It has been an active year so far for workers’ compensation decisions by the New Mexico Supreme Court. As I discuss here, the Court recently held that New Mexico’s Workers’ Compensation Act (the “Act”) does not impose any time limits on how long an injured worker can receive Total Temporary Disability (TTD) benefits.
The Court also issued a decision that impacts potentially thousands of undocumented workers in New Mexico. In Gonzalez v. Performance Painting, Inc., the Court held that employers who cannot demonstrate good faith compliance with federal immigration law in the hiring process cannot use their workers’ undocumented status as a defense to continued payment of benefits under the New Mexico Workers’ Compensation Act (WCA).
In Gonzalez, it was not disputed that the WCA generally applies to undocumented workers and that accordingly, Gonzalez (the injured undocumented worker) was entitled to benefits up to the time he reached maximum medical improvement (MMI). What was at issue was whether his status as an undocumented immigrant prevented him from receiving permanent partial disability (PPD) modifier benefits after reaching MMI. PPD modifier benefits would have exponentially increased the amount of benefits Gonzalez would receive.
The Court had previously held that under the WCA, if an injured worker refuses a reasonable return-to-work offer, the worker becomes ineligible for modifier benefits. The Court of Appeals had held that since Gonzalez could not legally accept an offer to be re-hired and an employer could not legally rehire him under federal law due to his undocumented status, he was not entitled to modifier benefits.
The Supreme Court overturned the Court of Appeals, noting that “lawful or not, men and women like [Gonzalez] often do find employment somewhere, and when they do, modifier benefits can be terminated in the manner prescribed by the WCA. The Court then recognized how denying modifier benefits to undocumented workers, especially those in dangerous jobs, would actually incentivize hiring undocumented workers:
“It would create a perverse incentive for employers to hire undocumented workers over other workers, especially in high-risk jobs that often result in workers’ compensation claims. An employer could hire undocumented workers, knowing that in the event of injury the employer would likely pay a much lower amount in workers’ compensation benefits due to ineligibility for modifier benefits.”
Looking at federal immigration law, the Court said that if, during the hiring process the employer has complied with the law’s requirements to verify the immigration status of new hires, the employer would essentially be off the hook. In this case, however, since the employer did not follow appropriate hiring procedures, as required by federal law, the employer should have known that Gonzalez was undocumented, that any return-to-work offer made by employer was illusory, and that Gonzalez was therefore entitled to modifier benefits.
This decision in effect puts the onus on employers to verify a worker’s immigration status before hiring them, and if they fail to do so, the undocumented worker will likely be entitled to the full benefits otherwise allowed under the WCA.
The Law Offices of Jeffrey C. Brown: Fighting for New Mexico Workers
We know how hard you work, and we’ll work just as hard for you. Call the Law Offices of Jeffrey C. Brown & Derek Thompson today at (505) 275-6600 or fill out our online form to arrange for your free initial consultation to discuss your workers’ compensation matter. We look forward to helping you get back on your feet, and back to work.
This website has been prepared by the Law Offices of Jeffrey C. Brown for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.