{ "id": 1598914, "name": "Dorothy K. GONZALES, Plaintiff-Appellant, v. MOUNTAIN STATES MUTUAL CASUALTY CO., and Penasco Independent Schools, Defendants-Appellees", "name_abbreviation": "Gonzales v. Mountain States Mutual Casualty Co.", "decision_date": "1986-11-04", "docket_number": "No. 8855", "first_page": "100", "last_page": "104", "citations": [ { "type": "official", "cite": "105 N.M. 100" }, { "type": "parallel", "cite": "728 P.2d 1369" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "93 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568654 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0485-01" ] }, { "cite": "604 P.2d 821", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1979, "opinion_index": 0 }, { "cite": "93 N.M. 683", "category": "reporters:state", "reporter": "N.M.", "year": 1979, "opinion_index": 0 }, { "cite": "93 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568787 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0412-01" ] }, { "cite": "595 P.2d 1203", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1979, "opinion_index": 0 }, { "cite": "93 N.M. 8", "category": "reporters:state", "reporter": "N.M.", "year": 1979, "opinion_index": 0 }, { "cite": "93 N.M. 78", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568721 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0078-01" ] }, { "cite": "253 F.2d 383", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 688679 ], "opinion_index": 0, "case_paths": [ "/f2d/253/0383-01" ] }, { "cite": "239 N.Y.S.2d 980", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1963, "opinion_index": 0 }, { "cite": "19 A.D.2d 566", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5529744, 5522782 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ad2d/19/0566-02", "/ad2d/19/0566-01" ] }, { "cite": "166 So.2d 28", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9830286 ], "opinion_index": 0, "case_paths": [ "/so2d/166/0028-01" ] }, { "cite": "17 Ariz.App. 96", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1228501 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "99" }, { "page": "869" } ], "opinion_index": 0, "case_paths": [ "/ariz-app/17/0096-01" ] }, { "cite": "299 So.2d 923", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9648613 ], "opinion_index": 0, "case_paths": [ "/so2d/299/0923-01" ] }, { "cite": "425 So.2d 115", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9523040 ], "opinion_index": 0, "case_paths": [ "/so2d/425/0115-01" ] }, { "cite": "415 So.2d 1277", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9593978 ], "opinion_index": 0, "case_paths": [ "/so2d/415/1277-01" ] }, { "cite": "431 So.2d 202", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9519489 ], "opinion_index": 0, "case_paths": [ "/so2d/431/0202-01" ] }, { "cite": "437 So.2d 754", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7635462 ], "opinion_index": 0, "case_paths": [ "/so2d/437/0754-01" ] }, { "cite": "158 A. 912", "category": "reporters:state_regional", "reporter": "A.", "weight": 2, "year": 1932, "pin_cites": [ { "page": "913" } ], "opinion_index": 0 }, { "cite": "114 Conn. 410", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1545573 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/conn/114/0410-01" ] }, { "cite": "585 P.2d 324", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "opinion_index": 0 }, { "cite": "92 N.M. 180", "category": "reporters:state", "reporter": "N.M.", "year": 1978, "opinion_index": 0 }, { "cite": "92 N.M. 132", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557089 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0132-01" ] } ], "analysis": { "cardinality": 797, "char_count": 16272, "ocr_confidence": 0.791, "pagerank": { "raw": 1.1337384602523797e-07, "percentile": 0.5767905773657074 }, "sha256": "c198ce0e529465535e02c49bdddf189a7bc6d81da6a0054671e807b1dd175bb7", "simhash": "1:df09c4c75a4a8554", "word_count": 2518 }, "last_updated": "2023-07-14T20:20:30.820213+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and FRUMAN, JJ., concur." ], "parties": [ "Dorothy K. GONZALES, Plaintiff-Appellant, v. MOUNTAIN STATES MUTUAL CASUALTY CO., and Penasco Independent Schools, Defendants-Appellees" ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\nThis is a workmen\u2019s compensation appeal involving the computation of the disabled worker\u2019s average weekly wage, the denial of prejudgment interest and the award of attorney\u2019s fees.\nFACTS\nPlaintiff was an owner-operator of a school bus and, pursuant to a contract, transported school children for the Pe\u00f1asco Independent School System (defendant). Plaintiff suffered an injury causally related to her employment. As a result, she was found to be totally disabled by the trial court.\nThe owner-operator transportation contract was based on a detailed and comprehensive formula developed by the State Transportation Department and the Director of Public School Finance, covering various categories and projected expenses. The contract required that plaintiff provide, maintain and operate a bus for a specified number of days and provide transportation for school children over a designated route. In return, plaintiff would receive the total sum of $12,055.71 for the 180 day school year, payable in ten monthly installments.\nThe contract amount was based on the aggregate amount entered into a production worksheet. The production worksheet breaks down the amounts to be paid to the owner-operator of the bus into seven categories: (a) vehicle depreciation allowance; (b) operation and maintenance; (c) profit on operational revenue; (d) fuel allowance; (e) driver\u2019s salary and institute increment; (f) employee benefits; and (g) gross receipts tax.\nIn fixing plaintiff\u2019s average weekly wage, the trial court considered only that portion of plaintiff\u2019s contract within the category \u201cdriver\u2019s salary and institute increment,\u201d $4,002.73, paid in ten equal monthly installments. By multiplying that figure by twelve and dividing it by fifty-two, the court determined that plaintiff\u2019s average weekly wage was $92.37 and, pursuant to NMSA 1978, Section 52-l-41(A), her disability entitlement was set at $61.58.\nDuring the contract year, plaintiff operated and maintained her bus at a cost far below that provided in the projected expenses and realized a net profit of $3,842.60 over and above her salary and institute increment.\nDefendant has no requirement that the funds it allocates for the individual categories be actually spent. Defendant does not monitor the owner-operator\u2019s operation and maintenance records nor does defendant require that any specific amount of money be expended for any particular purpose so long as the buses operate according to applicable rules and regulations. In the event operation and maintenance costs exceed the projected expenses contained in the contract, the owner-operator is required to pay all additional expenses without reimbursement. Similarly, defendant testified \u201c[T]he contractor [owner-operator] is paid the set contract amount and I would imagine that if the contractor has lesser expenses than those for which he or she were remunerated by their school district, that they do whatever they want with it.\u201d In this case, plaintiff kept the excess profits and utilized them for her own personal benefit. Plaintiff precisely calculated her excess profits and reported them to defendant and to the Internal Revenue Service for tax purposes.\nThe evidence also indicates that for social security and educational retirement purposes, defendant reported sixty percent, or $7,233.43 as \u201csalary\u201d on plaintiff\u2019s personnel forms. Finally, evidence was presented to indicate that for purposes of workmen's compensation premium computations, defendant reported only the driver\u2019s salary paid, including institute increments.\nISSUES\n(1) Whether the trial court erred in finding that plaintiff\u2019s salary for workmen\u2019s compensation purposes was $4,002.73;\n(2) Whether the trial court abused its discretion in denying plaintiff\u2019s request for prejudgment interest; and\n(3) Whether the trial court abused its discretion in awarding plaintiff $8,000 as attorney fees,\nANALYSIS\nOnce the trial court determines that a worker is disabled and entitled to compensation benefits, its task is to determine the worker\u2019s average weekly wage. Compensation benefits paid to disabled workers are computed in accordance with the various formulae contained in NMSA 1978, Section 52-1-20. In relevant part, Section 52-1-20(A) defines wages as:\n[T]he money rate at which the services rendered are recompensed under the contract of hire in force at the time of the accident, either express or implied, and shall not include gratuities received from employers or others, nor shall it include the amounts deducted by the employer under the contract of hire for materials, supplies, tools and other things furnished and paid for by the employer and necessary for the performance of such contract by the employee, but the term \u201cwages\u201d shall include the reasonable value of board, rent, housing, lodging or any other similar advantages received from the employer, the reasonable value of which shall be fixed and determined from the facts in each particular case[.] [Emphasis added.]\nIn this appeal, plaintiff contends that the trial court erred in failing to consider other portions of the contract, apart from the driver\u2019s salary and institute increment, in calculating her average weekly wage. Specifically, because plaintiff was able to earn excess profits during the contract year and gained an economic advantage, she contends that those profits, or portions thereof, should be included in the calculation. We agree.\nThe general rule touching on this issue is stated by Larson in his treatise on workmen\u2019s compensation. He writes:\nIn computing actual earnings as the beginning point of wage-basis calculations, there should be included not only wages and salary but any thing of value received as consideration for the work, as, for example, tips and bonuses, and room and board, constituting real economic gain to the employee. A car allowance is includable as wage only if it exceeds actual travel expenses.\n2 A. Larson, The Law of Workmen\u2019s Compensation, \u00a7 60.12 (1983).\nThis general rule was adopted in New Mexico in Hopkins v. Fred Harvey, Inc., 92 N.M. 132, 584 P.2d 179 (Ct.App.), cert. denied, 92 N.M. 180, 585 P.2d 324 (1978). The question in Hopkins was whether tips were wages to be considered for purposes of determining the rate of compensation. In addressing the question, Hopkins indicates that Larson\u2019s general rule is applicable to Section 52-1-20(A). The rule requires that the court consider anything of value received as consideration for work when such consideration constitutes real economic gain to the employee. The Hopkins opinion determined that the tips involved came under the general rule and concluded that those tips should have been considered in calculating wages because they were intended by the parties to be further compensation for services rendered.\nWhile the precise issue in Hopkins differs from the issue presented in the case on appeal, we deal with the same essential principle: has plaintiff received something of value under the contract constituting real economic gain that should be included in the calculation of her wages?\nFor wage calculation purposes, a distinction is drawn between the \u201creal economic gain\u201d test for the worker and dollar-for-dollar reimbursement paid by the employer. The former may be included in the wage calculation; the latter may not. This distinction is noted in Thibeault v. General Outdoor Advertising Co., 114 Conn. 410, 158 A. 912 (1932). The court in Thibeault, in considering whether a daily allowance for board and lodging of plaintiff-employee when he was out of town should be included in his weekly earnings, set out the general test which was to guide later courts in addressing similar questions: \u201cIn each case the test to be applied is, Does the allowance represent a real and reasonably definite economic gain to the employee, reasonably within, or at least not contrary to, the fair intent of the parties?\u201d Id. at 913.\nFor example, cases decided since Thibeault essentially follow the view that employer provided meals help a workman meet his personal expenses and, therefore, represent a real economic gain. Yet, when an employee is merely reimbursed for amounts he is called to spend in the course of his employment and activities which he has no occasion to pursue when not employed, the' amount so paid cannot be regarded as part of his earnings. See Rusty Pelican Restaurant v. Garcia, 437 So.2d 754 (Fla.App.1983); Lavin v. Alton Boxboard Co., 431 So.2d 202 (Fla.App.1983); Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla.App.1982); Fairway Restaurant v. Fair, 425 So.2d 115 (Fla.App.1982); Bananno v. Employer\u2019s Mutual Liability Insurance Co. of Wisconsin, 299 So.2d 923 (La.App.1974).\nThe case of Moorehead v. Industrial Commission, 17 Ariz.App. 96, 495 P.2d 866 (1972) dealt with the issue of whether travel expenses paid by an employer should be included in the workman\u2019s average weekly wage. The appellate court disallowed inclusion of monies paid for mileage expenses in the average monthly wage of the injured workman. The court held:\nWe think the principle to be derived from the foregoing is that \u201cwages\u201d do not include amounts paid to the employee to reimburse him for employment-related expenditures of a nature which would not be incurred but for his employment. Such payments are simply not intended as compensation for services rendered. Before any part of such allowances or reimbursements can be considered as a part of the employee\u2019s \u201cwages\u201d there should be some showing that the payments are more than sufficient to reimburse the employee for the work-related expense so that in effect the excess can be considered as extra compensation to the workman for his services performed.\nId. at 99, 495 P.2d at 869.\nIn our present case, plaintiff argued to the trial court that the entire sum received under the contract should be included in her wage base. Plaintiff\u2019s argument is not supportable by law. When an employer reimburses an employee for expenses incurred, that reimbursement is not to be included as part of the employee\u2019s wages for compensation purposes. Cf. Thompson v. Cloud, 166 So.2d 28 (La.App.1964). On the other hand, the cases indicate that when an employer provides remuneration in excess of actual expenses and the employee is free to keep the excess for his own use, the employee has received an economic advantage which may be considered as part of his wages for compensation purposes. See Thibeault; Weingarten v. Democrat & Chronicle, 19 A.D.2d 566, 239 N.Y.S.2d 980 (1963).\nWith the evidence presented, it is clear that portions of the payments under the contract reimbursed plaintiff for actual expenses incurred in operating and maintaining the bus. Those dollar-for-dollar reimbursements may not be included in the calculation of the worker\u2019s average weekly wage. It is equally clear that plaintiff received more than her salary and dollar-for-dollar reimbursement and was able to \u201cpocket\u201d the difference between what was paid and her actual expenses in providing, operating and maintaining the bus. This difference constitutes a real economic gain to plaintiff and constitutes extra compensation which may properly be included in plaintiff's wage calculation.\nThe Hopkins standard that additional compensation be within the contemplation of the parties is met here. Defendant reported sixty percent of plaintiff\u2019s total contract price for social security and educational retirement purposes. This amount, $7,233.43, was very close to the actual amount earned by plaintiff by combining her salary and institute increment with her excess profit, much closer than her salary and institute increment standing alone. Also, defendant neither monitored plaintiff\u2019s expenditures nor expected a payback of any excess. Therefore, the additional economic gain realized by plaintiff by virtue of operating and maintaining the bus below the production worksheet estimates constituted an implied compensation within the meaning of Section 52-l-20(A).\nThe Workmen\u2019s Compensation Act is to be liberally construed in favor of the injured worker so as to insure the full measure of the worker\u2019s exclusive statutory remedy. Evans v. Stearns-Roger Manufacturing Co., 253 F.2d 383 (10th Cir.1958). A primary purpose of the Act is to keep injured workers from becoming dependent on the welfare programs of the state by compensating them with some portion of the wages they would have earned had it not been for the work-related disability. Casias v. Zia Co., 93 N.M. 78, 596 P.2d 521 (Ct.App.), cert. denied, 93 N.M. 8, 595 P.2d 1203 (1979); see also Aranda v. Mississippi Chemical Corp., 93 N.M. 412, 600 P.2d 1202 (Ct.App.), cert. denied, 93 N.M. 683, 604 P.2d 821 (1979). We determine the court\u2019s exclusion of the funds paid to plaintiff which did not constitute a dollar-for-dollar reimbursement denied the injured worker benefits authorized under the Workmen\u2019s Compensation Act. Accordingly, we remand this matter to the trial court for a redetermination of plaintiff\u2019s average weekly wage. Plaintiff presented evidence concerning her net profit over and above her salary and institute increment for the school year 1981-82. The trial court may wish to consider that testimony, or take additional testimony to accurately determine which portions of the transportation contract constitute actual reimbursement for expenses incurred and which portions are properly includable in plaintiff\u2019s average weekly wage.\nPREJUDGMENT INTEREST\nPlaintiff contends the trial court erred in refusing to award prejudgment interest. NMSA 1978, Section 52-l-38(B) provides in part that judgments in worker\u2019s compensation cases: \u201c[Sjhall be governed by the laws of this state with respect to judgments or executions in civil cases * * \u201d NMSA 1978, Section 56-8-4(B) (Repl.1986) permits an award of prejudgment interest in civil actions in the discretion of the trial court. The statute requires that the court consider whether plaintiff was the cause of unreasonable delay and further requires the court to consider whether reasonable and timely offers of settlement were made.\nIn denying plaintiff's request for prejudgment interest, the trial court found defendants acted in good faith in defending against plaintiff\u2019s \u201caggressively presented\u201d computation of weekly wage claim; that defendants were required to spend an \u201cinordinate [amount of] time\u201d in defending against plaintiff\u2019s claim; that plaintiff\u2019s position concerning wage computation was \u201cunduly emphasized time-wise;\u201d and that a timely offer of settlement was made to plaintiff before trial.\nBy virtue of our disposition of the wage calculation issue, the basis for the trial court\u2019s denial of prejudgment interest no longer stands. We do not substitute our own judgment for that of the trial court in determining whether prejudgment interest should or should not be awarded. Because we vacate the judgment and remand the case for a recomputation of plaintiff\u2019s entitlement, the trial court will have another opportunity to consider whether an award of prejudgment interest is proper in this case.\nATTORNEY FEES\nPlaintiff complains that the trial court abused its discretion in its award of fees. The trial court denied plaintiff\u2019s additional award of attorney fees because she was unsuccessful in her attempt to establish plaintiff\u2019s average weekly wage at a higher level. Because we have determined the trial court erred in its wage calculation and remand for a redetermination of benefits, it will be necessary to reconsider the attorney fee award. Additionally, plaintiff\u2019s pursuit of a higher wage claim is no longer unsuccessful and the trial court may properly consider this, together with the other Fryar v. Joknsen, 93 N.M. 485, 601 P.2d 718 (1979) factors, in setting a reasonable attorney fee. We award plaintiff $2,000 as a reasonable appellate attorney fee.\nReversed and remanded.\nIT IS SO ORDERED.\nALARID and FRUMAN, JJ., concur.", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "James A. Burke, Santa Fe, for plaintiff-appellant.", "Peter N. Ives, Campbell & Black, P.A., Santa Fe, for defendants-appellees." ], "corrections": "", "head_matter": "728 P.2d 1369\nDorothy K. GONZALES, Plaintiff-Appellant, v. MOUNTAIN STATES MUTUAL CASUALTY CO., and Penasco Independent Schools, Defendants-Appellees\nNo. 8855.\nCourt of Appeals of New Mexico.\nNov. 4, 1986.\nJames A. Burke, Santa Fe, for plaintiff-appellant.\nPeter N. Ives, Campbell & Black, P.A., Santa Fe, for defendants-appellees." }, "file_name": "0100-01", "first_page_order": 140, "last_page_order": 144 }