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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: January 24, 2022

No. A-1-CA-38052

ANA LILIA CARDENAS,

Worker-Appellant,

v.

AZTEC MUNICIPAL SCHOOLS

and CCMSI,

Employer/Insurer-Appellees.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION

Reginald C. Woodard, Hearing Officer

Titus & Murphy Law Firm

Victor A. Titus

Farmington, NM

for Appellant

Allen, Shepherd, Lewis & Syra, P.A.

Joshua A. Collins

Katrina Bagley Brown

Albuquerque, NM

for Appellees
OPINION

YOHALEM, Judge.

{1} This is an appeal by Ana Lilia Cardenas (Worker) from the order of a 

Workers’ Compensation Judge (WCJ) limiting the duration of her disability benefits 

for a secondary mental impairment to 150 weeks, the period fixed by the Workers’ 

Compensation Act (the Act) for compensation for the primary scheduled physical 

injury to her knee. Worker argues that the limit imposed by NMSA 1978, Section 

52-1-41(C) (2015), on the duration of total disability benefits, and NMSA 1978, 

Section 52-1-42(A)(4) (2015) on the duration of partial disability benefits, for a 

secondary mental impairment,

1

limits not imposed on disability benefits for workers 

with a secondary physical impairment,2 violate the Equal Protection Clause of both 

the New Mexico and the United States Constitutions. In this case, Worker would be 

 

1A “ ‘secondary mental impairment’ means a mental illness resulting from a 

physical impairment caused by an accidental injury arising out of and in the course 

of employment.” NMSA 1978, § 52-1-24(C) (1990).

2We refer to physical disabilities, which like secondary mental disabilities, are 

“caused by an accidental injury arising out of and in the course of employment[,]” 

id., as “secondary physical impairments.” Although not labeling them as 

“secondary” impairments, see § 52-1-24(A), the Act nonetheless recognizes and 

compensates physical impairments that result from and are caused by a compensable 

work-related accidental injury. See Baca v. Complete Drywall Co., 2002-NMCA002, ¶ 16, 131 N.M. 413, 38 P.3d 181 (distinguishing between a work-related sudden 

accidental injury and a subsequent injury to another body part that is compensable 

if “the resulting disability is causally connected [or secondary] to the original 

accidental injury”).
2

entitled to a maximum of 500 weeks of permanent partial disability compensation, 

under Section 52-1-42(A)(2), if her secondary impairment had been a physical 

impairment. Instead, she was awarded 150 weeks of compensation solely because 

her secondary impairment was a mental impairment.

{2} We agree with Worker that the Act discriminates between secondary mental 

impairments and secondary physical impairments, in violation of the Equal 

Protection Clause of the New Mexico Constitution. N.M. Const. art. II, § 18. 

Because this decision affords Worker the relief she seeks, we do not reach Worker’s 

claim of discrimination between the Act’s treatment of primary and secondary 

mental impairments, nor do we address Worker’s claim under the United States 

Constitution.

BACKGROUND

{3} The facts in this case are undisputed. Worker, a special education teacher, 

sustained a knee injury in a January 2016 workplace accident. Worker later filed a 

workers’ compensation claim for both her primary knee injury and for a secondary 

mental impairment she alleged resulted from and was caused by the original injury 

to her knee. An independent psychological evaluation was conducted. The 

evaluating psychologist concluded, to a reasonable psychological probability, that 

Worker’s psychological impairment was “causally related” to the workplace injury
3

to Worker’s knee and that Worker was 15 percent disabled by her psychological 

impairment. 

{4} Employer Aztec Municipal Schools does not dispute that Worker’s knee 

injury was caused by a work-related accident or that Worker’s secondary mental 

impairment was caused by her work-related physical injury. The parties also agree 

that a knee injury, a scheduled injury listed in NMSA 1978, Section 52-1-43(A)(30)

(2003), has a statutory compensation period of 150 weeks.

{5} The dispute between the parties concerns the length of time Worker will 

receive compensation benefits for her secondary mental impairment. Pursuant to 

Section 52-1-42(A)(4), the duration of partial disability benefits for a secondary 

mental impairment is limited to the number of weeks allowable for the worker’s 

original physical injury. When the original physical injury is to a scheduled body 

part, the worker is limited to the duration of benefits listed in Section 52-1-43 for an 

injury to that body part. The number of weeks a worker will be paid for a scheduled 

injury ranges from 7 to 200 weeks, depending solely on the body part originally 

injured.

3

In contrast, where the secondary impairment is a physical impairment the 

 

3For example, if the original injury is to a distal joint of a finger, the schedule 

provides 7 weeks of partial disability benefits for a secondary mental impairment 

resulting from and caused by that injury. Section 52-1-43(A)(27). A secondary 

mental impairment resulting from and caused by an arm injury near the shoulder 

would qualify for 200 weeks of partial disability benefits. Section 52-1-43(A)(1).
4

duration of partial disability benefits depends on the “nature and extent” of the 

secondary physical injury. Sections 52-1-41(C), -42(A).

{6} Worker contends that capping the duration of benefits for a secondary mental 

impairment resulting from a scheduled physical injury, when a secondary physical 

impairment resulting from a scheduled physical injury is not similarly capped,

violates our Constitution’s equal protection guarantee because it treats workers with 

secondary mental impairments differently than similarly situated workers with 

secondary physical impairments. Worker points out that if her secondary mental 

impairment was treated the same as an unscheduled secondary physical impairment, 

she would be entitled to up to 500 weeks of partial disability benefits, rather than the 

150 weeks she was awarded.

DISCUSSION

{7} The equal protection clauses of both the United States and New Mexico 

Constitutions require the government to treat similarly situated persons the same, 

“absent a sufficient reason to justify the disparate treatment.” Wagner v. AGW 

Consultants, 2005-NMSC-016, ¶ 21, 137 N.M. 734, 114 P.3d 1050. In Breen v. 

Carlsbad Municipal Schools, our Supreme Court held that earlier versions of the 

same sections of the Act that are challenged in this case, Section 52-1-41(B) (1999) 

and Section 52-1-42 (1990), violated the Equal Protection Clause of the New Mexico 

Constitution by treating workers with a mental impairment differently, and less 
5

favorably, than similarly situated workers with a physical impairment. 2005-NMSC028, ¶¶ 1, 50, 138 N.M. 331, 120 P.3d 413. 

{8} Our Supreme Court in Breen, and later in Rodriguez v. Brand West Dairy, 

2016-NMSC-029, 378 P.3d 13, defined three steps necessary to determine whether 

a worker’s equal protection rights under our state Constitution’s Equal Protection 

Clause are violated by the provisions of the Act. The worker “must first prove that 

they are similarly situated to another group but are treated dissimilarly” by a 

legislative classification. Breen, 2005-NMSC-028, ¶ 8. Second, if the worker proves

that the two groups are similarly situated, and yet are treated differently by the Act, 

then this Court “must determine what level of scrutiny should be applied to the 

legislation they are challenging.” Id. The level of scrutiny depends on the nature of 

the rights the legislation protects or the status of the group of people it affects. Id. 

The Court held in Breen that workers with mental impairments or mental disabilities 

are a “sensitive class” requiring intermediate scrutiny. Id. ¶ 28. Third, where 

intermediate scrutiny applies, the burden then shifts to the employer to show that the 

Act’s different treatment of two equivalent groups is “substantially related to an 

important government interest.” Id. ¶ 13 (internal quotation marks and citations 

omitted). 

{9} Although Breen guides our analysis, we cannot assume, without engaging in 

a careful analysis of the challenged provisions of the Act, that these statutory 
6

provisions violate equal protection. We apply a standard of review deferential to our 

Legislature when reviewing the constitutionality of legislation. See Rodriguez v. 

Scotts Landscaping, 2008-NMCA-046, ¶ 8, 143 N.M. 726, 181 P.3d 718. During 

that review, we will not “question the wisdom, policy, or justness of legislation 

enacted by our Legislature[,]” and will begin by presuming that the legislation is 

constitutional. Madrid v. St. Joseph Hosp., 1996-NMSC-064, ¶ 10, 122 N.M. 524, 

928 P.2d 250. “A statute will not be declared unconstitutional unless the court is 

satisfied beyond all reasonable doubt that the legislature went outside the 

constitution in enacting the challenged legislation.” Benavides v. E. N.M. Med. Ctr., 

2014-NMSC-037, ¶ 43, 338 P.3d 1265 (internal quotation marks and citation 

omitted).

{10} Our careful review of the Breen factors follows. 

I. Workers With a Secondary Mental Impairment Are Treated Differently 

Than Similarly Situated Workers With a Secondary Physical 

Impairment

{11} As Employer and Worker both acknowledge, the “threshold question in 

analyzing all equal protection challenges is whether the legislation creates a class of 

similarly situated individuals who are treated dissimilarly.” Breen, 2005-NMSC028, ¶ 10. Breen held that workers with a primary mental impairment are similarly 
7

situated to workers with a primary physical impairment.4Id. With that in mind, we 

begin our inquiry by examining Worker’s claim that workers with “secondary 

mental impairments” are similarly situated to workers with physical impairments

that are secondary to, and a “natural and direct result” of a work-related accidental 

injury. NMSA 1978, § 52-1-28(A) (1987). Concluding that these groups are 

similarly situated, we next address whether they are treated differently by the Act in 

Section 52-1-28(B).

A. Injured Workers With a Secondary Mental Impairment Are Similarly 

Situated to Injured Workers With a Secondary Physical Impairment

With Respect to the Objectives of the Act

{12} In deciding whether individuals are similarly situated, our Supreme Court 

instructs us to “look beyond the classification to the purposes of the law.” Rodriguez, 

2016-NMSC-029, ¶ 11 (internal quotation marks and citation omitted). The Equal 

Protection Clause does not allow a statute to divide persons “ ‘into different classes 

on the basis of criteria wholly unrelated to the objective of that statute.’ ” Id. (quoting 

Stanton v. Stanton, 421 U.S. 7, 13-14 (1975)). Only classifications serving the 

purposes of the statute are permitted. See id. 

 

4The Breen Court identified two classifications adopted by the Legislature: 

“totally impaired” and “partially impaired,” and held that all partially impaired 

workers are similarly situated, regardless of whether their impairment was a primary 

physical or primary mental impairment, and that all totally impaired workers are 

similarly situated, regardless of whether their impairment is a primary physical or a 

primary mental impairment.
8

{13} We look first to the purposes of the statute. The Act’s intention has been 

described as “to provide a humanitarian and economical system of compensation for 

injured work[ers].” Breen, 2005-NMSC-028, ¶ 36 (internal quotation marks and 

citation omitted). The main goal of the Act is “to compensate a worker for lost 

earning capacity.” Id. ¶ 37. 

{14} The Act imposes three criteria, which must be met to qualify for 

compensation: (1) “the worker has sustained an accidental injury arising out of and 

in the course of his [or her] employment”; (2) “the accident was reasonably incident 

to his [or her] employment”; and (3) “the disability is a natural and direct result of 

the accident.” Section 52-1-28(A). Pursuant to this provision, the Act treats as 

compensable both “disability arising immediately from a work-related accident and 

[. . .] disability that develops later as a result of the normal activities of life.” Aragon 

v. State Corr. Dep’t, 1991-NMCA-109, ¶ 8, 113 N.M. 176, 824 P.2d 316. The 

worker need only show that the later-arising disability is causally connected to the 

original accidental injury. See Baca, 2002-NMCA-002, ¶ 16, 131 N.M. 413, 38 P.3d 

181. As this Court has explained in construing Section 52-1-28, the Act’s purpose is 

to provide compensation for “the disability caused by the accident—not the accident 

itself[.]” Baca, 2002-NMCA-002, ¶ 15. Secondary physical disabilities shown to be 

caused by the original accident are, therefore, compensable under the Act. See id.
9

{15} “[S]econdary mental impairment” is defined by the Act as “a mental illness 

resulting from a physical impairment caused by an accidental injury arising out of 

and in the course of employment.” Section 52-1-24(C). In other words, a secondary 

mental impairment is a mental illness caused by an accidental work-related injury. 

Section 52-1-24(A) includes secondary mental impairment as a compensable 

impairment under the Act. See id. (“Impairment includes physical impairment, 

primary mental impairment and secondary mental impairment[.]”). It is undisputed 

that Worker qualifies for disability benefits based on a “secondary mental 

impairment” resulting from the pain and disability caused by her work-related 

accidental injury to her knee.

{16} We see no difference related to the purposes of the Act between workers with 

subsequently arising secondary physical disabilities that are causally connected to a 

compensable work-related accidental injury, and workers with “secondary mental 

impairments,” as defined by the Act. The workers in both groups have become 

secondarily impaired as the result of an original work-related accidental injury and 

both groups have lost earnings as the result of their secondary disability. They are 

thus similarly situated with regard to the Act’s purpose: to provide workers 

compensation for earning capacity lost or diminished due to a disability caused by 

and resulting from a work-related accidental injury. See Breen, 2005-NMSC-028,

¶ 37.
10

{17} Employer contends on appeal that “differently injured workers are not 

similarly situated.” This contention, however, is plainly at odds with our Supreme 

Court’s decision in Breen, which held that workers with primary mental impairments 

and workers with primary physical impairments are similarly situated classifications 

for the statutory purposes of compensating workers for either a total or partial loss 

of earning capacity due to a work-related accidental injury. Id. ¶ 10. As our Supreme 

Court explained in Breen, differences in the type of injury or its cause fade in 

importance “once a worker has been determined to have suffered a compensable 

disability.” Id. ¶ 37. There is no dispute in this case that Worker’s secondary mental 

impairment is a compensable disability covered by the Act. See § 52-1-24(A), (C) 

(defining a secondary mental impairment as a compensable impairment).

{18} We, therefore, conclude that workers with secondary mental impairments are 

similarly situated to workers with secondary physical impairments. 

B. Workers With Secondary Mental Impairments Are Treated Differently 

Than Workers With Secondary Physical Impairments

{19} Having determined that workers with secondary mental impairments are 

similarly situated to workers with secondary physical impairments, we now 

determine whether the Act treats these two classifications of workers differently.

{20} The provisions of the Act challenged by Worker, Sections 

52-1-41(C), -42(A)(4), limit the period of compensation for a secondary mental 
11

impairment to the “maximum period allowable for the disability produced by the 

[original] physical impairment.”5 Where the original physical impairment arises 

from an injury to a body part listed in Section 52-1-43 (a scheduled injury), this 

means that the duration of benefits for the secondary mental impairment, regardless 

of the actual extent of disability, is capped at a maximum of between 7 and 200 

weeks, depending on the body part originally injured. For Worker, whose original 

injury was to her knee—a body part listed on the schedule—benefits are capped at 

150 weeks. Section 52-1-43(A)(30).

{21} In contrast, the duration of benefits for a secondary physical impairment is 

based on the nature and severity of the secondary impairment itself, not on the body 

part originally injured, and not on the severity of the original injury. Compare 

§ 52-1-42(A)(1)-(2), with (A)(4). If the secondary impairment is an unscheduled, 

whole body impairment,6total disability benefits continue for the worker’s lifetime,

 

5Sections 52-1-41(C) and -42(A)(4) state identically: “For disability resulting 

in secondary mental impairment, the maximum period of compensation is the 

maximum period allowable for the disability produced by the physical impairment, 

as set forth in Section 52-1-26 [(for nonscheduled injuries)] or 52-1-43 . . . [(for 

scheduled injuries)].” Section 52-1-41(C) specifies the maximum duration of 

compensation for a secondary mental impairment resulting in total disability and 

Section 52-1-42(A)(4) specifies the maximum duration of compensation for a 

secondary mental impairment resulting in partial disability. 

6Mental illness is not listed on the schedule of specific body parts found in 

Section 52-1-43 and is not treated by the Act as a scheduled injury. See Breen, 2005-

NMSC-028, ¶ 10 n.2 (noting that mental illness is not a scheduled impairment under 

the Act). 
12

§ 52-1-41(B); for a partial disability, the maximum duration of benefits is 700 weeks, 

depending on the percent of impairment. Section 52-1-42(A)(1), (2).

{22} Because the Act limits the duration of disability benefits based solely on 

whether a compensable impairment, identically caused by an original work-related 

injury, is a mental or physical impairment, Worker has established disparate 

treatment of similarly situated workers. 

II. Workers With a Mental Impairment Are a Sensitive Class, Meriting 

Intermediate Scrutiny

{23} The second element of the equal protection test—determining the level of 

scrutiny to apply—has been conclusively resolved by our Supreme Court’s decision 

in Breen. See 2005-NMSC-028, ¶¶ 18-29. The Breen Court adopted intermediate 

scrutiny for discrimination against persons with mental disabilities. Id. ¶ 28. Our 

Supreme Court in Breen directed that our “courts should be sensitive to possible 

discrimination against persons with mental disabilities contained in legislation that 

purports to treat them differently based solely on the fact that they have a mental 

disability.” Id. We need not repeat our Supreme Court’s thorough analysis,

reviewing the history of discriminatory treatment of people with mental disabilities. 

Id. ¶¶ 18-29.

III. The Classification Is Not Substantially Related to an Important 

Government Interest, as Required by Intermediate Scrutiny
13

{24} The third element of the equal protection test requires the application of 

intermediate scrutiny to the challenged statutory terms. Under New Mexico’s 

intermediate scrutiny test, “[the c]hallenged legislation will be upheld if the 

classification is substantially related to an important government interest.” Id. ¶ 30. 

Merely showing a rational basis for the classification is not enough.

{25} The burden is on the party supporting the legislation’s constitutionality (here 

Employer) to establish that the classification is substantially related to an important 

government interest. Marrujo v. N.M. State Highway Transp. Dep’t, 1994-NMSC116, ¶ 11, 118 N.M. 753, 887 P.2d 747. The party supporting the constitutionality 

of the legislation must show that the discriminatory classification is based on a 

“ ‘reasoned analysis rather than [arising] through the mechanical application of 

traditional, often inaccurate assumptions.’ ” Breen, 2005-NMSC-028, ¶ 30 (quoting 

Miss. Univ. for Women v. Hogan, 458 U.S. 718, 726 (1982).

{26} A number of government interests were proposed by the employer in Breen

as support for the Legislature’s decision to treat mentally impaired workers 

differently than similarly situated physically impaired workers. The Breen Court 

considered the government’s interest in the financial viability of workers’ 

compensation; the greater possibility of fraudulent claims for mental illness; and the

greater uncertainty in diagnosis and evaluation of mental impairments.

2005-NMSC-028, ¶¶ 33-49. The Court rejected each of these arguments. See id. In 
14

the case of possible fraudulent claims, the Court held that the Act’s requirements for 

proof of a compensable disability adequately protected against fraud. See id. ¶¶ 40-

44. Although the Court acknowledged that cost savings are an important 

governmental interest, it found that saving by denying comparable benefits to 

workers with mental disabilities who had met the eligibility requirements of the Act 

was not substantially related to the Act’s purpose of compensating workers disabled 

by work-related injuries for lost earnings. See id. ¶¶ 34, 47-48. Finally, the Court 

rejected the claim that the mental impairments were harder to diagnose and evaluate. 

The Court found that adequate methods of evaluation were available and were

already being used successfully by the workers’ compensation system, and were 

being reviewed on appeal without difficulty. Id. ¶ 45.

{27} Beyond the arguments that were rejected in Breen, Employer argues only that 

there is a logical relationship between the duration and severity of a secondary 

mental impairment and the nature of the physical impairment that is the cause of the 

mental impairment. Employer’s claim, presented without citation to authority, 

simply is not sufficient to establish the substantial relationship between an important 

government interest and the challenged classification required by intermediate 

scrutiny. It is nothing more than a claim that there may be a rational basis for the 

classification. 
15

{28} Employer has not carried its burden of showing that the Act’s disparate 

treatment of mentally impaired workers, a sensitive class, is substantially related to 

an important government interest. 

CONCLUSION

{29} We, therefore, conclude that Sections 52-1-41(C) and -42(A)(4) of the Act 

treat workers with secondary mental impairments differently than similarly situated 

workers with secondary physical impairments, in violation of the Equal Protection 

Clause of the New Mexico Constitution. We remand for proceedings consistent with 

this opinion.

{30} IT IS SO ORDERED.

_______________________________

JANE B. YOHALEM, Judge

WE CONCUR:

_________________________________

J. MILES HANISEE, Chief Judge

_________________________________

GERALD E. BACA, Judge