{ "id": 1597224, "name": "Evelyn FAHR, Claimant-Appellee, Cross-Appellant, v. AARON McGRUDER TRUCKING, Employer and Mountain States Mutual Casualty Company, Insurer, Respondents-Appellants, Cross-Appellees", "name_abbreviation": "Fahr v. Aaron McGruder Trucking", "decision_date": "1988-05-03", "docket_number": "No. 10455", "first_page": "241", "last_page": "244", "citations": [ { "type": "official", "cite": "107 N.M. 241" }, { "type": "parallel", "cite": "755 P.2d 85" } ], "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": "211 Kan. 19", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 511294 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/kan/211/0019-01" ] }, { "cite": "20 A.2d 61", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1941, "pin_cites": [ { "page": "62" } ], "opinion_index": 0 }, { "cite": "126 N.J.L. 430", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 125409 ], "year": 1941, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/njl/126/0430-01" ] }, { "cite": "105 N.M. 731", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598948 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0731-01" ] }, { "cite": "265 Minn. 427", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 363515 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/minn/265/0427-01" ] }, { "cite": "98 N.M. 362", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582483 ], "weight": 2, "pin_cites": [ { "page": "366" }, { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0362-01" ] }, { "cite": "103 N.M. 216", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711406 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/nm/103/0216-01" ] }, { "cite": "97 N.M. 585", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555121 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/97/0585-01" ] } ], "analysis": { "cardinality": 562, "char_count": 11161, "ocr_confidence": 0.79, "pagerank": { "raw": 4.60167783687625e-08, "percentile": 0.28805694849390834 }, "sha256": "ace33bbc6c9dc781496682d72a467ba1b2c1d8327594b96a07dd0aea1f848d8d", "simhash": "1:b04735dbd225b283", "word_count": 1848 }, "last_updated": "2023-07-14T22:42:54.316311+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FRUMAN and APODACA, JJ., concur." ], "parties": [ "Evelyn FAHR, Claimant-Appellee, Cross-Appellant, v. AARON McGRUDER TRUCKING, Employer and Mountain States Mutual Casualty Company, Insurer, Respondents-Appellants, Cross-Appellees." ], "opinions": [ { "text": "OPINION\nBIVINS, Judge.\nEmployer appeals the hearing officer\u2019s decision awarding disability benefits to claimant in a worker\u2019s compensation case. Claimant cross-appeals from the decision as well. Our first calendar notice proposed summary dismissal of employer\u2019s appeal on the ground that its notice of appeal had not been timely filed in this court. We also proposed summary affirmance of the hearing officer\u2019s decision regarding the issues raised in claimant\u2019s cross-appeal. Employer subsequently moved for an extension of time within which to file its notice of appeal in this court. We granted the motion pursuant to SCRA 1986, 12-201(E)(4) and 12-601(B). Claimant did not file a memorandum in opposition to our first calendar notice. Therefore, she abandoned the issues raised by her cross-appeal. State v. Martinez, 97 N.M. 585, 642 P.2d 188 (CtApp. 1982). Our second calendar notice proposed summary affirmance of the hearing officer\u2019s decision regarding the issue raised by employer in its docketing statement. Claimant filed a memorandum in support of our proposed disposition. Employer filed a memorandum in opposition to our proposed disposition. Not persuaded by employer\u2019s memorandum, we affirm the hearing officer\u2019s decision.\nThe issue raised by employer concerns the meaning of the phrase \u201cnumber of days * * * employed\u201d contained in NMSA 1978, Section 52-l-20(B)(5) (Repl.Pamp.1987) for purposes of computing claimant\u2019s average daily and weekly wages pursuant to that section and Section 52-l-20(B)(3). Our second calendar notice proposed to find that this phrase means number of days actually worked.\nSection 52-l-20(B)(3) provides that average weekly wages for the purpose of computing benefits are to be determined in the following manner:\n[W]here the employee is rendering service on a per diem basis, the weekly wage shall be determined by multiplying the daily wage by the number of days and fractions of days in the week during which the employee under a contract of hire was working at the time of the accident, or would have worked if the accident had not intervened; provided, however, that in no case shall the daily wage be multiplied by less than three for the purpose of determining the weekly wage[.] [Emphasis added.]\nSection 52-l-20(B)(5) provides:\n[W]here the employee is paid on a piecework, tonnage, commission or any other basis except upon a monthly, weekly, daily or hourly wage, and where the employment is but casual and in the usual course of the trade, business, profession or occupation of his employer, the total amount earned by the injured or killed employee in the twelve months preceding the accident shall be computed, which sum shall be divided by the number of days the injured person was employed during the twelve months immediately preceding the accident, and the result thus ascertained shall be considered the average daily wage of said employee; then the weekly wage shall be determined from said daily wage in the manner set forth in Paragraph (3) [of Section 52-l-20(B)(3) ] hereoff.] [Emphasis added.]\nThe hearing officer found claimant\u2019s average weekly wage to be $230.41. Employer argues that claimant\u2019s average weekly wage should be $162.15.\nClaimant was hired on December 4, 1986, and her accident occurred'on December 31, 1986. Therefore, a total of 27 days elapsed between claimant\u2019s hiring date and the date immediately preceding the accident. Claimant was paid on a per-mile basis. It is undisputed that claimant\u2019s gross earnings for this period were $875.58. It is also undisputed that claimant actually worked for employer on 19 of the 27 days. Finally, the parties agree that claimant worked the equivalent of a five-day workweek for purposes of computing her weekly wages under Section 52-l-20(B)(3).\nEmployer contends that the \u201cwas working\u201d language of Section 52-l-20(B)(3) is not synonymous with the \u201cnumber of days * * * employed\u201d language of Section 52-1-20(B)(5). We disagree.\nIn interpreting a statute, we ascertain the legislative intent from the language used and words will be given their ordinary meaning unless a different intent is clearly indicated. Schmick v. State Farm Mut. Auto. Ins. Co., 103 N.M. 216, 704 P.2d 1092 (1985). In determining the legislative intent, we look not only to the language of the statute, but also to the object sought to be accomplished and the wrong to be remedied. Id. Finally, statutes \u201cmust be construed so that no word and no part of the statute is rendered surplusage or superfluous.\u201d Vaughn v. State Taxation & Revenue Dep\u2019t, 98 N.M. 362, 366, 648 P.2d 820, 824 (Ct.App.1982).\nApplying the above rules, we find that the phrase \u201cnumber of days * * * employed\u201d means the actual number of days claimant worked for employer before the accident.\nThe purpose of average weekly wage statutes \u201cis to arrive at a realistic estimate of the worker\u2019s true weekly earning potential so that the benefits calculable thereon may fairly relate to the worker\u2019s loss attributable to the accident or death * * 82 Am.Jur.2d Workmen\u2019s Compensation \u00a7 368 at 161 (2d ed.1976). Calculating claimant\u2019s average daily wage by dividing gross earnings by the number of days elapsing between the date of hiring and the day prior to the accident would not demonstrate her true earning potential. Further, we find that the plain meaning of the phrase \u201cnumber of days * * * employed\u201d refers to the number of days actually worked, not the state of being employed as employer suggests. Webster\u2019s Third New International Dictionary 743 (1966) defines \u201cemploy\u201d as \u201cto provide with a job that pays wages or a salary or with a means of earning a living.\u201d As used in the context of Section 52-l-20(B)(5), we believe that the number of days employed is limited to the days the worker engages in work for the employer and for which he is paid. We believe this interpretation is consistent with the purpose of average weekly wage statutes, especially where wages are based upon the worker\u2019s output. See Johnson v. D.B. Rosenblatt, Inc., 265 Minn. 427, 122 N.W.2d 31 (1963). See generally 99 C.J.S. Workmen\u2019s Compensation \u00a7 292 (1958).\nEmployer\u2019s argument also works an injustice upon workers employed on other than a monthly, weekly, daily or hourly basis. This is best demonstrated by the following example. Worker A and Worker B are each employed from April 1 through May 1, when each suffers a compensable injury. Worker A works 5 days per week for a total of 20 days at a flat daily wage of $45 for gross earnings of $900. Worker B also works 5 days per week for a total of 20 days with gross earnings of $900; the only difference being that Worker B is paid on a piecework basis (i.e., a basis other than monthly, weekly, daily or hourly). Worker A\u2019s average weekly wage is easily computed under Section 52-l-20(B)(3) by multiplying his daily wage of $45 by 5 for a result of $225. Under employer\u2019s argument, Worker B \u2019s' average weekly wage is computed as follows: first, the daily wage is calculated pursuant to Section 52-1-20(B)(5) by dividing gross earnings ($900) by the number of days elapsing between the hiring date and the day before the accident (30). The resulting average daily wage of $30 is then multiplied by 5 for an average weekly wage of $150. Thus, even though each worker, worked 5 days per week for a total of 20 days and earned $900, Worker B is penalized because he was not paid a flat rate of $45 per day.\nEquating the \u201cnumber of days * * * employed\u201d language with the number of days actually worked, Worker B\u2019s average weekly wage is calculated as follows: (1) the average daily wage is obtained by dividing gross earnings ($900) by the number of days worked (20) for a result of $45; and (2) the average daily wage of $45 is multiplied by 5 for a resulting average weekly wage of $225, the same figure as for Worker A.\nThus, applying the statute to the facts of the instant case, the hearing officer reached the correct average weekly wage figure. Claimant\u2019s gross earnings of $875.58 are divided by 19, the number of days she actually worked. This results in an average daily wage of $46.08 pursuant to Section 52-l-20(B)(5). To . divide gross earnings by 27, as employer suggests, would unfairly penalize claimant simply because she was paid on a per-mile basis. The average daily wage is then multiplied by 5 to arrive at the average weekly wage of $230.41.\nEven were we to accept employer\u2019s argument that the plain meaning of the statute would mandate that the \u201cnumber of days * * * employed\u201d equals the number of days elapsing between the hiring date and the day before the accident, we could not so apply the statute because such a reading would lead to an unjust, absurd or contradictory result. See Otero v. State, 105 N.M. 731, 737 P.2d 90 (Ct.App.1987). We will not ascribe to the legislature an intent to compensate injured workers unequally based solely upon the manner in which the employer chooses to pay for the worker\u2019s services. To the contrary, Section 52-1-20(C) evidences the legislative intent that the methods of computation fairly compute the average weekly wage in all cases.\nA survey of those few cases from other jurisdictions similar to this case supports our reading of the statute. In interpreting a similar statute, the New Jersey Supreme Court construed the phrase \u201c \u2018the number of days the workman was actually employed\u2019 \u201d to mean \u201c \u2018the number of days on which the workman was actually employed.\u2019 \u201d Davidson v. Nathanson Furniture Stores, 126 N.J.L. 430, 431, 20 A.2d 61, 62 (1941); see also Zeitner v. Floair, Inc., 211 Kan. 19, 505 P.2d 661 (1973).\nEmployer argues that equating the \u201cnumber of days * * * employed\u201d language with the number of days actually worked renders the \u201cwas working\u201d language of Section 52-l-20(B)(3) surplusage or superfluous. We disagree. The \u201cwas working\u201d language refers to the claimant\u2019s workweek while the \u201cnumber of days * * * employed\u201d language refers to the claimant\u2019s term of employment. We see no reason why the two phrases should not coexist and be given their ordinary meanings. See Schmick v. State Farm Mut. Auto. Ins. Co.\nEmployer argues that the hearing officer used an improper method to calculate the average daily wage because there was no finding as to this issue. We answer this contention by saying that we will uphold a decision by the trier of fact if it is correct for any reason and will not reverse when the correct result is reached. See Otero v. State.\nFor the foregoing reasons, the decision of the hearing officer is affirmed. Although claimant was unsuccessful in her cross-appeal, we award her the sum of $150 as attorney fees for defending against employer\u2019s appeal.\nIT IS SO ORDERED.\nFRUMAN and APODACA, JJ., concur.", "type": "majority", "author": "BIVINS, Judge." } ], "attorneys": [ "Mark J. Riley, Padilla, Riley & Shane, P.A., Albuquerque, for respondents-appellants, cross-appellees.", "Duane Lind, Ferguson & Lind, P.C., Albuquerque, for claimant-appellee, cross-appellant." ], "corrections": "", "head_matter": "755 P.2d 85\nEvelyn FAHR, Claimant-Appellee, Cross-Appellant, v. AARON McGRUDER TRUCKING, Employer and Mountain States Mutual Casualty Company, Insurer, Respondents-Appellants, Cross-Appellees.\nNo. 10455.\nCourt of Appeals of New Mexico.\nMay 3, 1988.\nMark J. Riley, Padilla, Riley & Shane, P.A., Albuquerque, for respondents-appellants, cross-appellees.\nDuane Lind, Ferguson & Lind, P.C., Albuquerque, for claimant-appellee, cross-appellant." }, "file_name": "0241-01", "first_page_order": 283, "last_page_order": 286 }