A. If an employer is hiring, the employer shall offer to rehire the employer’s worker who has stopped working due to an injury for which the worker has received, or is due to receive, benefits under the Workers’ Compensation Act [52-1-1 NMSA 1978] and who applies for his pre-injury job or modified job similar to the pre-injury job, subject to the following conditions:
(1) the worker’s treating health care provider certifies that the worker is fit to carry out the pre-injury job or modified work similar to the pre-injury job without significant risk of reinjury; and
(2) the employer has the pre-injury job or modified work available.
B. If an employer is hiring, that employer shall offer to rehire a worker who applies for any job that pays less than the pre-injury job and who has stopped working due to an injury for which he has received, or is due, benefits under the Workers’ Compensation Act [52-1-1 NMSA 1978], provided that the worker is qualified for the job and provided that the worker’s treating health care provider certifies that the worker is fit to carry out the job offered. Compensation benefits of a worker rehired prior to maximum medical improvement and pursuant to this subsection shall be reduced as provided in Section 52-1-25.1 NMSA 1978.
C. As used in this section, “rehire” includes putting the injured worker back to active work, regardless of whether he was carried on the employer’s payroll during the period of his inability to work.
D. The exclusive remedy for a violation of the section shall be a fine as specified in Section 52-1-61 NMSA 1978.
HISTORY:
1978 52-1-50.1, enacted by Laws 1990 (2nd S.S.), ch. 2, § 21.
Notes to Decisions
Authority of workers’ compensation judge.
Authority of workers’ compensation judge.
Where a worker injured his back and was placed on physical layoff status, the workers’ compensation judge was vested with the authority to order the employer to find work for the injured worker, but the judge could not award a fine or damages for violation of statute. Lucero v. City of Albuquerque, 2002-NMCA-034, 132 N.M. 1, 43 P.3d 352, 2002 N.M. App. LEXIS 10 (N.M. Ct. App.), cert. denied, 131 N.M. 737, 42 P.3d 842, 2002 N.M. LEXIS 97 (N.M. 2002).
Construction.
Sections 52-1-25.1 NMSA 1978 and 52-1-50.1 NMSA 1978 do not provide for a different treatment of offers of employment prior to the worker’s maximum medical improvement as opposed to actual employment after maximum medical improvement; where an employee was offered a job at pre-injury rates, but he declined, the offer affected calculation of the workers’ compensation rates. Jeffrey v. Hays Plumbing & Heating, 1994-NMCA-071, 118 N.M. 60, 878 P.2d 1009, 1994 N.M. App. LEXIS 83 (N.M. Ct. App. 1994).
Credit.
When an employer had already made disability payments to an injured worker, the employer was allowed credit against temporary total disability benefits, on a week-to-week basis. Gurule v. Dicaperl Minerals Corp., 2006-NMCA-054, 139 N.M. 521, 134 P.3d 808, 2006 N.M. App. LEXIS 27 (N.M. Ct. App. 2006).
Former employment.
Worker failed to show that she could not have received vocational rehabilitation that would have prepared her to return to a job related to her former employment, so she was not entitled to vocational rehabilitation benefits under 52-1-50.1C NMSA 1978 to return to suitable employment in a non-related field. Murphy v. Duke City Pizza, 1994-NMCA-085, 1994-NMCA-085, 118 N.M. 346, 881 P.2d 706, 1994 N.M. App. LEXIS 94 (N.M. Ct. App. 1994), cert. denied, No. 22,305, 1994 N.M. LEXIS 320 (N.M. Sept. 1, 1994).
Payments.
Temporary total disability benefits can be paid at a reduced rate, or in full, depending on a worker’s employment status. Gurule v. Dicaperl Minerals Corp., 2006-NMCA-054, 139 N.M. 521, 134 P.3d 808, 2006 N.M. App. LEXIS 27 (N.M. Ct. App. 2006).
Penalties.
52-1-50.1 NMSA 1978 describes the exclusive remedy for a violation of the statute, the failure to re-hire an injured worker, as a fine, while 52-1-61 NMSA 1978 deals with penalties imposed by the director for violation of provisions of the Act, which are in the form of a fine; the court must read the two statutes together to produce a harmonious whole, and any penalties for violation of the section must be awarded by the director of the Workers’ Compensation Administration. Lucero v. City of Albuquerque, 2002-NMCA-034, 132 N.M. 1, 43 P.3d 352, 2002 N.M. App. LEXIS 10 (N.M. Ct. App.), cert. denied, 131 N.M. 737, 42 P.3d 842, 2002 N.M. LEXIS 97 (N.M. 2002).
Procedure.
Worker’s claim of an employer’s violation of 52-1-50.1A NMSA 1978, which requires an employer to re-hire an injured worker where possible, could only be brought by filing a complaint with the Workers’ Compensation Administration for consideration by a workers’ compensation judge, as set forth in 11.4.5.8.1.1 NMAC. Lucero v. City of Albuquerque, 2002-NMCA-034, 132 N.M. 1, 43 P.3d 352, 2002 N.M. App. LEXIS 10 (N.M. Ct. App.), cert. denied, 131 N.M. 737, 42 P.3d 842, 2002 N.M. LEXIS 97 (N.M. 2002).