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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 JODY VINYARD,

 3          Worker-Appellant,

 4 v.                                                                                     No. 33,702

 5 PALO ALTO INC. d/b/a PIZZA HUT
 6 and MANUFACTURERS
 7 ALLIANCE INSURANCE CO.,

 8                  Employer/Insurer-Appellee.

 9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
10 Reginald C. Woodard, Workers’ Compensation Judge

11 Law Office of Alvin R. Garcia LLC
12 Alvin R. Garcia
13 Albuquerque, NM

14 for Appellant

15 Maestas & Suggett, P.C.
16 Paul Maestas
17 Albuquerque, NM

18 for Appellee

19                                 MEMORANDUM OPINION

20 SUTIN, Judge.
 1   {1}   Worker has appealed from a compensation order. We previously issued a

 2 notice of proposed summary disposition in which we proposed to reverse.

 3 Employer/Insurer have filed a memorandum in opposition. Upon due consideration,

 4 we remain unpersuaded. We therefore reverse and remand.

 5   {2}   The issue on appeal concerns the manner in which Worker’s aggregate average

 6 weekly wage is calculated. This very question has been the subject of two prior

 7 appeals. The first appeal resulted in the issuance of a formal opinion, Vinyard v. Palo

 8 Alto, Inc., 2013-NMCA-001, ¶ 9, 293 P.3d 191. The second appeal concerned a rather

 9 minor point, relative to the evidence. [RP 371-75, 385-88, 393-94] However, a larger

10 problem remained, relative to the averaging-and-aggregating process. This larger

11 problem is the subject of the instant appeal.

12   {3}   As described at greater length in the notice of proposed summary disposition,

13 the WCJ duly applied the appropriate statutory subsection to both of the jobs that

14 Worker held at the time of injury, thereby arriving at an average weekly wage based

15 on the total number of weeks actually worked in each occupation. [RP 396-98] In

16 order to arrive at an “aggregate average” duly reflecting Worker’s concurrent

17 employment situation, the separately calculated average weekly wages in each

18 occupation should simply have been aggregated—i.e., combined into a single whole

19 or total. See id. ¶ 19 (providing that “each employer’s average weekly wage is to be

                                              2
 1 individually determined according to [NMSA 1978, § 52-1-20(B)(1) (1990)], and an

 2 average weekly wage based on the aggregate of all averages should then be

 3 calculated” (emphasis added)); Black’s Law Dictionary 76 (9th ed. 2009) (defining

 4 “aggregate” (adj.) as “[f]ormed by combining into a single whole or total”). Although

 5 the WCJ appropriately added Worker’s average weekly wages, it then proceeded to

 6 divide the total by two. [RP 397-98] The practical effect of this was to halve

 7 Worker’s benefits, reducing them to an amount that does not compensate him “for the

 8 reduction of his earning capacity.” Vinyard, 2013-NMCA-001, ¶ 10. This is

 9 fundamentally at odds with the purposes of the Workers’ Compensation Act. See id.

10 “Fairness mandates compensating the worker according to what he would have earned

11 in total had he not been injured.” Id. (emphasis added). Insofar as Worker was

12 concurrently employed and earning wages from two separate jobs at the time of the

13 accident, he is entitled to receive benefits that compensate him for the loss of both

14 streams of income. Id. ¶ 5. (“Worker is entitled to receive compensation benefits

15 reflecting his wages from both jobs.”). We therefore proposed to reverse and remand

16 for further proceedings to correct the error.

17   {4}   In its memorandum in opposition, Employer/Insurer do not dispute that the

18 methodology employed below was erroneous. [MIO 1-11] Instead, Employer/Insurer

19 contend that Worker’s failure to bring the error to this Court’s attention in the course


                                              3
 1 of an earlier appeal should preclude Worker from raising the issue now. [MIO 3-4,

 2 7-11] Insofar as the error was apparent at the time of the second appeal, the matter

 3 should have been brought to our attention at that stage. See generally Ferrell v.

 4 Allstate Ins. Co., 2007-NMCA-017, ¶ 50, 141 N.M. 72, 150 P.3d 1022 (“Brief

 5 research has revealed a plethora of cases that hold that . . . an appellate court in any

 6 subsequent appeal, should refuse to consider issues that could have been raised in a

 7 prior appeal but were not.”), rev’d on other grounds, 2008-NMSC-042, 144 N.M. 405,

 8 188 P.3d 1156; DiMatteo v. County of Doña Ana, 1989-NMCA-108, ¶ 25, 109 N.M.

 9 374, 785 P.2d 285 (noting that under the law-of-the-case doctrine, “the law applied

10 on the first appeal of a case is binding on the trial court on remand and on the

11 appellate court if there are further appeals” and that “the doctrine extends not only to

12 questions raised upon the former appeal[,] but also to those that could have been

13 raised”). However, “the law-of-the-case doctrine is discretionary and flexible,” State

14 of N.M. ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009-NMSC-010, ¶ 21, 145 N.M.

15 769, 205 P.3d 816 (internal quotation marks and citation omitted), and “it will not be

16 used to uphold a clearly incorrect decision[.]” Trujillo v. City of Albuquerque,

17 1998-NMSC-31, ¶ 41, 125 N.M. 721, 965 P.2d 305; see also Reese v. State,

18 1987-NMSC-110, ¶ 5, 106 N.M. 505, 745 P.2d 1153 (“Since the doctrine of the law

19 of the case is merely one of practice or court policy, and not of inflexible law, so that


                                               4
 1 appellate courts are not absolutely bound thereby, but may exercise a certain degree

 2 of discretion in applying it, there are many holdings in which the courts have retreated

 3 from any inflexible rule requiring the doctrine to be applied regardless of error in the

 4 former decision, and it has been said that the doctrine should not be utilized to

 5 accomplish an obvious injustice, or applied where the former appellate decision was

 6 clearly, palpably, or manifestly erroneous or unjust.” (alteration, internal quotation

 7 marks, and citation)).     Because the methodology utilized below is manifestly

 8 erroneous and adherence to it would accomplish an obvious injustice, we conclude

 9 that the law-of-the-case doctrine does not prevent us from rectifying the situation.

10   {5}   Accordingly, we reverse and remand for recalculation of Worker’s benefits, in

11 the manner specified in the notice of proposed summary disposition.

12   {6}   IT IS SO ORDERED.



13                                         __________________________________
14                                         JONATHAN B. SUTIN, Judge


15 WE CONCUR:


16 ___________________________________
17 RODERICK T. KENNEDY, Chief Judge


18 ___________________________________

                                              5
1 JAMES J. WECHSLER, Judge




                             6
