A. For the purpose of determining the percentage of disability pursuant to Section 52-1-26 NMSA 1978, impairment shall constitute the base value.
B. The appropriate values for the age modification, as determined in Section 52-1-26.2 NMSA 1978, and the education modification, as determined by Section 52-1-26.3 NMSA 1978, shall be added together. If this sum is less than zero, the sum shall be deemed to be zero for the purposes of this calculation. This sum shall be multiplied by the appropriate value of the physical capacity modification, determined in Section 52-1-26.4 NMSA 1978.
C. The product calculated in Subsection B of this section shall be added to the base value. This sum represents the percentage of unscheduled partial disability to be awarded.
HISTORY:
1978 52-1-26.1, enacted by Laws 1990 (2nd S.S.), ch. 2, § 12.
Notes to Decisions
Entitlement to modifier benefits.
Employers may not use an injured worker’s undocumented status as a defense to paying the worker modifier benefits under 52-1-26 NMSA 1978 and this section due to a legal inability to rehire the worker, if the employers do not demonstrate that the employers complied with the Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. § 3359, when originally hiring the worker because the employers’ negligent or purposeful failure to verify the worker’s eligibility for employment created the problem. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, 2013 N.M. LEXIS 171 (N.M. 2013).
Employers could use an injured worker’s undocumented status as a defense to paying the worker modifier benefits under 52-1-26 NMSA 1978 and this section if the employers demonstrated that the employers complied with the Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. § 3359, when originally hiring the worker because the employer could assert a good faith defense to paying such benefits. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, 2013 N.M. LEXIS 171 (N.M. 2013).
Injured undocumented worker was entitled to modifier benefits because the employer did not show good faith compliance with the Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. § 3359, so knowledge of the worker’s status was imputed to the employer, as the employer could not legitimately offer to rehire the worker. Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, 2013 N.M. LEXIS 171 (N.M. 2013).
Discharged worker, who remained unemployed, was entitled to permanent partial disability benefits along with statutory-based modifier benefits because the worker, who continued to be injured and had lifting restrictions, knew of no permanent job at a fast food restaurant, her sole occupation for ten years prior to her injury, and the worker's decision to not seek employment and pursue her education did not mean she was voluntarily unemployed. Hawkins v. McDonald's & Food Indus. Self Ins. Fund of N.M., 2014-NMCA-048, 323 P.3d 932, 2013 N.M. App. LEXIS 135 (N.M. Ct. App. 2013), cert. denied, 322 P.3d 1062, 2014 N.M. LEXIS 50 (N.M. 2014).