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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-001

Filing Date: November 2, 2012

Docket No. 30,846

JODY VINYARD,

Worker-Appellant,

v.

PALO ALTO, INC., d/b/a PIZZA HUT, 

and MANUFACTURERS ALLIANCE

INSURANCE COMPANY,

Employer/Insurer-Appellees,

and

Docket No. 31,044

JODY VINYARD,

Worker-Appellant,

v.

PALO ALTO, INC., d/b/a PIZZA HUT, 

and MANUFACTURERS ALLIANCE

INSURANCE COMPANY,

Employer/Insurer-Appellees.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION

Gregory D. Griego, Workers’ Compensation Judge

Law Office of Alvin R. Garcia, LLC

Alvin R. Garcia

Albuquerque, NM
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The actual number employed was 9.428 weeks. 

2

for Appellant

Maestas & Suggett, P.C.

Paul Maestas

Albuquerque, NM

for Appellees

OPINION

KENNEDY, Judge.

{1} This worker’s compensation case poses the question of how to properly calculate a

worker’s average weekly wage when the worker held two concurrent jobs, one for nine

weeks and one for fourteen weeks. Wages from both jobs must be assessed for the

calculation of the average weekly wage. The method of calculating the average weekly

wage when each job has a different duration is the sole issue in this case. 

{2} The Workers’ Compensation Judge (WCJ) calculated the worker’s wage based on

the roughly nine-week time period1 that the two jobs overlapped, holding as a matter of law

that the method of calculation directed by NMSA 1978, Section 52-1-20(B) (1990) could not

be fairly applied. The WCJ rejected the application of Subsection (B) to the full period of

employment in each job because “it would result in counting of weeks where there was a

wage from only one [e]mployer.” The WCJ instead employed Section 52-1-20(C) to craft

the average weeklywage based only on the nine weeks when the two jobs overlapped. The

worker, who wanted the entire fourteen weeks of his second job included in the average,

appealed. 

{3} We reverse, holding that when the facts support a separate computation for each

employer, Subsection (B) should be employed to compute an aggregate average weekly

wage for both employers. Subsection (B)(1) should be employed using the entire time of

employment if the period is fewer than twenty-six weeks for any concurrent employer.

Subsection (B) should be applied separately to each job, not limited to the shortest job, with

an aggregate average weekly wage for all concurrent employers then being computed. In

this case, the WCJ was required to average the wages the worker received from his other job

for the full fourteen weeks of the worker’s employment. 

{4} In addition, the employer appealed the award of attorney’s fees. The employer

maintained that the worker’s attorney did not secure the entire award and lacked evidentiary

proof and, therefore, was not fully entitled to compensation. We affirm the WCJ’s award

of attorney fees and remand for proceedings consistent with our Opinion.
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I. FACTS

{5} The facts of this case are not disputed. Jody Vinyard (Worker) was injured in a

traffic accident while working as a delivery driver for his employer, Palo Alto, d/b/a Pizza

Hut (Employer) on December 6, 2009. This injury arose out of, and in the course of, that

employment. The responsibility of Employer and its insurer, Manufacturers Alliance

Insurance Company (collectively, Employer) to pay benefits is not at issue here. Worker

began working for Employer on October 1, 2009. He had also been employed as a horse

trainer for his family’s business since September 1, 2009. There is no dispute that Worker

is entitled to receive compensation benefits reflecting his wages from both jobs. The parties

vigorously disputed how to compute the aggregate weekly wage to be used to determine the

value of those benefits. 

{6} The WCJ considered four calculation options. Employer suggested taking the sum

of all wages that Worker was paid during the time employed by them, but calculating

average wages for a twenty-six-week period, relying on Section 52-1-20 (B). The WCJ

specifically rejected this suggestion, stating that it would result in counting weeks when

Worker only had one employer. The WCJ noted another option—counting the fourteen

weeks for both employers—but concluded that this would also count wages for only one

employer in some weeks. Worker suggested the calculation of an average weekly wage by

what the WCJ called an “asymmetric option” that would have divided the horse training

wages by fourteen weeks and the pizza delivery wages by nine weeks and then averaged the

two. This approach was taken by a mediator in the case. Employer disdained this

recommended resolution, claiming that this would count time with another employer prior

to Worker’s employment with Employer, and the WCJ rejected it as well. 

{7} The method of computation has real implications. When the wages for each

employer received during this finite period of 9.428 weeks was divided, the result was an

aggregate average weekly wage of $886.74. In comparison, the mediator’s figure of $945.68

was based on the full fourteen weeks of Worker’s employment as a horse trainer from

September 1 through December 6, 2009. 

{8} The WCJ concluded that because Worker had multiple employers for different

amounts of time, there is “no controlling authority in New Mexico determining how this

particular wage calculation should be arrived at” and that Worker’s wage could not “be fairly

calculated under Section 52-1-20(B).” The WCJ thus held that “the most rational and

reasonable option” was to count those weeks only “where Worker was employed by both

[e]mployers” and adopted that approach as “a matter of law” for the calculation in his partial

summary judgment. The WCJ computed an average weekly wage for Worker by dividing

his wages from each job by the period of October 1, 2009 through December 6, 2009, the

nine-week period of time that Worker was employed in both jobs. Worker maintains the full

time he was employed in each job should be counted and asks us to address the appropriate

application of Section 52-1-20 in this appeal.
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II. DISCUSSION

{9} We review questions of statutory interpretation and application de novo. State ex rel.

Children, Youth and Families Dep’t v. Steve C., 2012-NMCA-045, ¶ 8, 277 P.3d 484.

Although a misapplication of the law is considered an abuse of discretion, our courts review

de novo the initial decision of whether the correct legal standard has been applied. N.M.

Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450.

If the correct law has been applied to the facts, the district court’s decision must be affirmed

when it is supported by substantial evidence. See id. ¶ 8.

A. Calculation of Two Average Weekly Wages Under Section 52-1-20

{10} The purpose of the Workers’ Compensation Act is to compensate an injured

employee for the reduction of his earning capacity. Lozano v. Archer, 71 N.M. 175, 180,

376 P.2d 963, 967 (1962). The test for entitling a worker to compensation is the worker’s

entire capacity to earn wages for performing work. Justiz v. Walgreen’s, 106 N.M. 346, 348,

742 P.2d 1051, 1053 (1987). The compensation due is for loss of earning capacity. Id.

Fairness mandates compensating the worker according to what he would have earned in total

had he not been injured. Id. at 349, 742 P.2d at 1054. Section 52-1-20 was enacted to

promote fair calculation of average wages for injured workers, as well as to provide a

measure of fairness to employers by trying to eliminate influences that might inflate or

deflate the wage from a fair average. Considering “periods of unusually high or low wages”

dictates finding an average over time, so as not to unfairly benefit or prejudice the worker.

Shaw v. Wal-Mart Stores, Inc., 117 N.M. 118, 119-20, 869 P.2d 306, 307-08 (Ct. App. 1994)

(allowing employee’s concurrent employment to be used in calculating the average wage).

{11} Section 52-1-20 states, 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
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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 presumptive period where it can be used is twenty-six weeks under Section 52-1-20(B).

Subsection (B)(1) encompasses situations where periods of employment are shorter. We

regard the statute as having a preference for maximizing the opportunity to calculate an

average wage over a substantial period of time.

{12} All parties recognize the significance of our Supreme Court’s opinion in Justiz to this

case. The court in Justiz held that where a worker had concurrent employment and where

the injury arose in the course of only one job, the worker was entitled to compensation for

his entire loss of earning capacity in both jobs. The Justiz court went on to hold that the

employer on whose job site the injury occurred would be solely responsible for the worker’s

compensation based on the aggregate of the worker’s average wages with both employers.

{13} In Justiz, our Supreme Court dismissed the employer’s argument that only the

employment in which the injury was sustained could be used to compute the average wage.

The Supreme Court stated that, even though a prior case, Eberline Instrument Corp. v. Felix,

103 N.M. 422, 426, 708 P.2d 334, 338 (1985), did not speak to the calculating of an

aggregate average weekly wage where a worker had two concurrent jobs, the worker’s

compensation benefits were to be computed on the average weekly wage earned by the

employee at the time of the injury. Justiz, 106 N.M. at 347-48, 742 P.2d 1052-53. Justiz

stated that Section 50-1-20(B) would ordinarily be used to compute an average weekly wage

where the computation could fairly be done and that Section 52-1-20(C) provided the ability

to perform the calculation of an aggregate average wage for concurrent jobs. Id. It rejected

the argument that Subsection (B) restricted the average weekly wage to the employment

being performed at the time of the accident and precluded the averaging-in of wages from

other employment. Justiz, 106 N.M. at 348, 742 P.2d 1053. 

{14} Section 52-1-20 was amended by the Legislature in 1990 after the Justiz case was

decided, but Subsection (B) still provides a formula by which to calculate average weekly

wage from an employer. We held that Justiz continues to apply to concurrent employment

situations after the 1990 amendment to Section 52-1-20. Shaw, 117 N.M. at 119-20, 869

P.2d at 307-08. Subsection (C) allows for the use of other factors to compute the average

weekly wage, but only if the preceding formulas cannot be fairly applied.

{15} As did the Supreme Court in Justiz, we recognize the preference expressed in

Subsection (C) that restricts its application to those circumstances “where the foregoing

methods of computing the average weekly wage of the employee . . . will not fairly compute

the average weekly wage[.]” Justiz, 106 N.M. at 347, 742 P.2d at 1052. The Supreme Court

made it clear that the essence of Section 52-1-20 is to reach a fair computation and that

where a worker’s weekly wages are for any reason not fairly determinable by Subsections
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(A) or (B), then Subsection (C) permits “such other manner . . . [or] method as will . . .

fairly” make that determination. Section 52-1-20(C). This reaffirmed the application of

Kendrick v. Gackle Drilling Co., 71 N.M. 113, 376 P.2d 176 (1962) (holding that erratic

income arising from the fact that employee was only working a few days at each job justified

employing Subsection (C) for the unusual circumstance); accord Eberline Instrument, 103

N.M. at 424-25, 708 P.2d at 336-37; Griego v. Bag’N Save Food Emporium, 109 N.M. 287,

292-93, 784 P.2d 1030, 1035-36 (Ct. App. 1989) (finding that abnormal overtime hours

during the grand opening constituted unusual circumstances in the calculation of average

weekly wages). Thus, we hold that in concurrent employment circumstances, as in single

employment, absent some specific unusual circumstance, Subsection (A) or (B) should be

used to calculate the average weekly wage. Unusual circumstances may arise in the nature

of the worker’s wage-earning situation that would prevent a fair computation by using

Subsections (A) and (B). See Villanueva v. Sunday Sch. Bd. of S. Baptist Convention, 121

N.M. 98, 101, 908 P.2d 791, 794 (Ct. App. 1995) (applying a different method for

calculating wages under Subsection (B) where a seasonal worker was only employed for six

months each year over the past ten-year period). Despite Subsection (B) seeming to consider

wages from a single employer, if its methods can fairly produce an aggregate average for

concurrent employment situations, Subsection (C) does not authorize a departure, and

Subsection (B) will be used to calculate an average weekly wage from each employment that

will then be used to calculate an aggregate average. 

{16} Regular wages are ascertainable, and an average weekly wage can fairly be computed

by dividing wages by weeks worked. Average weekly wages from more than one job can

themselves be averaged. Subsection (B)(1) is clear that employment for less than twenty-six

weeks compels dividing the total wages earned by the worker in that job by the number of

weeks “actually worked in that employment[.]” It was arbitrary for the WCJ to exclude six

weeks of employment without a specific basis in fact, when Subsection (B)(1) states that the

“total number of weeks actually worked in that employment” is the number to be used to

calculate the average wage in a job, and no facts demanded an unusual circumstances

exception. For the WCJ to depart from this method of computation by using a number of

weeks different than was specified in Subsection (B) was error. We consequently view

Subsection (C) as designed to permit the fair computation of average weekly wages in

multiple employment cases, primarily by any means provided in the statute or, secondarily,

by any other means that might be needed and fairly employed to effectuate the purpose of

Section 52-1-20. Here, it was possible to determine the average weekly wage for both jobs

by applying Subsection (B)(1) to each. Averaging the results yields a single aggregate

average weekly wage. No further exploration for alternatives under Subsection (C) was

required. In fact, other than an ad hoc selection of the number of weeks utilized in the

computation, the WCJ correctly used the method provided in Subsection (B). 

{17} The WCJ’s mistake was in going outside of Subsection (B) in choosing a shorter

number of weeks Worker was employed by Employer (Pizza Hut) when computing the total

wages earned in both jobs. No legal or factual reason for that choice was provided, or an

explanation as to why the statutory fourteen-week period would create circumstances that
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unfairly computed the horse training average wage. The WCJ’s incorrect legal conclusion

turned on the determination that any calculation under Subsection (B) was “not appropriate”

and that the average weekly wage could not be “fairly calculated” simply “because of

multiple employers.”

{18} The WCJ’s conclusion did not address why his own method would result in a more

fair result either legally or factually than any of the other three suggested in the case.

Subsection (C) allows the expansion of the computational method contained in Subsection

(B) to be used for calculating an aggregate average wage for more than one job. With that

proviso, it is Subsection (B)(1) that applies when wages and time of employment are finite

and an average weekly wage for individual employers can be calculated for an aggregate

average, even among more than one job. This case does not require departure from applying

available statutory formulas. It involves ascertaining whether all of Worker’s wages during

fourteen weeks as a horse trainer should, in fairness, be averaged into the computation of his

average weekly wage. No facts indicate that using the full fourteen weeks of the horse

training work would result in any unfairness.

{19} We therefore reverse the WCJ’s legal conclusion that Subsection (B) cannot be

applied as a matter of law. We further hold that, under a typical concurrent employment

situation such as this case, each employer’s average weekly wage is to be individually

determined according to Subsection (B)(1), and an average weekly wage based on the

aggregate of all averages should then be calculated. See, e.g., Sturchio v. Wausau

Underwriters Ins. Co., 172 P.3d 1260, 1262-63 (Mont. 2007) (holding that the methods of

calculating average weekly wage to a single employer should be employed as to each

concurrent employer, using the result to calculate the aggregate average weekly wage). We

conclude that no factual reason justified any departure by the WCJ from Subsection (B) in

this case. The WCJ should have calculated the average weekly wage by dividing wages

from Employer by 9.428 weeks and Worker’s wages from his concurrent horse training

employment by fourteen weeks in accordance with Subsection (B). We remand for further

proceedings consistent with this Opinion.

B. The WCJ’s Determination of Attorney’s Fees is Affirmed

{20} Employer separately appealed the award of attorney’s fees to Worker’s counsel. The

parties appeared at a hearing on December 20, 2010. Both sides submitted requested

findings of fact and conclusions of law. Worker’s counsel was awarded $15,000 in attorney

fees to be borne fifty-fifty by each side. The order makes a number of findings of fact: (1)

the absence of any settlement offers; (2) the present value of Worker’s award and finding

that it was substantially the result of Worker’s attorney’s efforts; (3) the amount of work

expended; (4) the complexity and novelty of the case; and (5) Worker’s attorney’s skill and

success in the case. Worker’s counsel secured benefits for Worker in the amount of

$86,037.15 and was awarded 17.43% of that amount in fees, divided equally between the

parties. Employer’s requested findings establish that it paid partial permanent disability

benefits based on its assessment of a 23% rating, which was increased in the compensation
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order by almost doubling it to 40% and that it had under-calculated the average weekly wage

to be used. Such an increase is substantial and substantial evidence of work performed.

{21} Employer states that at the hearing, Worker’s counsel did not itemize his hours and

did not otherwise substantiate that his work resulted in significant benefit to Worker. Thus,

Employer claims that the WCJ abused his discretion in making the award. NMSA 1978,

Section 52-1-54(E) (2003); Cordova v. Taos Ski Valley, Inc., 121 N.M. 258, 264, 910 P.2d

334, 340 (Ct. App. 1995) (reviewing the WCJ’s award of attorney fees for abuse of

discretion and directing the appellate court to defer to the WCJ’s decision if it appears that

the request for fees received individualized scrutiny). Employer directs us to no legal

requirement for a specific application for fees. In fact, the authority cited by Employer

supports a conclusion that evidentiary support for a fee award requires the presentation of

sufficient facts for the WCJ to rule whether at a hearing or not. Lopez v. K.B. Kennedy

Eng’g Co., 95 N.M. 507, 508, 623 P.2d 1021, 1022 (Ct. App. 1981); Tafoya v. S & S

Plumbing Co., 97 N.M. 249, 252, 638 P.2d 1094, 1097 (Ct. App. 1981) (holding that

“evidentiary support . . . can mean facts presented during or after trial” (internal quotation

marks and citation omitted)). Worker’s counsel, contrary to Employer’s argument, did not

fail to submit any documents supporting its request for attorney fees. Worker submitted

proposed findings and conclusions from which the WCJ made findings of its own and

concluded that an award was appropriate. It appears that the compensation order makes

requisite findings of fact in compliance with Fryar v. Johnsen. 93 N.M. 485, 601 P.2d 718

(1979). 

{22} As a small illustration, Worker’s counsel points out that Employer paid its share of

attorney’s fees on January 26, 2011. Employer states that Worker “cites to nothing in the

record which establishes that Employer/Insurer have paid their portion of the attorney fees

awarded to Worker’s counsel in this case,” but waited until their reply brief to “be clear

about it” and acknowledge that their portion of the fees were paid. This sort of behavior on

appeal, coupled with a record demonstrating some sharp-elbowed tactics by Employer,

supports the WCJ’s finding in the compensation order awarding attorney fees that “[t]he

issues in this cause were contested to a more than average degree.” See Pesch v. Boddington

Lumber Co., 1998-NMCA-026, ¶ 11, 124 N.M. 666, 954 P.2d 98 (holding that aggressive

representation that adversely affects the progress of the case is a proper factor to consider

when awarding attorney fees). While pleased that Employer’s counsel did not allow us to

labor under a misconception forever, we note that, by looking at the whole record, Worker

prevailed and received more benefits than Employer had calculated to be due. And the

WCJ’s findings and conclusions are supported by an adequate basis in the pleadings. The

attorney fee award does not appear unreasonable and is entitled to our deference. We affirm.

III. CONCLUSION

{23} We reverse the decision of the WCJ and remand to the Worker’s Compensation

Administration to recalculate compensation based on the foregoing Opinion. We affirm the

award of attorney fees. 
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{24} IT IS SO ORDERED.

____________________________________

RODERICK T. KENNEDY, Judge

WE CONCUR:

____________________________________

TIMOTHY L. GARCIA, Judge

____________________________________

J. MILES HANISEE, Judge

Topic Index for Vinyard v. Palo Alto, Inc., No. 30,846

APPEAL AND ERROR

Standard of Review

Substantial or Sufficient Evidence

WORKERS COMPENSATION

Apportionment

Attorney Fees

Basis for Compensation

STATUTES

Interpretation

Legislative Intent