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Connick v. County of Bernalillo2/9/1998
teps to help oneself." . We cited case law to the same general effect: "In New Mexico, disability benefits are denied if a claimant, through voluntary conduct unconnected with his injury, takes himself out of the labor market." . Thus, after Jeffrey, disability benefits (other than impairment) may be denied, reduced, or suspended if a claimant voluntarily and unreasonably takes himself out of the job market.
{9} In the present case, Claimant was convicted of a serious felony resulting in his incarceration. Based on the purpose and intent behind Section 52-1-26, and the statutory provision in Subsection D eliminating statutory modifiers in certain circumstances, we believe the legislature intended that the present Claimant would be denied the benefit of the statutory modifiers, no differently from a worker who, like Jeffrey, unreasonably refused his former employer's offer to return to work. Although there is no evidence that a job offer was made in this case, it would have been futile to do so under the circumstances; Claimant's incarceration effectively removed him from the labor market. Because Claimant's inability to return to work resulted from his own conduct, murdering his wife, which is surely "unconnected with his injury," it has the same effect as, and is qualitatively no different from, the voluntary and unreasonable unemployment in Jeffrey. Cf. .
{10} In either case, an award beyond the basic impairment level would directly contradict the fundamental policy and purpose behind the entire statutory scheme, and this we refuse to do. Of equal importance, an award beyond impairment level would implicitly contradict the language of the Act, as it has been interpreted by us in Jeffrey, which now treats an unreasonably rejected job offer the same as if worker were reemployed in fact. Obviously, any such offer to Claimant in this case would have been "rejected" by virtue of Claimant's incarceration, and to require such an empty gesture of Employer in this case, as a condition to reducing benefits pursuant to Section 52-1-26(D), would be absurd. Accordingly, we hold that Claimant is not entitled to the benefit of the statutory modifiers during the period of his incarceration.
{11} On the other hand, Claimant has suffered a permanent physical impairment which is unchanged by his incarceration. Claimant remains limited by the Act in what he can recover for his injuries; for example, he could not file a lawsuit in tort to recover from his Employer because the Act remains his exclusive remedy even while he is incarcerated. Thus, the impairment aspect of his claim stands in a different light from the statutory modifiers under Section 52-1-26 which are awarded for a different consideration.
{12} Because the Act adopts a loss of earning capacity theory of recovery that reconciles a pure lost-wages theory and a pure physical-impairment theory, we believe the legislature intended to provide some measure of benefits for physical impairment alone, independent of lost wages or ability to return to work. Significantly, Section 52-1-26 provides for disability payments based on impairment even when a worker returns to work at a wage greater than pre-injury wage. This indicates a legislative intent to provide some compensation for the injury apart from the loss of wages.
{13} It is only when a worker intentionally causes the injury that he loses benefits for impairment. See NMSA 1978, 52-1-11 to -12 (1989) (no compensation benefits due when the injury is caused by a worker's intoxication or willful, intentional infliction of injury). Similarly, when a worker fails to use a safety device or follow safety regulations, the compensation awarded is reduced. See NMSA 1978, 52-
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