Jaramillo v. State of NM Dep't of Corrections
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 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 4
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