Justiz v. Walgreen's

742 P.2d 1051, 106 N.M. 346
CourtNew Mexico Supreme Court
DecidedSeptember 16, 1987
Docket16830
StatusPublished
Cited by9 cases

This text of 742 P.2d 1051 (Justiz v. Walgreen's) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Justiz v. Walgreen's, 742 P.2d 1051, 106 N.M. 346 (N.M. 1987).

Opinions

OPINION

WALTERS, Justice.

Respondents Walgreen’s and the Traveler’s Insurance Company appeal a worker’s compensation award on the ground that the trial court, when computing benefits due, improperly aggregated petitioner’s earnings from both of the worker’s employments. We granted certiorari from the court of appeals’ decision reversing the trial court, and now we reverse the court of appeals.

The issue is whether a worker’s average weekly wage for compensation benefits is to be computed on the basis of wages the worker was earning in the employment in which she was injured, or on the basis of her total earnings from all of her employments.

FACTS

Petitioner was employed as a full-time teacher in the Albuquerque Public School System and, during non-school hours, as a part-time liquor store clerk at Walgreen’s. On March 23, 1984, while lifting a case of liquor at her job at Walgreen’s, she suffered a compensable injury to her back. The trial court determined that as a result of the injury petitioner was totally unable to perform her duties as a liquor store clerk and was unable, to the extent of forty percent, to perform her job either as a teacher or as a sales clerk. The court held that she had sustained a combined disability of sixty percent.

The trial court aggregated petitioner’s teaching and Walgreen’s wages to determine the average weekly wage upon which her benefit amount would be calculated. A divided panel of the court of appeals reversed and held that the wage calculation provisions of the Workmen’s Compensation Act, NMSA 1978, Section 52-1-20, as interpreted in Eberline Instrument Corp. v. Felix, 103 N.M. 422, 708 P.2d 334 (1985), do not allow aggregation of wages under the facts of this case. We do not agree that either the statute or Eberline mandated that conclusion, and conclude that Judge Garcia correctly stated the law in his dissenting opinion.

Section 52-1-20 governs the method for computing average weekly wages. It provides, in pertinent part:

A. whenever the term “wages” is used, it shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the accident, * * *
B. average weekly wages for the purpose of computing benefits provided in the Workmen’s Compensation Act shall, except as hereinafter provided, be calculated upon the monthly, weekly, daily, hourly or other remuneration which the injured or killed employee was receiving at the time of the injury, * * *
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 not worked a sufficient length of time to enable his earnings to be fairly computed thereunder, or has been ill or in business for himself, or where for any other reason said methods will not fairly compute the average weekly wage; in each particular case, computation of the average weekly wage of said employee [shall be made] in such other manner and by such other method as mil be based upon the facts presented [to] fairly determine such employee’s average weekly wage\f\ (Emphasis added.)

We held in Eberline that a worker’s compensation benefits were to be computed on the average weekly wage being earned by the employee at the time of his accident rather than on the average weekly wage he had been earning in his primary employment at some time prior to the accident. The employee, Felix, had been working for Eberline since 1978 as a utility worker. In 1982, Felix was given the choice of being laid off or accepting a lower-grade job as a machine operator at $6.35 per hour. Felix chose to continue working at the lower wage, and it was as a machine operator that he was injured on December 9, 1982. Eberline, 103 N.M. at 423, 708 P.2d at 335. We reasoned that, under the plain wording of Section 52-l-20(B)(4),1 Felix’s benefits pursuant to the Workmen’s Compensation Act were to be calculated upon the hourly remuneration he was receiving at the time of the injury. It was unnecessary to consider Section 52-l-20(C) to determine Felix’s benefits, because the method provided under Section 52-l-20(B)(4) fairly computed what Felix’s average weekly wage was at the time of the accident. We observed that Section 52-l-20(C) would be controlling in unusual circumstances, as in Kendrick v. Gackle Drilling Co., 71 N.M. 113, 376 P.2d 176 (1962) (injured worker’s income erratic because he worked only a few days at each job), where a worker’s average weekly wage could not “fairly be determined by the precise methods outlined in Section 52-l-20(B).” Id. at 424, 708 P.2d at 336.

Respondents vigorously urge that Eberline would limit determination of the average weekly wage to the amount petitioner was receiving under a specific “contract of hire in force at the time of the accident,” and therefore was, as the court of appeals decided, only the hourly wage from her part-time employment at Walgreen’s. They contend that since petitioner’s average weekly wage at Walgreen’s is fairly determinable by the precise methods outlined in Section 52-l-20(B), resort to Subsection (C) is inappropriate.

That argument overlooks the portion of Section 52-l-20(C) which directly applies to “any other reason [Subsection B] will not fairly compute the average weekly wage.” Eberline does not preclude the aggregation of petitioner’s wages from her two separate but concurrent employments if that is necessary to fairly compute petitioner’s average weekly salary and, in fact, Eberline offers absolutely no insight on the question of an average weekly wage derived from more than a single employment. On the other hand, Eberline makes it clear that fair computation is the essence of the Section 52-1-20 calculation. Subsection (C) permits the trial court, in cases where a worker’s weekly wages are for any reason not fairly determinable by the provisions of Subsections (A) or (B), to utilize such other manner or method as will fairly make that determination.

The primary test for disability entitling a worker to compensation is the capacity to perform work. Medina v. Zia Co., 88 N.M. 615, 617, 544 P.2d 1180, 1182 (Ct.App.1975), cert. denied, 89 N.M. 6, 546 P.2d 71 (1976). The trial court determined petitioner to be sixty percent unable to perform any work for which she was fitted by age, education, training, general physical and mental capacity, and previous work experience. Since, according to the trial court’s findings, the injury occurring on the part-time job disabled petitioner from working at 100% capacity at either of her jobs, 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. See American Uniform & Rental Serv. v. Trainer, 262 So.2d 193, 194 (Fla.1972); 2 Larson, Workmen’s Compensation Law, § 60-31(c) (1987).

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Justiz v. Walgreen's
742 P.2d 1051 (New Mexico Supreme Court, 1987)

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Bluebook (online)
742 P.2d 1051, 106 N.M. 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/justiz-v-walgreens-nm-1987.