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Melendez v. Salls Brothers Construction Inc.

Court of Appeals of New Mexico

January 17, 2018

JOSÉ MELENDEZ, Worker-Appellant,
v.
SALLS BROTHERS CONSTRUCTION, INC., and BITUMINOUS INSURANCE COMPANY,

         APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Terry Kramer, Worker's Compensation Judge

          Donald D. Vigil, P.C., Donald D. Vigil, Nicholas C. Silver Albuquerque, NM for Appellant

          Camp Law, LLC Minerva Camp Albuquerque, NM for Appellee

          OPINION

          M. MONICA ZAMORA, Judge

         {1} José Melendez (Worker) filed for workers' compensation benefits following a work-related accident while employed with Salls Brothers Construction, Inc. (Employer). The workers' compensation judge (WCJ) denied Worker modifier benefits because he presented false documentation while filling out his I-9 form. We affirm.

         BACKGROUND

         {2} Worker is an undocumented immigrant from Mexico, first coming to the United States in 1979 and working in various agricultural and construction jobs. At all times material to this matter, Worker was an employee of Employer, having been hired in July 2006. Worker performed construction labor for Employer without the necessary legal authorization. On December 12, 2007, Worker was injured while at work. He was standing on scaffolding, which subsequently collapsed causing him to fall approximately five to six feet to the ground. As a result of his fall he suffered lumbar spondolysis and myofascial pain.

         {3} Worker applied for workers' compensation benefits and after a trial on the merits, the WCJ concluded that Worker was entitled to temporary total disability benefits from the date of the accident, December 12, 2007, through the date of his maximum medical improvement, October 23, 2009. Additionally, the WCJ concluded that Worker was further entitled to permanent partial disability benefits for the 500 week benefit period, commencing October 23, 2009. Finally, the WCJ concluded that Worker was not entitled to modifier benefits based on his undocumented status.

         {4} Upon being denied modifier benefits, Worker appealed to this Court and in accordance with the mandate from our New Mexico Supreme Court, we remanded with instructions for the WCJ to review the case in light of the Court's ruling in Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802. The WCJ was tasked with determining whether Worker was entitled to modifier benefits. This determination turned on whether Employer knew or should have known that Worker was undocumented at the time of his hire.

         {5} After a second trial on the merits to examine this narrow question, the WCJ found that Employer followed appropriate hiring procedures in hiring Worker. Worker's personnel file contained two Employment Eligibility Verification forms (I-9 forms), the first dated July 2006 and the second dated May/June 2007. The WCJ further found that Worker knowingly produced false documentation to support his employment application, including a false Social Security card, a false resident alien card, and a false Colorado identification card. Because Employer reasonably relied on Worker's false documentation, the WCJ concluded that "there was no reasonable basis for Employer to have [knowledge that] Worker was undocumented." Consequently, the WCJ concluded that Worker was not entitled to modifier benefits. This appeal followed.

         {6} On appeal, Worker contends that the WCJ erred in his interpretation of Gonzalez as it applied to Worker. Additionally, Worker argues that Employer is liable for paying modifier benefits to Worker because "fatal substantive flaws" exist in Worker's I-9 forms, and such flaws prohibit Employer from successfully advancing a good faith defense under federal immigration law. Worker admits to providing Employer with false documentation to obtain employment, calling the decision "unfortunate." In response, Employer argues it complied in good faith with the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a(a)(3) (2012), and Employer reasonably relied on the false documentation that Worker deceptively provided to Employer during the hiring process.

         DISCUSSION

         A. Workers' Compensation Act and IRCA

         {7} The Legislature designed the Workers' Compensation Administration Act (the WCAA) as a balance between the rights and interests of the worker and the employer. See NMSA 1978, §§ 52-5-1 to -22 (1987, amended through 2013) (stating that the Act is not to be construed in a manner that favors the employee over the employer, nor is it to be construed in a manner that favors the employer over the employee); Salazar v. Torres, 2007-NMSC-019, ¶ 10, 141 N.M. 559, 158 P.3d 449 ("One policy factor of great concern is that any judicial ...


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