Griego v. Bag 'N Save Food Emporium

• Decision Date: 09 November 1989
• Docket Number: No. 11105,11105
• Citation: 784 P.2d 1030,109 N.M. 287,1989 NMCA 97
• Parties: Theresa GRIEGO, Claimant-Appellee, v. BAG 'N SAVE FOOD EMPORIUM and Texas General Indemnity, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 1030

784 P.2d 1030

109 N.M. 287

Theresa GRIEGO, Claimant-Appellee, v.BAG 'N SAVE FOOD EMPORIUM and Texas General IndemnityRespondents-Appellants.

No. 11105.

Court of Appeals of New Mexico.

Nov. 9, 1989.

Certiorari Denied Jan. 3 and 4, 1990.

David L. Duhigg, Duhigg, Cronin & Spring, Bruce P. Moore, Albuquerque, for claimant-appellee.

E.W. Shepherd, Hatch, Beitler, Allen & Shepherd, P.A., Albuquerque, for respondents-appellants.

OPINION

MINZNER, Judge.

Employer appeals the hearing officer's determination of claimant's average weekly wages for computation of her rate of compensation, which was the only disputed issue.We reverse and remand for further proceedings.

Claimant was injured on February 26, 1988.She had worked for employer since July 1987.From July 1987 to January 1988, she had been employed as a delicatessen ("deli") clerk at employer's Santa Fe store.In January 1988, she was transferred to employer's new store in Rio Rancho.

During the three weeks prior to the week of the accident, the Rio Rancho store held its grand opening.Claimant worked an unusually high number of overtime hours during this period.

Two weeks prior to the week of the accident, claimant was promoted from deli clerk to salad bar manager.Claimant appears to have been in a unique position.Although her new title suggested employer considered her a manager, she remained an hourly employee.

After the accident, employer paid claimant benefits for temporary total disability.It is undisputed that claimant had not reached maximum medical improvement at the time of trial.

At the time of the hearing, claimant urged the hearing officer to apply NMSA 1978, Section 52-1-20(B)(Repl.Pamp.1987)(hereinafter subsection B).¹Under that provision, claimant asked the hearing officer to make one of two different computations.The first was her average wage for the two weeks before the week of her accident, or $466.17.Claimant indicated in closing argument that figure would have given her the maximum compensation award under NMSA 1978, Section 52-1-41(Repl.Pamp.1987).Alternatively, claimant asked the hearing officer to calculate what her earnings would have been the week of the accident.Because claimant was injured at 9:40 a.m. on a Friday, she did not work a full week the week of the accident.At the time of the injury she had completed forty hours of regular work and 1.91 hours of overtime.Her actual earnings for that week were $240.04.Claimant asked the hearing officer to assume that she would have completed an eight-hour day on Friday as well as on Saturday, and thus to determine that she would have worked approximately 14.2 hours of overtime that week.Claimant requested a finding, based on an "adjusted" last week, that, on the date of her injury, "her average weekly wage was $341.59."

Employer urged the hearing officer to apply Section 52-1-20(D)(hereinafter subsection D).²In effect, employer asked the hearing officer to ignore claimant's schedule during the four grand opening weeks, on the ground that the grand opening was a necessity temporarily requiring employer to pay extraordinarily high wages.SeeSalcido v. Transamerica Ins. Group, 102 N.M. 217, 693 P.2d 583(1985).Under such circumstances, the average weekly wage is based on the usual earnings in the same community for labor of the kind the worker was performing at the time of the injury.

Employer argued at trial that the hearing officer should calculate claimant's average weekly wage by identifying the average number of regular and the average number of overtime hours she had worked prior to the grand opening.Employer suggested that the correct computation should be based on approximately thirty-five regular hours and five overtime hours, or an average weekly wage of $240.00.Thus, employer asked the hearing officer to find that "the usual earnings" under subsection D were claimant's pre-grand opening average weekly wage.

The record indicates that the hearing officer accepted employer's argument that he should apply subsection D.The record also indicates that the hearing officer relied on claimant's "adjusted" last week, as well as the typical schedule followed by her supervisor, the deli manager.

The hearing officer found that:

7.Claimant's wage rate cannot be fairly calculated using Section 52-1-20(B) by reason that her job description, work location, and work hours had materially changed shortly before her accidlental [sic] injury.

8.Claimant's overtime hours were necessary to meet exigent circumstances as described in Salcido v. Transamerica Ins. Group, 102 N.M. 218[217, 693 P.2d 583], to wit, to meet short term exceptional demand during a store opening.

8.[sic]Claimant was an hourly rate employee with supervisory duties over the salad bar.

* * * * * *

11.Respondent had a policy against hourly rate employee overtime.

12.The deli manager worked nine to ten hours per day, a typical schedule for a supervisor.

13.Claimant worked Monday through Saturday.

14.Claimant, as a supervisor could reasonably have worked on a normal schedule 54 hours per week, 40 at $5.60 per hour, 14 at $8.40 per hour for a weekly gross salary of $341.60.

15.The resulting comp[ensation [sic] rate for Claimant should be two thirds of $341.60, or $227.73 per week.

16.Claimant's maximum compensation rate would be $227.73 per week if totally disabled.

Employer makes five arguments on appeal.They are (a)claimant failed in her burden of proof under subsection D;(b) the hearing officer's findings of fact are insufficient to support the application of subsection D;(c) finding of fact no. 14 is inconsistent with findings of fact nos. 7, 8, 9, and 11; (d) findings of fact nos. 14, 15, and 16 are not supported by substantial evidence; and (e) the disposition order is not supported by findings of fact that are supported by substantial evidence.We address each argument in turn.

Under subsection D, the hearing officer recognizes unique or exigent circumstances that produce an unusually high average weekly wage.Because employer sought the benefit of this subsection, employer had the burden of proof.SeeBaca v. Bueno Foods, 108 N.M. 98, 766 P.2d 1332(Ct.App.1988)(one who seeks relief under statute has burden of proving he or she comes within its terms).Thus, if there was insufficient evidence to support the hearing officer's determination under subsection D, employer, rather than claimant, has failed to prove its case.Id.

In the absence of such proof, we do not think the legislature intended that no award be made.The legislature surely intended to enable the fact finder to make an appropriate award rather than to frustrate the effort.Cf.Burruss v. B.M.C. Logging Co., 38 N.M. 254, 259, 31 P.2d 263, 266(1934)(applying prior law, the supreme court held "[t]he provision is to aid an award, not to prevent one.").We conclude that if employer fails to prove sufficient facts to support a determination under subsection D, the hearing officer must make a determination under subsection B or sub section C.³

Employer also contends the findings made by the hearing officer are insufficient to support his determination under subsection D.He notes that no findings were made as to the number of days that the deli manager worked or his usual earnings.

Findings by a trial court judge need not cover every material fact but only ultimate facts.McCleskey v. N.C. Ribble Co., 80 N.M. 345, 455 P.2d 849(Ct.App.1969);SCRA 1986, 1-052(B)(1)(b).Failure of the trial judge to make specific evidentiary findings of fact is not reversible error.Id.The findings of which employer complains are evidentiary findings.Seeid.They were, however, entered by a hearing officer rather than a district judge.NMSA 1978, Sec. 52-5-7(B)(Repl.Pamp.1987).Thus, the question is whether the hearing officer's findings must cover more than the ultimate facts.The answer is no.

By statute the hearing officer is required to enter a compensation order containing findings of fact and conclusions of law after a formal hearing.The legislature has repealed the provision that the rules of civil procedure govern workers' compensation claims and actions.See1986 N.M.Laws, ch. 22, Sec. 102.Under present law, the division is authorized to adopt reasonable rules and regulations to effect the purposes of the Workers' Compensation Act.SeeNMSA 1978, Sec. 52-5-4(Repl.Pamp.1987).Under that authority, the director may choose to require that the hearing officer make evidentiary findings.Cf.Redman v. Board of Regents of New Mexico School for Visually Handicapped, 102 N.M. 234, 693 P.2d 1266(Ct.App.1984)(fact that rules of civil procedure are made inapplicable to de novo hearings does not preclude State Board of Education from adopting procedures of its own to facilitate de novo hearings).The rules and regulations issued by the director presently include a provision that formal hearings are governed by the rules of civil procedure.Rules and Regulations, New Mexico Workmen's Compensation Administration, Rules of Procedure for Formal Hearings, I(1)(Undated).

The rule that a trial court must make ultimate findings of fact serves the purpose of providing a record of the basis for the fact finder's conclusion.See generally5A J. Moore & J. Lucas, Moore's Federal Practice p 52.06, at 52-139(2d ed. 1989).The further principle that the trial court need not make evidentiary findings unless requested, seeSCRA 1986, 1-052(B)(1)(f), excuses the fact finder from a task that imposes a burden without corresponding benefit.Given the purpose of the further principle, we apply it to hearing officers within the Workers' Compensation Division until such time as the director makes a different provision under Section 52-5-7(B).

Employer's argument that the hearing officer failed to make certain findings seems to be in effect a challenge to the comparison the hearing officer made between claimant and her...