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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: January 24, 2022
No. A-1-CA-38052
ANA LILIA CARDENAS,
Worker-Appellant,
v.
AZTEC MUNICIPAL SCHOOLS and CCMSI,
Employer/Insurer-Appellees.
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION Reginald C. Woodard, Hearing Officer
Titus & Murphy Law Firm Victor A. Titus Farmington, NM
for Appellant
Allen, Shepherd, Lewis & Syra, P.A. Joshua A. Collins Katrina Bagley Brown Albuquerque, NM
for Appellees OPINION
YOHALEM, Judge.
{1} This is an appeal by Ana Lilia Cardenas (Worker) from the order of a
Workers’ Compensation Judge (WCJ) limiting the duration of her disability benefits
for a secondary mental impairment to 150 weeks, the period fixed by the Workers’
Compensation Act (the Act) for compensation for the primary scheduled physical
injury to her knee. Worker argues that the limit imposed by NMSA 1978, Section
52-1-41(C) (2015), on the duration of total disability benefits, and NMSA 1978,
Section 52-1-42(A)(4) (2015) on the duration of partial disability benefits, for a
secondary mental impairment,1 limits not imposed on disability benefits for workers
with a secondary physical impairment,2 violate the Equal Protection Clause of both
the New Mexico and the United States Constitutions. In this case, Worker would be
1 A “ ‘secondary mental impairment’ means a mental illness resulting from a physical impairment caused by an accidental injury arising out of and in the course of employment.” NMSA 1978, § 52-1-24(C) (1990). 2 We refer to physical disabilities, which like secondary mental disabilities, are “caused by an accidental injury arising out of and in the course of employment[,]” id., as “secondary physical impairments.” Although not labeling them as “secondary” impairments, see § 52-1-24(A), the Act nonetheless recognizes and compensates physical impairments that result from and are caused by a compensable work-related accidental injury. See Baca v. Complete Drywall Co., 2002-NMCA- 002, ¶ 16, 131 N.M. 413, 38 P.3d 181 (distinguishing between a work-related sudden accidental injury and a subsequent injury to another body part that is compensable if “the resulting disability is causally connected [or secondary] to the original accidental injury”). entitled to a maximum of 500 weeks of permanent partial disability compensation,
under Section 52-1-42(A)(2), if her secondary impairment had been a physical
impairment. Instead, she was awarded 150 weeks of compensation solely because
her secondary impairment was a mental impairment.
{2} We agree with Worker that the Act discriminates between secondary mental
impairments and secondary physical impairments, in violation of the Equal
Protection Clause of the New Mexico Constitution. N.M. Const. art. II, § 18.
Because this decision affords Worker the relief she seeks, we do not reach Worker’s
claim of discrimination between the Act’s treatment of primary and secondary
mental impairments, nor do we address Worker’s claim under the United States
Constitution.
BACKGROUND
{3} The facts in this case are undisputed. Worker, a special education teacher,
sustained a knee injury in a January 2016 workplace accident. Worker later filed a
workers’ compensation claim for both her primary knee injury and for a secondary
mental impairment she alleged resulted from and was caused by the original injury
to her knee. An independent psychological evaluation was conducted. The
evaluating psychologist concluded, to a reasonable psychological probability, that
Worker’s psychological impairment was “causally related” to the workplace injury
2 to Worker’s knee and that Worker was 15 percent disabled by her psychological
impairment.
{4} Employer Aztec Municipal Schools does not dispute that Worker’s knee
injury was caused by a work-related accident or that Worker’s secondary mental
impairment was caused by her work-related physical injury. The parties also agree
that a knee injury, a scheduled injury listed in NMSA 1978, Section 52-1-43(A)(30)
(2003), has a statutory compensation period of 150 weeks.
{5} The dispute between the parties concerns the length of time Worker will
receive compensation benefits for her secondary mental impairment. Pursuant to
Section 52-1-42(A)(4), the duration of partial disability benefits for a secondary
mental impairment is limited to the number of weeks allowable for the worker’s
original physical injury. When the original physical injury is to a scheduled body
part, the worker is limited to the duration of benefits listed in Section 52-1-43 for an
injury to that body part. The number of weeks a worker will be paid for a scheduled
injury ranges from 7 to 200 weeks, depending solely on the body part originally
injured.3 In contrast, where the secondary impairment is a physical impairment the
3 For example, if the original injury is to a distal joint of a finger, the schedule provides 7 weeks of partial disability benefits for a secondary mental impairment resulting from and caused by that injury. Section 52-1-43(A)(27). A secondary mental impairment resulting from and caused by an arm injury near the shoulder would qualify for 200 weeks of partial disability benefits. Section 52-1-43(A)(1).
3 duration of partial disability benefits depends on the “nature and extent” of the
secondary physical injury. Sections 52-1-41(C), -42(A).
{6} Worker contends that capping the duration of benefits for a secondary mental
impairment resulting from a scheduled physical injury, when a secondary physical
impairment resulting from a scheduled physical injury is not similarly capped,
violates our Constitution’s equal protection guarantee because it treats workers with
secondary mental impairments differently than similarly situated workers with
secondary physical impairments. Worker points out that if her secondary mental
impairment was treated the same as an unscheduled secondary physical impairment,
she would be entitled to up to 500 weeks of partial disability benefits, rather than the
150 weeks she was awarded.
DISCUSSION
{7} The equal protection clauses of both the United States and New Mexico
Constitutions require the government to treat similarly situated persons the same,
“absent a sufficient reason to justify the disparate treatment.” Wagner v. AGW
Consultants, 2005-NMSC-016, ¶ 21, 137 N.M. 734, 114 P.3d 1050. In Breen v.
Carlsbad Municipal Schools, our Supreme Court held that earlier versions of the
same sections of the Act that are challenged in this case, Section 52-1-41(B) (1999)
and Section 52-1-42 (1990), violated the Equal Protection Clause of the New Mexico
Constitution by treating workers with a mental impairment differently, and less
4 favorably, than similarly situated workers with a physical impairment. 2005-NMSC-
028, ¶¶ 1, 50, 138 N.M. 331, 120 P.3d 413.
{8} Our Supreme Court in Breen, and later in Rodriguez v. Brand West Dairy,
2016-NMSC-029, 378 P.3d 13, defined three steps necessary to determine whether
a worker’s equal protection rights under our state Constitution’s Equal Protection
Clause are violated by the provisions of the Act. The worker “must first prove that
they are similarly situated to another group but are treated dissimilarly” by a
legislative classification. Breen, 2005-NMSC-028, ¶ 8. Second, if the worker proves
that the two groups are similarly situated, and yet are treated differently by the Act,
then this Court “must determine what level of scrutiny should be applied to the
legislation they are challenging.” Id. The level of scrutiny depends on the nature of
the rights the legislation protects or the status of the group of people it affects. Id.
The Court held in Breen that workers with mental impairments or mental disabilities
are a “sensitive class” requiring intermediate scrutiny. Id. ¶ 28. Third, where
intermediate scrutiny applies, the burden then shifts to the employer to show that the
Act’s different treatment of two equivalent groups is “substantially related to an
important government interest.” Id. ¶ 13 (internal quotation marks and citations
omitted).
{9} Although Breen guides our analysis, we cannot assume, without engaging in
a careful analysis of the challenged provisions of the Act, that these statutory
5 provisions violate equal protection. We apply a standard of review deferential to our
Legislature when reviewing the constitutionality of legislation. See Rodriguez v.
Scotts Landscaping, 2008-NMCA-046, ¶ 8, 143 N.M. 726, 181 P.3d 718. During
that review, we will not “question the wisdom, policy, or justness of legislation
enacted by our Legislature[,]” and will begin by presuming that the legislation is
constitutional. Madrid v. St. Joseph Hosp., 1996-NMSC-064, ¶ 10, 122 N.M. 524,
928 P.2d 250. “A statute will not be declared unconstitutional unless the court is
satisfied beyond all reasonable doubt that the legislature went outside the
constitution in enacting the challenged legislation.” Benavides v. E. N.M. Med. Ctr.,
2014-NMSC-037, ¶ 43, 338 P.3d 1265 (internal quotation marks and citation
{10} Our careful review of the Breen factors follows.
I. Workers With a Secondary Mental Impairment Are Treated Differently Than Similarly Situated Workers With a Secondary Physical Impairment {11} As Employer and Worker both acknowledge, the “threshold question in
analyzing all equal protection challenges is whether the legislation creates a class of
similarly situated individuals who are treated dissimilarly.” Breen, 2005-NMSC-
028, ¶ 10. Breen held that workers with a primary mental impairment are similarly
6 situated to workers with a primary physical impairment.4 Id. With that in mind, we
begin our inquiry by examining Worker’s claim that workers with “secondary
mental impairments” are similarly situated to workers with physical impairments
that are secondary to, and a “natural and direct result” of a work-related accidental
injury. NMSA 1978, § 52-1-28(A) (1987). Concluding that these groups are
similarly situated, we next address whether they are treated differently by the Act in
Section 52-1-28(B).
A. Injured Workers With a Secondary Mental Impairment Are Similarly Situated to Injured Workers With a Secondary Physical Impairment With Respect to the Objectives of the Act {12} In deciding whether individuals are similarly situated, our Supreme Court
instructs us to “look beyond the classification to the purposes of the law.” Rodriguez,
2016-NMSC-029, ¶ 11 (internal quotation marks and citation omitted). The Equal
Protection Clause does not allow a statute to divide persons “ ‘into different classes
on the basis of criteria wholly unrelated to the objective of that statute.’ ” Id. (quoting
Stanton v. Stanton, 421 U.S. 7, 13-14 (1975)). Only classifications serving the
purposes of the statute are permitted. See id.
4 The Breen Court identified two classifications adopted by the Legislature: “totally impaired” and “partially impaired,” and held that all partially impaired workers are similarly situated, regardless of whether their impairment was a primary physical or primary mental impairment, and that all totally impaired workers are similarly situated, regardless of whether their impairment is a primary physical or a primary mental impairment.
7 {13} We look first to the purposes of the statute. The Act’s intention has been
described as “to provide a humanitarian and economical system of compensation for
injured work[ers].” Breen, 2005-NMSC-028, ¶ 36 (internal quotation marks and
citation omitted). The main goal of the Act is “to compensate a worker for lost
earning capacity.” Id. ¶ 37.
{14} The Act imposes three criteria, which must be met to qualify for
compensation: (1) “the worker has sustained an accidental injury arising out of and
in the course of his [or her] employment”; (2) “the accident was reasonably incident
to his [or her] employment”; and (3) “the disability is a natural and direct result of
the accident.” Section 52-1-28(A). Pursuant to this provision, the Act treats as
compensable both “disability arising immediately from a work-related accident and
[. . .] disability that develops later as a result of the normal activities of life.” Aragon
v. State Corr. Dep’t, 1991-NMCA-109, ¶ 8, 113 N.M. 176, 824 P.2d 316. The
worker need only show that the later-arising disability is causally connected to the
original accidental injury. See Baca, 2002-NMCA-002, ¶ 16, 131 N.M. 413, 38 P.3d
181. As this Court has explained in construing Section 52-1-28, the Act’s purpose is
to provide compensation for “the disability caused by the accident—not the accident
itself[.]” Baca, 2002-NMCA-002, ¶ 15. Secondary physical disabilities shown to be
caused by the original accident are, therefore, compensable under the Act. See id.
8 {15} “[S]econdary mental impairment” is defined by the Act as “a mental illness
resulting from a physical impairment caused by an accidental injury arising out of
and in the course of employment.” Section 52-1-24(C). In other words, a secondary
mental impairment is a mental illness caused by an accidental work-related injury.
Section 52-1-24(A) includes secondary mental impairment as a compensable
impairment under the Act. See id. (“Impairment includes physical impairment,
primary mental impairment and secondary mental impairment[.]”). It is undisputed
that Worker qualifies for disability benefits based on a “secondary mental
impairment” resulting from the pain and disability caused by her work-related
accidental injury to her knee.
{16} We see no difference related to the purposes of the Act between workers with
subsequently arising secondary physical disabilities that are causally connected to a
compensable work-related accidental injury, and workers with “secondary mental
impairments,” as defined by the Act. The workers in both groups have become
secondarily impaired as the result of an original work-related accidental injury and
both groups have lost earnings as the result of their secondary disability. They are
thus similarly situated with regard to the Act’s purpose: to provide workers
compensation for earning capacity lost or diminished due to a disability caused by
and resulting from a work-related accidental injury. See Breen, 2005-NMSC-028,
¶ 37.
9 {17} Employer contends on appeal that “differently injured workers are not
similarly situated.” This contention, however, is plainly at odds with our Supreme
Court’s decision in Breen, which held that workers with primary mental impairments
and workers with primary physical impairments are similarly situated classifications
for the statutory purposes of compensating workers for either a total or partial loss
of earning capacity due to a work-related accidental injury. Id. ¶ 10. As our Supreme
Court explained in Breen, differences in the type of injury or its cause fade in
importance “once a worker has been determined to have suffered a compensable
disability.” Id. ¶ 37. There is no dispute in this case that Worker’s secondary mental
impairment is a compensable disability covered by the Act. See § 52-1-24(A), (C)
(defining a secondary mental impairment as a compensable impairment).
{18} We, therefore, conclude that workers with secondary mental impairments are
similarly situated to workers with secondary physical impairments.
B. Workers With Secondary Mental Impairments Are Treated Differently Than Workers With Secondary Physical Impairments {19} Having determined that workers with secondary mental impairments are
similarly situated to workers with secondary physical impairments, we now
determine whether the Act treats these two classifications of workers differently.
{20} The provisions of the Act challenged by Worker, Sections
52-1-41(C), -42(A)(4), limit the period of compensation for a secondary mental
10 impairment to the “maximum period allowable for the disability produced by the
[original] physical impairment.” 5 Where the original physical impairment arises
from an injury to a body part listed in Section 52-1-43 (a scheduled injury), this
means that the duration of benefits for the secondary mental impairment, regardless
of the actual extent of disability, is capped at a maximum of between 7 and 200
weeks, depending on the body part originally injured. For Worker, whose original
injury was to her knee—a body part listed on the schedule—benefits are capped at
150 weeks. Section 52-1-43(A)(30).
{21} In contrast, the duration of benefits for a secondary physical impairment is
based on the nature and severity of the secondary impairment itself, not on the body
part originally injured, and not on the severity of the original injury. Compare
§ 52-1-42(A)(1)-(2), with (A)(4). If the secondary impairment is an unscheduled,
whole body impairment,6 total disability benefits continue for the worker’s lifetime,
5 Sections 52-1-41(C) and -42(A)(4) state identically: “For disability resulting in secondary mental impairment, the maximum period of compensation is the maximum period allowable for the disability produced by the physical impairment, as set forth in Section 52-1-26 [(for nonscheduled injuries)] or 52-1-43 . . . [(for scheduled injuries)].” Section 52-1-41(C) specifies the maximum duration of compensation for a secondary mental impairment resulting in total disability and Section 52-1-42(A)(4) specifies the maximum duration of compensation for a secondary mental impairment resulting in partial disability. 6 Mental illness is not listed on the schedule of specific body parts found in Section 52-1-43 and is not treated by the Act as a scheduled injury. See Breen, 2005- NMSC-028, ¶ 10 n.2 (noting that mental illness is not a scheduled impairment under the Act).
11 § 52-1-41(B); for a partial disability, the maximum duration of benefits is 700 weeks,
depending on the percent of impairment. Section 52-1-42(A)(1), (2).
{22} Because the Act limits the duration of disability benefits based solely on
whether a compensable impairment, identically caused by an original work-related
injury, is a mental or physical impairment, Worker has established disparate
treatment of similarly situated workers.
II. Workers With a Mental Impairment Are a Sensitive Class, Meriting Intermediate Scrutiny {23} The second element of the equal protection test—determining the level of
scrutiny to apply—has been conclusively resolved by our Supreme Court’s decision
in Breen. See 2005-NMSC-028, ¶¶ 18-29. The Breen Court adopted intermediate
scrutiny for discrimination against persons with mental disabilities. Id. ¶ 28. Our
Supreme Court in Breen directed that our “courts should be sensitive to possible
discrimination against persons with mental disabilities contained in legislation that
purports to treat them differently based solely on the fact that they have a mental
disability.” Id. We need not repeat our Supreme Court’s thorough analysis,
reviewing the history of discriminatory treatment of people with mental disabilities.
Id. ¶¶ 18-29.
III. The Classification Is Not Substantially Related to an Important Government Interest, as Required by Intermediate Scrutiny
12 {24} The third element of the equal protection test requires the application of
intermediate scrutiny to the challenged statutory terms. Under New Mexico’s
intermediate scrutiny test, “[the c]hallenged legislation will be upheld if the
classification is substantially related to an important government interest.” Id. ¶ 30.
Merely showing a rational basis for the classification is not enough.
{25} The burden is on the party supporting the legislation’s constitutionality (here
Employer) to establish that the classification is substantially related to an important
government interest. Marrujo v. N.M. State Highway Transp. Dep’t, 1994-NMSC-
116, ¶ 11, 118 N.M. 753, 887 P.2d 747. The party supporting the constitutionality
of the legislation must show that the discriminatory classification is based on a
“ ‘reasoned analysis rather than [arising] through the mechanical application of
traditional, often inaccurate assumptions.’ ” Breen, 2005-NMSC-028, ¶ 30 (quoting
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 726 (1982).
{26} A number of government interests were proposed by the employer in Breen
as support for the Legislature’s decision to treat mentally impaired workers
differently than similarly situated physically impaired workers. The Breen Court
considered the government’s interest in the financial viability of workers’
compensation; the greater possibility of fraudulent claims for mental illness; and the
greater uncertainty in diagnosis and evaluation of mental impairments.
2005-NMSC-028, ¶¶ 33-49. The Court rejected each of these arguments. See id. In
13 the case of possible fraudulent claims, the Court held that the Act’s requirements for
proof of a compensable disability adequately protected against fraud. See id. ¶¶ 40-
44. Although the Court acknowledged that cost savings are an important
governmental interest, it found that saving by denying comparable benefits to
workers with mental disabilities who had met the eligibility requirements of the Act
was not substantially related to the Act’s purpose of compensating workers disabled
by work-related injuries for lost earnings. See id. ¶¶ 34, 47-48. Finally, the Court
rejected the claim that the mental impairments were harder to diagnose and evaluate.
The Court found that adequate methods of evaluation were available and were
already being used successfully by the workers’ compensation system, and were
being reviewed on appeal without difficulty. Id. ¶ 45.
{27} Beyond the arguments that were rejected in Breen, Employer argues only that
there is a logical relationship between the duration and severity of a secondary
mental impairment and the nature of the physical impairment that is the cause of the
mental impairment. Employer’s claim, presented without citation to authority,
simply is not sufficient to establish the substantial relationship between an important
government interest and the challenged classification required by intermediate
scrutiny. It is nothing more than a claim that there may be a rational basis for the
classification.
14 {28} Employer has not carried its burden of showing that the Act’s disparate
treatment of mentally impaired workers, a sensitive class, is substantially related to
an important government interest.
CONCLUSION
{29} We, therefore, conclude that Sections 52-1-41(C) and -42(A)(4) of the Act
treat workers with secondary mental impairments differently than similarly situated
workers with secondary physical impairments, in violation of the Equal Protection
Clause of the New Mexico Constitution. We remand for proceedings consistent with
this opinion.
{30} IT IS SO ORDERED.
_______________________________ JANE B. YOHALEM, Judge
WE CONCUR:
_________________________________ J. MILES HANISEE, Chief Judge
_________________________________ GERALD E. BACA, Judge