§ 52-1-20 — Determination of average weekly wage

New Mexico § 52-1-20

• Jurisdiction: New Mexico
• Ch. 52: Workers' Compensation

Text

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.

Legislative History

1953 Comp., § 59-10-12.13, enacted by Laws 1965, ch. 295, § 13; 1989, ch.