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 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 NO. 32,868

 3 EVER LUIS NUÑEZ,

 4          Worker-Petitioner,

 5 v.

 6 ARMSTRONG GENERAL CONTRACTORS
 7 and BUILDERS TRUST OF NEW MEXICO,

 8          Employer/Insurer-Respondents.


 9 ORIGINAL PROCEEDING ON CERTIORARI
10 Gregory D. Griego, Workers Compensation Judge


11 Benito Sanchez, P.A.
12 Benito Sanchez
13 Albuquerque, NM

14 for Petitioner


15 Christina Bartosh Goodrow
16 Albuquerque, NM

17 for Respondents
 1                    DISPOSITIONAL ORDER OF REVERSAL

 2   {1}   In this companion case to Gonzalez v. Performance Painting, Inc., 2013-

 3 NMSC-___, ___ P.3d ___, we are once again asked to determine if an undocumented

 4 worker, Ever Luis Nuñez (Worker), is eligible to receive Workers’ Compensation

 5 Permanent Partial Disability Modifier benefits. For the reasons that follow, we

 6 reverse summary judgment and remand to the Workers’ Compensation Administration

 7 for a factual determination of whether the employer, Armstrong General Contractors,

 8 knew or should have known that Worker was undocumented.

 9 BACKGROUND

10   {2}   Worker was injured on April 13, 2007 when he fell off a scaffold while working

11 for Employer. Ultimately, Worker and Employer entered into a stipulated settlement

12 which resolved all of the issues regarding Worker’s claim with the exception of

13 Permanent Partial Disability (PPD) modifier benefits.

14   {3}   Both parties filed cross-motions for summary judgment before the Workers’

15 Compensation Administration. Employer argued that the inability of Worker to

16 accept a legitimate return-to-work offer due to his undocumented status should

17 prevent Worker from receiving modifier benefits. Based on the statutory language,

18 Worker argued that he is entitled to modifier benefits until he actually returns to work,

19 or in the alternative, that Employer knew of his undocumented status. The Workers’

20 Compensation Judge (WCJ), relying on Connick v. County of Bernalillo, 1998-

21 NMCA-060, 125 N.M. 119, 957 P.2d 1153, concluded that Worker’s undocumented

22 status meant that he had “voluntarily removed himself from the workforce” and
 1 granted summary judgment in Employer’s favor.

 2   {4}   The Court of Appeals ultimately issued a memorandum opinion in favor of

 3 Employer. Nuñez v. Armstrong General, No. 29,522, slip op. (N.M. Ct. App. Jan. 10,

 4 2011). That Court, citing its opinion in Gonzalez v. Performance Painting, Inc., 2011-

 5 NMCA-025, 150 N.M. 306, 258 P.3d 1098, affirmed summary judgment in favor of

 6 Employer. Nuñez, No. 29,522, slip op. at 1. We granted certiorari. 2011-NMCERT-

 7 003, 150 N.M. 620, 264 P.3d 521.

 8 DISCUSSION

 9   {5}   In Gonzalez v. Performance Painting, we recently stated that “[w]hether an

10 employer knew or should have known, before the worker was injured, that a worker

11 was undocumented determines whether an employer’s rehire offer was legitimate and

12 should be the focus of our inquiry.” 2013-NMSC-___, ¶ 26. We also suggested that

13 the best evidence of whether an employer “knew or should have known” may be an

14 inquiry into whether the employer followed appropriate hiring procedures required by

15 federal law, including a properly completed I-9 form. Id. ¶¶ 29-31.

16   {6}   But we never said that an I-9 form is necessarily conclusive as to whether an

17 employer knew or should have known of an undocumented worker. For instance,

18 even though an I-9 form is properly completed and the undocumented worker presents

19 false documents, the employer could learn of the worker’s undocumented status by

20 other means. The worker could freely tell the employer of his status. The employer

21 could overhear conversations between workers regarding the worker’s status. The

                                             3
 1 employer could learn of a worker’s status from federal officials. While we cannot

 2 recount all the ways an employer could learn of a worker’s undocumented status (and

 3 we affirm that often the best evidence of this is the I-9 form), we reiterate that the

 4 ultimate inquiry is whether the employer knew or should have known that the worker

 5 was undocumented.

 6   {7}   Turning to the facts of this case, there is evidence in the record that Worker

 7 presented false documents when he was initially hired by Employer. The record

 8 contains copies of what appear to be false Resident Alien and Social Security cards

 9 that Worker presented to Employer when he was initially hired. In addition, the I-9

10 form itself was attached to Worker’s cross-motion for summary judgment.

11   {8}   Despite this evidence, Worker alleges that Employer knew he was

12 undocumented.      In an affidavit submitted with his cross-motion for summary

13 judgment, Worker claims that “Employer’s Superintendent, Mr. Javier Aldaba, knew

14 that [he] did not have proper proof of eligibility to be employed in the United States

15 for the entire course of [his] employment.” The affidavit also claims that Mr. Aldaba

16 would warn Worker and others “about ICE raids before the immigration officers

17 arrived at the workplace.” Employer rebutted these allegations with an affidavit from

18 Mr. Aldaba denying that he knew Worker was undocumented and denying that he

19 warned Worker about ICE raids.

20   {9}   Despite these competing affidavits, the Workers’ Compensation Judge made no

21 findings regarding whether Employer knew or should have known of Worker’s

                                              4
 1 undocumented status. Instead, the Worker’s Compensation Judge ruled that under

 2 Connick Worker had voluntarily taken himself out of the workforce and therefore was

 3 not entitled to modifier benefits, a decision we reverse for the reasons set forth in

 4 Gonzalez. In fairness, it was not clear then that what the Employer knew and when

 5 did he know it would become such a pivotal issue. After Gonzalez, the importance

 6 of that question is now self-evident, and therefore, the parties and the WCJ should be

 7 afforded an opportunity to develop a full record on that question.

 8 CONCLUSION

 9   {10}   This case is reversed and remanded to the Worker’s Compensation

10 Administration.

11   {11}   IT IS SO ORDERED



12                                         ___________________________________
13                                         PETRA JIMENEZ MAES, Chief Justice


14                                         ___________________________________
15                                         RICHARD C. BOSSON, Justice


16                                         ___________________________________
17                                         EDWARD L. CHÁVEZ, Justice


18                                         ___________________________________
19                                         CHARLES W. DANIELS, Justice


                                             5
1   ___________________________________
2   BARBARA J. VIGIL, Justice




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