Apodaca v. Payroll Exp., Inc.

• Decision Date: 16 November 1993
• Docket Number: No. 14539,14539
• Citation: 867 P.2d 1198,1993 NMCA 141,116 N.M. 816
• Parties: Lemuel APODACA, Claimant-Appellee, v. PAYROLL EXPRESS, INC., Leonard Jensen d/b/a Leonard Jensen Logging, and United States Fidelity & Guaranty Company, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 1198

867 P.2d 1198

116 N.M. 816

Lemuel APODACA, Claimant-Appellee, v. PAYROLL EXPRESS, INC., Leonard Jensen d/b/a Leonard Jensen Logging, and United States Fidelity & Guaranty Company, Respondents-Appellants.

No. 14539.

Court of Appeals of New Mexico.

Nov. 16, 1993.

[116 N.M. 818] Benito Sanchez, Benito Sanchez, P.A., Albuquerque, for claimant-appellee.

Timothy R. Briggs, Thomas R. Mack, Miller, Stratvert, Torgerson & Schlenker, P.A., Albuquerque, for respondents-appellants.

OPINION

BIVINS, Judge.

Respondents, Payroll Express, Inc. and Leonard Jensen [hereinafter Payroll Express and Jensen], appeal a compensation order awarding Claimant, Lemuel Apodaca, compensation for partial disability and other benefits. Judge John W. Pope presided over the proceeding and filed findings of fact and conclusions of law and a compensation order on all issues except attorney fees. Because Judge Pope was appointed to the district court before the attorney fee issue was resolved, Judge Rosa Q. Valencia presided over that portion of the proceeding. Respondents raise seven issues on appeal that concern: (1) the calculation of average weekly wage with a determination of Claimant's status of employment, (2) the disability award including failure to make an award for a particular period, (3) the adequacy of medical care, (4) the existence of insurance coverage, (5) the need for vocational rehabilitation, (6) the attorney fee award, and (7) reimbursement. We identify those issues below and address them serially. We affirm in part and reverse and remand in part.

1. Computation of Average Weekly Wage

Because the status of Claimant's employment and the computation of his average weekly wage are interrelated, we discuss these issues together. And, because Claimant's status determines how his average weekly wage must be calculated, we discuss the status issue first.

a. Status of Employment

The judge in Finding of Fact No. 2 found: "Claimant, Lemuel Apodaca, was an employee of Respondents, Payroll Express, Inc. and Leonard Jensen, on July 26, 1990." Respondents forcefully argue that this finding was inadequate for a meaningful review as to Claimant's status. They refer us to our recent decision in Lujan v. Payroll Express, Inc., 114 N.M. 257, 262, 837 P.2d 451, 456 (Ct.App.), cert. denied, 114 N.M. 62, 834 P.2d 939 (1992), where this Court remanded for additional findings on the question of whether the worker was an independent contractor with respect to his reimbursement for certain items included in his remuneration. Respondents, however, do not request remand in this case, arguing that the evidence would support only one determination: that Claimant was a self-employed independent contractor.

While we agree with Respondents that the finding made provides little or no insight as to how the judge reached his decision that Claimant was an employee, we must also agree with Claimant that the rules of procedure do not require more than an ultimate finding of fact. See SCRA 1986, 1-052(B) (Repl.1992); Griego v. Bag 'N Save Food Emporium, 109 N.M. 287, 291, 784 P.2d 1030, 1034 (Ct.App.1989), cert. denied, 109 N.M. 262, 784 P.2d 1005 (1990). Thus, the question becomes whether substantial evidence supports the finding that Claimant was the employee of both Payroll Express and Jensen. See Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 128, 767 P.2d 363, 367 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). The finding must therefore stand unless there was insufficient evidence to support it. See Id.

This Court, however, declines to consider whether substantial evidence supports the finding because Respondents have not complied with Martinez v. Southwest Landfills, Inc., 115 N.M. 181, 848 P.2d 1108 (Ct.App.1993). Under Martinez, we may decline to review where a party challenging the sufficiency of the evidence (1) fails to set forth the substance of all evidence bearing on the question, and (2) fails to demonstrate why the evidence under the whole record does not support the finding. Id. at 184, 848 P.2d at 1111. In the reply brief, Respondents contend that they are not challenging the sufficiency of the evidence, but rather, the adequacy of the findings and errors of law committed. If that is the nature of the challenge, then we have already pointed out that the ultimate finding in Finding No. 2, which states Claimant is an employee, is adequate under our rules.

Notwithstanding Respondents' disclaimer in their reply brief, their brief in chief does indeed challenge the sufficiency of the evidence. Contrary to Martinez, Respondents do not, however, set out all favorable and unfavorable evidence. For example, in their statement of the facts, Respondents provide only favorable evidence in support of their argument that Claimant is an independent contractor. In their argument section, Respondents even argue that "the facts are virtually undisputed." This is an incorrect statement because Claimant has specifically brought to our attention evidence which demonstrates control over Claimant by Fidel Martinez, Jensen's son-in-law. Respondents additionally do not meet the other prong of the Martinez test, which requires that they demonstrate why unfavorable evidence should be discredited. Because Respondents have failed to comply with Martinez, we decline to review the employment status question any further and consequently uphold the judge's determination that Claimant was an employee of both Payroll Express and Jensen.

b. Average Wage Computation

Having determined that the judge's conclusion concerning Claimant's employment status must stand, we examine the average weekly wage computation question on the basis that Claimant was an employee rather than an independent contractor. On the question of average weekly wage, the judge did not make a finding of fact; he did, however, make three conclusions of law:

9. Claimant's workers' compensation rate is $291.75 per week.

10. The wages paid to Claimant by Respondent, Leonard Jensen, amounted to an additional economic gain, because they were well in excess of any employment as a logger.

11. The wages paid by both Respondents should be combined to calculate the Claimant's average weekly wage.

Those conclusions are very similar to Claimant's requested Conclusions Nos. 10, 11, and 12. The judge did not, however, adopt Claimant's requested findings on the average weekly wage question. Those requested findings set forth evidentiary facts which might have supported an average weekly wage sufficient to justify the compensation rate of $291.75 per week in Conclusion No. 9.

This Court may treat a conclusion of law as a finding of fact under certain circumstances, see Watson Land Co. v. Lucero, 85 N.M. 776, 777, 517 P.2d 1302, 1303 (1974); Sheraden v. Black, 107 N.M. 76, 80, 752 P.2d 791, 795 (Ct.App.1988), and we choose to do so here. Conclusion No. 9 should have been listed as a finding of fact and not a conclusion of law, and we will therefore treat Conclusion No. 9 as if it were a finding of fact.

As we stated earlier, a judge is only required to list ultimate findings of fact; however, findings not supported by sufficient evidence will not be upheld. See Tallman, 108 N.M. at 128, 767 P.2d at 367. The question now becomes whether the judge correctly determined the average weekly wage given that we uphold the decision that Claimant was found to be an employee of Payroll Express and Jensen.

While the judge correctly aggregated the amounts paid by Respondents in Conclusion No. 11, we are unable to tell if the judge used a gross or net amount to arrive at the compensation rate of $291.75. It appears the judge used gross amounts without making deductions for costs to Claimant in determining the average weekly wage, which is incorrect. Additionally, we are unable to tell from the briefs what items are includable as a part of the wage basis for calculation purposes and what items are not. We therefore conclude that the case must be remanded for a determination of average weekly wage using the correct application of the law. See Tallman, 108 N.M. at 128, 767 P.2d at 367 (" 'To conclude that an administrative decision is supported by substantial evidence in the whole record, the court must be satisfied that the evidence demonstrates the reasonableness of the decision.' " (quoting National Council on Compensation Ins. v. New Mexico State Corp. Comm'n, 107 N.M. 278, 282, 756 P.2d 558, 562 (1988))).

NMSA 1978, Section 52-1-20 (Repl.Pamp.1987), sets forth the method for determining average weekly wage. While we do not, and in fact cannot, make that determination on review, we will set forth several principles to guide the judge on remand.

Section 52-1-20(A) defines wages "to mean the money rate at which the services rendered are recompensed under the contract of hire." They do not "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." Id. However, wages do include, "the reasonable value of board, rent, housing, lodging or any other similar advantages received from the employer." Id. Thus, with that general definition, which admittedly does not cover the rather unique arrangement with Payroll Express and Jensen involved in this case, the judge on remand will have the task of determining what items to include or exclude from the total pay received directly and indirectly from Respondents.

As we understand the facts, although they are unclear, it appears that Claimant was paid at the time of the accident on the basis of $1.50 per log. From that gross amount, it appears that Claimant's workers' compensation insurance, his taxes, the employer's matching share of taxes, and his operating costs were to be paid. We also understand that Claimant would receive two checks, one, a paycheck from Payroll Express and, two, a so-called contract check from Jensen. What is not clear is...