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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: December 17, 2013

Docket No. 32,635

MICHELLE LYNN HAWKINS,

Worker-Appellee,

v.

MCDONALD’S and FOOD INDUSTRY

SELF INSURANCE FUND OF NEW MEXICO,

Employer/Insurer-Appellants.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION

Terry S. Kramer, Workers’ Compensation Judge

Titus and Murphy Law Firm

Victor A. Titus

Farmington, NM 

for Appellee

Maestas & Suggett, P.C.

Paul Maestas

Albuquerque, NM 

for Appellants

OPINION

VANZI, Judge.

{1} McDonald’s (Employer) appeals from a compensation order entered pursuant to the

Workers’ Compensation Act (the WCA), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended

through 2013). Employer contends the Workers’ Compensation Judge (WCJ) erred in

concluding that Michelle Hawkins (Worker) was entitled to temporary total disability (TTD)

and permanent partial disability (PPD) benefits after her termination for cause. We hold that

termination of post-injury employment, whether or not for misconduct, does not affect an
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employee’s right to recover TTD benefits under Section 52-1-25.1(B). Further, we hold that,

under the facts of this case, Worker may continue to receive that portion of her PPD benefits

attributed to physical impairment, as well as those benefits enhanced by the statutory

modifiers of Section 52-1-26(C). Accordingly, we affirm the WCJ’s award, although we do

so on different grounds.

BACKGROUND

{2} The parties do not dispute the essential facts. Worker was employed as a shift

manager by Employer prior to and on May 26, 2011. Worker suffered an accident arising out

of and in the course of her employment on May 26, 2011, wherein she injured her low back.

Worker was released to return to work with a twenty-pound lifting limitation on May 27,

2011, and again on May 31, 2011. Employer offered and provided Worker a light/modified

duty job as a shift manager that paid Worker a wage equal to or greater than her pre-injury

wage of $8.50 per hour. She worked in that modified capacity for approximately four weeks

until she was terminated from employment on July 13, 2011. The reasons for Worker’s

termination follow.

{3} Employer had a zero-tolerance policy in place prohibiting sexual harassment. The

policy required shift managers to immediately notify certain named supervisors if the shift

manager was made aware of an incident of sexual harassment. It was not the shift manager’s

responsibility to investigate any reports of sexual harassment or to determine the validity of

the accusation.

{4} Sometime in May 2011, Worker’s son and a friend were visiting Worker’s home. The

son’s friend was also employed by Employer. While they were having dinner, the employee

reported that she had received a sexually inappropriate message from Employer’s store

manager. Worker did not witness the alleged sexual harassment, nor did she see the allegedly

offending text message. Further, it was Worker’s opinion that, based upon her knowledge

and prior experiences with the employee, the employee was not particularly trustworthy or

credible. As a result, Worker did not report to Employer representatives the

allegation—made at her home—of sexual harassment as required by the policy. Employer

subsequently became aware of the alleged sexual harassment through other sources and

performed an investigation. Employer terminated Worker’s employment on July 13, 2011,

for failing to report the information made available to her.

{5} On September 28, 2011, Worker filed a complaint seeking to recover TTD or

temporary partial disability benefits accrued after her termination on July 13, 2011, as a

result of the May 26, 2011 injury she sustained in the workplace accident. Worker’s lowback injury reached maximum medical improvement (MMI) on January 11, 2012, at which

point she was assigned a two percent whole-person impairment as a result of the injury.

During the course of the proceedings, she subsequently also sought the modifier portion of

any PPD benefits that she may have been entitled to after reaching MMI.
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{6} Following a trial, the WCJ issued a compensation order finding that Worker’s

termination did not disqualify her from receiving TTD benefits prior to reaching MMI and

PPD benefits subsequent to reaching MMI. The WCJ found that Employer was acting within

its authority when it terminated Worker for violating company policy. However, the WCJ

stated, “Not every action giving rise to termination of employment is of a nature or character

or quality sufficient to warrant a denial of indemnity benefits” and that, therefore, Employer

could not avoid paying benefits to Worker in this case. Based upon her average weekly wage

of $275.61, the WCJ awarded Worker TTD benefits at a compensation rate of $183.74 from

July 14, 2011 to January 11, 2012. The WCJ also concluded that Worker was entitled to PPD

benefits at “eleven percent . . . of her compensation rate commencing on January 11, 2012[,]

and continuing until conclusion of the benefit period or until further order.” The PPD

benefits included, among other things, the two percent permanent physical impairment, plus

additional modifier benefits based upon Worker’s age, education, and physical capacity.

Finally, the WCJ determined that Worker was entitled to ongoing reasonable and necessary

medical benefits and attorney fees. This appeal followed.

DISCUSSION

Standard of Review

{7} The issues on appeal concern the scope of Section 51-1-25.1(B) of the WCA, which

defines when a worker is entitled to TTD benefits prior to reaching MMI, and Section 52-1-

26(D) of the WCA, which defines when a worker is entitled to PPD benefits after reaching

MMI. We must decide whether, and to what extent, a worker’s termination from post-injury

employment serves to disqualify that worker from receiving either or both of these benefits.

{8} We review workers’ compensation cases under a whole record standard of review.

Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926. We

review statutory interpretation de novo. Kahrs v. Sanchez, 1998-NMCA-037, ¶ 11, 125 N.M.

1, 956 P.2d 132. When construing a statute, “our guiding principle is to determine and give

effect to legislative intent.” N.M. Indus. Energy Consumers v. N.M. Pub. Regulation

Comm’n, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105. “[T]he plain language of a

statute is the primary indicator of legislative intent. Courts are to give the words used in the

statute their ordinary meaning unless the [L]egislature indicates a different intent.” Johnson

v. N.M. Oil Conservation Comm’n, 1999-NMSC-021, ¶ 27, 127 N.M. 120, 978 P.2d 327

(internal quotation marks and citations omitted). However, we also recognize that the

“beguiling simplicity [of the plain meaning rule] may mask a host of reasons why a statute,

apparently clear and unambiguous on its face, may for one reason or another give rise to

legitimate (i.e., nonfrivolous) differences of opinion concerning the statute’s meaning.” State

ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352; see

Draper v. Mountain States Mut. Cas. Co., 1994-NMSC-002, ¶ 4, 116 N.M. 775, 867 P.2d

1157 (explaining that the intention of the Legislature will prevail over the strict meaning of

the literal language). Accordingly, “[w]e should not attribute to the [L]egislature an undue

precision in drafting and thereby frustrate legislative intent when we construe a statute.”
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Jeffrey v. Hays Plumbing & Heating, 1994-NMCA-071, ¶ 10, 118 N.M. 60, 878 P.2d 1009.

We reiterate that “our task is not to apply language literally when it would lead to

counterproductive, inconsistent, and absurd results; we must harmonize the statutory

language to achieve the overall legislative purpose.” Eldridge v. Circle K Corp., 1997-

NMCA-022, ¶ 29, 123 N.M. 145, 934 P.2d 1074.

A Worker’s Termination From Employment Does Not Limit Her Entitlement to TTD

Benefits Under Section 52-1-25.1(B)

{9} Section 52-1-25.1 of the WCA limits the payment of TTD benefits to an injured

worker prior to the date of MMI in only two circumstances. First, if the worker is released

to return to work and the employer offers work at the worker’s pre-injury wage, or if the

worker accepts employment elsewhere at the worker’s pre-injury wage, then “the worker is

not entitled to [TTD] benefits.” Section 52-1-25.1(B). Second, if the worker is released to

work and the employer offers work at less than the worker’s pre-injury wage, the worker is

entitled to two-thirds of the difference between the pre-injury wage and the post-injury wage.

Section 52-1-25.1(C).

{10} Employer argues that it “complied” with the provisions of Section 52-1-25.1(B)

when it offered and provided Worker a light/modified duty job after her May 26, 2011

accident at her pre-injury wage. Employer further contends that once it satisfied the

requirements of Section 52-1-25.1(B), and Worker was then terminated for violating its

sexual harassment policy—a reason unrelated to her injury—Worker was no longer entitled

to TTD benefits.

{11} The statute does not explicitly address whether an employee is entitled to benefits

in a situation where she has been offered employment at her pre-injury wage and has been

subsequently terminated, whether for misconduct or otherwise. The reading Employer

advocates is technically consistent with the plain language of Section 52-1-25.1(B); the

statute clearly says that once an employer has offered a worker a job at her pre-injury rate,

the worker is “not entitled to [TTD] benefits.” This reading, however, is wholly inconsistent

with the policy and purpose of the WCA, and would necessarily lead to absurd and unjust

results, for it would require this Court to conclude that any employee who is terminated can

no longer receive benefits, regardless of the reason for the discharge. Accordingly, we must

reject it. We explain.

{12} The WCA was created to offset the lost wages of a worker injured by a work-related

accident, while promoting a policy in which workers would not become dependent on state

welfare programs. See Casias v. Zia Co., 1979-NMCA-068, ¶ 4, 93 N.M. 78, 596 P.2d 521.

Put simply, the WCA seeks to ensure that an employee is adequately compensated for

income lost due to an injury, thereby enabling her to provide the necessities of life for herself

and her dependents. We recognize that the WCA is a delicate balance between the rights and

interests of the worker and the employer, see NMSA, 1978, § 52-5-1 (1990), and that “any

judicial analysis under the [WCA] must balance equally the interests of the worker and the
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We note, for example, that unlike the WCA, the Unemployment Compensation Act

specifically disqualifies an individual for benefits if it is determined that the individual has

been discharged for misconduct connected with the individual’s employment. NMSA 1978,

§ 51-1-7(A)(2) (2011). 

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employer without showing bias or favoritism toward either.” Salazar v. Torres, 2007-

NMSC-019, ¶ 10, 141 N.M. 559, 158 P.3d 449. However, without further legislative

guidance, if this policy is to be effectuated, income benefits such as TTD cannot be

conditioned on an injured employee’s termination—for whatever reason. We believe that

this is the type of case in which the literal application of the statutory language would

frustrate rather than advance the Legislature’s intent.

{13} The application of Section 52-1-25.1(B)’s denial of TTD benefits makes sense when

applied to an injured worker who returns to work at her full pre-injury wage. TTD benefits

are not available in that situation because the worker, although still injured, is not suffering

any lost wages. It makes no sense, however, when applied to an injured worker who has been

discharged and is not receiving any compensation whatsoever. If it is the public policy of

New Mexico that injured employees should receive payment for medical expenses and a

portion of lost wages—and it is—then an employer action that prevents the employee from

asserting her statutory right to compensation violates that policy, particularly when the

Legislature has not spoken on the issue.1

{14} Further, such an interpretation would allow employers to create a job accommodating

the restrictions placed on an injured employee, pay the employee her pre-injury wage and

then fire that employee, for any reason or no reason, thereby avoiding the obligation to pay

benefits. No other statutory provision in the WCA serves to cut off a worker’s benefits if she

is terminated, and such an anomaly cannot be justified here. Even a worker who is injured

on the job as a result of intoxication or drug use—unless proved to be willful or intentional

conduct—only has his compensation reduced by ten percent. See §§ 52-1-11; 52-1-12; 52-1-

12.1. Thus, to read Section 52-1-25.1(B) to allow the result urged by Employer would be too

narrow a reading that would altogether thwart the WCA’s purpose and operation. While we

recognize that, conversely, an injured employee could intentionally violate company policy

in order to get fired and yet be entitled to full TTD benefits, we are bound to construe

Section 52-1-25.1(B) in favor of providing compensation to an injured worker absent clear

statutory language to the contrary. It is not our place to insert language into the WCA that

does not exist. That task falls to the Legislature alone.

{15} Our case law, moreover, has required employers to pay benefits to workers who have

been fired for misconduct in other factual circumstances. For example, in Ortiz v. BTU Block

& Concrete Co., 1996-NMCA-097, ¶ 2, 122 N.M. 381, 925 P.2d 1, the worker was

repeatedly reprimanded for failing to obey instructions and for other deficiencies in her job

performance. The “last straw” was an accident, for which the worker sought workers’

compensation benefits. Id. We held that the worker was entitled to full TTD benefits because
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her employer never extended an offer of employment under either Section 52-1-25.1(B) or

(C). Ortiz, 1996-NMCA-097, ¶¶ 8, 13, 14. Subsequently, in Lackey v. Darrell Julian

Construction, 1998-NMCA-121, ¶¶ 2, 19, 24, 125 N.M. 592, 964 P.2d 153, we held that the

worker, who returned to work on light duty at less than his pre-injury wage after suffering

two work-related accidents and was later fired for drinking beer on the job, was entitled to

continue to get TTD benefits after his discharge until such time he was taken off work by his

doctor.

{16} We cannot countenance a statutory interpretation that requires an employer to pay

benefits to a worker who has been terminated under the circumstances in Ortiz and Lackey

and that yet allows the employer to escape that obligation simply by offering work at the

worker’s pre-injury wage before she is terminated. Under such an interpretation, every

injured employee who is terminated from employment would continue to receive

compensation benefits except the employee who was offered a job at her pre-injury wage.

Such a result cannot be harmonized with the WCA’s purpose and cannot be what the

Legislature intended. See Eldridge, 1997-NMCA-022, ¶ 29.

{17} The more difficult question to answer is the amount of TTD benefits due a worker

who was making a pre-injury wage under Section 52-1-25.1(B) and who has been

terminated. Again, the statute is silent. We are left with two choices—either the employee

receives full TTD benefits or none at all. Because there is no principled basis upon which

to deny wage loss benefits in whole or in part, we conclude that a terminated employee is

entitled to her full TTD benefits. Accordingly, the WCJ in this case properly awarded

Worker her compensation rate provided by the statute and without any disqualification or

reduction as a result of the termination.

{18} Employer’s reliance on Lackey is unavailing, and we reject its characterization of that

decision. Lackey did not hold that a worker who was fired for reasons unrelated to his

disability “was not entitled to TTD benefits after his termination and before he was

completely taken off of work by his treating physician because the employer complied with

the provisions of Section 52-1-25.1.” Instead, Lackey held that an employer who offered

post-injury wages to the worker at less than his pre-injury wages was liable for reduced TTD

benefits under Section 52-1-25.1(C) between the date of the worker’s termination and his

doctor’s requiring him to stop working. Lackey, 1998-NMCA-121, ¶¶ 18-19. Nevertheless,

we acknowledge our statement in Lackey that if the employer there “wanted to totally avoid

liability for disability benefits in the event [the w]orker was fired, it should have rehired him

at his pre-injury wage.” 1998-NMCA-121, ¶ 20. However, that statement is dicta and far too

slender a reed to support a result that is, as we have explained, counterproductive, absurd,

and inconsistent with Legislative intent, public policy, and prior case law interpreting the

WCA.

{19} We hold that an employer’s obligation to pay TTD benefits to an injured employee

does not cease because the employee has been terminated—whether or not the termination

was for cause. When an injured employee has been discharged by her employer, the
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determinative inquiry for deciding entitlement to TTD benefits remains whether the worker’s

condition has stabilized. If the injured employee is able to show that she continues to be

temporarily totally disabled as a result of her work-related injury, she is entitled to TTD

benefits. Here, the WCJ found that even after her termination, Worker continued to be

temporarily totally disabled as a result of the May 26, 2011 accident, and that she had a

compensation rate of $183.74. We affirm the award of TTD benefits at Worker’s

compensation rate from July 14, 2011, to January 11, 2012.

A Worker’s Termination From Employment Does Not Necessarily Preclude Her From

Obtaining the Modifier Portion of PPD Benefits Under Section 52-1-26(C) and Sections

52-1-26.1 to -26.4

{20} Once an injured worker reaches MMI, a different statutory provision of the WCA

takes effect. Under Section 52-1-26(B), a worker may be eligible for PPD benefits if the

worker has suffered a “permanent impairment.” The impairment constitutes the base value

for the disability benefit award. Section 52-1-26.1(A). In addition to receiving PPD benefits

equal to the worker’s impairment, an injured worker’s benefits are also subject to increase

by modification of that impairment rating based on the worker’s age, education, job skills,

and residual physical capacity. Section 52-1-26(C); see §§ 52-1-26.2 to -26.4 (setting forth

methods of calculation of modifications). A worker’s PPD benefits are not, however, subject

to such modification increases if the worker returns to work at or above his pre-injury wage.

Section 52-1-26(D).

{21} As it argued with respect to the payment of TTD benefits, Employer contends that

its termination of Worker for misconduct also renders her ineligible for post-MMI modified

benefits. We disagree.

{22} Worker’s claim for post-MMI PPD benefits arose seven months after her termination

and, therefore, her eligibility for these benefits requires consideration of the facts at the time

she reached MMI. It is undisputed that Employer did not make Worker any post-MMI offer

of employment. After her termination on July 13, 2011, and before reaching MMI, Worker

was unemployed for about a month and then got a job at Blake’s Lotaburger. She worked

there for a few months but ultimately left because of too much pain in her back. Worker then

worked for a home healthcare facility for a few months. By the time she reached MMI on

January 11, 2012, Worker was not employed. She continued to have the twenty-pound lifting

restriction after reaching MMI, which placed her in a light duty capacity. Although she has

not applied for any work since January 11, 2012, Worker started taking classes at the

University of Phoenix in May 2012 in order to better herself and get an education so that she

could eventually get a job.

{23} The WCJ concluded that Worker’s nonaction in failing to report the allegation of

sexual harassment did not rise to the level of employee misconduct so as to warrant a

forfeiture of PPD benefits with the statutory modifiers. While we do not agree with the WCJ

that the level of employee misconduct plays any role in the calculation of benefits, we
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nevertheless affirm the award of modifier-based PPD benefits under the right for any reason

doctrine. See State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d 684 (“Under

the right for any reason doctrine, we may affirm the district court’s order on grounds not

relied upon by the district court if those grounds do not require us to look beyond the factual

allegations that were raised and considered below.” (internal quotation marks and citation

omitted)).

{24} The issue of whether a discharged worker is eligible for the statutory-based modifier

adjustment has not been squarely decided in New Mexico. However, we glean some

guidance from our decisions in Jeffrey, Connick v. County of Bernalillo, 1998-NMCA-060,

125 N.M. 119, 957 P.2d 1153, and most recently, Cordova v. KSL-Union, 2012-NMCA-083,

285 P.3d 686, cert. denied, 2012-NMCERT-007, 295 P.3d 599. All of these cases have

reiterated that Section 52-1-26(D) relieves an employer of the liability to pay modifier-based

PPD benefits if the worker either (1) accepts employment at or above his pre-injury wage,

or (2) unreasonably refuses offered employment at or above his pre-injury wage. Cordova,

2012-NMCA-083, ¶ 13; Connick, 1998-NMCA-060, ¶ 8; Jeffrey, 1994-NMCA-071, ¶¶ 14-

15. Thus, PPD benefits are denied if a worker, “through voluntary conduct unconnected with

his injury, takes himself out of the labor market.” Jeffrey, 1994-NMCA-071, ¶ 12 (internal

quotation marks and citation omitted). More specifically, PPD benefits may be denied when

a partially disabled worker “has made no bona fide effort to obtain suitable work when such

work is available.” Id. (internal quotation marks and citation omitted). With these principles

in mind, we turn to consider whether Worker here voluntarily and unreasonably remained

unemployed or underemployed.

{25} Worker’s sole “occupation” for the ten years prior to her injury had been in the fast

food restaurant business. All of those previous jobs were similar to the work she did at

McDonald’s and Blake’s Lotaburger. Worker knew of no permanent job at a fast food

restaurant that could be done with a twenty-pound lifting restriction. Given that Worker

continues to be injured and has lifting restrictions, we cannot say that Worker’s decision not

to seek employment at a fast food restaurant and to further her education means she is

voluntarily unemployed or that she refuses “to take reasonable steps to help [her]self.” See

Jeffrey, 1994-NMCA-071, ¶ 14 (noting that a worker should not be permitted to benefit by

voluntarily remaining unemployed or underemployed). In fact, Worker’s decision to acquire

skills that will make her employable in the future is in accordance with the policy expressed

in Section 52-1-26(A), which is to provide workers the “opportunity to return to gainful

employment as soon as possible with minimal dependence on compensation awards.”

Importantly, we note that Employer here does not challenge the reasonableness of Worker’s

post-termination unemployment and has made no showing that Worker made no effort to

obtain suitable work when such work is available. Consequently, we affirm the decision to

award PPD benefits based on Worker’s physical impairment along with the statutory-based

modifier benefits.

CONCLUSION
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{26} For the reasons set forth above, we affirm the compensation order entered by the

WCJ.

{27} IT IS SO ORDERED.

____________________________________

LINDA M. VANZI, Judge

WE CONCUR:

____________________________________

MICHAEL D. BUSTAMANTE, Judge

____________________________________

CYNTHIA A. FRY, Judge