September 08, 2009 – Dale Nelson v. Homier Distributing Co., Inc. and Century Surety Company, No. 27,543

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: September 8, 2009
NO. 27,543
DALE NELSON,
Worker: A ppellee/Cross-A ppellant,
V.
HOMIER DISTRIBUTING CO., INC.,
Employer,
and
CENTURY SURETY COMPANY,
Insurer A ppellant/Cross-A ppellee.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Ned S. Fuller and Helen L. Stirling, Workers’ Compensation J udges

Chris Lucero, Jr.
Albuquerque, NM

for Worker: A ppellee/Cross-A ppellant
Madison, Harbour & Mroz, P.A.
Gregory D. Steinman

Albuquerque, NM

for Insurer/A ppellant/Cross-A ppellee

Paul L. Civerolo, L.L.P.
Paul L. Civerolo

Albuquerque, NM

for Employer/Cross-A ppellee

OPINION
KENNEDY, Judge.
{1} 	Century Surety Co. (Insurer) appeals and Dale Nelson (Worker) cross-appeals
the Workers’ Compensation Administration’s (WCA) decision awarding benefits to
Worker. 	We affirm the WCA’s decision and remand for further proceedings
regarding Worker’s motions for attorney fees and interest.
{2} 	Homier Distributing Co., Inc. (Employer) is a company that travels to various
locations to put on shows selling tools and other items. On June 18, 2000, Employer
was closing a show in Farmington in preparation for an upcoming show in Santa Fe.
Worker alleges that on that date he was hired by Employer to drive a truck from
Farmington to Santa Fe and back. Employer denies that it hired Worker or instructed
him to drive the truck. 	Worker asserts that he was told to drive the truck to a gas
station, fill it with fuel, and return to Employer’s temporary location at a Farmington
mall. Worker asserts that he did as instructed and that upon returning to the mall, he
noticed a problem with the truck’s lights and decided to ask a forklift driver what to
do about fixing them. Worker stepped onto the forklift, but the driver apparently did
not notice he was there and began driving off. Worker fell and was dragged some
distance across the parking lot, suffering serious injuries. Subsequent tests indicated
that Worker had alcohol and cocaine in his system at the time of the accident.
Employer denied workers’ compensation benefits to Worker. Worker filed a claim

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with the WCA about twenty months after the accident.
{3} 	The issues were bifurcated for trial. The first trial, held on November 10, 2003,
before Judge Ned Fuller, was limited to the issues of who, if anyone, was Worker’s
employer, and whether Employer’s defenses of notice, statute of limitations, and
intoxication were applicable. 	Judge Fuller ruled that Worker was an employee of
Employer and that Worker’s claim was not barred by the statute of limitations because
the statute was tolled when Employer failed to file a report of the accident in New
Mexico. 	Judge Fuller also found that “Worker’s judgment and physical reaction
[time] were impaired by alcohol and cocaine,” but concluded that the effect of this
impairment on Worker’s entitlement to benefits was reserved for the second part of
the bifurcated proceedings.
{4} 	Judge Helen Stirling presided over the second portion of the bifurcated trial on
May 5, 2006. 	Among her findings of fact were that “alcohol and cocaine [we]re
contributing causes of Worker’s accident and resulting injuries.” 	She declined to
reduce Worker’s benefits by ten percent pursuant to NMSA 1978, Section 52-1-12.1
(2001), because there was no indication in the evidence “that the test and testing
procedures conform[ed] to the federal department of transportation ‘procedures for
transportation workplace drug and alcohol testing programs’ and the test [was]
performed by a laboratory certified to do the testing by the federal department of

3
transportation,” as required by that statute.
{5} 	Insurer raises five issues: (1) the statute of limitations barred Worker’s claim
for indemnity benefits; (2) Worker’s intoxication and drug consumption barred his
claims; (3) Judge Stirling, the second worker’s compensation judge (WCJ), erred in
reconsidering the findings and conclusions of Judge Fuller, the first WCJ; (4) Judge
Fuller erred in admitting a gas station receipt without authentication or foundation;
and (5) Judge Fuller erred in denying Employer’s motion for directed verdict.
{6} 	Worker cross-appeals, raising two issues: (1) whether Judge Stirling incorrectly
calculated Worker’s average weekly wage and weekly compensation rate; and (2)
whether Judge Stirling erred in denying Worker’s motion that his medical bills are
required to be paid by Employer or Insurer, whether or not Worker is entitled to
compensation, and whether Judge Stirling improperly refused to award pre- and post-
judgment interest and attorney fees.
STATUTE OF LIMITATIONS
{7} 	Whether an action is barred by the applicable statute of limitations is a question
of law that we review de novo. See, e.g., McNeill v. Rice Eng’g & Operating, Inc.,
2006-NMCA-015, ¶ 26, 139 N.M. 48, 128 P.3d 476 (filed 2005).
{8} 	Employer is headquartered in Indiana and does not maintain an office in New
Mexico. Employer filed a first report of injury with the Indiana WCA on June 20,

4
2000, two days after the date of Worker’s injury, but did not file one in New Mexico.
Worker did not file his claim for workers’ compensation until February 22, 2002,
about nineteen months after Employer denied his claim for benefits on July 17, 2000.
{9} 	New Mexico’s Workers’ Compensation Act (Act) requires employers to report
accidents to the director of the WCA:
It is the duty of every employer of labor in this state subject to the
provisions of the [Act] or the employer’s workers’ compensation
insurance carrier to make a written report to the director of all accidental
injuries or occupational diseases that occur to any of his employees
during the course of their employment and that result in lost time of an
employee of more than seven days. . . . 	Such reports shall be made
within ten days after such accidental injury[.]
NMSA 1978, § 52-1-58(A) (1990). 	The Act further provides, in reference to the
required accident report:
No claim for compensation under the [Act], as it now provides or
as it may hereafter be amended, shall be barred prior to the filing of such
report or within thirty days thereafter, but this section does not shorten
the time now provided for filing claims with the director.
NMSA 1978, § 52-1-59 (1989). The Act specifies that when an employer or insurer
does not pay compensation to which a worker is entitled, “it is the duty of the worker
insisting on the payment of compensation to file a claim therefor as provided in the
[Act] not later than one year after the failure or refusal of the employer or insurer to
pay compensation.” NMSA 1978, § 52-1-31(A) (1987).
{10} 	Insurer’s statute of limitations argument is based on Worker’s failure to file his

5
claim within one year after Employer denied compensation. Worker argues that the
limitations period was tolled under Section 52-1-58 by Employer’s failure to file a
report of the accident with the WCA. 	Insurer responds that Employer was not
required to file a report because the accident did not “result in lost time of an
employee of more than seven days.” Section 52-1-58(A). Insurer also argues that the
report filed in Indiana substantially complied with Section 52-1-58(A).
{11} 	Although Judge Fuller’s findings of fact include the fact that “Worker did not
expect any work with [Employer] to last more than one day,” there appears to be no
dispute that Worker’s injuries were severe enough that, if employment had lasted
longer, he would have lost more than seven days work. 	The 	question of whether
Section 52-1-58(A) requires that an accident report be filed in these circumstances
appears to be one of first impression and requires that we interpret Section 52-1-
58(A).
Statutory interpretation is a question of law, which we review de
novo. 	The guiding principle of statutory construction is that a statute
should be interpreted in a manner consistent with legislative intent. To
determine legislative intent, we look not only to the language used in the
statute, but also to the purpose to be achieved and the wrong to be
remedied.
Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69 (citations
omitted). 	“We will not depart from the plain meaning of a statute, unless it is
necessary to resolve an ambiguity, correct a mistake or an absurdity that the

6
legislature could not have intended, or deal with an irreconcilable conflict among
statutory provisions.” City of Rio Rancho v. Logan, 2008-NMCA-011, ¶ 7, 143 N.M.
281, 175 P.3d 949 (filed 2007). 	“If, however, the language of the statute is
ambiguous, we must interpret the statute, and determine legislative intent.” Hanson
v. Turney, 2004-NMCA-069, ¶ 7, 136 N.M. 1, 94 P.3d 1.
{12} 	Section 52-1-58(A) is ambiguous in that it is not clear from the language which
of three possible meanings is intended by the phrase “result in lost time of an
employee of more than seven days.” The phrase could mean: (1) the employee was
unable to work anywhere for more than seven days; (2) the employee was unable to
work for his or her present employer for more than seven days; or (3) the employee
had worked for that employer for more than seven days.
{13} 	While the Act provides no clear expression of the Legislature’s intent in using
this language, it appears to us that the statute’s specification of the seven-day time
frame is most likely related to establishing a threshold for the severity of injuries
requiring reporting, and is best understood as referring to the first option specified
above: seven days in which the employee is unable to work, regardless of whether he
or she actually still works for the employer. 	This conclusion comports with the
WCA’s function of monitoring and promoting workplace safety. 	See, e.g., NMSA
1978, § 52-1-2 (2003) (subjecting employers to liability under the Act); NMSA 1978,

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§ 52-5-1 (1990) (discussing the goal of “quick and efficient delivery of indemnity” to
injured 	workers); 	NMSA 	1978, 	§ 	52-1-6.2 	(1990) 	(providing 	for 	safety
investigations); see also Morales v. Reynolds, 2004-NMCA-098, ¶ 6, 136 N.M. 280,
97 P.3d 612. A conclusion that the seven-day time frame applies either to the length
of time an employee has already worked for an employer or to the time the employee
would continue working for an employer would serve no clear function, and could
lead to incongruous results where serious accidents during a worker’s first seven days
or most particularly in this case, a worker’s last seven days of work would not need
to be reported. We therefore hold that where an employee’s injury would prevent his
or her working for more than seven days following the injury, an employer must file
a report. Accordingly, there being no dispute in this case that Worker could not work
`for more than seven days after his injury, Employer or Insurer was required to file a
report pursuant to Section 52-1-58(A).
{14} 	We are not persuaded by Insurer’s argument that the report filed in Indiana
substantially complied with Section 52-1-58(A). The language of the section plainly
requires filing with “the director,” defined as the director of the WCA. See NMSA
1978, § 52-1-1.1(B) (2003). 	Further, nothing in the record indicates that the New
Mexico WCA learned of Worker’s injury as a result of the Indiana filing.
{15} 	Solely because neither Employer nor Insurer timely filed the report required by

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Section 52-1-58(A), Worker’s claim was not barred by the statute of limitations. See
§ 52-1-59.
EFFECT OF ALCOHOL AND DRUGS
{16} 	Insurer’s contention that Worker’s alleged intoxication barred his claim requires
us to review the evidence upon which Judge Stirling relied. 	“When reviewing for
sufficiency of the evidence from a workers’ compensation order, the court reviews the
record as a whole in order to be satisfied that the evidence demonstrates the decision
is reasonable.” Barela v. ABF Freight Sys., 116 N.M. 574, 579, 865 P.2d 1218, 1223
(Ct. App. 1993). “Under whole record review, the court views the evidence in the
light most favorable to the agency decision, but may not view favorable evidence with
total disregard to contravening evidence. Nat’l Council on Comp. Ins. v. N.M. State
Corp. Comm’n, 107 N.M. 278, 282, 756 P.2d 558, 562 (1988) (citations omitted).
{17} 	The Act provides that “[n]o compensation shall become due or payable from
any employer under the terms of the [Act] in event such injury was occasioned by the
intoxication of such worker.” NMSA 1978, § 52-1-11 (1989). The Act also provides:
No compensation is payable from any employer under the provisions of
the [Act] if the injury to the person claiming compensation was
occasioned solely by the person being under the influence of a
depressant, stimulant or hallucinogenic drug as defined in the New
Mexico Drug, Device and Cosmetic Act . . . or under the influence of a
narcotic drug as defined in the Controlled Substances Act[.]
NMSA 1978, § 52-1-12 (1989).

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{18} 	Judge Fuller’s findings of fact indicated, “[t]ests revealed that some time after
the accident Worker had a blood alcohol content level of .079 and had a high amount
of cocaine in his system,” and “Worker’s judgment and physical reaction were
impaired by . . . cocaine.” Judge Fuller specifically reserved the question of “whether
Worker’s injury was occasioned by his intoxication or whether the intoxication was
simply a contributing factor” for the second part of the proceedings, apparently due
to incomplete discovery.
{19} 	In the second part of the proceedings, Judge Stirling found that “Worker’s
accident was not occasioned by alcohol” and that “Worker’s accident was not
occasioned solely by drug influence.” Judge Stirling made detailed findings regarding
Worker’s consumption of alcohol and cocaine and the effects thereof. 	There was
evidence that Worker’s blood alcohol content forty minutes after the accident was
.079, and expert testimony extrapolating from this that it was .092 at the time of the
accident. 	This suggested that Worker had consumed more than the two beers he
acknowledged having at lunch before the accident. 	Judge Stirling explained her
conclusion that the accident was nonetheless not occasioned by alcohol, noting that
Worker was not driving the forklift and thus there was no clear nexus between his
impairment and the injury. Also, whatever impairment existed had not been sufficient
to prevent Worker from accomplishing other tasks before the accident, including

10
driving the truck to the gas station and back, completing paperwork, inspecting the
truck, and discovering the defective lights. 	Regarding the cocaine, Judge Stirling
noted that although Worker acknowledged ingesting three lines of cocaine sixty-six
hours before the accident, there was no evidence as to the amount in his system at the
time of the accident. We conclude that substantial evidence supported the findings
that Worker’s injury was not occasioned by intoxication or occasioned solely by his
being under the influence of drugs.
{20} 	Judge Stirling concluded that although Worker’s injuries were not occasioned
by either alcohol or cocaine, both were contributing causes. The Act provides for a
ten 	percent 	reduction 	in 	compensatory 	benefits 	where 	alcohol 	or 	drugs 	are
contributing causes of an injury:
The compensation otherwise payable [to] a worker pursuant to
[the Act] shall be reduced ten percent in cases in which the injury to or
death of a worker is not occasioned by the intoxication of the worker as
stated in Section 52-1-11 [] or occasioned solely by drug influence as
described in Section 52-1-12 [], but voluntary intoxication or being
under the influence of a depressant, stimulant or hallucinogenic drug . .
. is a contributing cause to the injury or death.
Section 52-1-12.1.
However, this section limits the evidence that may be considered in evaluating
drugs or alcohol as a contributing cause:
Test results used as evidence of intoxication or drug influence shall not
be considered in making a determination of intoxication or drug

11
influence unless the test and testing procedures conform to the federal
department of transportation “procedures for transportation workplace
drug and alcohol testing programs” and the test is performed by a
laboratory certified to do the testing by the federal department of
transportation.
Id.
{21} 	Judge Stirling found that although she had no doubt that the alcohol and
cocaine were contributing causes of the accident, there was no evidence that the tests
used as evidence met the standards set forth in the last sentence of Section 52-1-12.1.
Accordingly, Worker was granted full benefits.
{22} 	We observe that Worker was tested for alcohol and drugs shortly after the
accident on June 18, 2000, but Section 52-1-12.1 did not become effective until July
1, 2001. Thus, at the time the tests were given, there was no statutory requirement
that they meet any particular standard. A question thus arises as to whether Section
52-1-12.1 operates retroactively. “New Mexico law presumes that statutes and rules
apply prospectively absent a clear intention to the contrary.” 	Howell v. Heim, 118
N.M. 500, 506, 882 P.2d 541, 547 (1994). 	“Although the presumption of
prospectivity appears straightforward, confusion often arises as to what retroactivity
means in particular contexts.” 	Gadsden Fed’n of Teachers v. Bd. of Educ.,
1996-NMCA-069, ¶ 14, 122 N.M. 98, 920 P.2d 1052. The general rule is that “[a]
statute . . . is considered retroactive if it impairs vested rights acquired under prior law

12
or requires new obligations, imposes new duties, or affixes new disabilities to past
transactions.” Id. (internal quotation marks and citation omitted).
{23} 	The present circumstances give rise to two possibilities, both of which lead to
an outcome consistent with Judge Stirling’s decision not to reduce Worker’s benefits.
If Section 52-1-12.1 is given no retroactive effect at all, and the applicable law is that
which was in effect on the date of the accident, then the only issue is whether benefits
are barred in their entirety by Sections 52-1-11 and 52-1-12. Judge Stirling ruled that
benefits were not barred under those two sections, as discussed above. If Section 52-
1-12.1 is given retroactive effect—such that someone injured before its effective date
but whose claim is filed with the WCA after its effective date is subject to its
provisions—then the drug and alcohol tests must meet the standards specified in
Section 52-1-12.1. 	Judge Stirling ruled that no evidence showed the tests met the
standards. 	Thus, regardless of whether or how retroactivity is applied, Worker’s
benefits would not be reduced by ten percent.
{24} 	We are not persuaded by Insurer’s argument that because Worker did not object
to the tests at trial, Judge Stirling erred in disregarding them. The language of Section
52-1-12.1 is mandatory: tests “shall not be considered” unless they conform to the
specified standards. 	See NMSA 1978, § 12-2A-4 (1997); see also Montano v. Los
Alamos County, 1996-NMCA-108, ¶ 5, 122 N.M. 454, 926 P.2d 307 (stating that “the

13
words ‘shall’ and ‘will’ are mandatory and ‘may’ is permissive or directory”) (citation
omitted). For these reasons, we conclude that Judge Stirling did not err in ruling that
Worker was entitled to full benefits.
CONSISTENCY OF RULINGS OF FIRST AND SECOND JUDGES
{25} 	Insurer argues that in the second part of the proceedings Judge Stirling
improperly reconsidered and reversed certain findings of Judge Fuller from the first
part of the proceedings. Judge Fuller included the following conclusion of law in his
compensation order filed on December 5, 2003: 	“All remaining issues including
whether Worker’s injury was occasioned by his intoxication or whether the
intoxication was simply a contributing factor are bifurcated and will be resolved at a
future hearing.” The pretrial order for the second part of the proceedings listed among
the contested issues “[w]hether all [W]orker’s workers’ compensation benefits and
medical will be barred altogether because of his intoxication and/or drug use, or
whether any workers’ compensation benefits are reduced by [ten percent].” Insurer
argues that Judge Fuller’s conclusion of law and pretrial order limited Judge Stirling
to a choice between denying benefits altogether or reducing benefits by ten percent.
As discussed above, Judge Stirling granted Worker benefits without reduction.
{26} 	We agree that Judge Fuller’s conclusion of law and pretrial order establish that
some degree of impairment existed, given the blood tests at the hospital and Worker’s

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admissions of drinking alcohol and using cocaine. 	The only remaining issue was
therefore the effect of this fact on Worker’s benefits. We disagree that Judge Stirling
was limited to the options of denying benefits altogether or reducing benefits by ten
percent. With regard to the portion of the pretrial order quoted above, for example,
Judge Stirling had the option of answering “no” to both the question of whether
benefits should be denied and the question of whether benefits should be reduced by
ten percent.
{27} 	We 	also 	disagree 	with 	Insurer’s 	basic 	proposition 	that 	Judge 	Fuller’s
conclusions and the pretrial order precluded Judge Stirling from ruling as she did. A
court “has the inherent authority to reconsider its interlocutory orders, and it is not the
duty of the [court] to perpetuate error when it realizes it has mistakenly ruled.” Tabet
Lumber Co. v. Romero, 117 N.M. 429, 431, 872 P.2d 847, 849 (1994) (internal
quotation marks and citation omitted). 	In the case cited by Insurer, Gregson v.
Gregson, 739 So. 2d 1266, 1267 (Fla. Dist. Ct. App. 1999), the court stated, “The
general rule is that a successor judge cannot review, modify, or reverse on the merits
and on the same facts the final orders of a predecessor, unless there exists some
special circumstances such as mistake or fraud upon the court.” (Internal quotation
marks and citation omitted.) In the present case, Judge Fuller’s conclusion was not
a final order, as further proceedings were required to dispose of the case. 	Judge

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Stirling, who took further evidence regarding Worker’s alleged intoxication and
determined that there was no evidence that the tests relied upon met the standards set
forth in Section 52-1-12.1, would have perpetuated error had she limited herself to the
two options that Insurer claims were the only ones available.
{28} 	For these reasons, we conclude that Judge Stirling’s grant of full benefits to
Worker was not precluded by Judge Fuller’s earlier rulings.
ADMISSION OF GAS RECEIPT
{29} 	Insurer argues that Judge Fuller improperly admitted a copy of a gas station
receipt into evidence. We review for abuse of discretion:
Admission or exclusion of evidence is a matter within the discretion of
the [district] court and the court’s determination will not be disturbed on
appeal in the absence of a clear abuse of that discretion. An abuse of
discretion occurs when the ruling is clearly against the logic and effect
of the facts and circumstances of the case. A [district] court abuses its
discretion by its ruling only if we can characterize it as clearly untenable
or not justified by reason.
Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P.2d 999
(internal quotation marks and citations omitted).
{30} 	Worker testified that after he got out of the hospital he returned to the gas
station where he had fueled the truck just before the accident and obtained a
photocopy of the receipt he had signed. 	The receipt presumably was admitted to
support Worker’s contention that Employer had in fact hired him and directed him to

16
perform the task of fueling the truck. No one from the gas station testified regarding
the authenticity of the receipt.
{31} 	Insurer argues that admission of the receipt copy was error for three interrelated
reasons: (1) there was no adequate foundation for admitting the document; (2) the
document admitted was a copy, not the original; and (3) the document was hearsay not
admissible under any exception.
{32} 	We agree with Insurer that the receipt was hearsay not admissible under any
exception. The receipt was hearsay because it contained a statement offered in court
to prove the truth of the matter asserted. See Rule 11-801(C) NMRA. The receipt,
bearing Worker’s signature, purported to state that he was at the gas station and
bought fuel on the date indicated. 	See, e.g., People v. Maki, 704 P.2d 743, 750-51
(Cal. 1985) (en banc) (holding that car rental and hotel receipts admitted to show
defendant had violated probation by traveling out of area were hearsay not admissible
under any exception, but also holding that the admission of such improper evidence
did not violate the confrontation clause under the circumstances). The receipt does
not qualify as a record of regularly conducted activity under Rule 11-803(F) NMRA
because of the complete absence of “the testimony of the custodian or other qualified
witness” as required by that rule. While Worker was not qualified to testify as to the
regular practice of the business, his testimony was consistent with the information

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purportedly conveyed by the receipt.
{33} 	We next consider the effect of the improper admission of the receipt. “Error
may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected[.]” Rule 11-103(A) NMRA. “[W]e deem it
noteworthy that this was a bench trial, and the general rule pertaining to that type of
trial appears to give a judge more flexibility in making admissibility determinations
than in jury trials.” Tartaglia v. Hodges, 2000-NMCA-080, ¶ 30, 129 N.M. 497, 10
P.3d 176. “We presume that a judge is able to properly weigh the evidence, and thus
the erroneous admission of evidence in a bench trial is harmless unless it appears that
the judge must have relied upon the improper evidence in rendering a decision.” State
v. Hernandez, 1999-NMCA-105, ¶ 22, 127 N.M. 769, 987 P.2d 1156.
{34} 	While Judge Fuller noted Worker’s testimony regarding the receipt in his
findings, he also cited additional evidence that led him to conclude that an
employment relationship existed. As discussed below, the evidence of employment
included Worker’s testimony regarding the circumstances of his hiring, a notation on
a fax regarding hiring of a replacement for Worker, and the report of the accident that
Employer filed with the Indiana WCA. 	Accordingly, the circumstances do not
support a conclusion that Judge Fuller “must have relied upon the improper evidence
in rendering a decision.” Id.

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DENIAL OF MOTION FOR DIRECTED VERDICT
{35} 	Insurer argues that Judge Fuller erred in denying Employer’s motion for
directed verdict, finding the existence of an employment relationship between Worker
and Employer, and finding that Worker was in the course and scope of his
employment at the time of the accident. “This being a nonjury trial, the motion for a
directed verdict was, in effect, a motion to dismiss under [Rule 1-041(B) NMRA].”
Garcia v. Am. Furniture Co., 101 N.M. 785, 787, 689 P.2d 934, 936 (Ct. App. 1984).
“In ruling on a Rule 1-041(B) motion, . . . the trial judge acts as a fact finder who
weighs the evidence and passes judgment on whether the plaintiff has proved the
necessary facts to warrant the relief asked.” Padilla v. RRA, Inc., 1997-NMCA-104,
¶ 17, 124 N.M. 111, 946 P.2d 1122 (internal quotations and citation omitted). We
again review the whole record for evidence sufficient for a reasonable mind to accept
as adequate to support the decision. 	Tallman v. ABF (Arkansas Best Freight), 108
N.M. 124, 128, 767 P.2d 363, 367 (Ct. App. 1988), modified on other grounds by
Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148.
{36} 	Insurer argues that Judge Fuller, in finding that an employment relationship
existed between Employer and Worker, relied too heavily on the report of injury that
Employer filed with the Indiana WCA. 	In the case cited by Insurer, this Court
concluded “[t]he filing of the report in the instant case is insufficient, standing alone,

19
to support a legal conclusion that an employment relationship existed.” Jelso v. World
Balloon Corp., 97 N.M. 164, 170, 637 P.2d 846, 852 (Ct. App. 1981) (emphasis
added). Yet, Judge Fuller had evidence before him in addition to the Indiana report.
Worker testified that his former employer, T&R Trucking, had no work for him
because its truck had broken down and that a T&R Trucking employee had suggested
that Worker try to find work with Employer. Worker also testified that Chip Webb,
Employer’s manager, hired him to drive Employer’s truck and instructed him to take
it to a gas station and purchase fuel. Judge Fuller also cited a fax dated two days after
the accident referring to Webb’s efforts to find a replacement driver for Worker from
another trucking company. We acknowledge that there was also evidence rendering
the employment relationship somewhat uncertain, such as the absence of employment
paperwork or any agreement as to wages. Reviewing the whole record, however, we
are “satisfied that the evidence demonstrates the decision is reasonable.” Barela, 116
N.M. at 579, 865 P.2d at 1223.
{37} 	Judge Fuller also had evidence before him that the accident took place in the
course and scope of Worker’s employment. 	Worker testified that he discovered
defective lights while inspecting the truck in preparation for driving it to Santa Fe and
was trying to get information on having them fixed from the forklift driver when he
was injured. As Worker could not reasonably drive the truck with the defective lights,

20
it was within the course and scope of his employment to seek information on fixing
them.
{38} 	Accordingly, we conclude that Judge Fuller did not err in denying Employer’s
motion for directed verdict.
CALCULATION OF AVERAGE WEEKLY WAGE
{39} 	Judge Stirling found that “[t]he only concrete evidence of a rate of pay for
Worker is that provided on the accident report filed in Indiana.” Based on the rate of
fifty cents per driven mile stated in this report, the judge calculated that Worker would
have earned $210 had he driven from Farmington to Santa Fe and back, and she used
this figure as his average weekly wage.
{40} 	“[A]verage weekly wage” is defined as “the weekly wage earned by the worker
at the time of the worker’s injury[.]” NMSA 1978, § 52-1-20(A) (1990). Section 51-
1-20 sets forth several methods for calculating a worker’s average weekly wage.
Worker argues that Judge Stirling should have used Section 52-1-20(B)(3), which
provides:
[I]f the hourly rate of earnings of the worker cannot be ascertained, or if
the pay has not been designated for the work required, the average
weekly wage, for the purpose of calculating compensation, shall be taken
to be the average weekly wage for similar services performed by other
workers in like employment for the past twenty-six weeks[.]
In his proposed findings of fact submitted to Judge Stirling, Worker used New Mexico

21
Department of Labor statistics to arrive at a proposed average weekly wage of
$425.67.
{41} 	Judge Stirling’s order does not specify which section of the statute she used in
arriving at $210. Given the unusual factual setting of Worker’s employment, which
does not readily fall under any of the other methods set forth in Section 52-1-20, it
appears that she used the statute’s fallback provision:
[I]n any case where the foregoing methods of computing the average
weekly wage of the employee by reason of the nature of the employment
or the fact that the injured employee has been ill or in business for
himself or where for any other reason the methods will not fairly
compute the average weekly wage, in each particular case, computation
of the average weekly wage of the employee in such other manner and
by such other method as will be based upon the facts presented fairly
determine such employee’s average weekly wage[.]
Section 52-1-20(C).
{42} 	We are not persuaded that Section 52-1-20(B)(3) would provide the correct
method, as Worker argues, in the present unusual circumstances. 	Given Worker’s
single day of employment, there is no basis for comparing Worker’s job with any
“similar services performed by other workers in like employment” under Section 52-
1-20(B)(3)’s methodology. 	Further, Worker has not proposed any means of
correlating a weekly or hourly rate with a per-mile rate under the statutory framework,
nor is any apparent to us.
{43} 	We agree with Judge Stirling’s characterization of the average weekly wage

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issue as “murky.” In brief, the factual setting indicates that Worker was injured on the
first day of employment and was not expected to be employed more than one day. We
first conclude that the evidence, in the form of the accident report filed in Indiana,
supported Judge Stirling’s conclusion that Worker would have been paid $210 for the
trip to Santa Fe. As he only expected to work that one day, the $210 would also have
been his wages for the week. 	Using the statutory definition of average weekly
wage–“the weekly wage earned by the worker at the time of . . . [his] injury”–it was
reasonable for Judge Stirling to use the $210 figure, even though no mathematical
averaging was necessary to arrive at that figure. Section 52-1-20(A).
PAYMENT OF MEDICAL BILLS AND INTEREST
{44} 	Our decision affirming the award of benefits to Worker without reduction
disposes of Worker’s issue regarding payment of his medical bills.
{45} 	Worker also argues that Judge Stirling should have awarded pre- and post-
judgment interest and attorney fees. He claims that Judge Stirling did not rule on his
motions for interest and fees because she believed she had lost jurisdiction over the
case after the parties filed notices of appeal, while Insurer claims that the judge did not
rule because Insurer had moved to stay further proceedings pending appeal and had
posted a bond to secure the compensation order. In either event, Judge Stirling ruled
on neither the amount of attorney fees nor on the issue of pre- and post-judgment

23
interest. Accordingly, we remand to the Workers’ Compensation Administration for
further proceedings on those matters.
CONCLUSION
{46} 	For the reasons stated above, we affirm the award of full benefits to Worker and
remand for consideration of his motions for attorney fees and interest.
{47} 	IT IS SO ORDERED.
___________________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
________________________________
CELIA FOY CASTILLO, Judge