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Connick v. County of Bernalillo2/9/1998
ssence, the New Mexico scheme is an industry insurance plan to compensate injured workers for loss of earning capacity as determined by statute.
{6} For workers who have suffered permanent partial disability, the Act provides, 1) a determination of physical impairment rating, and 2) a potential modification of that impairment rating based on the worker's age, education, job skills, and residual physical capacity after the injury, which is designed to assess the likelihood of the worker being able to return to work in the future [hereafter "statutory modifiers"]. See NMSA 1978, 52-1-24 to -26.4 (1990) (effective Jan. 1, 1991). However, if a worker returns to work at a wage equal to or greater than the pre-injury wage, the permanent partial disability rating remains at the level of the worker's impairment rating and is not subject to the statutory modifiers, no matter what his age, education and physical capacity. Similarly, the worker's benefits are not decreased below impairment level despite worker's gainful employment. In pertinent part, the Act states at Section 52-1-26:
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.
The statutory incentive to return to work is unmistakable. The legislature has explicitly stated that the policy and purpose behind this legislation is to provide "every person who suffers a compensable injury with resulting permanent partial disability . . . the opportunity to return to gainful employment as soon as possible with minimal dependence on compensation awards." Section 52-1-26(A).
{7} This Court has previously had occasion to interpret Section 52-1-26 in a somewhat similar context. See . In Jeffrey, the worker decided not to return to work because he preferred to start his own business, and he rejected the employer's job offer. Nonetheless, the worker claimed that Section 52-1-26(C) entitled him to receive compensation without qualification, at the impairment rating plus the statutory modifiers, because Section 52-1-26(D) only allowed elimination of statutory modifiers if "an injured worker returns to work," and he had not done so.
{8} Understandably, this Court was not impressed with such slavish adherence to textualism. In rejecting the worker's argument and affirming an award of benefits limited to the worker's impairment rating, we reasoned that a worker could not intentionally evade the provisions of Section 52-1-26(D) by voluntary unemployment or underemployment. We were not dissuaded by the absence from the Act of any express provision to that effect. . To the contrary, this Court concluded that " e should not attribute to the legislature an undue precision in drafting and thereby frustrate legislative intent when we construe a statute." . Relying upon our Supreme Court's opinion in Gallegos, we reasoned from the public policy expressed in the Act favoring reemployment, combined with the generally accepted proposition "that one should not be permitted to benefit by refusing to take reasonable s
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