NM Court of Appeals explains how to calculate the average weekly wage when a worker has more than one job, and affirms attorney fee award

Earlier this month the NM Court of Appeals, in Vinyard v. Palo Alto, Inc., decided the proper method for calculating the weekly average in a workers’ compensation case when the injured employee has two jobs.  The proper method, according to Judge Roderick Kennedy, is to calculate the average wage for each job separately, and then average those results to arrive at “a single aggregate average weekly wage.”

The Court also considered an award of attorney’s fees in favor of the worker. The award seems to have been justified — the worker’s attorney was awarded $15,000 for obtaining just over $86,000 in benefits. The employer argued that worker’s attorney should have been required to submit evidence itemizing the hours spent on the case.

The Court rejected this argument, instead holding that all thiat is required is “evidentiary support for a fee award requires the presentation of sufficient facts for the WCJ [i.e.workers’ compensation judge] to rule whether at a hearing or not.” While the opinion does not explain in detail, it appears that the Court believed that the workers’ compensation judge had ample opportunity to view the work done by worker’s attorney, as well as the positive results, and therefore the workers’ compensation judge did not need to review the attorney’s timesheets to arrive at a fair award.

I interpret this decision as holding that a worker’s attorney need not always submit timesheets in order to justify a fee award, but nothing in Judge Kennedy’s opinion forecloses the possibility that there may be situations in which a worker’s fee request may need to be supported by attorney timesheets, or in which an employer might be justified in asking to review them.

 

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