Villanueva v. Sunday School Bd. of Southern Baptist Convention

• Decision Date: 26 October 1995
• Docket Number: No. 16214,16214
• Citation: 908 P.2d 791,1995 NMCA 135,121 N.M. 98
• Parties: Eppie VILLANUEVA, Worker-Appellant, v. SUNDAY SCHOOL BOARD OF the SOUTHERN BAPTIST CONVENTION, d/b/a Glorieta Baptist Convention Center, et al., and Fireman's Fund Insurance Co., Employer/Insurer-Appellees.
• Court: Court of Appeals of New Mexico

Page 791

908 P.2d 791

121 N.M. 98

Eppie VILLANUEVA, Worker-Appellant, v.SUNDAY SCHOOL BOARD OF the SOUTHERN BAPTIST CONVENTION d/b/a Glorieta Baptist Convention Center, et al. and Fireman's Fund Insurance Co.Employer/Insurer-Appellees.

No. 16214.

Court of Appeals of New Mexico.

Oct. 26, 1995.

[121 N.M. 100] Stephen T. Lecuyer, Mettler & Lecuyer, P.C., Corrales, for Worker-Appellant.

Robert A. Martin, Lisa T. Mack, Bradley & McCulloch, P.A., Albuquerque, for Employer/Insurer-Appellees.

OPINION

PICKARD, Judge.

1.Worker appeals from a compensation order.She contends the following decisions of the workers' compensation judge were erroneous: (1) the calculation of the average weekly wage; (2) the finding that Worker was able to return to medium work; (3) the granting to Respondents of credits for benefits paid; (4) the determination that Respondents are not required to pay the bill of Northeastern Regional Hospital; (5) the denial of Worker's motion to compel discovery; and (6) the conclusion that Worker's claim is barred.

2.We reverse a portion of the judge's determination concerning the average weekly wage.We affirm the other issues, except that we remand for correction of the clerical error alleged in the sixth issue.

Discussion

3.Worker was employed as a temporary food service utility worker for Employer when she was injured in a work accident on August 26, 1993.After a hearing on the merits, the judge found as follows: (1) Worker is permanently partially disabled by eleven percent; (2) her average weekly wage was calculated to be $85.10 based on the actual annual income she was paid for her part-time, temporary, seasonal work; (3) Worker was able to return to sedentary, light, or medium duty prior to May 31, 1994, the date of maximum medical improvement; (4)Respondents are entitled to credit for disability benefits paid after offers of suitable employment were made to Worker before and after that date; and (5)Respondents are not required to pay the unauthorized bill of Northeastern Regional Hospital.

1.Calculation of Average Weekly Wage

4.Employer is a conference center.The business season begins in May, decreases in the fall, and ceases in October with the exception of brief periods during the winter holidays and spring break.Worker was hired as a temporary employee.There was no contract between Worker and Employer guaranteeing any specific hours, and Worker did not have to promise that she would be available for work.During the four-or-five-year period that Worker was employed at the conference center, she worked six or seven months each year.Worker performed services and received wages from Employer for twenty-two out of the twenty-six weeks immediately preceding the date of injury.

5.NMSA 1978, Section 52-1-20(Repl.Pamp.1991)(effective Jan. 1, 1991), provides in pertinent part:

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;

....

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[.]

The judge determined Worker's average weekly wage under Subsection C while Worker contends that her average weekly wage should be calculated with reference to the twenty-two weeks she worked under Section 52-1-20(B)(1) or at least only with reference to the twenty-six weeks prior to her injury under Section 52-1-20(B).

A.Number of weeks included in calculation

6.The judge calculated Worker's average weekly wage by totaling her wages from the fifty-two weeks prior to the date of injury and dividing by fifty-two.Worker argues that Respondents failed to meet their burden of proving that they were entitled to the benefits of Subsection C. SeeGriego v. Bag 'N Save Food Emporium, 109 N.M. 287, 290, 784 P.2d 1030, 1033(Ct.App.1989)(party seeking relief under statute has burden of proving it comes within its terms), certs. denied, 109 N.M. 262, 784 P.2d 1005(1990).We are required to review the whole record to determine whether substantial evidence supports the judge's decision.SeeTallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 130, 767 P.2d 363, 369(Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305(1988).

7.To learn whether she would be offered work during a particular week, Worker called a secretary at Employer on Wednesday afternoons.Sometimes Worker was told that there was no work for her because business was slow.There was also evidence that Worker's hours were limited in accordance with Employer's written policy of preventing temporary employees from working in excess of 955 hours in a calendar year without a special exception.There was no evidence that Worker asked to have her job reclassified or sought a regular rather than temporary position so that she would not be subject to the hours limitation.During the ten years prior to the accident, Worker's only other employment outside the home was six months of employment as a fast food worker at a Dairy Queen.

8.Worker contends that substantial evidence is lacking to support a determination that her hours were limited by the seasonal nature of Employer's business, as opposed to its policy of restricting the hours of temporary workers.We note that the judge's decision to use the fifty-two weeks preceding Worker's injury to compute her average weekly wage did not rest only on the seasonal nature of the work, but also on Worker's actual vocational history.Thus, it is apparent the judge saw both that opportunities for work with Employer varied with the seasons and that Worker's relation to the employment was consistently of a temporary nature.In our view, either or both of these factors support the judge's decision to use Subsection C.See2 Arthur Larson, The Law of Workmen's Compensation§ 60.22(a)[hereinafter Larson](probable future loss is a full-time loss only if the line of work for which the worker is trained and qualified will normally continue to provide full-time employment) and § 60.21(c)(if there is no reason to suppose that the worker's choice of a part-time relation to the labor market will change in the future period into which the disability will extend, it is unrealistic to turn that person from a part-time able-bodied worker into a full-time disabled worker)(1995);see alsoJustiz v. Walgreen's, 106 N.M. 346, 348, 742[121 N.M. 102] P.2d 1051, 1053 (1987)("Fairness mandates consideration of what petitioner would have earned, in total, had she not been injured.").

9.Worker cites Shaw v. Wal-Mart Stores, Inc., 117 N.M. 118, 119, 869 P.2d 306, 307(Ct.App.), cert. denied, 117 N.M. 215, 870 P.2d 753(1994), to support her claim that, regardless of the evidence bearing on the basis for the limitation on her hours, Subsection C is not applicable because Subsection B was amended for the specific purpose of addressing cases such as this one.We reject this claim for the following reasons.

10.In Shaw we stated our belief that one purpose of the new Subsection B was to prevent workers from being unfairly benefitted by a period of unusually high wages just prior to the injury.Id.Prior to the amendment, Subsection B required calculation of average weekly wage based on remuneration the employee was receiving at the time of the injury.Section 52-1-20(B)(effective until Jan. 1, 1991).In amending Subsection B, the legislature appears to have been attempting to address the difficulties our courts have experienced in determining average weekly wage when a worker's circumstances have changed at some recent point prior to the injury.Shaw, 117 N.M. at 119, 869 P.2d at 307.That is not the case here with respect to the number of weeks that should be used in the calculation; Worker consistently worked a seasonal schedule as a temporary employee subject to the yearly restriction on hours.Hence, we are not persuaded that use of the twenty-two or twenty-six weeks of Subsection B is mandatory.Moreover, the only change in Subsection C, which was amended at the same time as Subsection B, was to eliminate language that allowed it to be applied if the injured employee had not worked long enough to enable her earnings to be fairly computed.Shaw, 117 N.M. at 119, 869 P.2d at 307.Reading amended Subsections B and C together, we cannot discern any legislative intent to withdraw authority to use the latter subsection when the more mechanical formulas cannot fairly be applied.See generallyWerner v. Wal-Mart Stores, Inc., 116 N.M. 229, 231, 861 P.2d 270, 272(Ct.App.1993)(all sections of a statute must be considered together in order to give meaning to a single section that will fulfill the underlying legislative intent).

11.Under the circumstances of this case, we believe that application of Subsection B would lead to unfairness because it would inflate Worker's benefits beyond what the evidence tends to prove she intended to earn in the past and intended to earn in the future.SeeLarson, supra, § 60.21(C);cf.Duran v. Albuquerque Pub. Schs., 105 N.M. 297, 300, 731 P.2d 1341, 1344(Ct.App.1986)(no unfairness results where school worker was...