concurring in part and dissenting in part.
I agree with the majority on the attorney fees issue but respectfully dissent on the issue of whether 84% of worker’s pre-injury wages constituted a comparable wage under NMSA 1978, Section 52-l-24(A) of the Interim Act. Although I agree with the majority that comparable does not necessarily mean equal, I disagree that the workers’ compensation judge’s (judge) determination on the comparable wage issue is affirmable on the basis of the record before us. The record is absent of any particularized findings that would satisfy me that a proper determination was made. Additionally, in view of the legislature’s failure to provide us with a definition or other guidance with respect to the underlying legislative intent in the use of the term “comparable” in Section 52-l-24(A), I believe that adoption of definitive guidelines by us, as a reviewing court, is required. Doing so would afford structured guidance to fact finders on the specific issue of comparability under the Interim Act.
Absent such a set of factors or criteria, I foresee fact finders groping in the dark at the expense of both the worker and employer, in an attempt to determine whether a worker is able to earn a comparable wage after injury. Finding myself in the minority, I am not prepared to suggest at this time what these guidelines should be, only that this court should establish the criteria on which the judge could properly base its determination, before this court can consider the judge’s decision under whole record review. Otherwise, I am not satisfied that the before and after wages are “capable of being compared” or “worthy of comparison,” if I may borrow the definitions used by the majority.
In my judgment, the majority has improperly defined the issue as one involving only a substantial evidence review. I do not so view the issue. Instead, to me, the issue involves policy considerations that we, as a reviewing court, should implement by establishing criteria for fact finders, to guide them in their determinations on the issue of comparability. In this appeal, the record does not reflect any factors or other “relevant evidence” considered by the judge in concluding worker was capable of earning a comparable wage after the injury, aside from the judge’s bald, conclusory statement that worker was “able to earn a wage comparable to that earned when injured.”
As noted previously, in enacting Sec. 52-1-24(A), the legislature failed to provide us with a definition of “comparable” wage. The majority essentially concludes from this fact that the intent was to afford the fact finder flexibility in making a determination. I, on the other hand, view such failure as, not only an opportunity, but as a mandate, to formulate a set of criteria or factors under which the fact finder can make a comprehensive and meaningful determination concerning comparability. Otherwise, what is the standard (other than the generally accepted standard of whole record review) by which we measure the correctness of the fact finder’s determination? In the absence of such guidelines, this court would be called upon to review the fact finder’s determination only under the limited umbrella of substantial evidence review. In my view, this would result in perpetual and rubber stamp affirmances, a result that could be avoided if criteria were to be adopted. I agree with what I understand to be the majority’s position that a cut-off point on the basis of strict percentages should not be controlling. Without consideration of other important factors, selection of a cut-off point would prove not only arbitrary, but shortsighted.
The majority relies on Kincaid v. WEK Drilling Co., Inc., 109 N.M. 480, 786 P.2d 1214 (Ct.App.1989), in affirming the judge’s conclusion that 84% of pre-injury wages was comparable under Section 52-l-24(A). I, however, do not view Kincaid as controlling the disposition of this appeal. In Kincaid, this court was not called upon to decide the specific question of what percentage of pre-injury earnings constituted a comparable wage. There are two underlying reasons why I believe reliance on Kincaid is inappropriate.
First, in Kincaid, the worker’s post injury earnings included not only a salary representing 85% of his pre-injury earnings, but participation in a percentage of the gross profits, as well as a clothing discount at the store where he worked. Kincaid held that the clothing allowance and the profit sharing earnings were properly included in the formula for determining comparability. “[I]t was not error to consider either element in attempting to determine earning capacity because each element is relevant in identifying the salary Kincaid could command.” Id. at 485, 786 P.2d at 1219. These two additional wage factors had the potential effect of raising the worker’s percentage of pre-injury earnings to a higher level than the fixed 84% in this appeal.
Partly for those reasons (one can reasonably assume), at oral argument, worker’s counsel in Kincaid apparently conceded, or did not vigorously dispute the fact, that 85% of pre-injury wages could be deemed a comparable wage under the facts of that case. I believe-it would be fair to conclude that the panel in Kincaid might have focused more attention on this issue had worker’s counsel insisted that the panel review the comparability of wages with greater scrutiny. Possibly, Kincaid too, might have been called upon to adopt the factors I propose be adopted here, had it not been for the apparent concession made at oral argument. Since “other factors” were considered important in Kincaid, I suggest it is inappropriate for the majority to place reliance on that case to support its disposition in this appeal, which is factually distinguishable.
Second, our holding in Kincaid relied on the fact that the judge there looked at particularized facts in arriving at a determination. “These findings establish that the hearing officer considered important factors that enter into a determination of whether Kincaid was capable of earning a comparable wage.” Id. at 486, 786 P.2d at 1220. Quoting from Kincaid, the majority has reaffirmed Kincaid’s requirement that the judge consider a “theoretical element” affording the judge flexibility. The majority then concludes, without adequate substantiation in the record, that the judge considered “the important factors” that enter into the determination of whether worker was capable of earning a comparable wage. The majority next proceeds to place its stamp of approval on the judge’s determination by relying on a substantial evidence review. I agree that is the correct standard of review. However, I suggest that, absent the criteria or factors under which the judge’s determination can be measured, the whole record review is less meaningful.
The judge here made no particularized findings to establish the comparability of the pre-injury and post-injury wages. My review of the record disclosed that the only evidence focusing directly on the comparable wage issue was offered through the testimony of Connie De Herrera, a certified rehabilitation counselor. Ms. De Herrera presented evidence of dispatcher and dental technician positions that she felt would suit worker’s physical limitations. She was asked if, based on her education and experience, she had an opinion whether the salaries that those positions commanded were comparable to worker’s pre-injury salary. Ms. De Herrera testified that she thought they were comparable. On cross examination, however, she qualified her testimony by stating that she did not know the legal definition of “comparable wage.” She added that she understood a comparable wage was a wage that was “consistent” with worker’s pre-injury wage.
Even given Ms. De Herrera’s lay definition of the term “comparable”, I do not agree that the judge’s determination of comparability was based on the factors alluded to in Kincaid. Without definitive criteria, I, for one, cannot state unequivocally that worker’s post-injury earnings were “consistent” with his pre-injury earnings, to paraphrase Ms. De Herrera’s terminology. Without specific guidelines, I submit it would be difficult for the fact finder to make meaningful findings. Instead, the fact finder has absolutely nothing to “latch onto” in arriving at a determination.
Additionally, the judge in this appeal did not directly confront the issue of whether an amount representing 84% of pre-injury wages was comparable to the wages worker was earning before the accident. In Finding of Fact 22, the judge found that “[claimant has a permanent physical impairment, has reached maximum medical improvement and is able to earn a wage comparable to that earned when injured[.] * * * This is 84% of the pre-disability wage.” He based this decision solely on the suggested salary that worker could make as a dispatcher and his anticipated compensation for partial disability. In Kincaid, we spoke of the fact finder making a determination “based not only on actual post-injury earnings but all other relevant evidence.’’ Id. at 484, 768 P.2d at 1218. (emphasis added). Kincaid, also concluded that “[t]he phrase used by the legislature in Section 52-1-24 indicates an intent to permit the fact finder to consider a wide variety of evidence.” Id. Yet, in this appeal, I found nothing in the record to indicate that “important factors” and other “relevant evidence” were considered by the judge on the comparability issue.
In stating that “[Kincaid] did not expressly discuss the meaning of ‘comparable wages or salary,’ ” the majority acknowledges that Kincaid did not reach the issue we are asked to decide in this appeal. Yet, despite this acknowledgment that Kincaid did not set forth the demarcation or line of separation for comparability of wages, the majority nevertheless relies on that case to conclude that comparability was achieved, in determining that the judge’s findings were supported by substantial evidence. Absent adoption of express criteria or factors, I respectfully disagree with the majority’s analysis.
In conclusion, I propose that the proper disposition of this appeal would require the establishment of the necessary criteria or factors to guide the fact finder in determining comparability. Additionally, once establishing such criteria, we should remand the case, with instructions that the judge enter particularized findings based on the established factors, in support of his determination on the issue of comparability.