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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 LAWRENCE JARAMILLO,

 3          Worker-Appellee,

 4 v.                                                     NO. 34,528

 5 STATE OF NEW MEXICO DEPARMENT
 6 OF CORRECTIONS, and RISK MANAGEMENT
 7 DIVISION,

 8          Employer/Insurer-Appellants.

 9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
10 David L. Skinner, District Judge

11 Donald D. Vigil
12 Albuquerque, NM

13 for Appellee

14 Paul L. Civerolo L.L.P.
15 Paul L. Civerolo
16 Albuquerque, NM

17 for Appellants

18                                 MEMORANDUM OPINION

19 ZAMORA, Judge.

20   {1}    Employer appeals from the compensation order entered by the workers’

21 compensation judge (WCJ). We issued a calendar notice proposing to affirm.
 1 Employer has filed a memorandum in opposition. Worker has filed a memorandum

 2 in support. We affirm.

 3   {2}   Employer contends that the WCJ erred in concluding that Worker was entitled

 4 to modifier benefits because he did not voluntarily remove himself from the workforce

 5 when he was terminated from the Corrections Department based on allegations of

 6 sexual harassment. [DS 14] We conclude that the WCJ’s ruling was correct based on

 7 Hawkins v. McDonald’s, 2014-NMCA-048, 323 P.3d 932.

 8   {3}   In Hawkins, this Court held that termination of post-injury employment,

 9 whether or not for misconduct, does not render the worker ineligible for modified

10 permanent partial disability benefits: “[W]e do not agree . . . that the level of employee

11 misconduct plays any role in the calculation of benefits[.]” Id. ¶ 23. While benefits

12 may still be denied if a worker, “through voluntary conduct unconnected with his

13 injury, takes himself out of the labor market[,]” see id. ¶ 24 (internal quotation marks

14 and citation omitted), a worker’s misconduct at work and subsequent termination no

15 longer constitutes voluntarily removing one’s self from the labor market after

16 Hawkins. As such, contrary to Employer’s contention, it was not improper for the

17 WCJ to avoid a consideration of the merits of the sexual harassment claim, while at

18 the same time determining that Worker had not voluntarily removed himself from the

19 labor market. Employer’s attempt to distinguish Hawkins based on minor factual



                                               2
 1 differences is unpersuasive in light of the straightforward legal holding that

 2 misconduct is irrelevant to the modifier analysis. See id. ¶ 21.

 3   {4}   In addition, like the worker in Hawkins, see id. ¶ 25, the WCJ found that

 4 Worker’s employment history was in a specific job category, and his injury prevented

 5 him from meeting the requirements necessary to qualify for work in this field. [RP

 6 365, ¶¶ 20-23] As such, the WCJ determined that Worker did not voluntarily remove

 7 himself from the workforce. [RP 365, ¶ 21] We construe the WCJ’s findings to rely

 8 on evidence in the record [RP 256] that Worker had, in fact, made numerous attempts

 9 to find employment, but was unsuccessful. See Toynbee v. Mimbres Mem'l Nursing

10 Home, 1992-NMCA-057, ¶ 16, 114 N.M. 23, 833 P.2d 1204 (“On appeal, a reviewing

11 court liberally construes findings of fact adopted by the fact[-]finder in support of a

12 judgment, and such findings are sufficient if a fair consideration of all of them taken

13 together supports the judgment entered below.”).

14   {5}   As observed in Hawkins, modified benefits may be denied if “worker either (1)

15 accepts employment at or above his pre-injury wage, or (2) unreasonably refuses

16 offered employment at or above his pre-injury wage.” Id. ¶ 24. Because the first

17 ground was not at issue, and because the evidence as a whole supports a rejection of

18 the second ground, we conclude that the WCJ did not err in awarding modifier




                                              3
1 benefits. See Leonard v. Payday Prof'l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168

2 P.3d 177 (noting whole record review in workers’ compensation cases).

3   {6}   For the reasons set forth above, we affirm.

4   {7}   IT IS SO ORDERED.


5
6                                         M. MONICA ZAMORA, Judge

7 WE CONCUR:


8
9 MICHAEL E. VIGIL, Chief Judge


10
11 TIMOTHY L. GARCIA, Judge




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