Ruiz v. L. Lunas Pub. Sch.

• Court: Court of Appeals of New Mexico
• Citation: 308 P.3d 983
• Docket Number: No. 31,454.,31,454.
• Parties: Michelle RUIZ, Worker–Appellant/Cross–Appellee, v. LOS LUNAS PUBLIC SCHOOLS and New Mexico Public Schools Insurance Authority, Employer/Insurer–Appellees/Cross–Appellants.
• Decision Date: 20 May 2013

308 P.3d 983

Michelle RUIZ, Worker–Appellant/Cross–Appellee,
v.
LOS LUNAS PUBLIC SCHOOLS and New Mexico Public Schools Insurance Authority, Employer/Insurer–Appellees/Cross–Appellants.

No. 31,454.

Court of Appeals of New Mexico.

May 20, 2013.

[308 P.3d 985]

Law Office of Mel B. O'Reilly, LLC, Mel B. O'Reilly, Albuquerque, NM, for Appellant.

Maestas & Sugett, P.C., Paul Maestas, Albuquerque, NM, for Appellees.

OPINION
VIGIL, Judge.

{1} Worker's motion for rehearing is granted. The memorandum opinion filed in this case on March 26, 2013, is hereby withdrawn, and this Opinion is substituted in its place.

{2} In this workers' compensation case, Worker appeals and Employer cross-appeals from two compensation orders entered by the workers' compensation judge following a trial on the merits. For the reasons set forth below, we affirm in part and reverse in part.

BACKGROUND

{3} Worker was working as a school bus driver with the Los Lunas Public Schools (Employer) when she injured her back and shoulder on October 8, 2007. Following a formal hearing, the workers' compensation judge (WCJ) determined that Worker's average weekly wage (AWW) was $270.30; that she had failed to perform a prescribed home exercise program during her recovery and this failure constituted an injurious practice supporting a reduction of her impairment rating by one percent; that Worker's unreasonable refusal of Employer's job offers rendered her ineligible for temporary total disability (TTD) benefits and modified permanent partial disability (PPD) benefits; and that Worker's residual physical capacity was light duty. Following a hearing on Worker's attorney fees, the WCJ found that Employer's offer of compensation was untimely, and Employer was ordered to pay fifty percent of Worker's attorney fees. Additional pertinent facts are discussed as they relate to the issues below.

ISSUES

{4} On appeal, Worker contends the WCJ erred when it: (1) included wages from the 2006–2007 school year in determining Worker's AWW; (2) found that Worker had persisted in an injurious practice by not following a home exercise program and reduced Worker's impairment rating by one percent; (3) denied Worker's TTD benefits and PPD modifier benefits due to her rejection of job offers; and (4) classified Worker's residual physical capacity as light duty when there was evidence she was unable to push or pull with her arms. In its cross-appeal, Employer argues the WCJ erred by: (1) reducing Worker's impairment rating by one percent for her injurious practice because the evidence supports a reduction of no less than five percent; and (2) ordering Employer to pay fifty percent of Worker's attorney fees

[308 P.3d 986]

because Employer had made a valid offer of compensation prior to the start of trial.

STANDARD OF REVIEW

{5} “We review workers' compensation orders using the whole record standard of review.” Leonard v. Payday Prof'l, 2007–NMCA–128, ¶ 10, 142 N.M. 605, 168 P.3d 177. “In applying whole record review, this Court reviews both favorable and unfavorable evidence to determine whether there is evidence that a reasonable mind could accept as adequate to support the conclusions reached by the fact finder.” Levario v. Ysidro Villareal Labor Agency, 120 N.M. 734, 737, 906 P.2d 266, 269 (Ct.App.1995). “Under whole record review, the court views the evidence in the light most favorable to the agency decision, but may not view favorable evidence with total disregard to contravening evidence.” Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 128, 767 P.2d 363, 367 (Ct.App.1988) (citations omitted), holding modified on other grounds by Delgado v. Phelps Dodge Chino, Inc., 2001–NMSC–034, 131 N.M. 272, 34 P.3d 1148. We review the WCJ's application of the law to the facts de novo. Tom Growney Equip. Co. v. Jouett, 2005–NMSC–015, ¶ 13, 137 N.M. 497, 113 P.3d 320.

DISCUSSIONI. Worker's Average Weekly Wage

{6} Worker begins by challenging the calculation of her AWW pursuant to NMSA 1978, Section 52–1–20(B) (1990), on the basis of the employment contracts she entered into at the start of each school year. Under the terms of her contract, Worker was hired to drive a school bus for approximately forty weeks between August and May, with her pay distributed to her over the course of fifty-two weeks. If Worker was hired to drive in June and July, the parties entered into a separate employment contract.

{7} The WCJ determined that “Worker's wage can be fairly calculated under Section 52–1–20(B). Wages paid from April 6, 2007 to October 5, 2007 (182 days) total $7,027.86 divided by 26 equals $270.30.” Worker contends that the WCJ should have calculated her AWW under Section 52–1–20(B)(1) because a new period of employment began in August 2007 under the terms of her contract, and because she was not offered work in June and July 2007. Worker alternatively argues that this Court should calculate her AWW pursuant to Section 52–1–20(C) because the calculation methods provided under either Section 52–1–20(B) or Section 52–1–20(B)(1) result in an unrealistic calculation. Employer contends that the WCJ correctly applied the plain language of Section 52–1–20(B) after determining that Worker had been paid by the school district for the twenty-six weeks preceding her injury. We agree with Employer.

{8} Under Section 52–1–20(B), a worker's “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.” Id. “[I]f 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.” Section 52–1–20(B)(1). “[I]n any case where the foregoing methods of computing the average weekly wage of the employee ... 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 [to] fairly determine such employee's average weekly wage.” Section 52–1–20(C).

{9} Under the terms of her employment contract, Worker was paid over a fifty-two week calendar year for approximately forty weeks of actual work. Therefore, even though Worker was not offered work as a bus driver in June and July, her payroll records indicate that she continually received wages for her work from the 2006–2007 school year during this time. The plain language of Section 52–1–20(B) specifies that a worker's AWW is calculated by examining “the total wages paid to the worker during the twenty-six weeks immediately preceding the date of injury,” indicating that our focus

[308 P.3d 987]

is on the wages earned by Worker, not whether she was actually working during this time. Because Worker's payroll records indicate that she did receive wages over the course of the twenty-six weeks preceding her injury, we find that the WCJ's AWW calculation under Section 52–1–20(B) was appropriate. See Vinyard v. Palo Alto, Inc., 2013–NMCA–001, ¶ 16, 293 P.3d 191 (illustrating the propriety of adhering to the methodology set forth in Section 52–1–20(B) where a fair computation results).

{10} Worker contends that Section 52–1–20(B) is inapplicable because the terms of her contract and the fact that she did not work during the summer months preceding her injury establish that she had not worked for twenty-six weeks in the employment. We disagree. The contract for the 2007–2008 school year between Worker and Employer states that Worker is “a non-certified employee with three or more consecutive years of employment with the School District” and neither party disputes that Worker had worked as a bus driver for Employer for seven consecutive school years prior to her injury. Additionally, the fact that Worker did not work during the two summer months in June and July preceding her injury, is not sufficient evidence by itself to constitute a new employment. See Villanueva v. Sunday Sch. Bd., 121 N.M. 98, 102, 908 P.2d 791, 795 (Ct.App.1995) (finding that a seasonal worker who had not worked for approximately five months during the winter preceding her injury did not conclusively establish that a new period of employment had begun for purposes of an AWW calculation).

{11} Finally, Worker requests this Court to consider an alternative AWW calculation pursuant to Section 52–1–20(C) due to the fact that the 2007–2008 contract was a recent change in Worker's circumstances. In reviewing Worker's payroll records, we find no substantial shift in her wages earned during the 2006–2007 and 2007–2008 school years and Worker makes no argument to explain any effect that the most recent contract had on her wages. See Headley v. Morgan Mgmt. Corp., 2005–NMCA–045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party's] arguments might be.”). Further, there is no reason to resort to a Section 52–1–20(C) calculation as the WCJ's calculation under Section 52–1–20(B) resulted in a fair and accurate AWW for Worker.

II. Worker's Home Exercise Program

{12} A home exercise program appears to have been an anticipated part of Worker's therapy. Worker's initial referral for physical therapy specified the need for a home exercise program as part of her rehabilitation. Notations from her various visits with her physical therapists indicate that implementing a home exercise program was planned. However, a note from her physical therapist states that “[Worker] reports she has not been performing any [home exercise program], reports she has not received any home therapy.” There is no indication that Worker's doctors or physical therapists ever implemented the planned program by prescribing specific home exercises for Worker to perform during her recovery.

{13}...