                                                          I attest to the accuracy and
                                                           integrity of this document
                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'04- 09:58:08 2013.07.19

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-021

Filing Date: May 30, 2013

Docket No. 32,844

JESUS GONZALEZ,

       Worker-Petitioner,

v.

PERFORMANCE PAINTING, INC., and
BUILDERS TRUST OF NEW MEXICO,

       Employer-Insurer-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Terry S. Kramer, Workers’ Compensation Judge

James Rawley
Albuquerque, NM

for Petitioner

Miller Stratvert, P.A.
Nathan A. Cobb
Erica R. Neff
Thomas R. Mack
Albuquerque, NM

for Respondents

                                       OPINION

BOSSON, Justice.

{1}     Undocumented workers injured on the job present a special challenge under the
Workers’ Compensation Act. All workers are encouraged to return to work when medically
feasible, yet federal law may preclude some employers from extending rehire offers to
undocumented workers once they learn of their status. Federal law also requires employers
to hire in good faith and demand documentation of prospective employees showing their

                                           1
lawful status. Because an offer to rehire must be a legitimate offer, we hold that employers
who cannot demonstrate such good faith compliance with federal law in the hiring process
cannot use their workers’ undocumented status as a defense to continued payment of
modifier benefits under the Workers’ Compensation Act. The Court of Appeals having
decided to the contrary, we reverse.

BACKGROUND

{2}    Jesus Gonzalez (Worker) is an undocumented immigrant, coming to this country
from Mexico for the first time in 2003 and again in 2005. In early February of 2006, he was
hired by Performance Painting, Inc. (Employer) as a painter’s helper. By all accounts,
Worker was a good employee and worked without incident until August 31, 2006. On that
date, Worker fell off a ladder, injuring his shoulder. As a result of the injury, Worker was
temporarily totally disabled and unable to work. The injury required multiple surgeries and
months of physical therapy.

{3}      Worker reached maximum medical improvement on August 30, 2007. He was
assigned a 3 percent permanent base impairment rating based upon his shoulder injury and
its effect upon his whole body. He was also permanently restricted in the type of work he
could perform, including no lifting above his head, all lifting limited to ten pounds
occasionally or up to five pounds frequently, and no climbing ladders or extended bending.

{4}     Worker temporarily returned to work with Employer in January of 2008. By early
February, however, Worker stopped going to work, due at least in part to Employer’s
inability to accommodate his injury-related work restrictions. Worker also claims that he
stopped working because of a slowdown in the amount of work available. Worker then filed
a complaint for workers’ compensation on February 18, 2008.

{5}     Sometime in late April, Worker received a letter through his attorney offering
Worker a chance to return to work for Employer. The letter was written by and on the
letterhead of legal counsel for Employer’s Insurer. The employment offer was for modified
duty, taking into account Worker’s injury-related restrictions. As will be discussed later in
more detail, an injured worker with a permanent partial disability is entitled to additional
modifier benefits based upon the worker’s age, education, and physical capacity but only
until the worker returns to work at the same or better wage. NMSA 1978, § 52-1-26(C) &
(D) (1990). Hence, Employer’s offer among other things was an attempt to limit its
continuing obligation to pay modifier benefits. The offer required Worker to fill out a new
application which would explicitly “include verification of his eligibility for employment.”
Worker received at least three such letters.

{6}    On June 20, 2008, Worker appeared in Employer’s office to fill out the necessary
paperwork to return to work. Worker began filling out the application packet and was asked
to produce a social security card, which Employer had not requested previously. Unable to
complete the verification, Worker left the office and never returned.

                                             2
{7}     In early August of 2008, Worker began working elsewhere and continued to work
there through trial. For the week ending on August 16, 2008, for the first time since his
injury, Worker made a wage in excess of his pre-injury wage.

{8}      During the proceedings before the Workers’ Compensation Administration,
Employer argued that Worker’s failure to prove eligibility to work on June 20, 2008,
constituted an unreasonable refusal to return to work, thereby limiting Worker’s benefits to
the base impairment rating without any modifier benefits. The Workers’ Compensation
Judge (WCJ) agreed. The WCJ concluded that Worker was entitled to partial disability
benefits commencing August 30, 2007, Worker’s date of maximum medical improvement,
at the rate of 51 percent, (3 percent permanent physical impairment plus 48 percent modifier
points), but only until June 20, 2008. After that date, Worker was only entitled to his 3
percent permanent impairment rating because “Worker could not accept a bona fide return
to work offer made by Employer” due to his immigration status, and therefore “Worker
unreasonably refused a return-to-work offer from Employer.” Worker appealed and the
Court of Appeals affirmed but for slightly different reasons which we will discuss in turn.
See Gonzalez v. Performance Painting, Inc., 2011-NMCA-025, ¶ 1, 150 N.M. 306, 258 P.3d
1098. We granted certiorari to review an important point of law that potentially affects
numerous undocumented workers across this state.

DISCUSSION

Workers’ Compensation Act

{9}     The purpose of the Workers’ Compensation Act (WCA) is to provide “quick and
efficient delivery of indemnity and medical benefits to injured and disabled workers at a
reasonable cost to the employers who are subject to [its] provisions.” NMSA 1978, § 52-5-1
(1990). The WCA is a delicate balance between the rights and interests of the worker and
the employer. See id. Thus, “any judicial analysis under the [WCA] must balance equally
the interests of the worker and the employer without showing bias or favoritism toward
either.” Salazar v. Torres, 2007-NMSC-019, ¶ 10, 141 N.M. 559, 158 P.3d 449.

{10} Both parties agree that the WCA generally applies to undocumented workers, at least
since legislative action taken to that effect in 1984. See Performance Painting, 2011-
NMCA-025, ¶ 15 (noting the Legislature’s 1984 deletion from the WCA of the denial of
benefits for a worker’s nonresident alien dependents). Accordingly, the benefits awarded
prior to Worker reaching maximum medical improvement are not at issue. Neither does
Employer dispute Worker’s entitlement, despite his undocumented status, to the 3 percent
permanent partial disability benefits based on his physical impairment rating. The dispute
in this case focuses instead on whether Worker’s status as an undocumented immigrant
prevents him from receiving permanent partial disability modifier benefits which were
calculated at 48 percent of his pre-injury wage. We proceed to that question, and begin with
the WCA itself.


                                             3
Permanent Partial Disability

{11} As previously stated, once an injured worker reaches maximum medical
improvement, the worker may be eligible for permanent partial disability benefits if the
worker has suffered a “permanent impairment.” NMSA 1978, § 52-1-26(B) (1990). The
amount of benefits are “determined by calculating the worker’s impairment as modified by
his age, education and physical capacity.” Section 52-1-26(C). The age and education
modifiers are added together and then multiplied by the physical capacity modifier. NMSA
1978, § 52-1-26.1(B) (1990). This number is then added to the base impairment rating to
determine the total award. NMSA 1978, § 52-1-26.1 (C) (1990). This case illustrates the
significance of both benefits, where Worker’s base impairment was only 3 percent, but his
modifier benefits added another 48 percent.

{12} As noted earlier, modifier benefits are not permanent. Section 52-1-26(D) states that
“[i]f, 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 modifications.” In other words, the WCA provides the employer with an incentive to re-
employ the injured worker, and the worker has an incentive to accept a reasonable return-to-
work offer, both of which relieve the worker’s compensation system.

{13} It could be argued that the plain meaning of the statute is clear, in that an injured
worker is entitled to modifier benefits until the worker actually “returns to work,” which
would allow the worker to decide whether to work at all. Under this theory, an injured
worker could refuse even a reasonable and legitimate return-to-work offer and continue
collecting modifier benefits, even if the worker simply did not feel like working.

{14} But, this Court has cautioned in the past against reading the WCA too literally. As
this Court stated in Chavez v. Mountain States Constructors, “New Mexico appellate courts
have previously recognized that the provisions of the [WCA] are imprecise. . . . This serves
as a warning that the plain language rule may not be the best approach to interpreting this
statute.” 1996-NMSC-070, ¶ 25, 122 N.M. 579, 929 P.2d 971. Therefore, a literal
interpretation of the WCA is not always appropriate.

{15} Such an interpretation would upset the delicate balance between workers and
employer interests present in the WCA. It would give sole control over how long a worker
collects modifier benefits to the worker. As this case demonstrates, with Worker’s base
impairment rating of 3 percent and modifier benefits of 48 percent, modifier benefits can be
a significant portion of the total amount of permanent partial disability benefits. Allowing
a worker to refuse a reasonable and legitimate return-to-work offer in favor of continuing
to collect modifier benefits, is simply not the scheme the Legislature intended.

{16} Finally, this interpretation would ignore the following stated purpose of permanent
partial disability benefits:

                                             4
       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) (emphasis added). The stated purpose is to provide an opportunity to
return to work. A reasonable and legitimate return to work offer would fulfill this purpose,
even if the offer is refused. But, if a worker were allowed to refuse a reasonable job offer
and continue collecting modifier benefits, the worker would be more dependent on the
compensation award. Thus, a scheme in which a worker could refuse an employment
opportunity in favor of receiving more benefits would directly contradict the Legislature’s
stated purpose.

{17} Accordingly, our Court of Appeals has correctly interpreted this section of the WCA
to mean that if an injured worker refuses a reasonable return-to-work offer, the worker
becomes ineligible for modifier benefits. In Jeffrey v. Hays Plumbing & Heating, the injured
worker refused an employer’s return-to-work offer in favor of starting his own business. 118
N.M. 60, 61, 878 P.2d 1009, 1010 (Ct. App. 1994). The Court of Appeals held that
rewarding voluntary unemployment or underemployment—by allowing a worker to refuse
a reasonable return-to-work offer but continue collecting modifier benefits—“would be
contrary to the [WCA].” Id. at 64, 878 P.2d at 1013. The Court stated that such benefits
should be “denied if a claimant, through voluntary conduct unconnected with his injury,
takes himself out of the labor market.”1 Id. (internal quotation marks and citation omitted).

{18}   The holding in Jeffrey was later applied in Connick v. County of Bernalillo, 1998-


       1
           If Worker had been denied all benefits, we would readily agree with the sentiments
expressed in the Special Concurrences that undocumented workers are entitled to impairment
benefits. The law is clear, as in this case, that impairment benefits—based on physical
injury—cannot be denied, and were not denied in this case, due to undocumented status. But
since 1991, the Legislature has separated permanent partial disability benefits into two
categories, impairment and modifier, and this opinion only concerns the latter. Modifier
benefits are based in part on “the difference between the physical capacity necessary to
perform the worker’s usual and customary work and the worker’s residual capacity.”
Section 52-1-26.4(B). The effect of physical impairment upon ability to work remains,
therefore, part of the calculus that the Legislature—not the judiciary—has created to assess
overall benefits. See Section 52-1-26(A) (declaring legislative policy that injured workers
be provided with the opportunity to return to work). It is this continuing reference in the Act
itself to physical capacity to work that gave rise to Jeffrey and directs the result we reach in
this case. As suggested in the Special Concurrences, we would all welcome additional
clarity from our legislative branch. Until that time, however, we have no choice but to make
principled distinctions that reconcile statutory language and purpose.

                                               5
NMCA-060, 125 N.M. 119, 957 P.2d 1153, again to deny modifier benefits. In Connick, the
injured worker was later sent to prison for second-degree murder, but still claimed he was
entitled to continuing modifier benefits. Id. ¶¶ 2-3. The Connick Court affirmed that “after
Jeffrey, disability benefits (other than impairment) may be denied, reduced, or suspended if
a claimant voluntarily . . . takes himself out of the job market.” Id. ¶ 8. The Court reasoned
that “[a]lthough 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.” Id. ¶ 9.

{19} In this case, the WCJ denied Worker modifier benefits, presumably relying on Jeffrey
and Connick. Specifically, the WCJ concluded that “Worker could not accept a bona fide
return-to-work offer made by Employer due to Worker’s status as an illegal undocumented
worker.” As a result, “Worker unreasonably refused a return-to-work offer from Employer.”

{20} The Court of Appeals also denied Worker modifier benefits, although for different
reasons. Performance Painting, 2011-NMCA-025, ¶ 1. The Court of Appeals held that
undocumented workers are categorically ineligible for modifier benefits—in every
case—because under federal law they are ineligible to work. Id. ¶ 33. The Court reasoned
that “[w]here, as here, an employer is legally forbidden to rehire a worker because the
worker is undocumented, we doubt that the Legislature intended Section 52-1-26 to
nevertheless apply to allow the worker to receive modifier benefits.” Id. ¶ 29.

{21} To a limited degree, the Court of Appeals’ conclusion has certain merit based on the
effect of federal law, at least in some instances, on an employer’s efforts to rehire an
undocumented worker. But that is not the end of our analysis, nor do we believe it captures
all of what our Legislature reasonably intended in a situation like this.

{22} Simply put, the Court of Appeals’ conclusion in this case turns a blind eye to the
reality of undocumented workers all across this state and to the facts of this case in
particular. The reasoning, stated simply, is that because Worker is not allowed to work, then
he cannot work, and that if he cannot work, then he does not work, either for Employer or
someone else. Because he cannot work, modifier benefits—based in part on his ability to
return to work—cannot apply.

{23} Yet Worker does work. He has held numerous jobs since entering the United States,
including his employment by Performance Painting. At the time of trial, Worker had already
found a new job and was working full time for a different employer at a better wage.
Modifier benefits would have terminated at that point even without a return-to-work offer
by Employer. Whether lawful or not, men and women like Worker in this case often do find
employment somewhere, and when they do, modifier benefits can be terminated in the
manner prescribed by the WCA.

{24} In addition, refusing modifier benefits to undocumented workers across the board
would give rise to other problems. It would create a perverse incentive for employers to hire

                                              6
undocumented workers over other workers, especially in high-risk jobs that often result in
workers’ compensation claims. An employer could hire undocumented workers, knowing
that in the event of injury the employer would likely pay a much lower amount in workers’
compensation benefits due to ineligibility for modifier benefits. This would again upset the
balance the Legislature created in the WCA—this time tipping it in favor of the employer
as opposed to the worker. Other courts have noted this problem. See Rivera v. NIBCO, Inc.,
364 F.3d 1057, 1072 (9th Cir. 2004). (“[E]mployers have a perverse incentive to ignore
immigration laws at the time of hiring but insist upon their enforcement when their
employees complain.”).

{25} There is a better approach, one more consistent with legislative intent. The essence
of the Court of Appeals’ holding seems based more on the potential unfairness to a particular
employer, one who normally would offer re-employment in order to save money on modifier
benefits (or avoid higher insurance premiums), but who cannot legally do so once the
employer learns of the illegal status of its former worker. We agree that fairness should
prevail on behalf of such an employer, so long as the employer can show he did the best he
could under the circumstances to avoid the predicament. In other situations, however, where
the employer is culpable for improperly hiring the worker in the first place, the worker
should not shoulder all the responsibility. That would upset the delicate balance between
worker and employer interests that our Legislature has required. See Section 52-5-1 (stating
that the WCA is not to be construed “in favor of the claimant or employee on the one hand,
nor are the rights and interests of the employer to be favored over those of the employee on
the other hand.”); Salazar, 2007-NMSC-019, ¶ 10; Delgado v. Phelps Dodge Chino, Inc.,
2001-NMSC-034, ¶ 12, 131 NM 272, 34 P.3d 1148.

{26}   The Court of Appeals correctly noted that

       [w]here the pre-injury employer knew or should have known of the injured
       worker’s undocumented status, the employer cannot make a bona fide rehire
       offer. An offer as contemplated in Section 52-1-26 by a pre-injury employer
       to rehire an injured, undocumented worker would in that instance be illusory,
       if not a ruse.

Performance Painting, 2011-NMCA-025, ¶ 29. We agree with this statement of the law.
Whether an employer knew or should have known, before the worker was injured, that a
worker was undocumented determines whether an employer’s rehire offer was legitimate and
should be the focus of our inquiry and the basis of determining whether the injured worker
is entitled to modifier benefits. Such a focus maintains the appropriate neutrality between
employers and workers and in doing so stays true to the original intent of the Legislature.

The Immigration Reform and Control Act

{27} As noted in the Court of Appeals opinion, see id. ¶ 17, Congress passed the
Immigration Reform and Control Act (IRCA) in 1986. Pub. L. No. 99-603, 100 Stat. 3359

                                             7
(1986) (codified as amended in scattered sections of 8 U.S.C.). IRCA seeks to discourage
illegal immigration by making it unlawful to hire undocumented workers. See 8 U.S.C. §
1324a(a)(1)(A) (2006). As stated by the United States Supreme Court, “IRCA forcefully
made combating the employment of illegal aliens central to [t]he policy of immigration law.”
Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 147 (2002) (internal quotation
marks and citation omitted).

{28} Thus, under IRCA, employers “have an affirmative duty to determine that their
employees are authorized.” New El Rey Sausage Co., Inc. v. U.S. I.N.S., 925 F.2d 1153,
1158 (9th Cir. 1991). As the Court of Appeals noted, this is accomplished by imposing a
legal duty on employers that includes “examining specified documents that establish the
person’s identity and eligibility for employment in the United States and completing Form
I-9, which evidences that examination.” Performance Painting, 2011-NMCA-025, ¶ 18
(quoting Coque v. Wildflower Estates Developers, Inc., 58 A.D.3d 44, 49 (2008)). If the
employer fails to properly inspect the documents, then the employer “has failed to
adequately ensure that the alien is authorized.” New El Rey Sausage Co., 925 F.2d at 1158.
Accordingly, penalties can be assessed for the failure to follow the proper procedure in
filling out an I-9 Form. 8 U.S.C. § 1324a (e)(5) (as amended through 2005). While a
completed I-9 Form need not actually be submitted for verification in New Mexico, all
employers are required to keep the completed forms for a minimum of three years. 8 U.S.C.
§ 1324a(b)(3)(B)(i) & (ii).

{29} Based on these federal requirements, an employer who does not properly fill out an
I-9 Form and demand necessary documentation, as is required, either should have known or
is deemed to have known that the worker would likely be undocumented and ineligible for
rehire in the event of injury. The I-9 Form is how an employer gains knowledge of a newly
hired worker’s eligibility for employment. If an employer fails to fill out the form and
demand proof of documentation, either purposefully or negligently, then the employer has
failed to perform his affirmative duty to determine the worker’s eligibility for employment.
Based on this failure, knowledge of the worker’s immigration status can be imputed to the
employer for the purposes of Workers’ Compensation benefits. An offer to rehire would
then be, in the words of the Court of Appeals, “illusory, if not a ruse.” And under these
circumstances the employer should fairly bear the responsibility for that predicament, one
of his own creation. The employer would fairly owe modifier benefits.

{30} On the other hand, there are other times when an employer has properly filled out the
I-9 form, but an undocumented worker presents false documents. In this situation, IRCA
provides for an affirmative defense to a violation, if the employer has complied in good faith
with IRCA’s requirements. 8 U.S.C. § 1324a(a)(3). We see no reason why such a defense
should not apply to cases involving modifier benefits. Accordingly, if a worker presents
false documents to an employer during the initial hiring and the employer does not otherwise
know or should know of the worker’s undocumented status, then the worker should not be
allowed to benefit from such deception by collecting modifier benefits. In any case, an
employer can protect itself simply by following the law.

                                              8
{31} In our view, this resolution strikes an appropriate balance between employers and
workers, as the Legislature intended in the WCA, regarding undocumented workers and
modifier benefits. If an otherwise nonculpable employer has complied with the federal
requirements of IRCA, and properly fills out an I-9 form including necessary documentation,
the employer cannot be forced to pay modifier benefits to an undocumented worker. This
is true even if the employer has, post-injury, learned of the worker’s undocumented status.
An otherwise nonculpable employer can establish a good faith defense. This approach
favors neither the worker or the employer. Whichever party is more culpable, by either
failing to perform an affirmative duty or presenting false documents to obtain employment,
suffers the most; he is not permitted to benefit from that party’s own wrongdoing.

Employer Did Not Properly Confirm Worker’s Eligibility to Work

{32} We now turn to the facts of this case to evaluate Employer’s return-to-work offer.
Despite both Worker and Employer requesting findings of fact on whether Employer should
have known that Worker was undocumented, the WCJ failed to rule on this issue. In his
defense, the WCJ admitted that the law regarding undocumented workers and modifier
benefits was unclear, and he hoped to get an appellate court ruling on the matter. The Court
of Appeals stated that “[i]n the present case, Employer provided no evidence that it used the
required I-9 forms, much less used any in connection with Worker’s hire.” Performance
Painting, 2011-NMCA-025, ¶ 19. Following our review of the whole record, see Rodriguez
v. Permian Drilling Corp., 2011-NMSC-032, ¶ 7, 150 N.M. 164, 258 P.3d 443, we agree.
The evidence demonstrates convincingly that Employer did not follow the proper procedures
when Worker was initially hired.

{33} Employer testified at trial about the hiring process at Performance Painting.
Specifically, Employer testified that the office manager would have been responsible for
Worker’s paperwork when he was initially hired. In her deposition, the office manager
testified that she did not personally hand out any I-9 forms. She also testified that she never
received any training regarding how to document immigration status and never inquired
about the immigration status of newly hired workers. There was much discussion and
testimony before the WCJ about how Worker provided a false social security number, but
never any indication that he actually presented a social security card. In fact, when asked
why Worker’s employment file contained no copy of such identification, according to
Employer’s usual practice, Employer stated by assumption that the office manager “was
using the New Hires form . . . and using the state to verify.”

{34} The record contains two different I-9 forms for Worker, neither of which are properly
completed. The first is dated June 20, 2008, and appears to be the I-9 form that Worker
began but never completed when attempting to accept Employer’s return-to-work offer. The
other I-9 form is not dated, making it impossible to determine when it was filled out. Each
form, however, is only partially completed, with the section Employer is supposed to
complete after the inspection of the appropriate documents left blank on each. There is no
other evidence or testimony in the record regarding whether an I-9 Form for Worker was

                                              9
properly completed near the time of his initial hiring.

{35} Thus, it is clear to us that Employer failed to follow appropriate hiring procedures,
as required by federal law, and failed to properly fill out an I-9 form and keep it on file for
the requisite time period. Accordingly, we hold that Employer should have known that
Worker was undocumented, and any return-to-work offer made by Employer was illusory.
Therefore, Worker is entitled to modifier benefits.

{36} Employer argued at length before the WCJ that because he sent the appropriate
documentation to New Mexico New Hires and never received word of any problems, he
could not have known that Worker was undocumented. The Court of Appeals indicated that
“[n]othing in the record indicates what the function of this agency is, including what, if
anything, the agency does with a person’s social security number.” Performance Painting,
2011-NMCA-025, ¶ 3 n. 1. A cursory examination of the New Mexico New Hire’s website
and the law that created it instantly reveals the fallacy of Employer’s argument. NMSA
1978, Sections 50-13-1 to -4 (1997), established the New Mexico New Hires database which
requires employers to submit certain information about each worker they hire. According
to the statute, “[t]he state directory of new hires shall use the information received to locate
individuals for purposes of establishing paternity and establishing, modifying and enforcing
child support obligations.” Section 50-13-3 (B). The database’s website also espouses a
similar purpose.             New Mexico New Hires Directory, available at
http://newhire-reporting.com/NM-newhire/FAQ.aspx#wdwn. Neither the statute nor the
website ever suggest that the database performs employment eligibility verification, and the
database should not be relied upon as such. The reason that Employer never received any
word from New Mexico New Hires that there were any problems with his newly hired
workers is because they did not owe child support or have any paternity issues, not because
they were all eligible to work in the United States.

Worker’s Entitlement to Modifier Benefits Ceased Upon Returning to Work at His
Pre-Injury Wage

{37} Worker also argues that he continues to be eligible for modifier benefits even though
he has returned to work at a wage equal to or greater than his pre-injury wage, because he
has not returned to work for his pre-injury employer. By analogy, Worker relies on
Grubelnik v. Four-Four, Inc., 2001-NMCA-056, 130 N.M. 633, 29 P.3d 533, a case
involving a return-to-work provision for temporary total disability as opposed to permanent
partial disability, for this proposition.

{38} In Grubelnik, the Court of Appeals determined that a worker remained entitled to
full temporary total disability after returning to work with a different employer. 2001-
NMCA-056, ¶ 1. NMSA 1978, Section 52-1-25.1(B) (1990) (amended 2005) states that
“[i]f, prior to the date of maximum medical improvement, an injured worker’s health care
provider releases the worker to return to work and the employer offers work at the worker’s
pre-injury wage, worker is not entitled to temporary total disability benefits.” The worker

                                              10
in Grubelnik did obtain a release to return to work but began working for a different
employer, as he knew that his pre-injury employer could not accommodate his restrictions.
Grubelnik, 2001-NMCA-056, ¶¶ 4-5. The Court of Appeals held that the term “employer”
in the return-to-work provision of Section 52-1-25.1(B) specifically referred to the pre-injury
employer. Grubelnik, 2001-NMCA-056, ¶ 21. As a result, the worker could continue
collecting full TTD benefits. Id. ¶ 26.

{39} This holding, however, was superceded by the Legislature in 2005, a fact not
mentioned in the briefing by either side. The current version of the statute reads as follows:

       B. If, prior to the date of maximum medical improvement, an injured
       worker’s health care provider releases the worker to return to work, the
       worker is not entitled to temporary total disability if:

               (1)     the employer offers work at the worker’s preinjury wage; or

               (2)     the worker accepts employment with another employer at the
                       worker’s preinjury wage.

Section 52-1-25.1(B) (2005) (emphasis added). While there is no specific mention of
Grubelnik in the amended statute, the expression of legislative policy on this issue is clear.
A return-to-work provision is no longer contingent on returning to work for the pre-injury
employer. Although the case before us involves permanent partial disability as opposed to
temporary total disability in Grubelnik, we see no reason, and Worker has not offered one,
that the legislative policy was only intended to be applied to temporary total disability.
Thus, Worker is not entitled to modifier benefits from the time he began earning an amount
equal to or greater than his pre-injury wage with a new employer. According to the WCJ,
this occurred beginning with the week ending August 16, 2008, and that finding was not
challenged on appeal, see Johnston v. Sunwest Bank of Grant Cnty., 116 N.M. 422, 423-24,
863 P.2d 1043, 1044-45 (1993) (“Unchallenged findings of the trial court are binding on
appeal.”). Therefore, Worker is ineligible for modifier benefits from that date on. To be
clear, Grubelnik is hereby overruled.

CONCLUSION

{40}   For these reasons, we hereby reverse the Court of Appeals.

{41}   IT IS SO ORDERED.

                                               ____________________________________
                                               RICHARD C. BOSSON, Justice

WE CONCUR:


                                              11
____________________________________
PETRA JIMENEZ MAES, Chief Justice

____________________________________
BARBARA J. VIGIL, Justice

EDWARD L. CHÁVEZ, Justice (specially concurring).

CHARLES W. DANIELS, Justice (specially concurring).

CHÁVEZ, Justice, specially concurring.

{42} I concur with the opinion authored by Justice Bosson because it strikes a reasonable
balance between the New Mexico Legislature’s unquestionable policy decision that
undocumented workers are to receive workers’ compensation benefits consistent with the
federal requirements under the Immigration Reform and Control Act of 1986, Pub. L. No.
99-603, 100 Stat. 3359 (1986) (codified as amended in scattered sections of 8 U.S.C.).
Nobody questions or challenges the Legislature’s policy decision, and for good reason. The
reality is that undocumented workers are part of the history of New Mexico, having
contributed the fruits of their labor to improve our economy and fill a void in the labor
market that obviously exists both in New Mexico and throughout the United States. See
generally David Becerra et al., Fear vs. Facts: Examining the Economic Impact of
Undocumented Immigrants in the U.S., 39 J. Soc. & Soc. Welfare 111, 123-24 (Issue 4, Dec.
2012). Indeed, the undocumented worker generally works for the lowest wages in the
toughest jobs. See Lori A. Nessel, Undocumented Immigrants in the Workplace: The
Fallacy of Labor Protection and the Need for Reform, 36 Harv. C.R.-C.L. L. Rev. 345, 347
(2001) (“Undocumented workers by definition occupy a precarious position in U.S. society:
their very presence at the workplace is at the same time unlawful and necessary to perform
the most difficult work at the lowest wages.”).

{43} It has not been unusual for the United States to historically have had treaties with
other countries under which undocumented workers and their dependents are guaranteed the
same rights and privileges as nationals (citizen workers). 2 Arthur Larson, Workmen’s
Compensation Law § 63.52 (1994). The humanitarian policy of the Legislature to allow
workers’ compensation benefits for the undocumented worker is really no different than
these treaties.

{44} To be sure, until 1983 the Legislature had specifically denied relatives or dependents
of an undocumented worker any workers’ compensation benefits if the relatives and
dependents were not residents of the United States. NMSA 1978, § 52-1-52 (1953, as
recodified and amended through 1983). This legislative policy decision was the subject of
the Supreme Court’s opinion in Pedrazza v. Sid Fleming Contractor, Inc., 94 N.M. 59, 607
P.2d 597 (1980), superseded by statute in the case at issue in this appeal, Gonzalez v.
Performance Painting, Inc., 2011-NMCA-025, ¶ 15, 150 N.M. 306, 258 P.3d 1098, cert.

                                            12
granted, 2011-NMCERT-003, 150 N.M. 620, 264 P.3d 521. In Pedrazza, Salvador
Ontiveros was killed while working for Sid Fleming. Id. at 61, 607 P.2d at 599. The natural
mother of his children, Carmen Pedrazza, pursued a claim for workers’ compensation
benefits on behalf of their children, all of whom were residents of the Republic of Mexico.
Id. In 1980, workers’ compensation claims were litigated in district court. The district court
denied the claim, relying on the provisions of Section 52-1-52. 94 N.M. at 61, 607 P.2d at
599. Pedrazza appealed, challenging the constitutionality of Section 52-1-52 on due process
and equal protection grounds. 94 N.M. at 61, 607 P.2d at 599. A majority of the Supreme
Court upheld the constitutionality of Section 52-1-52, 94 N.M. at 62-63, 607 P.2d at 600-01,
and closed its opinion by stating:

       This opinion does not deny plaintiffs other avenues of recovery. The worker
       and his [or her] dependents are independent of and take separately from one
       another under the Act. Therefore, the bar against using other legal remedies
       to recover for the injury or death of a worker cannot be raised against those
       dependents not covered by the Act.

Id. at 63, 607 P.2d at 601. Implicit in this statement was that Pedrazza, or other dependents
of a deceased undocumented worker who do not reside in the United States, could pursue
a tort action against the employer, assuming that they could prove that the employer’s
negligence proximately caused the worker’s injury or death. The implication of an
alternative remedy appears to have been a key rationale for a majority of this Court to have
concluded that Section 52-1-52 did not deprive the dependents in Pedrazza of due process
or equal protection.

{45} Almost three years after Pedrazza, this Court was given the opportunity to expressly
hold what it had implicitly stated in Pedrazza. In Kent Nowlin Construction Co. v.
Gutierrez, 99 N.M. 389, 658 P.2d 1116 (1983), Bernardo Talamantes, an undocumented
worker, was killed while working for Kent Nowlin Construction Co. Id. at 389, 658 P.2d
at 1116. Nowlin’s workers’ compensation carrier paid the medical and funeral expenses for
Talamantes under the Workers’ Compensation Act, NMSA 1978, Chapter 52, Article 1.
Kent Nowlin Constr. Co., 99 N.M. at 389, 658 P.2d at 1116. Talamantes’s relatives or
dependents, who resided in the Republic of Mexico and were therefore not entitled to
worker’s compensation benefits, brought a wrongful death lawsuit against Nowlin. Id. A
jury returned a verdict in favor of Talamantes’s dependents. Id. The Court of Appeals
affirmed the jury verdict, relying on the Supreme Court’s opinion in Pedrazza, and
specifically the language quoted above. Gutierrez v. Kent Nowlin Constr. Co., 99 N.M. 394,
398, 403, 658 P.2d 1121, 1125, 1130 (Ct. App. 1981). This Court granted Nowlin’s petition
for writ of certiorari and reversed the Court of Appeals. Kent Nowlin Constr. Co., 99 N.M.
at 389, 658 P.2d at 1116.

{46} A majority of this Court set aside the tort verdict holding that the Workers’
Compensation Act provided the exclusive remedy for the Talamantes dependents, despite
the fact that they were not residents of the United States, and were therefore precluded from

                                             13
receiving any benefits under the Workers’ Compensation Act. Id. at 390-91, 658 P.2d at
1117-18. There simply was no remedy available to the Talamantes dependents under the
Workers’ Compensation Act, much less an exclusive remedy. Thus, the effect of this
Court’s majority opinion was to deprive the Talamantes dependents of any remedy for the
death of their loved one, despite a jury finding that Nowlin negligently took Talamantes’s
life.

{47} Perhaps it was purely coincidental, or perhaps as an effort to ameliorate the harshness
of the result in Nowlin, in 1984 the Legislature, almost as if to emphasize its policy decision
to make workers’ compensation benefits available to undocumented workers, amended
Section 52-1-52 to delete the language that deprived relatives or dependents who are not
residents of the United States from recovering workers’ compensation benefits when their
loved one is injured or killed while working in New Mexico. Compare 1983 N.M. Laws,
ch. 78, § 1, with 1984 N.M. Laws, ch. 95, § 1. This history supports the conclusion that the
Legislature definitively has made the policy decision to allow undocumented workers to
recover workers’ compensation benefits when they are injured or killed during the course
and scope of their employment with New Mexico employers. Although I question whether
any undocumented worker should ever be deprived of modifier benefits based solely on his
or her documented status, or for the reasons expressed in Justice Daniels’s special
concurrence, I believe that the opinion authored by Justice Bosson reasonably balances the
policy of the New Mexico Legislature to grant workers’ compensation benefits to
undocumented workers and their dependents with the Immigration Reform and Control Act
of 1986. I therefore concur.

                                               ____________________________________
                                               EDWARD L. CHÁVEZ, Justice

DANIELS, Justice, specially concurring.

{48} I concur in the ultimate holding of the majority, that Mr. Gonzalez is entitled to
statutory modifier benefits, but I write separately to express my concerns about our having
to create a new set of nonstatutory workers’ compensation rules especially for undocumented
workers.

{49} On its face, the plain language of Section 52-1-26(D) could not be more clear: A
worker who is injured on the job, whether undocumented or not, is due full disability
benefits until he actually returns to work earning at or above his pre-injury wage. See 1978
NMSA, § 52-1-26(D) (1990) (“If . . . 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 [modifications].” (emphasis
added)). Nothing in the statutory language or history makes an unaccepted job
offer—whether reasonable or illusory—a substitute for this textual requirement. See
Gonzales v. Sharp & Fellows Contracting Co., 51 N.M. 121, 126, 179 P.2d 762, 765 (1947)
(“We have said more than once that when the language of a statute is plain and unambiguous

                                              14
there is no occasion to resort to the rules of statutory construction, and that such statute must
be given its plain and obvious meaning.”); see also Sanchez v. Bernalillo County, 57 N.M.
217, 226, 257 P.2d 909, 915 (1953) (“As has been said many times, it is not the province of
the court, but of the legislature, to make changes in the provisions of statute law. Where the
lawmaking body has specified clearly who shall be entitled to compensation benefits and
under what circumstances, the court should not alter the conditions required to obtain such
benefits.”). On a straightforward plain language application of the statute, Mr. Gonzales was
entitled to his modifier benefits until he actually returned to work at his pre-injury wage.

{50} The reason we are having to create new rules to substitute for the statutory text has
its origins in Jeffrey v. Hays Plumbing & Heating, 118 N.M. 60, 64, 878 P.2d 1009, 1013
(Ct. App. 1994), which disregarded the plain language of Section 52-1-26(D) and instead
applied the historical principle 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.’” (quoting Feese v. U.S. West Serv. Link, Inc., 113 N.M. 92, 94, 823 P.2d 334,
336 (Ct. App. 1991), and citing Aranda v. Mississippi Chem. Corp., 93 N.M. 412, 414, 600
P.2d 1202, 1204 (Ct. App. 1979)). What Jeffrey failed to recognize was that only under the
earlier version of the disability provision—which, for more than twenty years, defined
disability based on the capacity to perform post-injury work—could the denial of benefits
be justified when a worker refused to work. See NMSA 1953, § 59-10-12.19 (1965)
(defining disability based on the “percentage-extent” of a worker’s inability “by reason of
injury arising out of . . . his employment . . . to perform any work for which he is fitted”);
accord Shores v. Charter Servs., Inc., 112 N.M. 431, 432, 816 P.2d 500, 501 (1991) (“[W]e
agree that the 1963 amendment in the workers’ compensation statute changed the test of
disability . . . to capacity to perform work, and that to recover under the statute the worker
had to show that she was wholly or partially unable to perform any work for which she was
fitted.”); see also Medina v. Zia, 88 N.M. 615, 616-17, 544 P.2d 1180, 1181-82 (Ct. App.
1975) (denying disability benefits, based on the statutory language of the benefits provision,
to a worker who chose not to work); Aranda v. Mississippi Chem. Corp., 93 N.M. 412, 414-
15, 600 P.2d 1202, 1204-05 (Ct. App. 1979) (applying Medina and holding that a worker
was entitled to disability because he did not voluntarily leave his employment); Feese, 113
N.M. at 94, 823 P.2d at 336 (Ct. App. 1991) (applying Aranda under the 1987 version of the
Act defining total disability in terms of the ability to return to work and holding that
retirement alone did not necessarily establish voluntarily taking oneself out of the labor
market).

{51} Jeffrey did not acknowledge the fact that recent amendments to the Act had
abandoned the capacity to work theory in favor of paying a worker for the permanent




                                               15
physical impairment suffered.2 See, e.g., Varela v. Ariz. Pub. Serv., 109 N.M. 306, 307-08,
784 P.2d 1049,1050-51 (1989) (recognizing the Legislature’s adoption of the current
definition for permanent partial disability in 1986 based on the American Medical
Association guides for physical impairment and that under this new definition, “partial
disability is measured purely by the loss of physical function; loss of wages or earning power
absolutely plays no part in the determination”); see also Madrid v. St. Joseph Hosp., 1996-
NMSC-064, ¶ 19, 122 N.M. 524, 928 P.2d 250 (explaining how the current disability
formula is used to calculate impairment and to “award proportional compensation” (internal
quotation marks and citation omitted)); Smith v. Ariz. Pub. Serv. Co., 2003-NMCA-097, ¶
15, 134 N.M. 202, 75 P.3d 418 (“Since the 1990 amendments to the Act, permanent
disability is expressly defined in terms of impairment. . . . Permanent partial disability is
calculated pursuant to a statutory formula and not in accordance with the worker’s ability
or inability to function at work.”).

{52} By improperly relying on an earlier interpretation of the Act that used now-repealed
language to encourage employment and discourage dependence on disability benefits, the
Jeffrey Court impermissibly perpetuated the conclusion 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. at 64, 878 P.2d at 1013.

{53} The WCA judge and the Court of Appeals in this case tried conscientiously to follow
the judge-made policies created from whole cloth in Jeffrey and its progeny by holding that
the worker had taken himself out of the legal job market by entering the country unlawfully.
In order for us to reverse the WCA and Court of Appeals without relying on the statute’s
plain language and acknowledging that the Jeffrey interpretation of the Act was wrong, we
now have to create a new set of rules and exceptions for undocumented workers—based on
new equitable concerns of compliance with federal law in a worker’s initial hiring, none of
which can be found anywhere in the plain language or expressed policies in the Act.
Granted, if one ignores the statutory text, our judicially created policies, exceptions, and
exceptions to exceptions seem like fair ways to deal with compensation for injured workers.
But judges are not legislators, and my discomfort arises from the reality that real legislators
have not made those decisions.

{54} On the other hand, the Legislature has not seen fit to amend the statute to address any
perception on its part that the judicial branch has been misinterpreting the statutory purpose
for almost two decades. It may well be that the Legislature believes we are on the right


       2
         Part of the difficulty in interpreting this provision is understanding its statutory
history, including the numerous amendments made in 1986, 1987, 1989, and 1990 and the
relevant caselaw interpreting these amendments. See 1965 N.M. Laws, ch. 295, §19; 1986
N.M. Laws, ch. 22, §§ 5, 12; 1987 N.M. Laws, ch. 235, § 12; 1989 N.M. Laws, ch. 263, §
18; and 1990 N.M. Laws 2nd Sess., ch. 2, § 11.

                                              16
track, and perhaps we should stay the course until we hear otherwise from our colleagues in
the legislative branch. The Jeffrey approach, rightly or wrongly, has become an integral part
of our workers’ compensation administrative law and jurisprudence. It is also significant
that no party has made a principled argument in this case for our disregarding the principles
of stare decisis and reversing long-standing precedent. See State v. Swick, 2012-NMSC-018,
¶ 17, 279 P.3d 747 (detailing factors that should be addressed by a litigant seeking to reverse
existing precedent). The Jeffrey line of precedent, including the majority Opinion in this
case, therefore remains the controlling interpretation of the statutory policies we honor in
applying the provisions of the Act.

                                               ____________________________________
                                               CHARLES W. DANIELS, Justice

Topic Index for Gonzalez v. Performance Painting, Inc., No. 32,844

CONSTITUTIONAL LAW
Equal Protection

FEDERAL LAW
Immigration
Preemption

STATUTES
Interpretation
Legislative Intent

WORKERS’ COMPENSATION
Aliens
Disability, General
Disability, Partial
Modification or Termination of Benefits
Workers’ Compensation, General




                                              17
