New Mexico § 52-1-20 - Determination of average weekly wage

§ 52-1-20. Determination of average weekly wage

As used in the Workers' Compensation Act, unless the context otherwise requires, the

average weekly wage of an injured employee shall be taken as the basis upon which

to compute compensation payments and shall be determined as follows: A. “average weekly wage” means the weekly wage earned by the worker at the time of

the worker's injury, including overtime pay and gratuities but excluding all fringe

or other employment benefits and bonuses. The term “average weekly wage” shall include the reasonable value of board, rent,

housing or lodging received from the employer, which shall be fixed and determined

from the facts in each particular case. The term “average weekly wage” shall include those gratuities reported to the federal

internal revenue service by or for the worker for the purpose of filing federal income

tax returns; B. the average weekly wage shall be determined by computing the total wages paid to

the worker during the twenty-six weeks immediately preceding the date of injury and

dividing by twenty-six, provided that: (1) if the worker worked less than twenty-six weeks in the employment in which the

worker was injured, the average weekly wage shall be based upon the total wage earned

by the worker in the employment in which the worker was injured, divided by the total

number of weeks actually worked in that employment; (2) if a worker sustains a compensable injury before completing his first work week,

the average weekly wage shall be calculated as follows: (a) if the contract was based on hours worked, by determining the number of hours

for each week contracted for by the worker multiplied by the worker's hourly rate; (b) if the contract was based on a weekly wage, by determining the weekly salary contracted

for by the worker; or (c) if the contract was based on a monthly salary, by multiplying the monthly salary

by twelve and dividing that figure by fifty-two; and (3) if 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; C. provided, further, however, that in 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; and D. provided that in case such earnings have been unusually large on account of the

employer's necessity temporarily requiring him to pay extraordinary high wages, such

average weekly earnings shall be based upon the usual earnings in the same community

for labor of the kind of worker was performing at the time of the injury. In any event, the weekly compensation allowed shall not exceed the maximum or be

less than the minimum provided by law.