Saved by the Bell?

Will a worker's impending retirement block permanent partial disability benefits after an injury?

By Christina Lumbreras

A worker was injured when he fell down a slope while cutting wood. He suffered a compensable injury to his right shoulder. He was temporarily totally disabled for a period of 13 months. His employer gave him a light-duty job at his pre-injury wage from the date of his accident until his retirement one month later.

Prior to the injury, the worker had begun paperwork and preparations for his retirement. To remain entitled to his union retirement pension, he was prohibited from working as a union member in the future. This effectively prevented the employer from offering employment to the worker after he reached maximum medical improvement.

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The worker sought benefits. In New Mexico, permanent partial disability benefits are calculated by determining the level of impairment to the worker and adding to the impairment a calculation of statutorily defined modifiers based on the worker's age, education and physical capacity. The workers' compensation judge held that the worker was entitled to modifier-based permanent partial disability benefits, but not after the date he retired. The employer appealed.

Was the WCJ correct in granting benefits to the worker?

A. No. The worker voluntarily removed himself from the workforce, which precluded the employer from making him an offer to return to work.

B. Yes. The worker's injuries prevented him from finding subsequent employment.

C. Yes. The employer failed to make the worker a post-MMI offer of employment.

How the court ruled: B. The New Mexico Court of Appeals held that the worker was entitled to statutory modifier-based permanent partial disability benefits. Cordova v. KSL-Union, No. 30,870 (N.M. Ct. App. 05/14/12).

The court said that the worker removed himself from the union workforce through retirement but wanted to return to employment outside the union. His circumstances comported with the legislature's intent for utilizing a modifier-based calculation of permanent partial disability. The court said that the employer would not be required to pay benefits if the worker secured employment with a nonunion employer at his pre-injury wage.

A is incorrect. The court pointed out that the worker's retirement was reasonable. The timing of the worker's retirement by itself did not prevent him from receiving benefits. Therefore, he was entitled to benefits despite his decision to retire before reaching maximum medical improvement.

C is incorrect. The court explained that the employer's failure to offer the worker employment did not, by itself, give rise to liability for modifier-based permanent partial disability benefits. State law encourages an employer to make an offer to a worker. However, an employer is not required to make such an offer.

Editor's note: This feature is not intended as instructional material or to replace legal advice.

June 21, 2012

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