SHAW V. WAL-MART STORES, INC., 1994-NMCA-016,
117 N.M. 118, 869 P.2d 306 (Ct. App. 1994)
MERCEDES SHAW, Claimant-Appellant,
vs.
WAL-MART STORES, INC., and NATIONAL UNION FIRE INSURANCE
COMPANY, Respondents-Appellees.
COURT OF APPEALS OF NEW MEXICO
1994-NMCA-016, 117 N.M. 118, 869 P.2d 306
APPEAL FROM THE NEW MEXICO WORKERS'
COMPENSATION ADMINISTRATION. JOSEPH N. WILTGEN, Workers' Compensation Judge
Petition for Writ of Certiorari Filed
January 11, 1994, Denied February 18, 1994
WENDELL B. LANE, OVERSTREET & LANE,
P.C., Alamogordo, New Mexico, Attorneys for Claimant-Appellant.
ROBERT A. MARTIN, BRADLEY &
McCULLOCH, P.A., Albuquerque, New Mexico, Attorneys for Respondents-Appellees.
{1} Worker appeals a decision
of the workers' compensation judge denying her claim for an increase in her
compensation rate. This Court issued a memorandum opinion reversing the judge's
decision. Subsequently, Worker filed a motion requesting that the opinion be
published and a motion requesting attorney fees on appeal. On January 10, 1993,
we issued an order construing Worker's motions as a motion for rehearing. On
January 11, Employer filed a petition for a writ of certiorari in the Supreme
Court. Since a motion for rehearing was pending, this Court had not yet taken
final action on the case, and Employer's petition did not deprive us of
jurisdiction to rule on the motion.
{*119} See
SCRA 1986, 12-502(B) (Repl. 1992) (when timely motion for rehearing is filed,
final action by Court of Appeals is disposition of the last motion for
rehearing that was timely filed). We now withdraw our prior opinion and issue
this formal opinion reversing. We also deny Worker's request for attorney fees
at this time, but allow the judge below to rule on that request.
{2} This case involves
interpretation of NMSA 1978, Section
52-1-20 (Repl. Pamp. 1991). The undisputed
facts of the case are that Worker was employed at two jobs, working for
Employer and as a school bus driver. She was injured while on the job at
Employer's place of business. After initially receiving compensation benefits
based solely on the wages paid by Employer, Worker filed a claim for increase in
benefits. She requested that her average weekly wage, and therefore her
benefits, be increased by adding the wages she earned as a school bus driver to
the wages she earned from Employer. She relied on
Justiz v. Walgreen's,
106 N.M. 346,
742 P.2d 1051 (1987).
Justiz held that in a multiple-job
situation, when a work-related injury prevents a worker from performing the
duties of either position, Section 52-1-20(C) should normally be applied to
include the wages from both positions in calculating the worker's average
weekly wage.
Id. at 348, 742 P.2d at 1053.
{3} In response to Worker's
argument, Employer argued that amendments to a different subsection of the
statute, Section 52-1-20(B), had legislatively overruled
Justiz.
Employer maintained that when a worker has worked less than twenty-six weeks
for a particular employer and suffers a work-related injury while working for
that employer, her average weekly wage must be calculated only on the wages
earned from that employer and any other wages earned from other employers must
be disregarded. Employer relied on language in Section 52-1-20(B)(1) to the
effect that when a worker has worked for less than twenty-six weeks in the
employment in which the worker was injured, the average weekly wage shall be
based on the total wage earned by the worker in that employment, divided by the
number of weeks worked in that employment. The judge agreed with Employer's
position, and Worker appealed.
{4} In our calendar notice,
we proposed to agree with Worker and to reverse the denial of her claim for an
increase in benefits. Our proposal was based on several grounds. First, we
pointed out that the
Justiz decision was based on application of Section
52-1-20(C), not Section 52-1-20(B). The legislature did not amend Section
52-1-20(C), except to delete language that allowed the use of that subsection
when a worker had not been working long enough to allow a fair computation of
the average weekly wage under the prior Section 52-1-20(B). This amendment in
turn strengthened our belief that in amending Subsection (B), the legislature
was not concerned with the
Justiz decision at all but was attempting to
establish a fair method of computing average weekly wages for occupations in
which wages vary over time, depending on the hours worked. We stated that the
purpose of the new Subsection (B) appeared to be to prevent workers from being
unfairly benefitted by a period of unusually high wages or unfairly prejudiced
by a period of unusually low wages just prior to the injury.
{5} Our calendar notice also
expressed our opinion that by amending Subsections (B) and (C), the legislature
appeared to have been attempting to address the difficulties various courts
have experienced in determining average weekly wage when a worker's circumstances
have changed at some recent point prior to the injury.
See generally, e.g.,
Eberline Instrument Corp. v. Felix, 103 N.M. 422,
708 P.2d 334 (1985);
Salcido
v. Transamerica Ins. Group, 102 N.M. 217, 218-19,
693 P.2d 583, 584-85
(1985);
Griego v. Bag 'N Save Food Emporium, 109 N.M. 287,
784 P.2d 1030
(Ct. App. 1989),
cert. denied, 109 N.M. 262,
784 P.2d 1005 (1990). As
part of Subsection (B), the legislature has mandated that the average wage paid
to a worker over the past twenty-six weeks shall be used as the average weekly
wage, unless the worker has worked for that employer for fewer than twenty-six
weeks -- in that case, the worker's total wages divided by the total weeks
worked shall be the average weekly wage. The legislature has not, however, in
{*120} our opinion, exhibited any intention of
overruling the
Justiz decision.
{6} In response to the
calendar notice, Employer argues that the language of Subsection (B) is plain
and unambiguous -- it states that if a worker has been employed with the
present employer for less than twenty-six weeks, the average weekly wage is
based on the total amount earned from that employer divided by the number of
weeks worked. We agree that this language is plain. We do not agree, however,
that it applies to situations in which a worker is employed at more than one
job. Under
Justiz, 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.
Justiz,
106 N.M. at 348, 742 P.2d at 1053. The amendments to Subsections (B) and (C) do
not affect that analysis. We continue to believe that the amendments address situations
in which a worker has periods of unusually high or low wages, and an averaging
of those wages is required, or the situation of new employees who have only one
employment. Under our interpretation, the amendments relied on by Employer
simply mean that wages from a
prior, not concurrent, employer will not
be considered in establishing a worker's compensation rate.
{7} Employer also argues that
Subsection (B) refers to "employment" in the singular, and that we
must give effect to that language. Our interpretation does so. When only
Subsection (B) applies, only the wages from one employer will be considered.
When Subsection (C) applies, however, the wages from concurrent employers will
be considered.
{8} In sum, we disagree with
Employer's position that the amendments to Section 52-1-20, which did not
change any of the language relied on by the Supreme Court in
Justiz,
legislatively overruled that case. By amending Subsection (B), the legislature
did not intend to restrict a worker holding concurrent jobs to the wages earned
at the job leading to the injury. Instead, the legislature intended to make
calculation of the average weekly wage more fair and simple. Nothing in the
amendments affects the concurrent-employment analysis of
Justiz.
Therefore, for the reasons stated herein, we reverse the decision in this case.
{9} Worker has requested
attorney fees for her successful appellate challenge to the judge's decision.
At this point, however, the case must still be remanded to the Workers'
Compensation Administration for calculation of the amount of benefits to which
Worker is entitled. Because of this, we decline to rule on Worker's request at
this time.
See Nelson v. Nelson Chem. Corp., 105 N.M. 493, 497,
734 P.2d
273, 277 (Ct. App. 1987). Worker is free to request attorney fees from the
judge below, and in calculating those fees the judge shall consider Worker's
success on appeal.
See id.
BENJAMIN ANTHONY CHAVEZ, Judge