52-1-20.  Determination of average weekly wage.

Authority of hearing officer.

Average weekly wage.

Burden of proof.

Contract.

Date of injury.

Exigent circumstances.

Legislative intent.

Purpose.

Rate.

Review.

Unusually high wages.

Wages.

Workers’ compensation.

Section 52-1-20D NMSA 1978 requires the hearing officer of the workers’ compensation division of New Mexico to try to determine the usual earnings for labor of the kind the worker was performing. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030, 1989 N.M. App. LEXIS 104 (N.M. Ct. App. 1989), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1990 N.M. LEXIS 2 (N.M. 1990).

Section 52-1-20D NMSA 1978 permits a hearing officer of the workers’ compensation division New Mexico to recognize unique or exigent circumstances that produce an unusually high average weekly wage. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030, 1989 N.M. App. LEXIS 104 (N.M. Ct. App. 1989), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1990 N.M. LEXIS 2 (N.M. 1990).

Under Subsection A of this section and 52-1-25.1A NMSA 1978, the employee was entitled to full temporary total disability benefits (TTD) in the amount of his average weekly wage; under 52-1-25.1C NMSA 1978, the employee was entitled to reduced TTD benefits in the amount of two-thirds the difference between his pre-injury average weekly wage and his post-injury wage until he reached maximum medical improvement. Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070, 2010 N.M. App. LEXIS 151 (N.M. Ct. App. 2010).

Worker’s compensation judge did not err in calculating a worker’s weekly average wage because the judge based the figure on what the worker would have earned during the one day he was hired to work. Nelson v. Homier Distrib. Co., 2009-NMCA-125, 147 N.M. 318, 222 P.3d 690, 2009 N.M. App. LEXIS 213 (N.M. Ct. App. 2009).

Where plaintiff worker performed services and received wages from defendant employer for 22 out of the 26 weeks immediately preceding the date of her injury, substantial evidence supported the compensation judge’s use of 52-1-20C NMSA 1978 to calculate the worker’s average weekly wage at 52 weeks rather than under 52-1-20B NMSA 1978 as requested by the worker because of the seasonal nature of the employment. The worker was hired as a temporary employee, there was no contract between the worker and the employer guaranteeing any specific hours, the worker did not have to promise that she would be available for work, and she worked six or seven months each year. Villanueva v. Sunday Sch. Bd. of the S. Baptist Convention, 1995-NMCA-135, 121 N.M. 98, 908 P.2d 791, 1995 N.M. App. LEXIS 136 (N.M. Ct. App. 1995).

Award made to a claimant for vocational rehabilitation was to be set aside on remand if it was found that the rehabilitation request had not been made within 120 days from the date of release from the treating health care provider. To guide the lower court the court used 52-1-20A NMSA 1978 to define wages to mean the money rate at which the services rendered are recompensed under the contract of hire. To determine salary, a judge must first go to the statute. 52-1-20A NMSA 1978 excludes from wages costs such as materials and supplies. Apodaca v. Payroll Express, 1993-NMCA-141, 116 N.M. 816, 867 P.2d 1198, 1993 N.M. App. LEXIS 159 (N.M. Ct. App. 1993).

This section requires that the fact finder consider anything of value received as consideration for work when such consideration constitutes real economic gain to the employee. Sums should be considered in calculating wages when they were intended by the parties to be compensation for services rendered. Lujan v. Payroll Express, 1992-NMCA-063, 114 N.M. 257, 837 P.2d 451, 1992 N.M. App. LEXIS 56 (N.M. Ct. App. 1992).

While 52-1-20B NMSA 1978 does not specifically include overtime, it is usually included in “wages” even though it may not necessarily be guaranteed. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030, 1989 N.M. App. LEXIS 104 (N.M. Ct. App. 1989), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1990 N.M. LEXIS 2 (N.M. 1990).

Section 52-1-20B NMSA 1978 must be applied unless the worker’s average weekly wage is not easily determinable. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030, 1989 N.M. App. LEXIS 104 (N.M. Ct. App. 1989), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1990 N.M. LEXIS 2 (N.M. 1990).

Section 52-1-20B NMSA 1978 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 the statute to fairly compute the worker’s average weekly salary, the statute controls. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030, 1989 N.M. App. LEXIS 104 (N.M. Ct. App. 1989), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1990 N.M. LEXIS 2 (N.M. 1990).

Where an employee who held two jobs suffered a compensable injury while at her part-time job resulting in a 60 percent disability, fairness mandated computing the benefits due to her pursuant to 52-1-20 NMSA 1978 by aggregating her earnings from both her full-time and part-time employments. Justiz v. Walgreen's, 1987-NMSC-095, 106 N.M. 346, 742 P.2d 1051, 1987 N.M. LEXIS 3745 (N.M. 1987), superseded by statute as stated in Fisher v. Las Cruces Nursing Ctr., No. 27,764, 2007 N.M. App. Unpub. LEXIS 66 (N.M. Ct. App. Sept. 26, 2007).

When an employer provides remuneration in excess of actual expenses and the employee is free to keep the excess for his own use, the employee has received an economic advantage which may be considered as part of his wages for compensation purposes. Gonzales v. Mountain States Mut. Casualty Co., 1986-NMCA-111, 105 N.M. 100, 728 P.2d 1369, 1986 N.M. App. LEXIS 685 (N.M. Ct. App. 1986), cert. denied, 106 N.M. 714, 749 P.2d 99, 1988 N.M. LEXIS 353 (N.M. 1988).

When an employee is merely reimbursed for amounts he is called to spend in the course of his employment and activities which he has no occasion to pursue when not employed, the amount so paid cannot be regarded as part of his earnings. Gonzales v. Mountain States Mut. Casualty Co., 1986-NMCA-111, 105 N.M. 100, 728 P.2d 1369, 1986 N.M. App. LEXIS 685 (N.M. Ct. App. 1986), cert. denied, 106 N.M. 714, 749 P.2d 99, 1988 N.M. LEXIS 353 (N.M. 1988).

Average weekly wage has a statutory meaning: it means the money rate at which services are recompensed at the time of the accident. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846, 1981 N.M. App. LEXIS 791 (N.M. Ct. App. 1981).

Where a workman suffers disability as a result of an accidental injury and the employer voluntarily pays compensation benefits and then wrongfully terminates payment thereof, causing the workman to seek relief in the courts, the date that disability is determined in the court proceedings is the date that the applicable rate of compensation applies, not the date of the accidental injury. Purcella v. Navajo Freight Lines, 1980-NMCA-182, 95 N.M. 306, 621 P.2d 523, 1980 N.M. App. LEXIS 997 (N.M. Ct. App. 1980).

In a workers’ compensation action, employee claimed the trial court erred when it computed his average weekly compensation rate because the trial court should have used the hourly wage provided under the Minimum Wage Act (Act) (50-4-20 NMSA 1978) and not the employee’s actual wage, which was less than the minimum amount under the act. The weekly compensation allowed by the court, based on an hourly rate, could not be at an hourly rate less than the minimum provided by the Act. Trujillo v. Tanuz, 1973-NMCA-048, 85 N.M. 35, 508 P.2d 1332, 1973 N.M. App. LEXIS 694 (N.M. Ct. App. 1973).

Determination of an employee’s average weekly wages by some method other than the formula of former 59-10-12M(2)(d), 1953 Comp. was permitted under former 59-10-12M(3), 1953 Comp., only when the trial court finds as a fact, based upon substantial evidence sufficient to justify resort to former 59-10-12M(3), 1953 Comp., that the employee’s average weekly wage could not fairly be determined by one of the formulae set out in former 59-10-12M(2), 1953 Comp. Mascarenas v. Kennedy, 74 N.M. 665, 397 P.2d 312, 1964 N.M. LEXIS 2322, 1964 N.M. LEXIS 2337 (N.M. 1964).

Courts were committed to the “fairness rule” and former 59-10-12M(3), 1953 Comp. permitted the trial court to determine the pre-injury average weekly wages of an injured workman by any method supported by the evidence in the particular case which fairly represented his average weekly wage if they could not be fairly determined by one of the formulae set out in former 59-10-12M(2), 1953 Comp. Kendrick v. Gackle Drilling Co., 71 N.M. 113, 376 P.2d 176, 1962 N.M. LEXIS 1492, 1962 N.M. LEXIS 1493, 1962 N.M. LEXIS 1494 (N.M. 1962).

While former 59-10-12M(2), 1953 Comp. defined the method for determining average weekly earnings under varying circumstances of employment, the methods so set forth were not exclusive nor were they under all circumstances mandatory requirements or binding on the trial court. Recognizing that there may be circumstances of employment under which such methods of computing average weekly wages would not be fairly representative of the employee’s average weekly wages either before or after an accidental injury, the legislature previously enacted former 59-10-12M(3), 1953 Comp. Kendrick v. Gackle Drilling Co., 71 N.M. 113, 376 P.2d 176, 1962 N.M. LEXIS 1492, 1962 N.M. LEXIS 1493, 1962 N.M. LEXIS 1494 (N.M. 1962).

Where it would be manifestly unfair to apply the hourly wage earned by the employee at the time of his injury as a measure of his average weekly wages prior to the accident, as he had only been employed in that job for four days, the trial court did not err in calculating his award based on his earnings for 28 of the preceding 30 weeks. Kendrick v. Gackle Drilling Co., 71 N.M. 113, 376 P.2d 176, 1962 N.M. LEXIS 1492, 1962 N.M. LEXIS 1493, 1962 N.M. LEXIS 1494 (N.M. 1962).

Where an employee worked only half days, her wages for purposes of former  57-912M, 1941 Comp., were properly calculated using full days; such a calculation was not unfair to the employer and its insurer, because the employee’s capacity to earn was no different after the injury and the hazard, and wages would have been doubled had the employee worked full days. La Rue v. Johnson, 1943-NMSC-031, 47 N.M. 260, 141 P.2d 321, 1943 N.M. LEXIS 32 (N.M. 1943).

Court had to determine the average weekly earnings of other workmen engaged in like employment in the same locality during preceding weeks of a logging trucker’s death while on the job to arrive at the benefit amount that his widow was to receive. Burruss v. B. M. C. Logging Co., 1934-NMSC-023, 38 N.M. 254, 31 P.2d 263, 1934 N.M. LEXIS 22 (N.M. 1934).

Because a contract specified that a logger, not his employer, had to supply and repair his own equipment at his own cost, the logger was not required to deduct from his wages, as defined in 52-1-20A NMSA 1978, reimbursement for out-of-pocket costs, and payments made by the employer were compensation; nor was logging “seasonal employment” for the purposes of the New Mexico Workers’ Compensation Act (52-1-1 NMSA 1978) and the use of 52-1-20B NMSA 1978 to determine average weekly wage was appropriate. Murillo v. Payroll Express, 1995-NMCA-062, 120 N.M. 333, 901 P.2d 751, 1995 N.M. App. LEXIS 89 (N.M. Ct. App. 1995).

Under 52-1-20 NMSA 1978, the date of a worker’s accident, injury, and benefits was to be determined by and as of the date when the injury manifested itself or when the worker knew or should have known that the worker had suffered a compensable injury. Casias v. Zia Co., 1979-NMCA-068, 93 N.M. 78, 596 P.2d 521, 1979 N.M. App. LEXIS 836 (N.M. Ct. App.), cert. denied, 93 N.M. 8, 595 P.2d 1203, 1979 N.M. LEXIS 1401 (N.M. 1979).

Exigent circumstances exception of 52-1-20D NMSA 1978 for unusually high wages is not meant to apply to federally regulated wages foreseen at the time a contract was negotiated and provided for initially during calculation of a construction bid; such circumstances are covered by the general rule of the Workmen’s Compensation Act, 52-1-1 — 52-1-69 NMSA 1978, that an injured worker’s benefits will be computed on the basis of his average weekly wage at the time of the accident. Salcido v. Transamerica Ins. Group, 1985-NMSC-002, 102 N.M. 217, 693 P.2d 583, 1985 N.M. LEXIS 1920 (N.M. 1985).

Section 52-1-20C NMSA 1978, not 52-1-20B NMSA 1978, is applicable in multiple job situations, and 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, 1994-NMCA-016, 117 N.M. 118, 869 P.2d 306, 1994 N.M. App. LEXIS 5 (N.M. Ct. App.), cert. denied, 117 N.M. 215, 870 P.2d 753, 1994 N.M. LEXIS 53 (N.M. 1994).

Section 52-1-20B NMSA 1978 does not require a worker to have been employed for a specific designated period prior to the injury in order to make the average weekly calculation; however, the term “average weekly wage” indicates a legislative expectation that the fact finder will identify a representative week. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030, 1989 N.M. App. LEXIS 104 (N.M. Ct. App. 1989), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1990 N.M. LEXIS 2 (N.M. 1990).

Section 52-1-20 NMSA 1978 evidences a legislative intent that the methods of computation fairly compute the average weekly wage for employees in all cases. Fahr v. Aaron McGruder Trucking, 1988-NMCA-041, 107 N.M. 241, 755 P.2d 85, 1988 N.M. App. LEXIS 30 (N.M. Ct. App. 1988).

Computation of a claimant’s average weekly wage should have used the wage rate provided in former § 59-3-22B, 1953 Comp. (now 50-4-22 NMSA 1978) of the Minimum Wage Act and not the claimant’s actual wage, which was less than the state minimum wage rate, because former section 59-10-12.13D, 1953 Comp. (now 52-1-20 NMSA 1978) required that the weekly compensation allowed by a court, based on an hourly rate, could not be an hourly rate less than the minimum provided by the Minimum Wage Act. Trujillo v. Tanuz, 1973-NMCA-048, 85 N.M. 35, 508 P.2d 1332, 1973 N.M. App. LEXIS 694 (N.M. Ct. App. 1973).

Where a worker at a federal government construction site was being paid, pursuant to federal statute, an hourly wage that was twice his normal wage, his higher wage was not temporarily high as to that particular construction project, so his benefits had to be computed under the general rule of the Workmen’s Compensation Act, 52-1-1 — 52-1-69 NMSA 1978, that a worker’s compensation benefits will be computed on the basis of his average weekly wage, defined at 52-1-20A NMSA 1978, at the time of the accident; he was not within the exception of 52-1-20D NMSA 1978 for unusually high wages. Salcido v. Transamerica Ins. Group, 1985-NMSC-002, 102 N.M. 217, 693 P.2d 583, 1985 N.M. LEXIS 1920 (N.M. 1985).

Hearing officer correctly calculated an employee’s average weekly wage figure for disability benefits under 52-1-20 NMSA 1978; the court rejected the employer’s interpretation of the employer as to the interpretation of the statute. Fahr v. Aaron McGruder Trucking, 1988-NMCA-041, 107 N.M. 241, 755 P.2d 85, 1988 N.M. App. LEXIS 30 (N.M. Ct. App. 1988).

Trial court did not err in applying a calculation approved by statute that divided the employee’s school district pay for being an educational aide by 52-weeks even though she worked 40 weeks a year for the public school system; the average weekly wages for the purpose of computing benefits provided in the Workmen’s Compensation Act was to be calculated, pursuant to 52-1-20A, B NMSA 1978, based upon the monthly, weekly, daily, hourly, or other remuneration which the injured employee was receiving at the time of the injury by taking the monthly wage at the time of accident, multiplying by twelve then by dividing by 52. Duran v. Albuquerque Pub. Sch., 1986-NMCA-115, 105 N.M. 297, 731 P.2d 1341, 1986 N.M. App. LEXIS 696 (N.M. Ct. App. 1986), cert. denied, 105 N.M. 290, 731 P.2d 1334, 1987 N.M. LEXIS 3464 (N.M. 1987).

A contract bus driver’s saving on operation costs allowed her to realize additional wage pay under 52-1-20 NMSA 1978, thus on remand a trial court was to redetermine the amount of benefits due her for a total disability where what portions of her contract with a school system were includable as salary was at issue. Gonzales v. Mountain States Mut. Casualty Co., 1986-NMCA-111, 105 N.M. 100, 728 P.2d 1369, 1986 N.M. App. LEXIS 685 (N.M. Ct. App. 1986), cert. denied, 106 N.M. 714, 749 P.2d 99, 1988 N.M. LEXIS 353 (N.M. 1988).

Use of a welder’s representative wage was fair given the welder had been receiving a reduced wage at the time of a work-related injury that was not representative of the wage that he usually earned; 52-1-20C NMSA 1978 provided that such other method could be used so long as it would be based upon the facts presented to fairly determine the employee’s average weekly wage. Eberline Instrument Corp. v. Felix, 103 N.M. 422, 708 P.2d 334, 1985 N.M. App. LEXIS 535 (N.M. Ct. App. 1985).

A workers’ compensation claim was properly dismissed after an employer complied with a ruling to increase the worker’s benefits to the maximum benefits required under 52-1-20C NMSA 1978 by paying the arrearages and increasing the benefits to the maximum weekly benefit; the claim became moot because liability for the employer’s prior miscalculation was extinguished. Patterson v. Albuquerque, 1983-NMCA-037, 99 N.M. 632, 661 P.2d 1331, 1983 N.M. App. LEXIS 699 (N.M. Ct. App.), cert. denied, 99 N.M. 644, 662 P.2d 645, 1983 N.M. LEXIS 2295 (N.M. 1983).

Where a decedent did not receive any payment for his work for an employer of which he was a part-owner, plaintiff widow was not entitled to compensation benefits under former 59-10-18.7, 1953 Comp. (now 52-1-46 NMSA 1978) because the decedent did not receive wages as required under the Workmen’s Compensation Act, former 59-10-12.13, 1953 Comp. (now 52-1-20 NMSA 1978). Gilliland v. Hanging Tree, Inc., 92 N.M. 23, 582 P.2d 400, 1978 N.M. App. LEXIS 584 (N.M. Ct. App.), cert. denied, 92 N.M. 180, 585 P.2d 324, 1978 N.M. LEXIS 1101 (N.M. 1978).

Workmen’s compensation benefits of an employee injured after returning to work following his participation in a strike were to be based on the higher wages he earned after returning to work because his return to work was considered a new employment under former 1929 Code, § 156-112M. Mendoza v. Gallup Southwestern Coal Co., 41 N.M. 161, 66 P.2d 426, 1937 N.M. LEXIS 12, 1937 N.M. LEXIS 13 (N.M. 1937).

In a workers’ compensation action, a worker’s earning were correctly determined under former 1929 Code, § 15-112M by dividing his total earnings by 52 because the worker was employed for one year, even though he worked intermittently for the employer for more than one year. Stevens v. Black, Sivalls & Bryson, Inc., 1935-NMSC-016, 39 N.M. 124, 42 P.2d 189, 1935 N.M. LEXIS 13 (N.M. 1935).