May 14, 2012 – Jesse Cordova v. KSL-Union and CCMSI, No. 30,870

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 14, 2012

NO. 30,870

JESSE CORDOVA,
Worker-A ppellee,

V.

KSL-UNION and
CCMSL,

Employer/Insurer-A ppellants.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Gregory D. Griego, Workers’ Compensation Judge

Peter D. White
Santa Fe, NM

for Appellee

David L. Skinner
Albuquerque, NM

Kelly A. Genova, P.C.
Kelly A. Genova

Albuquerque, NM

for Appellants

OPINION
VIGIL, Judge.
{1} 	The Workers’ Compensation Judge (WCJ) entered a compensation order ruling
that, notwithstanding Worker’s voluntary retirement, Worker is entitled to statutory
modifier-based permanent partial disability (PPD) benefits under the Workers’
Compensation Act (the Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended
through 2007). 	We affirm on the basis that Worker’s decision to retire was
reasonable.
I. 	BACKGROUND
{2} 	On March 27, 2008, Worker was injured when he fell down a slope while
cutting wood and suffered a compensable injury to his right shoulder. 	As a
consequence of the injury, Worker was temporarily, totally disabled from March 27,
2008, to April 30, 2009. Employer gave Worker a modified-duty job at his pre-injury
wage from the date of the accident until his retirement on April 17, 2008.
{3} 	Prior to the March 27, 2008 injury, Worker had begun paperwork and
preparations for retirement. 	Worker was eligible to retire and begin receiving his
union 	retirement 	pension 	in 	April 	2008 	because 	he 	satisfied 	the 	eligibility
requirements of reaching the age of fifty-five and completing thirty years of work with
the union. Worker would receive his maximum retirement benefit, and additional time

2
working for the union would not increase his retirement pension. Worker chose to
retire on April 17, 2008, and left his temporary modified-duty employment on that
date. In order to remain entitled to his union retirement pension, Worker was required
to terminate his employment with Employer effective the date he chose to retire, and
he was prohibited from working as a union member at any time in the future.
{4} 	Testimony was presented at trial that Worker had been offered a position at a
non-union contracting company as a working foreman after retirement, but he was
unable to accept the offer because of the injuries he had sustained while working for
Employer. 	Worker testified that he was unable to perform the type of heavy duty
work for which he was qualified due to his injuries and that his injuries impeded his
ability to return to work at a non-union job after his retirement in order to collect a
second paycheck in addition to his pension. Worker testified that he knew of several
companies where he could have applied for post-retirement employment had his
injuries not interfered with his ability to work and that he would go back to work if
he were able to do so.
{5} 	Worker reached maximum medical improvement (MMI) on April 30, 2009.
See § 52-1-24.1 (stating that MMI is “the date after which further recovery from or
lasting improvement to an injury can no longer be reasonably anticipated based upon
reasonable medical probability as determined by a health care provider”). 	At that
time, Worker was entitled to PPD benefits pursuant to Section 52-1-26(B). 	See id.

3
(stating that 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”).
{6} 	A key issue presented to the WCJ was whether Worker was precluded from
receiving modifier-based PPD benefits and temporary total disability (TTD) benefits
because Worker had decided to retire. 	Following trial, the WCJ entered a
memorandum opinion in which he concluded that because no permanent return-to-
work offer was made by Employer, Worker was entitled to receive modifier-based
PPD benefits despite his decision to retire. However, the WCJ ruled that Worker was
not entitled to TTD benefits from the date he retired (April 17, 2008) to the date he
reached MMI (April 30, 2009), because Worker “walked away” from the temporary
modified-duty employment provided to him by Employer. These conclusions were
incorporated in the compensation order, which set forth the WCJ’s findings of fact and
conclusions of law.
{7} 	Pertinent to this appeal, the WCJ findings are that “[w]orker has voluntarily
removed himself from the work force by reason of retirement” and that the retirement
“was reasonable because retirement was financially rational in order to receive union
retirement benefits.” 	The WCJ calculated that Worker is permanently partially
disabled with a whole body impairment rating of seven percent. In addition, the WCJ
calculated that Worker is entitled to forty-five additional statutory PPD modifiers

4
under Sections 52-1-26.1 through Section 52-1-26.4, for a total PPD impairment of
fifty-two percent. Employer appeals.
II. 	ANALYSIS
{8} 	On appeal, Employer challenges only the WCJ’s award of modifier-based PPD
benefits to Worker. Employer asserts, “Worker should not be allowed to obtain PPD
based on formula modification as of the date he reached MMI because Worker
effectively prevented Employer from making a post-MMI job offer by way of the
union retirement on April 17, 2008.” We review issues of statutory interpretation and
application of the law de novo. 	See Att’y Gen. v. N.M. Pub. Regulation Comm’n,
2011-NMSC-034, ¶ 10, 150 N.M. 174, 258 P.3d 453. 	“Once we determine the
meaning of the statute, we review the record to determine whether the [WCJ’s]
findings and award are supported by substantial evidence.” Rivera v. Flint Energy,
2011-NMCA-119, ¶ 4, __ N.M. __ , 268 P.3d 525.
A. 	Permanent Partial Disability Benefits
{9} 	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. 	Section 52-1-26(B) (defining “partial disability” as “a
condition whereby a worker, by reason of injury arising out of and in the course of
employment, suffers a permanent impairment”). 	In construing the statute, the
Legislature has directed us to consider its declaration of policy and intent as follows:

5
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.
Section 52-1-26(A). In succeeding subsections, Section 52-1-26 in pertinent part
provides:
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 shall not be subject to the
modifications 	calculated 	pursuant 	to 	Sections 	52-1-26.1 	through
52-1-26.4 NMSA 1978.
{10} 	Thus, PPD benefits are calculated by determining the level of impairment to the
worker and adding to the impairment rating a calculation of statutorily defined
modifiers under Sections 52-1-26.1 through 52-1-26.4 based on the worker’s age,
education, and physical capacity. This is what we refer to herein as modifier-based
PPD benefits. Sections 52-1-26.1 through Section 52-1-26.4 provide more modifier
points to older workers lacking education, skills, and physical capacity than to
younger workers with higher efficiencies in those areas, resulting in a higher

6
calculation of benefits for the older, less-educated, less-skilled, and less physically
able workers.
{11} 	In recognition of the statutory scheme, our Supreme Court has previously
stated, “The formula incorporates the worker’s impairment rating, age, education, and
residual physical capacity in order to arrive at a disability rating, which determines the
level of benefits available. This complex evaluation scheme was designed to achieve
the purpose for which workers’ compensation was first enacted, which was to protect
injured workers from becoming dependent on public welfare and to provide them with
some financial security.” Madrid v. St. Joseph Hosp., 1996-NMSC-064, ¶¶ 7-8, 122
N.M. 524, 928 P.2d 250 (footnote and citations omitted). Moreover, this method for
calculating PPD benefits reflects the intention of the Legislature to address problems
associated with a worker’s projected difficulty in obtaining and returning to work after
reaching MMI. See Connick v. Cnty. of Bernalillo, 1998-NMCA-060, ¶ 6, 125 N.M.
119, 957 P.2d 1153 (stating that the statutory modifiers in Sections 52-1-26.1 through
Section 52-1-26.4 are “designed to assess the likelihood of the worker being able to
return to work in the future”).
{12} 	Likewise, in accordance with the policy expressed in Section 52-1-26(A), to
provide workers the “opportunity to return to gainful employment as soon as possible
with minimal dependence on compensation awards,” the Legislature has included a
return-to-work provision in Section 52-1-26(D). 	Connick, 1998-NMCA-060, ¶ 6

7
(stating that the statutory incentive to return to work in Section 52-1-26 is
“unmistakable”). Under this provision, if the worker returns to work at a wage equal
to or greater than the worker’s pre-injury wage after reaching MMI, the employer
must only pay PPD benefits in the amount of the worker’s impairment rating and is
relieved of paying the statutory modifiers.
{13} 	We have construed Section 52-1-26(D) as relieving the employer of the liability
to pay modifier-based PPD benefits if the worker either (1) accepts employment with
the pre-injury employer or a different employer at or above his pre-injury wage, or (2)
unreasonably refuses offered employment at or above his pre-injury wage. See Jeffrey
v. Hays Plumbing & Heating, 118 N.M. 60, 62-63, 878 P.2d 1009, 1011-12 (Ct. App.
1994). Thus, the Act encourages an employer to offer a job to the permanently injured
worker within the worker’s post-injury abilities and encourages the worker to return
to work because modifier-based PPD benefits are not paid if the worker unreasonably
refuses an offer to return to work at his pre-injury wage. See Gonzalez v. Performance
Painting, Inc., 2011-NMCA-025, ¶ 28, 150 N.M. 306, 258 P.3d 1098 (“Section 52-1-
26 benefits both employers and workers. An employer is encouraged to make a rehire
offer because it relieves the employer of the obligation to pay modifier benefits. An
injured worker is encouraged to get off workers’ compensation by returning to work
with a wage that is at or above his pre-injury wage.”), cert. granted, 2011-NMCERT-
003, 150 N.M. 620, 264 P.3d 521.

8
{14} 	The terms of Worker’s retirement effectively prevented Employer from offering
employment to Worker to reduce its liability for modified PPD benefits. 	Thus,
Employer argues that it should not be liable to pay modifier-based PPD benefits
because Worker voluntarily removed himself from the workforce. We turn to cases
addressing similar issues for guidance, mindful that they are not directly on point.
{15} 	In Jeffrey, the employer offered the worker a job at his pre-injury wage after he
reached MMI, and the worker rejected the offer in order to start his own business. 118
N.M. at 61, 878 P.2d at 1010. Accordingly, the WCJ applied Section 52-1-26(D), and
awarded PPD benefits that were not modified by the worker’s age, education, and
physical capacity. 	Jeffrey, 118 N.M. at 61, 878 P.2d at 1010. 	We said that the
question on appeal was “whether a worker can evade this provision [Section 52-1-
26(D)] by voluntary unemployment or underemployment.” Jeffrey, 118 N.M. at 64,
878 P.2d at 1013. We held that “permitting such an evasion would be contrary to the
Workers’ Compensation Act” and reaffirmed that “[i]n New Mexico, disability
benefits are denied if a claimant, through voluntary conduct unconnected with his
injury, takes himself out of the labor market.” Id. Further, we stated that “[w]e would
violate the policy of encouraging employment and independence from compensation
benefits if we interpreted Section 52-1-26 to permit a worker to escape a reduction in
benefits by voluntarily remaining unemployed or underemployed.” Jeffrey, 118 N.M.
64, 878 P.2d at 1013. 	However, we also recognized that “[r]ejection of the

9
employer’s offer does not necessarily mean that the worker is voluntarily unemployed
or underemployed” and that a situation could arise where a worker would remain
entitled to the statutory modifiers when he reasonably refused a return-to-work offer.
Id. 	Thus, we held that “an offer rejected by the employee triggers the adjustment
provided by Section 52-1-26(D) only if the rejection was unreasonable.” Jeffrey, 118
N.M. at 64-65, 878 P.2d at 1013-14. We were not required to undertake an analysis
of whether the worker’s rejection of the employer’s offer was unreasonable in Jeffrey
because the WCJ’s finding against the worker on this question was not challenged on
appeal, and we affirmed. Id. at 65, 878 P.2d at 1014.
{16} 	In Connick, we concluded that a worker who was convicted of killing his wife
and incarcerated was not entitled to modifier-based PPD benefits because his criminal
act effectively removed him from the job market. 1998-NMCA-060, ¶¶ 9-10. We
held that the employer was not required to offer the worker a job because the worker’s
incarceration prevented him from being able to accept the employer’s offer. Id. ¶ 10.
We stated that “to require such an empty gesture of [the e]mployer in this case, as a
condition to reducing benefits pursuant to Section 52-1-26(D), would be absurd.”
Connick, 1998-NMCA-060, ¶ 10. 	After concluding that the employer was not
required to offer the worker post-MMI work, we noted that the worker’s criminal act
which removed him from the workforce, “[had] the same effect as, and is qualitatively
no different from, the voluntary and unreasonable unemployment in Jeffrey.” Id. ¶ 9.

10
{17} 	In this case, the WCJ concluded that because Employer did not make Worker
an offer of a permanent return to work, Worker is entitled to receive modifier-based
PPD benefits, despite Worker’s decision to retire. While we disagree with the WCJ’s
reasoning, we nevertheless affirm the award of modifier-based PPD benefits under the
right for any reason doctrine. See State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M.
692, 181 P.3d 684 (“Under the ‘right for any reason’ doctrine, ‘we may affirm the
district court’s order on grounds not relied upon by the district court if those grounds
do not require us to look beyond the factual allegations that were raised and
considered below.’”).
{18} 	It is undisputed that Employer did not make Worker a post-MMI offer of
employment at a wage equal to or greater than Worker’s pre-injury wage. However,
Employer’s failure to do so does not, by itself, give rise to liability for modifier-based
PPD benefits because Section 52-1-26 does not require an employer to make such an
offer. 	See § 52-1-26(D). 	While the statute encourages an employer to make an
employment offer to the worker because the employer will be relieved from paying
modifier-based disability if the offer is either accepted or unreasonably refused, the
statute does not require an employer to do so. Id.; see Gonzalez, 2011-NMCA-025,
¶ 28 (“An employer is encouraged to make a rehire offer because it relieves the
employer of the obligation to pay modifier benefits.”). Further, as we concluded in
Connick, an employer is not required to make a futile return-to-work offer that the

11
worker cannot accept. 1998-NMCA-060, ¶ 10. Having rejected the WCJ’s reasoning,
we now turn to Employer’s arguments and why affirmance of the WCJ order is
nevertheless warranted.
{19} 	We disagree with Employer’s argument that because Worker’s voluntary
decision to retire precluded it from making an offer to return to work, Employer
should be relieved of its liability to pay Worker modifier-based PPD benefits. While
a worker’s decision to retire may make an offer of post-MMI employment
inconsequential, the result Employer urges us to reach is inconsistent with our
previous interpretations of the return-to-work provision of Section 52-1-26(D). See
Jeffrey, 118 N.M. at 64, 878 P.2d at 1013 (stating that while workers cannot escape
Section 52-1-26(D) by voluntarily remaining unemployed or underemployed,
“[n]evertheless, it does not follow that the provisions of Section 52-1-26(D) are
triggered whenever the employer offers a job at a wage equal to or greater than the
worker’s pre-injury wage”).
{20} 	An employer is relieved of paying modifier-based PPD benefits only when a
worker returns to work at or above his pre-injury wage, or voluntarily and
unreasonably removes himself from the workforce. See Jeffrey, 118 N.M. at 62-63,
878 P.2d at 1011-12. 	A worker may reasonably refuse a return-to-work offer and
remain eligible for modifier-based PPD benefits. 	See id. 	In accordance with a
worker’s ability to reasonably refuse a return-to-work offer, it follows that a worker

12
is also permitted to take reasonable action that precludes an employer from making
a return-to-work offer. 	For example, if Employer had offered Worker permanent
employment and Worker reasonably refused the offer due to Worker’s plans to retire,
Worker would have nevertheless been entitled to recover modifier-based PPD benefits
under our existing case law. The mere timing of Worker’s retirement by itself does
not prevent Worker from receiving modifier-based PPD benefits. Accordingly, we
conclude that because the WCJ’s finding of fact establishes that Worker’s retirement
was reasonable, Worker is entitled to modifier-based PPD benefits despite his decision
to retire before reaching MMI.
{21} 	Employer challenges the finding of fact that Worker’s retirement was
reasonable on the ground that the decision to retire was reasonable only from
Worker’s financial perspective. Employer therefore argues that the WCJ’s finding
that Worker’s decision was reasonable violates the policy of the Act in providing
fairness to both Worker and Employer. See NMSA 1978, § 52-5-1 (1990). Again, we
disagree with Employer.
{22} 	Jeffrey clearly states that there may be sound, appropriate reasons, from the
worker’s perspective, for rejecting an employer’s offer to return worker to work at a
wage equal to or greater than the worker’s pre-injury wage. See Jeffrey, 118 N.M. at
64, 878 P.2d at 1013. Furthermore, there is nothing in Jeffrey which requires a worker
to consider the employer’s interest in deciding whether to accept the employer’s offer.

13
Worker testified that he would gain nothing by remaining at his union employment
with Employer because he was already going to receive his maximum retirement
benefit. We therefore decline to engage in a reasonableness analysis which requires
Worker to consider Employer’s interest in making his own employment decision
under these circumstances, and we will not overturn the WCJ’s finding that Worker’s
decision to retire was reasonable.
{23} 	Applying the policies and directives of Section 52-1-26 and the reasoning of
our case law, we conclude that Worker is entitled to modifier-based PPD benefits in
this case. Worker removed himself from the union workforce through retirement, but
he wants to return to employment outside of the union. However, Worker’s injuries
have prevented him from finding subsequent employment after retirement. 	While
Worker chose to retire, he did not choose to get injured, nor did he choose when he
would get injured. 	These circumstances comport with the Legislature’s intent for
utilizing a modifier-based calculation of PPD disability. See Connick, 1998-NMCA-
060, ¶ 6 (stating that the statutory modifiers in Sections 52-1-26.1 through Section 52-
1-26.4 are “designed to assess the likelihood of the worker being able to return to
work in the future”). Further, despite the fact that Employer was unable to make a
post-MMI employment offer, Employer will not be required to pay modifier-based
PPD benefits if Worker is able to secure employment with a non-union employer at
his pre-injury wage. See § 52-1-26(D). Thus, interpreting and applying Section 52-1-

14
26 to provide for modifier-based PPD benefits in this case properly recognizes the
purposes of PPD benefits and also protects the interests of both Employer and Worker.
B. 	Temporary Total Disability Benefits
{24} 	In his answer brief, Worker argues that the WCJ committed reversible error in
concluding Worker is not entitled to TTD benefits from the date he retired to the date
he reached MMI on the basis that Worker “walked away” from the temporary
employment offered him by Employer. 	We decline to address this issue because
Worker failed to file a cross appeal requesting this relief. 	See State ex rel. State
Highway Dep’t v. Yurcic, 85 N.M. 220, 224, 511 P.2d 546, 550 (1973) (declining to
address appellee’s attack on award of attorney fees where no cross appeal was filed),
modified on other grounds by Cnty. of Doña Ana ex rel. Bd. of Cnty. Comm’rs v.
Bennett, 116 N.M. 778, 867 P.2d 1160 (1994); Reynolds v. Ruidoso Racing Ass’n, 69
N.M. 248, 258, 365 P.2d 671, 678 (1961) (declining to address questions attempted
to be raised in answer brief where no cross appeal was filed).
III. 	CONCLUSION
{25} 	The compensation order is affirmed.
{26} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

CYNTHIA A. FRY, Judge

LINDA M. VANZI, Judge

15