dissenting.
We dissent.
The majority misinterpret NMSA 1978, Section 52-1-20, and ignore the facts of this case. The record shows that in 1981 Salcido worked 10 months for Southwest Lath & Plaster, Inc. (Southwest) and that he was paid a permanent wage rate of $6 per hour by the end of the 10 month period. Salcido quit working for Southwest in Octo- ' ber, 1981. When he returned to work on April 2, 1982, he was sent to work on a federal project which required a wage rate of $13.58 per hour pursuant to the Davis-Bacon Act, 40 U.S.C. Sections 276a to 276a-5 (1982). Southwest’s subcontracting job on the federal project and Salcido’s work on that project were only temporary and ended 3 days after Salcido's accident. In fact, during the period from April 2 to May 5, the date of the accidental injury,' Salcido worked in Albuquerque for two days at his permanent wage rate of $6 per hour. He also worked at the $6 per hour rate when he returned to work one month after the accident for a two week period. Thus, the facts show that Salcido was “recompensed under the contract of hire in force at the time of the accident,” under NMSA 1978, Section 52-l-20(A), at a permanent wage rate of $6 per hour, and that the artificially high wage rate of $13.58 per hour was only temporary.
Under the majority’s view, the wage received at the time of an accidental injury determines the average weekly wage rate. This view fails to recognize that the contract for hire depends on the agreement between the employer and employee at the time of hiring. If Salcido’s contract for hire was at a wage rate of $13.58 per hour, then he would have been paid that amount whether he worked on the federal project or away from the project in Santa Fe or Albuquerque. The facts of this case show that Salcido recognized and accepted $6 per hour as his permanent compensation under his contract for hire with Southwest.
The majority misconstrue Section 52-1-20(D). Rather than questioning whether $13.58 per hour is a “temporarily” high wage rate compared to the $6 per hour rate, the majority misconstrue Subsection (D) to render it inapplicable. This Court should not adopt an interpretation which would nullify a provision of a workmen’s compensation statute. See Transamerica Insurance Co. v. Sydow, 97 N.M. 51, 636 P.2d 322 (Ct.App.1981). By redefining “temporarily” high to mean high as a result of “exigent circumstances,” the majority subvert the legislative intent of the subsection by failing to give plain and unambiguous words of the subsection the literal reading which they merit. See Atencio v. Board of Education, 99 N.M. 168, 655 P.2d 1012 (1982). The $13.58 per hour wage rate was temporary and only applicable when Salcido worked on the federal project. Also, whether or not the wage rate paid is “foreseeable” by Southwest is not a requirement of Section 52-l-20(D), and is not part of the law.
The “community” referred to in Section 52-l-20(D) is not limited to the community where work was performed at the time of the accident. The concept of “community” in Subsection (D) extends to all places where an employee works. In this case, Salcido worked in Albuquerque, Santa Fe, Española, and at the federal project on the Indiana Pueblo. Thus, a determination under Section 52-l-20(D) of the usual earnings in the same community for the same kind of labor must include earnings for labor performed at each non-federal work site because Salcido’s “community” for work purposes included each of these locations.
The majority also misconstrue the concept of “any work” in the statutory definitions of “total disability” and “partial disability” in determining whether Salcido is precluded from receiving benefits while working. See NMSA 1978, §§ 52-1-24 and -25. “Any work” means a workman’s ordinary employment or other employment approximating the same livelihood the workman might be expected to follow under the circumstances. Aranda v. Mississippi Chemical Corp., 93 N.M. 412, 600 P.2d 1202 (Ct.App.), cert. denied, 93 N.M. 683, 604 P.2d 821 (1979). Neither the statute nor the case law require that the employer put the employee to work at the same job site, or at a non-permanent wage rate, which existed at the time of the accident. In this case, the majority’s remand for a determination of the availability of work on the Pueblo job site is contrary to the requirements of the statute. It is also impractical under the facts because work at the Pueblo job site ended 3 days after Salcido’s injury. Salcido worked at his regular job and was compensated at his permanent wage rate of $6 per hour for his two weeks of post-injury work, thus, he is precluded from receiving workmen’s compensation benefits for that two-week period.
Finally, the majority are incorrect in deciding whether Southwest is liable for its alleged refusal to pay the worker’s chiropractic bills. Under NMSA 1978, Section 52-l-49(B), once an employer provides for medical services and offers those services to a workman, the employer is not liable for services other than those offered absent a demand or request for additional services. Provencio v. New Jersey Zinc Co., 86 N.M. 538, 525 P.2d 898 (Ct.App.), cert. denied, 86 N.M. 528, 525 P.2d 888 (1974). See also Valdez v. McKee, 76 N.M. 340, 414 P.2d 852 (1966) (when an employer has furnished all reasonable medical treatment, the employer not liable for additional medical services incurred by the worker). In this case, Salcido did not demand or request additional medical treatment but merely incurred the bills for chiropractic treatment, and submitted them to Southwest for payment. Thus, Southwest is not liable for Salcido’s bills for chiropractic treatment.
We would affirm the trial court.
RIORDAN, J., concurs with the dissenting opinion.