Workers’ comp benefits can’t exceed average weekly wage, says NM Court of Appeals

In Livingston v. Environmental Earthscapes, a landscaper suffered a wrist injury and carpal tunnel syndrome at his job. The workers’ compensation judge found that the worker was entitled to permanent partial disability (PPD) and loss of use (LOU) benefits.

This award would have entitled the worker to $582 per week, but because his average weekly wage was $377.92, the workers’ compensation judge reduced his benefits to that amount, in accord with NMSA 1978, § 52-1-47.1(A), which provides that 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.”

On appeal, worker argued that “total payments” should be viewed over the course of his lifetime, because he could have worked over 20 more years absent his injury, and would have earned more than $582 per week during the remainder of his working life. Thus, according to worker, he was entitled to $582 per week in benefits.

Judge Wechsler’s opinion rejected this creative argument, applying the principle of statutory construction that in interpreting a statute that is part of a larger act, the act is to be viewed as a whole, and the statutory provision should be interpreted in light of the act’s other provisions. The opinion notes that in virtually every other context, the Workers’ Compensation Act calculates benefits based on a worker’s average weekly wage, and that there’s no basis to think the Legislature “intended benefits to be calculated on a lifetime basis for purposes of Section 52-47.1, but on a weekly basis for all other purposes.”

This case is a useful reminder that it’s dangerous to evaluate the “plain meaning” of statutory provisions in isolation. Here, worker’s proposed interpretation of “total payments” was by no means implausible, but it made little sense when viewed in light of the Act’s other provisions. The next time your opponent cites statutory language that cuts against your client’s position, don’t forget to look at the statute of which it is a part, and ask yourself whether there’s any argument that your opponent’s interpretation doesn’t fit in with the rest of the statute.


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