FROM THE WORKERS' COMPENSATION ADMINISTRATION Terry
Kramer, Worker's Compensation Judge
D. Vigil, P.C., Donald D. Vigil, Nicholas C. Silver
Albuquerque, NM for Appellant
Law, LLC Minerva Camp Albuquerque, NM for Appellee
MONICA ZAMORA, Judge
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.
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
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.
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
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.
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.
Workers' Compensation Act and IRCA
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 ...