Antillon v. New Mexico State Highway Dept.

• Decision Date: 16 July 1991
• Docket Number: No. 12449,12449
• Citation: Antillon v. New Mexico State Highway Dept., 113 N.M. 2, 820 P.2d 436, 1991 NMCA 93 (N.M. App. 1991)
• Parties: Jose A. ANTILLON, Claimant-Appellee/Cross-Appellant, v. NEW MEXICO STATE HIGHWAY DEPARTMENT, Respondent-Appellant/Cross-Appellee.
• Court: Court of Appeals of New Mexico

Page 436

820 P.2d 436

113 N.M. 2

Jose A. ANTILLON, Claimant-Appellee/Cross-Appellant, v.NEW MEXICO STATE HIGHWAY DEPARTMENTRespondent-Appellant/Cross-Appellee.

No. 12449.

Court of Appeals of New Mexico.

July 16, 1991.

[113 N.M. 3] Frederick H. Sherman, Sherman & Sherman, P.C., Deming, for claimant-appellee/cross-appellant.

Daniel G. Acosta, Reeves, Chavez, Greenfield, Acosta & Walker, P.A., Las Cruces, for respondent-appellant/cross-appellee.

OPINION

MINZNER, Judge.

Employer appeals and claimant cross-appeals the compensation order of the workers' compensation administration.We discuss (1) whether certain fringe benefits are included in the definition of "wages" under NMSA 1978, Section 52-1-20(A)(Orig.Pamp.), and (2) whether this claim should be resolved under the provisions of the 1986 Act, NMSA 1978, Secs. 52-1-1 to -69 (Orig.Pamp. &Cum.Supp.1986), commonly referred to as the Interim Act, or the 1987 Act, NMSA 1978, Secs. 52-1-1 to -70 (Repl.Pamp.1987).We reverse the workers' compensation judge (WCJ) on those issues.We address two other issues summarily, and affirm on those issues.Claimant's cross-appeal raises various issues concerning the award of attorney fees made under the 1987 Act.Because we conclude that this claim was actually resolved in part under the Interim Act, we remand to permit the WCJ to clarify his ruling and for redetermination of attorney fees without addressing the issues raised in the cross-appeal.We discuss the relevant facts in connection with our discussion of each issue.

Procedural Issues.

At the outset, we note that claimant contends that the issues raised on appeal were not properly raised in the docketing statement, or were not properly briefed, or, in some cases, were waived below by statements made by employer's attorney during certain telephone conferences.We have reviewed the docketing statement, the brief-in-chief, and the telephone conferences.We hold that the issues argued on appeal were properly raised and preserved below, were adequately raised in the docketing statement, and have been properly briefed.

Whether "Wages" as Used in Section 52-1-20(A) Includes Fringe Benefits.

Claimant was employed by the New Mexico State Highway Department.As a state employee, he received a base salary of $1,180 per month plus certain fringe benefits.The fringe benefits at issue in this appeal are group insurance and retirement benefits available to claimant under the Public Employees' Retirement Act, NMSA 1978, Secs. 10-11-1 to -38 (Repl.Pamp.1983 & Cum.Supp.1986), for which employer contributed $28.52 and $32.47 a week, respectively.In addition, claimant received per diem payments for out-of-town travel pursuant to the provisions of the Per Diem and Mileage Act, NMSA 1978, Sec. 10-8-1 to -8 (Repl.Pamp.1983 & Cum.Supp.1986), in an amount that the WCJ found to average $12 a week.The WCJ included all three of these amounts as part of claimant's "wages" under Section 52-1-20(A).We address the group insurance and retirement benefits together, and the per diem separately.

Group Insurance and Retirement Benefits.

Section 52-1-20(A) reads as follows:

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, either express or implied, and shall not include gratuities received from employers or others, nor shall it include the amounts deducted by the employer under the contract of hire for materials, supplies, tools and other things furnished and paid for by the employer and necessary for the performance of such contract by the employee, but the term "wages" shall include the reasonable value of board, rent, housing, lodging or any other similar advantages received from the employer, the reasonable value of which shall be fixed and determined from the facts in each particular case[.][Emphasis added.]Both parties focus on whether these benefits are a "similar advantage" to those enumerated in the statute, relying on cases from other jurisdictions and their reading of the leading workers' compensation law treatise.See 2 A. Larson, Workmen's Compensation Law Secs. 60.12(a), (b)(1989)(Larson's ).In addition, claimant argues that this issue was already decided in his favor in a district court decision subsequently appealed on a different issue.SeeMontney v. State ex rel. State Highway Dep't, 108 N.M. 326, 772 P.2d 360(Ct.App.1989)(holding that, in the absence of statutory authorization, PERA disability benefits may not be used to offset compensation due under the workers' compensation act).We assume without deciding that the district court's judgment in Montney included the fringe benefits at issue here.But seeReeves v. Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80(Ct.App.1988)(where appellant attacked trial court ruling on basis of collateral estoppel, it was his burden to bring up record sufficient to review the basis of the attack and where he failed to do so all inferences as to sufficiency of evidence would be resolved in favor of trial court's ruling).Nevertheless, ordinarily the doctrine of collateral estoppel should not bar a state agency from arguing a point of law on the ground that it lost on that issue in prior litigation with a different party.SeeRestatement (Second) of JudgmentsSec. 29(7) and comment i (1982).Thus, we conclude employer was not precluded from litigating the fringe benefits issue in this case.

Although both parties claim their position on this issue is supported by Larson's, we believe that treatise supports employer's position.Professor Larson notes that the term "wages" generally includes anything of value received as consideration for the work, such as tips, bonuses, commissions, and room and board, constituting real economic gain to the employee, 2 Larson's Sec. 60.12(a), but he also notes that fringe benefits similar to the insurance and retirement benefits at issue in this case are not generally included as wages.Id., Sec. 60.12(b).Professor Larson relies on Morrison-Knudsen Construction Co. v. Director, Office of Workers' Compensation Programs, 461 U.S. 624, 103 S.Ct. 2045, 76 L.Ed.2d 194(1983), in which the United States Supreme Court resolved a similar issue involving the term "wages" as used in a federal statute with language similar to our own.Professor Larson argued the case for petitioners(employer and insurance company) in Morrison-Knudsen.

Because this issue is an issue of New Mexico rather than federal law, we do not consider Morrison-Knudsen controlling; however, we consider it for whatever persuasive value its reasoning may have.Thus, we discuss only those portions of the opinion we find to be particularly persuasive or germane to this case.

Morrison-Knudsen held that the term "wages" did not include payments made by an employer to union trust funds that purchased, inter alia, group insurance and retirement benefits for workers.The Court based its decision in part on the language of the statute and in part on the policy reasons behind the Act.With respect to the language of the statute, the Court held that the contributions were not a "similar advantage" to board, rent, lodging, or housing provided by the employer.The Court reasoned that the items referred to in the statute, like lodging, have a present value that can be readily converted into a cash equivalent on the basis of market values.By contrast, the value of an employee's interest in group insurance and retirement benefits is not easily converted into a cash equivalent.In particular, the employer's cost in purchasing these benefits does not accurately measure the value of these benefits to the employee.For example, the employee could not take the amount of the employer's contribution and purchase the same benefits for that amount on the open market.

In addition, the Court rejected the claimant's policy argument that inclusion of fringe benefits was required by the remedial nature of the statute.The Court noted that workers' compensation acts are based on a complex legislative balancing of the interests of employers and employees.Thus, for example, employees give up their rights to sue their employers in tort, which would require them to prove that the employer was negligent, in exchange for the greater certainty of a more limited recovery without proof of negligence.In a similar vein, the Court indicated that for a number of decades the term "wages" had been interpreted in a manner that excluded consideration of fringe benefits.Id. at 634-35, 103 S.Ct. at 2050-51.The Court believed that adopting an interpretation that would include fringe benefits in the definition of "wages" would upset this balancing of interests, and was best left to the legislature.

Professor Larson specifically cautions in his treatise against interpreting the term "wage" to cover such fringe benefits.He states:

Workers' compensation has been in force in the United States for over seventy years, and fringe benefits have been a common feature of American industrial life for most of that period.Millions of compensation benefits have been paid during this time.Whether paid voluntarily or in contested and adjudicated cases, they have always begun with a wage basis calculation that made "wage" mean the "wages" that the worker lives on and not miscellaneous "values" that may or may not someday have a value to him depending on a number of uncontrollable contingencies.Before a single court takes it on itself to say, "We now tell you that, although you didn't know it, you have all been wrongly calculating wage basis in these millions of cases, and so now, after seventy years, we are pleased to announce that we have discovered the true meaning of 'wage' that somehow eluded the rest of you for seven decades," that court would do well to undertake a much more penetrating analysis than is visible in the Circuit Court's...