{
  "id": 4077182,
  "name": "WILBERT LIVINGSTON, Worker-Appellant, v. ENVIRONMENTAL EARTHSCAPES, d/b/a GROUNDS KEEPER and CAMBRIDGE, Employer/Insurer-Appellees",
  "name_abbreviation": "Livingston v. Environmental Earthscapes",
  "decision_date": "2013-08-26",
  "docket_number": "No. 34,262; Docket No. 32,622",
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  "last_updated": "2023-07-14T21:28:15.201030+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "JAMES J. WECHSLER, Judge",
      "CYNTHIA A. FRY, Judge",
      "TIMOTHY L. GARCIA, Judge"
    ],
    "parties": [
      "WILBERT LIVINGSTON, Worker-Appellant, v. ENVIRONMENTAL EARTHSCAPES, d/b/a GROUNDS KEEPER and CAMBRIDGE, Employer/Insurer-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWECHSLER, Judge.\n{1} Worker, Wilbert Livingston, appeals from a compensation order entered pursuant to the Workers\u2019 Compensation Act (the Act), NMSA 1978, \u00a7\u00a7 52-1-1 to -70 (1929, as amended through 2007). Worker contends the Workers\u2019 Compensation Judge (WCJ) erred in concluding that Section 52-1-47.1 prevents him from receiving permanent partial disability (PPD) and loss of use (LOU) benefits that exceed his average weekly wage. We issued a notice proposing to summarily affirm. Worker filed a memorandum in opposition and Employer, Environmental Earthscapes/Grounds Keeper, and Insurer, Cambridge, (collectively, Employer) filed a memorandum in support. We remain unpersuaded by Worker\u2019s arguments and affirm. We hold that, based on Section 52-1 - 47.1, Worker may not receive PPD and LOU benefits that exceed his average weekly wage.\nBACKGROUND\n{2} On October 13,-2010, Worker filed a complaint for occupational injury, seeking to recover benefits for injuries he sustained in a workplace accident on November 12, 2008. At the time of the accident, Worker was earning an average weekly wage of $377.92. He had been working as a landscaper/groundslceeper for Employer for approximately six weeks. Worker did not return to work after the accident.\n{3} Following a trial, the WCJ issued a compensation order finding that the accident was compensable. The WCJ found that Worker\u2019s right wrist crush injury and carpal tunnel syndrome were causally related to the accident, along with Worker\u2019s psychological disorders, including depression, pain disorder, and adjustment disorder. As relevant to this appeal, the WCJ concluded: (1) Worker is entitled to PPD benefits at eighty-seven percent of his compensation rate commencing on March 19, 2012, the date of maximum medical improvement (MMI), and continuing through the remainder of the 700-week benefit entitlement period; and (2) Worker is entitled to 140 weeks of scheduled injury or LOU benefits for the right wrist injury at eighty percent of his compensation rate commencing on March 19, 2012. The WCJ concluded that Worker\u2019s PPD and LOU benefits should run concurrently and limited the total amount of these benefits to Worker\u2019s average weekly wage of $377.92 pursuant to Section 52-1 - 47.1.\nAPPLICATION OF SECTION 52-1-47.1\n{4} Worker contends that the WC J erred as a matter of law in limiting his benefits to his average weekly wage pursuant to Section 52-1-47.1. He contends that for the 140 weeks he is entitled to receive PPD and LOU benefits, he should receive $582.00 per week, which represents the combined total of his LOU and PPD benefits, instead of $377.92 per week. We note that Worker does not challenge the WCJ\u2019s conclusion that the PPD and LOU benefits should be paid concurrently rather than consecutively.\n{5} We review workers\u2019 compensation cases under a \u201cwhole record standard of review.\u201d Moya v. City of Albuquerque, 2008-NMSC-004, \u00b6 6, 143 N.M. 258, 175 P.3d 926. When we are called upon to review a WCJ\u2019s interpretation of statutory requirements, our review is de novo. See DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, \u00b6 14, 146 N.M. 453, 212 P.3d 341.\n{6} Section 52-1-47.1(A) of the Act states:\nUnless otherwise contracted for by the worker and employer, workers\u2019 compensation benefits shall be limited so that no worker receives more in total payments, including wages and benefits from his employer, by not working than by continuing to work. Compensation benefits under the . . . Act shall accordingly be reduced, if necessary, to account for any wages and employer-financed disability benefits a worker receives after the time of injury. . . . This section does not apply to social security payments, employee-financed disability benefits, benefits or payments a worker received from a prior employer, payments for medical or related expenses or general retirement payments, except it does apply to disability retirement benefits.\n(Emphasis added.) W orker contends that we should interpret the emphasized language in relation to a worker\u2019s lifetime earnings, not in relation to a worker\u2019s weekly earnings. Worker states that, but for the accident, he would have worked for twenty additional years, until he was seventy years old. He states that he would have earned $680,000 in wages and benefits over this twenty-year period and thus argues that the WCJ should only have limited his worker\u2019s compensation benefits to $680,000. We disagree.\n{7} It is well settled that \u201c[t]he purpose of the . . . Act is to compensate an injured employee for the reduction of his earning capacity.\u201d Vinyard v. Palo Alto, Inc., 2013-NMCA-001, \u00b6 10, 293 P.3d 191. For purposes of the Act, earning capacity is calculated in relation to a worker\u2019s average weekly wage. See, e.g., Section 52-1-20 (defining \u201caverage weekly wage\u201d and explaining how \u201caverage weekly wage\u201d is to be determined). As we explained in Vinyard, Section 52-1-20 \u201cwas 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.\u201d Vinyard, 2013-NMCA-001, \u00b6 10.\n{8} Even when an injured worker is paid on a non-weekly basis, it is the average weekly wage that controls the determination of benefits. See, e.g., Duran v. Albuquerque Pub. Sch., 105 N.M. 297, 299-300, 731 P.2d 1341, 1343-44 (Ct. App. 1986) (calculating average weekly wage to determine benefits when worker was paid monthly); cf. Eberline Instrument Corp. v. Felix, 103 N.M. 422, 424, 708 P.2d 334, 336 (1985) (holding that benefits should be calculated based on the average weekly wage being earned by the employee at the time of the accident rather than on the average weekly wage the employee had been earning at some time prior to the accident).\n{9} Section 52-1-47.1(A) of the Act states that \u201cworkers\u2019 compensation benefits shall be limited so that no worker receives more in total payments ... by not working than by continuing to work.\u201d Consistent with the Act as a whole, we conclude that this statute requires consideration of the amount of benefits a worker can receive on a weekly basis, not over the course of a lifetime. When we are called upon to interpret a statute that is part of a larger act, \u201cwe examine the act in its entirety, construing each section in connection with every other section.\u201d Baca v. Complete Drywall Co., 2002-NMCA-002, \u00b6 13, 131 N.M. 413, 38 P.3d 181 (alteration,' internal quotation marks, and citation omitted). We see no evidence that the Legislature intended benefits to be considered on a lifetime basis for purposes of Section 52-1-47.1, but on a weekly basis for all other purposes.\n{10} Workerrelies on Baca and Gutierrez v. Intel Corp., 2009-NMCA-106, 147 N.M. 267, 219 P.3d 524, but neither supports his position. In Baca, we explained that \u201cdisabilities caused by scheduled injuries and disabilities caused by injuries to non-scheduled members are separate and distinct concepts.\u201d 2002-NMCA-002, \u00b6 21. In Gutierrez, we recognized \u201cBaca's core principle [was] that [these] two kinds of benefits may be added together.\u201d Gutierrez, 2009-NMCA-106, \u00b6 17. The issue in this case is not whether Worker\u2019s PPD.and LOU benefits are separate and distinct; rather, the issue is whether W orker can recover more in benefits on a weekly basis than he was earning prior to the accident. For the reasons discussed above, we conclude that the WCJ correctly interpreted Section 52-1-47.1 to limit Worker\u2019s benefits to his average weekly wage.\nCONCLUSION\n{11} We affirm the compensation order entered by the WC J.\n{12} IT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nWE CONCUR:\nCYNTHIA A. FRY, Judge\nTIMOTHY L. GARCIA, Judge",
        "type": "majority",
        "author": "WECHSLER, Judge."
      }
    ],
    "attorneys": [
      "Victor A. Titus Farmington, New Mexico for Appellant",
      "Butt, Thornton & Baehr PC David N. Whitham Emily A. Franke Albuquerque, NM for Appellees"
    ],
    "corrections": "",
    "head_matter": "Certiorari Denied, August 26, 2013,\nNo. 34,262\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-099\nFiling Date: July 16, 2013\nDocket No. 32,622\nWILBERT LIVINGSTON, Worker-Appellant, v. ENVIRONMENTAL EARTHSCAPES, d/b/a GROUNDS KEEPER and CAMBRIDGE, Employer/Insurer-Appellees.\nVictor A. Titus Farmington, New Mexico for Appellant\nButt, Thornton & Baehr PC David N. Whitham Emily A. Franke Albuquerque, NM for Appellees"
  },
  "file_name": "0066-01",
  "first_page_order": 82,
  "last_page_order": 85
}