A. If an employer is hiring, the employer shall offer to rehire the employer's worker who has stopped working due to an injury for which the worker has received, or is due to receive, benefits under the Workers' Compensation Act and who applies for his pre-injury job or modified job similar to the pre-injury job, subject to the following conditions:

(1) the worker's treating health care provider certifies that the worker is fit to carry out the pre-injury job or modified work similar to the pre-injury job without significant risk of reinjury; and

(2) the employer has the pre-injury job or modified work available.

B. If an employer is hiring, that employer shall offer to rehire a worker who applies for any job that pays less than the pre-injury job and who has stopped working due to an injury for which he has received, or is due, benefits under the Workers' Compensation Act, provided that the worker is qualified for the job and provided that the worker's treating health care provider certifies that the worker is fit to carry out the job offered. Compensation benefits of a worker rehired prior to maximum medical improvement and pursuant to this subsection shall be reduced as provided in Section 52-1-25.1 NMSA 1978.

C. As used in this section, "rehire" includes putting the injured worker back to active work, regardless of whether he was carried on the employer's payroll during the period of his inability to work.

D. The exclusive remedy for a violation of the section shall be a fine as specified in Section 52-1-61 NMSA 1978.

History: 1978 Comp., § 52-1-50.1, enacted by Laws 1990 (2nd S.S.), ch. 2, § 21.

Effective dates. — Laws 1990 (2nd S.S.), ch. 2, § 153 Laws 1990 (2nd S.S.), ch. 2, § 21 effective January 1, 1991.

Enforcement of section. — The workers' compensation judge is vested with the authority to order the employer to find work for the injured worker, but any penalty must be levied by the director. Lucero v. City of Albuquerque, 2002-NMCA-034, 132 N.M. 1, 43 P.3d 352, cert. denied, 131 N.M. 737, 42 P.3d 842.

Failure to comply with this section may be remedied as an unfair claims processing practice under 52-1-50.1 NMSA 1978. Lucero v. City of Albuquerque, 2002-NMCA-034, 132 N.M. 1, 43 P.3d 352, cert. denied, 131 N.M. 737, 42 P.3d 842.

Vocational rehabilitation benefits. — Because worker failed to make a showing that she could not have received vocational rehabilitation to return to a job related to her former employment, the judge erred in awarding her the expenses of her college education as vocational rehabilitation benefits under former 52-1-50 NMSA 1978. Murphy v. Duke City Pizza, Inc., 1994-NMCA-085, 118 N.M. 346, 881 P.2d 706, cert. denied, 118 N.M. 430, 882 P.2d 21.

Benefits not subject to statutory limitation period. — Like medical benefits, vocational rehabilitation benefits are not subject to the statute of limitations contained in Section 52-1-31A NMSA 1978. The limitations imposed on the receipt of vocational rehabilitation benefits were only those contained in former Section 52-1-50 NMSA 1978 (now repealed). Benavidez v. Bloomfield Mun. Sch., 1994-NMCA-023, 117 N.M. 245, 871 P.2d 9.

Applicability of Section 52-1-25.1 NMSA 1978. — The final sentence of Subsection B adjusts compensation benefits prior to maximum medical improvement for a worker who has been "rehired." The explicit terms of the sentence apply only when the worker is actually employed by the employer. Yet, Section 52-1-25.1 NMSA 1978 applies so long as the worker is offered the position, even if the worker does not accept and become rehired. The final sentence of Subsection B was not intended to repeal or limit Section 52-1-25.1 NMSA 1978. Jeffrey v. Hays Plumbing & Heating, 1994-NMCA-071, 118 N.M. 60, 878 P.2d 1009.

Law reviews. — For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).