Ctr.,	9
2014-NMSC-037, ¶ 43, 338 P.3d 1265 (internal quotation marks and citation	10
omitted).	11
{10} 	Our careful review of the Breen factors follows.	12
I. 	Workers With a Secondary Mental Impairment Are Treated Differently	13
Than 	Similarly 	Situated 	Workers 	With 	a 	Secondary 	Physical	14
Impairment	15
{11} 	As Employer and Worker both acknowledge, the “threshold question in	16
analyzing all equal protection challenges is whether the legislation creates a class of	17
similarly situated individuals who are treated dissimilarly.” Breen, 2005-NMSC-	18
028, ¶ 10. Breen held that workers with a primary mental impairment are similarly	19

7
situated to workers with a primary physical impairment.4 Id. With that in mind, we	1
begin our inquiry by examining Worker’s claim that workers with “secondary	2
mental impairments” are similarly situated to workers with physical impairments	3
that are secondary to, and a “natural and direct result” of a work-related accidental	4
injury. NMSA 1978, § 52-1-28(A) (1987). Concluding that these groups are	5
similarly situated, we next address whether they are treated differently by the Act in	6
Section 52-1-28(B).	7
A. 	Injured Workers With a Secondary Mental Impairment Are Similarly	8
Situated to Injured Workers With a Secondary Physical Impairment	9
With Respect to the Objectives of the Act	10
{12} 	In deciding whether individuals are similarly situated, our Supreme Court	11
instructs us to “look beyond the classification to the purposes of the law.” Rodriguez,	12
2016-NMSC-029, ¶ 11 (internal quotation marks and citation omitted). The Equal	13
Protection Clause does not allow a statute to divide persons “ ‘into different classes	14
on the basis of criteria wholly unrelated to the objective of that statute.’ ” Id. (quoting	15
Stanton v. Stanton, 421 U.S. 7, 13-14 (1975)). Only classifications serving the	16
purposes of the statute are permitted. See id.	17
4The Breen Court identified two classifications adopted by the Legislature:
“totally impaired” and “partially impaired,” and held that all partially impaired
workers are similarly situated, regardless of whether their impairment was a primary
physical or primary mental impairment, and that all totally impaired workers are
similarly situated, regardless of whether their impairment is a primary physical or a
primary mental impairment.

8
{13} 	We look first to the purposes of the statute. The Act’s intention has been	1
described as “to provide a humanitarian and economical system of compensation for	2
injured work[ers].” Breen, 2005-NMSC-028, ¶ 36 (internal quotation marks and	3
citation omitted). The main goal of the Act is “to compensate a worker for lost	4
earning capacity.” Id. ¶ 37.	5
{14} 	The 	Act 	imposes 	three 	criteria, 	which 	must 	be 	met 	to 	qualify 	for	6
compensation: (1) “the worker has sustained an accidental injury arising out of and	7
in the course of his [or her] employment”; (2) “the accident was reasonably incident	8
to his [or her] employment”; and (3) “the disability is a natural and direct result of	9
the accident.” Section 52-1-28(A). Pursuant to this provision, the Act treats as	10
compensable both “disability arising immediately from a work-related accident and	11
[. . . ] disability that develops later as a result of the normal activities of life.” Aragon	12
v. State Corr. Dep’t, 1991-NMCA-109, ¶ 8, 113 N.M. 176, 824 P.2d 316. The	13
worker need only show that the later-arising disability is causally connected to the	14
original accidental injury. See Baca, 2002-NMCA-002, ¶ 16, 131 N.M. 413, 38 P.3d	15
181. As this Court has explained in construing Section 52-1-28, the Act’s purpose is	16
to provide compensation for “the disability caused by the accident—not the accident	17
itself[.]” Baca, 2002-NMCA-002, ¶ 15. Secondary physical disabilities shown to be	18
caused by the original accident are, therefore, compensable under the Act. See id.	19

9
{15} 	“[S]econdary mental impairment” is defined by the Act as “a mental illness	1
resulting from a physical impairment caused by an accidental injury arising out of	2
and in the course of employment.” Section 52-1-24(C). In other words, a secondary	3
mental impairment is a mental illness caused by an accidental work-related injury.	4
Section 52-1-24(A) includes secondary mental impairment as a compensable	5
impairment under the Act. See id. (“Impairment includes physical impairment,	6
primary mental impairment and secondary mental impairment[.]”). It is undisputed	7
that 	Worker 	qualifies 	for 	disability 	benefits 	based 	on 	a 	“secondary 	mental	8
impairment” resulting from the pain and disability caused by her work-related	9
accidental injury to her knee.	10
{16} 	We see no difference related to the purposes of the Act between workers with	11
subsequently arising secondary physical disabilities that are causally connected to a	12
compensable work-related accidental injury, and workers with “secondary mental	13
impairments,” as defined by the Act. The workers in both groups have become	14
secondarily impaired as the result of an original work-related accidental injury and	15
both groups have lost earnings as the result of their secondary disability. They are	16
thus similarly situated with regard to the Act’s purpose: to provide workers	17
compensation for earning capacity lost or diminished due to a disability caused by	18
and resulting from a work-related accidental injury. See Breen, 2005-NMSC-028,	19
¶ 37.	20

10
{17} 	Employer contends on appeal that “differently injured workers are not	1
similarly situated.” This contention, however, is plainly at odds with our Supreme	2
Court’s decision in Breen, which held that workers with primary mental impairments	3
and workers with primary physical impairments are similarly situated classifications	4
for the statutory purposes of compensating workers for either a total or partial loss	5
of earning capacity due to a work-related accidental injury. Id. ¶ 10. As our Supreme	6
Court explained in Breen, differences in the type of injury or its cause fade in	7
importance “once a worker has been determined to have suffered a compensable	8
disability.” Id. ¶ 37. There is no dispute in this case that Worker’s secondary mental	9
impairment is a compensable disability covered by the Act. See § 52-1-24(A), (C)	10
(defining a secondary mental impairment as a compensable impairment).	11
{18} 	We, therefore, conclude that workers with secondary mental impairments are	12
similarly situated to workers with secondary physical impairments.	13
B. 	Workers With Secondary Mental Impairments Are Treated Differently	14
Than Workers With Secondary Physical Impairments	15
{19} 	Having determined that workers with secondary mental impairments are	16
similarly 	situated 	to 	workers 	with 	secondary 	physical 	impairments, 	we 	now	17
determine whether the Act treats these two classifications of workers differently.	18
{20} 	The 	provisions 	of 	the 	Act 	challenged 	by 	Worker, 	Sections	19
52-1-41(C), -42(A)(4), limit the period of compensation for a secondary mental	20
impairment to the “maximum period allowable for the disability produced by the	21

11
[original] physical impairment.”5 Where the original physical impairment arises	1
from an injury to a body part listed in Section 52-1-43 (a scheduled injury), this	2
means that the duration of benefits for the secondary mental impairment, regardless	3
of the actual extent of disability, is capped at a maximum of between 7 and 200	4
weeks, depending on the body part originally injured. For Worker, whose original	5
injury was to her knee—a body part listed on the schedule—benefits are capped at	6
150 weeks. Section 52-1-43(A)(30).	7
{21} 	In contrast, the duration of benefits for a secondary physical impairment is	8
based on the nature and severity of the secondary impairment itself, not on the body	9
part originally injured, and not on the severity of the original injury. Compare	10
§ 52-1-42(A)(1)-(2), with (A)(4). If the secondary impairment is an unscheduled,	11
whole body impairment,6 total disability benefits continue for the worker’s lifetime,	12
5Sections 52-1-41(C) and -42(A)(4) state identically: “For disability resulting
in secondary mental impairment, the maximum period of compensation is the
maximum period allowable for the disability produced by the physical impairment,
as set forth in Section 52-1-26 [(for nonscheduled injuries)] or 52-1-43 . . . [(for
scheduled injuries)].” Section 52-1-41(C) specifies the maximum duration of
compensation for a secondary mental impairment resulting in total disability and
Section 52-1-42(A)(4) specifies the maximum duration of compensation for a
secondary mental impairment resulting in partial disability.
6Mental illness is not listed on the schedule of specific body parts found in
Section 52-1-43 and is not treated by the Act as a scheduled injury. See Breen, 2005-
NMSC-028, ¶ 10 n.2 (noting that mental illness is not a scheduled impairment under
the Act).

12
§ 52-1-41(B); for a partial disability, the maximum duration of benefits is 700 weeks,	1
depending on the percent of impairment. Section 52-1-42(A)(1), (2).	2
{22} 	Because the Act limits the duration of disability benefits based solely on	3
whether a compensable impairment, identically caused by an original work-related	4
injury, is a mental or physical impairment, Worker has established disparate	5
treatment of similarly situated workers.	6
II. 	Workers With a Mental Impairment Are a Sensitive Class, Meriting	7
Intermediate Scrutiny	8
{23} 	The second element of the equal protection test—determining the level of	9
scrutiny to apply—has been conclusively resolved by our Supreme Court’s decision	10
in Breen. See 2005-NMSC-028, ¶¶ 18-29. The Breen Court adopted intermediate	11
scrutiny for discrimination against persons with mental disabilities. Id. ¶ 28. Our	12
Supreme Court in Breen directed that our “courts should be sensitive to possible	13
discrimination against persons with mental disabilities contained in legislation that	14
purports to treat them differently based solely on the fact that they have a mental	15
disability.” 	Id. 	We need not repeat our Supreme Court’s thorough analysis,	16
reviewing the history of discriminatory treatment of people with mental disabilities.	17
Id. ¶¶ 18-29.	18

13
III. 	The 	Classification 	Is 	Not 	Substantially 	Related 	to 	an 	Important	1
Government Interest, as Required by Intermediate Scrutiny	2
{24} 	The third element of the equal protection test requires the application of	3
intermediate scrutiny to the challenged statutory terms. Under New Mexico’s	4
intermediate scrutiny test, “[the c]hallenged legislation will be upheld if the	5
classification is substantially related to an important government interest.” Id. ¶ 30.	6
Merely showing a rational basis for the classification is not enough.	7
{25} 	The burden is on the party supporting the legislation’s constitutionality (here	8
Employer) to establish that the classification is substantially related to an important	9
government interest. Marrujo v. N.M. State Highway Transp. Dep’t, 1994-NMSC-	10
116, ¶ 11, 118 N.M. 753, 887 P.2d 747. The party supporting the constitutionality	11
of the legislation must show that the discriminatory classification is based on a	12
“ ‘reasoned analysis rather than [arising] through the mechanical application of	13
traditional, often inaccurate assumptions.’ ” Breen, 2005-NMSC-028, ¶ 30 (quoting	14
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 726 (1982).	15
{26} 	A number of government interests were proposed by the employer in Breen	16
as support for the Legislature’s decision to treat mentally impaired workers	17
differently than similarly situated physically impaired workers. The Breen Court	18
considered 	the 	government’s 	interest 	in 	the 	financial 	viability 	of 	workers’	19
compensation; the greater possibility of fraudulent claims for mental illness; and the	20
greater 	uncertainty 	in 	diagnosis 	and 	evaluation 	of 	mental 	impairments.	21

14
2005-NMSC-028, ¶¶ 33-49. The Court rejected each of these arguments. See id. In	1
the case of possible fraudulent claims, the Court held that the Act’s requirements for	2
proof of a compensable disability adequately protected against fraud. See id. ¶¶ 40-	3
44. 	Although 	the 	Court 	acknowledged 	that 	cost 	savings 	are 	an 	important	4
governmental interest, it found that saving by denying comparable benefits to	5
workers with mental disabilities who had met the eligibility requirements of the Act	6
was not substantially related to the Act’s purpose of compensating workers disabled	7
by work-related injuries for lost earnings. See id. ¶¶ 34, 47-48. Finally, the Court	8
rejected the claim that the mental impairments were harder to diagnose and evaluate.	9
The Court found that adequate methods of evaluation were available and were	10
already being used successfully by the workers’ compensation system, and were	11
being reviewed on appeal without difficulty. Id. ¶ 45.	12
{27} 	Beyond the arguments that were rejected in Breen, Employer argues only that	13
there is a logical relationship between the duration and severity of a secondary	14
mental impairment and the nature of the physical impairment that is the cause of the	15
mental impairment. Employer’s claim, presented without citation to authority,	16
simply is not sufficient to establish the substantial relationship between an important	17
government interest and the challenged classification required by intermediate	18
scrutiny. It is nothing more than a claim that there may be a rational basis for the	19
classification.	20

15
{28} 	Employer has not carried its burden of showing that the Act’s disparate	1
treatment of mentally impaired workers, a sensitive class, is substantially related to	2
an important government interest.	3
CONCLUSION	4
{29} 	We, therefore, conclude that Sections 52-1-41(C) and -42(A)(4) of the Act	5
treat workers with secondary mental impairments differently than similarly situated	6
workers with secondary physical impairments, in violation of the Equal Protection	7
Clause of the New Mexico Constitution. We remand for proceedings consistent with	8
this opinion.	9
{30} 	IT IS SO ORDERED.	10
_______________________________	11
JANE B. YOHALEM, Judge	12
WE CONCUR:	13
_________________________________	14
J. MILES HANISEE, Chief Judge	15
_________________________________	16
GERALD E. BACA, Judge	17