July 16, 2013 – Wilbert Livingston v. Environmental Eathscapes, d/b/a Grounds Keeper and Cambridge, No. 32,622

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: July 16, 2013

NO. 32,@22
WILBERT LIVINGSTON,
Worker: A ppellant,
V.
ENVIRONMENTAL EARTHSCAPES,
d/b/a GROUNDS KEEPER and
CAMBRIDGE,
Employer/Insurer-A ppellees.
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Terry S. Kramer, Workers’ Compensation J udge

Victor A. Titus
Farmington, New Mexico

for Appellant

Butt, Thomton & Baehr PC
David N. Whitham

Emily A. Franke
Albuquerque, NM

for Appellees

OPINION
WECHSLER, Judge.
{1} 	Worker, Wilbert Livingston, appeals from a compensation order entered
pursuant to the Workers’ Compensation Act (the Act), NMSA 1978, §§ 52-1-1 to -70
(1929, as amended through 2007). 	Worker contends the Workers’ 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’s 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.
BACKGROUND
{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

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$377.92. 	He had been working as a landscaper/groundskeeper for Employer for
approximately six weeks. Worker did not return to work after the accident.
{3} 	Following a trial, the WCJ issued a compensation order finding that the
accident was compensable. The WCJ found that Worker’s right wrist crush injury and
carpal tunnel syndrome were causally related to the accident, along with Worker’s
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’s PPD and LOU benefits should run concurrently and limited the total amount
of these benefits to Worker’s average weekly wage of $377.92 pursuant to Section 52-
1-47.1.
APPLICATION OF SECTION 52-1-47.1
{4} 	Worker contends that the WCJ 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

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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’s
conclusion that the PPD and LOU benefits should be paid concurrently rather than
consecutively.
{5} 	We review workers’ compensation cases under a “whole record standard of
review.” 	Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175
P.3d 926. 	When we are called upon to review a WCJ’s interpretation of statutory
requirements, our review is de novo. See DeWitt v. Rent-A-Center, Inc., 2009-NMSC-
032, ¶ 14, 146 N.M. 453, 212 P.3d 341.
{6} 	Section 52-1-47.1(A) of the Act states:
Unless 	otherwise 	contracted 	for 	by 	the 	worker 	and
employer, workers’ 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.
(Emphasis added.) 	Worker contends that we should interpret the emphasized
language in relation to a worker’s lifetime earnings, not in relation to a worker’s

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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’s compensation benefits to
$680,000. We disagree.
{7} 	It is well settled that “[t]he purpose of the . . . Act is to compensate an injured
employee for the reduction of his earning capacity.” Vinyard v. Palo Alto, Inc., 2013-
NMCA-001, ¶ 10, 293 P.3d 191. 	For purposes of the Act, earning capacity is
calculated in relation to a worker’s average weekly wage. See, e.g., Section 52-1-20
(defining “average weekly wage” and explaining how “average weekly wage” is to
be determined). 	As we explained in Vinyard, 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.” Vinyard, 2013-NMCA-001, ¶ 10.
{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,

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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).
{9} 	Section 52-1-47.1(A) of the Act states that “workers’ compensation benefits
shall be limited so that no worker receives more in total payments . . . by not working
than by continuing to work.” 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, “we examine the act in its entirety, construing each
section in connection with every other section.” Baca v. Complete Drywall Co., 2002-
NMCA-002, ¶ 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.
{10} 	Worker relies 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
“disabilities caused by scheduled injuries and disabilities caused by injuries to
non-scheduled members are separate and distinct concepts.” 2002-NMCA-002, ¶ 21.

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In Gutierrez, we recognized “Baca’s core principle [was] that [these] two kinds of
benefits may be added together.” Gutierrez, 2009-NMCA-106, ¶ 17. The issue in this
case is not whether Worker’s PPD and LOU benefits are separate and distinct; rather,
the issue is whether Worker 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’s benefits to his
average weekly wage.
CONCLUSION
{11} 	We affirm the compensation order entered by the WCJ.
{12} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
CYNTHIA A. FRY, Judge
________________________________

TIMOTHY L. GARCIA, Judge
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