AI Generated Opinion Summaries

This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.

Facts

• The Worker, Fernando Diaz, was employed by Mayorga Roofing Corp. for approximately ten weeks. During his term of employment, there was a dispute regarding the calculation of his average weekly wage (AWW), which was based on the New Mexico Mutual Wage Statement reflecting wages for only three of those weeks. The Worker contended that this Wage Statement could not prove he earned zero wages for the remaining seven weeks not accounted for. The Worker's employment ended, and he was involved in an accident shortly thereafter.

Procedural History

• [Not applicable or not found]

Parties' Submissions

• Worker-Appellant: Argued that the Worker’s Compensation Judge (WCJ) erred in calculating the Worker's AWW based on the Wage Statement, which only accounted for wages during three weeks of employment. Contended that it was speculative to assume zero wages for the unaccounted seven weeks and challenged the application of NMSA 1978, Section 52-1-20(C) due to the Employer’s failure to keep required documentation of hours and wages. Also disputed the WCJ’s findings of fact as unsupported or contradicted by testimony.
• Employer/Insurer-Appellees: Testified that the Wage Statement accurately reflected the Worker’s gross earnings for the term of his employment. Supported the WCJ’s findings and application of the law, including the use of Section 52-1-20(C) due to the unusual circumstances of the Worker’s employment, such as irregular hours and lack of official wage documentation.

Legal Issues

• Whether the Worker’s Compensation Judge’s calculation of the Worker’s average weekly wage was supported by substantial evidence.
• Whether the application of NMSA 1978, Section 52-1-20(C) was appropriate given the circumstances of the Worker’s employment and wage documentation.

Disposition

• The Worker’s Compensation Judge’s fourth amended compensation order was affirmed.

Reasons

• The Court, consisting of Judges Megan P. Duffy, J. Miles Hanisee, and Jane B. Yohalem, unanimously affirmed the WCJ’s decision. The Court found that the Worker’s arguments regarding the calculation of his AWW and the application of NMSA 1978, Section 52-1-20(C) were unsupported by the record and contrary to positions he had taken earlier in the litigation. The Court noted that the Employer testified the Wage Statement accurately reflected the Worker’s earnings, and the Worker had previously relied on this statement as proof of weeks worked. The Court also highlighted that the Worker’s employment was deemed "unusual" due to factors like irregular hours and the absence of official wage records, justifying the use of Section 52-1-20(C). The Court did not reweigh evidence on appeal and found no persuasive argument in the Worker’s memorandum in opposition to alter the proposed disposition (paras 1-9).