As used in the Workers' Compensation Act, unless the context otherwise requires, the average weekly wage of an injured employee shall be taken as the basis upon which to compute compensation payments and shall be determined as follows:
A. "average weekly wage" means the weekly wage earned by the worker at the time of the worker's injury, including overtime pay and gratuities but excluding all fringe or other employment benefits and bonuses. The term "average weekly wage" shall include the reasonable value of board, rent, housing or lodging received from the employer, which shall be fixed and determined from the facts in each particular case. The term "average weekly wage" shall include those gratuities reported to the federal internal revenue service by or for the worker for the purpose of filing federal income tax returns;
B. the average weekly wage shall be determined by computing the total wages paid to the worker during the twenty-six weeks immediately preceding the date of injury and dividing by twenty-six, provided that:
(1) if the worker worked less than twenty-six weeks in the employment in which the worker was injured, the average weekly wage shall be based upon the total wage earned by the worker in the employment in which the worker was injured, divided by the total number of weeks actually worked in that employment;
(2) if a worker sustains a compensable injury before completing his first work week, the average weekly wage shall be calculated as follows:
(a) if the contract was based on hours worked, by determining the number of hours for each week contracted for by the worker multiplied by the worker's hourly rate;
(b) if the contract was based on a weekly wage, by determining the weekly salary contracted for by the worker; or
(c) if the contract was based on a monthly salary, by multiplying the monthly salary by twelve and dividing that figure by fifty-two; and
(3) if the hourly rate of earnings of the worker cannot be ascertained, or if the pay has not been designated for the work required, the average weekly wage, for the purpose of calculating compensation, shall be taken to be the average weekly wage for similar services performed by other workers in like employment for the past twenty-six weeks;
C. provided, further, however, that in any case where the foregoing methods of computing the average weekly wage of the employee by reason of the nature of the employment or the fact that the injured employee has been ill or in business for himself or where for any other reason the methods will not fairly compute the average weekly wage, in each particular case, computation of the average weekly wage of the employee in such other manner and by such other method as will be based upon the facts presented fairly determine such employee's average weekly wage; and
D. provided that in case such earnings have been unusually large on account of the employer's necessity temporarily requiring him to pay extraordinary high wages, such average weekly earnings shall be based upon the usual earnings in the same community for labor of the kind of worker was performing at the time of the injury. In any event, the weekly compensation allowed shall not exceed the maximum or be less than the minimum provided by law.
History: 1953 Comp., § 59-10-12.13, enacted by Laws 1965, ch. 295, § 13; 1989, ch. 263, § 15; 1990 (2nd S.S.), ch. 2, § 6.
ANNOTATIONSThe 1990 (2nd S.S.) amendment, effective January 1, 1991, rewrote Subsections A and B, deleted "not worked a sufficient length of time to enable his earnings to be fairly computed thereunder or has" following "has" in Subsection C, and substituted "or" for "nor" in the last sentence in Subsection D.
Seasonal employment. — Seasonal employment does not include activities which can be carried on essentially year round, even if the work may be occasionally interrupted by producers, market fluctuations, or other outside agents. Logging is not seasonal employment for purposes of the New Mexico Workers' Compensation Act. Murillo v. Payroll Express, 1995-NMCA-062, 120 N.M. 333, 901 P.2d 751.
Calculation of wage based on wage for one day of employment. — Where worker was injured on the first day of employment and was not expected to be employed for more than one day; worker was employed to drive a truck from Farmington to Santa Fe and back at the rate of fifty cents per mile; and the workers' compensation judge calculated that worker would have earned $210 had worker driven from Farmington to Santa Fe and back, it was reasonable for the judge to use the $210 figure to arrive at worker's average weekly wage. Nelson v. Homier Distrib. Co., Inc., 2009-NMCA-125, 147 N.M. 318, 222 P.3d 690.
Methods not exclusive or mandatory. — While this section defines the method for determining average weekly earnings under varying circumstances of employment, the methods so set forth are not exclusive nor are they under all circumstances mandatory requirements or binding on the trial court. Kendrick v. Gackle Drilling Co., 1962-NMSC-127, 71 N.M. 113, 376 P.2d 176 (decided under former law).
The phrase "in any event" in this statute means "no matter what else may be" or "whatever may happen" and is a prohibition. No event and no circumstance can excuse compliance with the conditions stated. Trujillo v. Tanuz, 1973-NMCA-048, 85 N.M. 35, 508 P.2d 1332.
"Average weekly wage" means the money rate at which services are recompensed at the time of the accident. Gilliland v. Hanging Tree, Inc., 1978-NMCA-061, 92 N.M. 23, 582 P.2d 400, cert. denied, 92 N.M. 180, 585 P.2d 324 (decided under prior law).
The average weekly wage is based on the salary which the injured employee is receiving at the time of the injury pursuant to his or her contract for hire. Where an educational aide was paid 52 weeks a year based on a 40 week work year, this requires that her compensation be based on a 52 week work year. Duran v. Albuquerque Pub. Schs., 1986-NMCA-115, 105 N.M. 297, 731 P.2d 1341, cert. denied, 105 N.M. 290, 731 P.2d 1334 (1987).
Computation of weekly wage. — Only claimant's real economic gain should be considered in computing the average weekly wage, as opposed to sheer gross amounts. In this regard, such portions of the combined payment which represent claimant's salary, if so denominated, would clearly be included as real economic gain. Subsection A excludes from wages costs such as materials and supplies. Other items such as group insurance and retirement benefits have also been found to be deductible. The rationale is that employers would be expected to bear these expenses and not pass them onto an employee. On the other hand, rent, lodging, and similar expenses constitute wages because a person has to spend those regardless. Apodaca v. Payroll Express, Inc., 1993-NMCA-141, 116 N.M. 816, 867 P.2d 1198.
Identifying representative week. — The term "average weekly wage" indicates a legislative expectation the fact finder will identify a representative week. In identifying a representative week, the fact finder may adopt any method that fairly calculate the worker's usual earnings. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030, cert. denied, 109 N.M. 262, 784 P.2d 1005.
Employee must have earned money immediately prior to injury. — To entitle an employee to compensation under former statute, he must have been earning money at or immediately prior to the time of his injury, from an employer defined in the statute. In computing the compensation, the relationship must have continuously existed, although the work could have been intermittent. Mendoza v. Gallup Sw. Coal Co., 1937-NMSC-007, 41 N.M. 161, 66 P.2d 426 (decided under former law).
Determining preinjury average weekly wage. — Subsection C permits the trial court to determine the preinjury average weekly wages of an injured workman (worker) by any method supported by the evidence in the particular case which fairly represents his average weekly wage if they cannot be fairly determined by one of the formulae set out in Subsection B. Kendrick v. Gackle Drilling Co., 1962-NMSC-127, 71 N.M. 113, 376 P.2d 176 (decided under former law).
Since an injury occurring on a worker's part-time job disabled her from working at 100% capacity at either her full or part-time job, her capacity as a wage earner patently was impaired beyond the limits of the part-time job. Compensation benefits, therefore, were logically based on her combined wages and correctly reflected her reduced earning capacity in both employments. Justiz v. Walgreen's, 1987-NMSC-095, 106 N.M. 346, 742 P.2d 1051.
Benefits based on weekly wage at time of accident, not at time of earlier position. — Where a worker had opted to take a new position with an employer at a reduced rate of pay and had worked at that position for approximately seven weeks prior to his injury, compensation benefits should have been computed based on the average weekly wage that the worker was earning at the time of his accident, not on the average weekly wage which he was earning in earlier, higher paying position. Eberline Instrument Corp. v. Felix, 1985-NMSC-097, 103 N.M. 422, 708 P.2d 334.
Unfair to apply hourly wage as measure. — Where claimant had worked for various drilling companies during 28 of the preceding 30 weeks in 1960 at an average weekly wage of $133.75, it would be manifestly unfair to apply the hourly wage being received by claimant at the time of his injury as a measure of his average weekly wages prior to the accident. Kendrick v. Gackle Drilling Co., 1962-NMSC-127, 71 N.M. 113, 376 P.2d 176 (decided under former law).
Prior earnings not sole basis of determining average weekly wage. — Kendrick v. Gackle Drilling Co., 1962-NMSC-127, 71 N.M. 113, 376 P.2d 176, does not, as claimed by appellants, require the employee's prior earnings as disclosed by income tax returns to be used as the sole basis of determining average preinjury weekly wage as the workmen's (workers') compensation statute provides that compensation payments shall be determined by arriving at the difference between the employee's earning ability before and after the injury, not upon a loss of earnings or income caused by the accident. Mascarenas v. Kennedy, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312 (decided under former law).
Tips regarded as wages. — When it is within the contemplation of the parties that tips are to be retained by an employee as part of his compensation, they are to be regarded as wages for compensation purposes. Hopkins v. Fred Harvey, Inc., 1978-NMCA-083, 92 N.M. 132, 584 P.2d 179, cert. denied, 92 N.M. 180, 585 P.2d 324.
Speculative future payments for prior services not "wage". — Where it is undisputed that at the time of the accident decedent had no wage and thus had no basis for computing an average weekly wage, the speculative possibility that some time in the future decedent might be paid for services performed prior to his death was not a "wage" within the statutory meaning. Gilliland v. Hanging Tree, Inc., 1978-NMCA-061, 92 N.M. 23, 582 P.2d 400, cert. denied, 92 N.M. 180, 585 P.2d 324.
Group insurance and retirement benefits not "wages". — State employee's group insurance and retirement benefits were not within the definition of "wages" in this section, where he was not entitled to receive money in place of the benefits. Antillon v. N.M. State Hwy. Dep't, 1991-NMCA-093, 113 N.M. 2, 820 P.2d 436.
Per diem for travel expenses not "wages". — State employee's per diem for travel expenses was not part of his "wages" for the purpose of calculating workers' compensation benefits where there was no showing that the per diem he received was in excess of his actual expenses and thus constituted a real economic gain rather than reimbursement for actual expenses. Antillon v. N.M. State Hwy. Dep't, 1991-NMCA-093, 113 N.M. 2, 820 P.2d 436.
Seasonal employment and weekly wage. — Where worker, who was a school bus driver, injured worker's back and shoulder in October; worker's employment contract provided that worker was hired to drive a school bus for forty weeks between August and May with worker's pay distributed over fifty-two weeks; if worker had been hired to drive in June and July, the parties would have entered into a separate contract; and worker had received wages for the twenty-six weeks preceding worker's injury, the workers' compensation judge correctly calculated worker's average weekly wage, as provided in Subsection B of Section 52-1-20 NMSA 1978, by dividing the sum of the wages paid to worker from April to October by twenty-six. Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085.
The judge must look to the seasonal aspect of the employment and reduce the average weekly wage accordingly. The ultimate wage would then be projected over the entire calendar year instead of only the weeks that the employee actually worked. Apodaca v. Payroll Express, Inc., 1993-NMCA-141, 116 N.M. 816, 867 P.2d 1198.
Since the worker was employed temporarily on a seasonal basis, the evidence supported the judge's use of Subsection C to calculate her average weekly wage for the purpose of the number of weeks, but not for purpose of the hourly rate. Villanueva v. Sunday Sch. Bd. of S. Baptist Convention, 1995-NMCA-135, 121 N.M. 98, 908 P.2d 791.
Findings of fact to justify use of another method of determination. — Where a trial court, if it considered the methods prescribed under Subsection B for computing average weekly earnings unfair under the facts as disclosed by the evidence, it should have made findings of fact which would justify the use of another method as provided by Subsection C, and this court may properly remand the cause for such findings. Kendrick v. Gackle Drilling Co., 1962-NMSC-127, 71 N.M. 113, 376 P.2d 176 (decided under former law).
A determination of an employee's average weekly wages by some method other than the formulae was said in Kendrick v. Gackle Drilling Co., 1962-NMSC-127, 71 N.M. 113, 376 P.2d 176 to be permitted under Subsection C of this section only when the trial court found as a fact, based upon substantial evidence sufficient to justify resort to that provision, that his average weekly wage could not fairly be determined by one of the formulae set out in Subsection B of this section. Mascarenas v. Kennedy, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312 (decided under former law).
Determining average weekly wage from multiple jobs. — Subsection C of Section 52-1-20 NMSA 1978 is designed to permit the fair computation of average weekly wages in multiple employment cases, primarily by any means provided in the statute, or secondarily, by any other means that might be needed and fairly employed to effectuate the purpose of Section 52-1-20 NMSA 1978. If the methods of Subsection B can fairly produce an aggregate average for concurrent employment situations, Subsection C does not authorize a departure, and Subsection B will be used to calculate an average weekly wage from each employment that will then be used to calculate an aggregate average. Paragraph 1 of Subsection B should be employed using the entire time of employment if the period is fewer than twenty-six weeks for any concurrent employer. Subsection B should be applied separately to each job, not limited to the shortest job, with an aggregate average weekly wage for all concurrent employers being computed. Vinyard v. Palo Alto, Inc., 2013-NMCA-001, 293 P.3d 191.
Where the worker concurrently held one job as a delivery driver for 9.429 weeks before the worker was injured and another job as a horse trainer for fourteen weeks, the workers' compensation judge should have applied Paragraph (1) of Subsection B of Section 52-1-20 NMSA 1978 and calculated the average weekly wage by dividing wages from the delivery driver employment by 9.428 and wages from the concurrent horse training employment by fourteen weeks. Vinyard v. Palo Alto, Inc., 2013-NMCA-001, 293 P.3d 191.
Earnings from multiple jobs considered. — Subsection B does not apply to situations in which a worker is employed at more than one job. The applicable statutory provision in multiple-job situations is Subsection C. Under Subsection C, the earnings from multiple jobs should be considered in determining a worker's average weekly wage if the worker's injury prevents her from performing all of her jobs. Shaw v. Wal-Mart Stores, Inc., 1994-NMCA-016, 117 N.M. 118, 869 P.2d 306, cert. denied, 117 N.M. 215, 870 P.2d 753.
Reliance on other evidence to determine "usual earnings". — If there is no evidence of a worker in a position similar to claimant's, the hearing officer may rely on other evidence to determine "the usual earnings." He may, for example, be able to determine what claimant herself would have earned under normal circumstances. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030, cert. denied, 109 N.M. 262, 784 P.2d 1005 (1990).
The loss of wage earning ability is in theory a comparison of what the employee would have earned had he not been injured and what he is able to earn in his injured condition. Kendrick v. Gackle Drilling Co., 1962-NMSC-127, 71 N.M. 113, 376 P.2d 176 (decided under former law).
Determining compensation where employee worked only one week. — Former statute merely fixed four-week limit for injury, and where the employee had worked but a week at his employment before receiving his fatal injury, the average weekly earnings of other workmen in like employment could be considered. Burruss v. B.M.C. Logging Co., 1934-NMSC-023, 38 N.M. 254, 31 P.2d 263 (decided under former law).
Fairness of award where no findings of unusual conditions. — Where there were no findings, and none were requested, to indicate any unusual condition of employment from which unfairness of award, if any, could be inferred, where employee earned an average of $4.36 a week, a compensation award of $8.40 a week for permanent total disability was not as a matter of law unfair to the employer. La Rue v. Johnson, 1943-NMSC-031, 47 N.M. 260, 141 P.2d 321 (decided under former law).
Weekly compensation not to be less than minimum hourly rate. — Regardless of what event occurs, the weekly compensation allowed by the court, based on an hourly rate, shall not be an hourly rate less than the minimum provided by the Minimum Wage Act whether there is a state and federal minimum wage law. Trujillo v. Tanuz, 1973-NMCA-048, 85 N.M. 35, 508 P.2d 1332.
When Subsection B is controlling. — Subsection B offers the usual rule for computation of average weekly wage using the claimant's own monthly, weekly, daily, or hourly wage. Where wages can be calculated by the precise methods outlined in Subsection B to fairly compute the worker's average weekly salary, Subsection B controls. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030, cert. denied, 109 N.M. 262, 784 P.2d 1005 (1990).
Application of Subsection D. — Exception in Subsection D to the "wage earned at the time of the accident" rule was meant to cover exigent circumstances, for example, payment of necessary overtime to meet a deadline, and was not meant to apply to federally regulated wages foreseen at the time the contract was negotiated and provided for initially during the calculation of the construction bid. Salcido v. Transamerica Ins. Group, Inc., 1985-NMSC-002, 102 N.M. 217, 693 P.2d 583.
"Same community," within context of Subsection D, was not restricted to an area where plaintiff's employer was of necessity paying extraordinarily high wages for temporary work, but it meant a broader area - the area in which plaintiff normally worked. Salcido v. Transamerica Ins. Group, Inc., 1983-NMCA-097, 102 N.M. 344, 695 P.2d 494, rev'd on other grounds, 1985-NMSC-002, 102 N.M. 217, 693 P.2d 583.
Insufficient proof for determination under Subsection D. — If employer fails to prove sufficient facts to support a determination under Subsection D, the hearing officer must make a determination under Subsection B or Subsection C. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030.
Earnings of casual employee. — When a casual employee received a compensable injury, earnings from his regular employment from the preceding 12 months are properly considered as the bases for determining the right to compensation. Bailey v. Farr, 1959-NMSC-071, 66 N.M. 162, 344 P.2d 173 (decided under former law).
Judge's unconcurred opinion on escalating benefits not court of appeal's decision. — Where a judge's opinion concerning escalating benefits under the Workmen's (Workers') Compensation Act is not concurred in by another judge, her view concerning escalating benefits is not a decision of the court of appeals and a judgment on remand which does not provide for escalating benefits complies with the mandate and opinion of the court of appeals. Casias v. Zia Co., 1980-NMCA-109, 94 N.M. 723, 616 P.2d 436.
Law reviews. — For survey of workers' compensation law in New Mexico, see 18 N.M.L. Rev. 579 (1988).
For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 418, 419.
Workers' compensation: Tips or gratuities as factor in determining amount of compensation, 16 A.L.R.5th 191.
99 C.J.S. Workmen's Compensation §§ 292 to 294; 100 C.J.S. Workmen's Compensation § 568.