Phil CHAVEZ, Worker-Appellant, v. S.E.D. LABORATORIES and United States Fidelity & Guaranty Company, Employer/Insurer-Appellees, 128 N.M. 768

OPINION ARMIJO, Judge. {1} Phil Chavez (Chavez) appeals the decision of the Workers’ Compensation Administration (WCA) that required him to reimburse his employer, S.E.D. Laboratories, and its workers’ compensation insurer, United States Fidelity & Guaranty Company (collectively, S.E.D./USF & G), certain benefits paid to him. Chavez sustained injuries as a result of an automobile accident. It is undisputed that Chavez’ injuries were work related.

In addition to seeking benefits to which he was entitled under the Workers’ Compensation Act, Chavez also made a claim against the uninsured/under insured motorist policy maintained by S.E.D. Laboratories. The central question in this appeal is the extent to which S.E.D./USF & G are entitled to reimbursement and credits against future benefits. Chavez raises additional issues: whether substantial evidence supports the WCA’s finding that Chavez returned to work at a wage equal to or greater than that which he earned before his injury; and whether Chavez is entitled to attorney’s fees.

For the reasons discussed below, we reverse the decision of the WCA as it relates to the reimbursement award and imposition of attorney’s fees, and remand the matter for further proceedings. We affirm the WCA’s determination regarding Chavez’ wage upon returning to work. FACTUAL AND PROCEDURAL BACKGROUND {2} On October 15, 1993, Chavez was involved in an automobile accident with an uninsured, third-party motorist. At that time, he worked as a courier for S.E.D. Laboratories. The parties agree that the accident arose from and occurred during Chavez’ employment. Chavez pursued a workers’ compensation claim.

The WCA concluded that the evidence established to a reasonable medical probability that the accident caused Chavez’ two lumbar disk herniations and his resulting disability. {3} At the time of the accident, Chavez was covered by two uninsured motorist policies — one provided by his mother and the other by S.E.D. Laboratories. (Both policies were provided by insurers that are not parties to this action.) As a result of the claims made against these policies, Chavez received a gross benefits pay-out of $110,000 dollars— $50,000 from his mother’s policy and $60,000 from S.E.D. Laboratories.

These amounts were reduced, after paying out attorney’s fees and related costs, to $32,364.58 and $38,-837.50, respectively. {4} Chavez also received benefits under S.E.D. Laboratories’ workers’ compensation insurance policy with USF & G. The record indicates that as of the WCA’s entry of judgment, he had received $19,886.21 in such benefits. By its action below, S.E.D./USF & G sought termination of future benefits and, due to Chavez’ recovery, under S.E.D. Laboratories’ uninsured motorist policy, a pro tanto reimbursement of benefits already paid. See Montoya v.

AKAL Sec., Inc., 114 N.M. 354, 355, 838 P.2d 971, 972 (1992) (recognizing an employer’s right to reimbursement). Chavez’ recovery upon his mother’s policy is not at issue in this appeal. S.E.D./USF & G only seeks reimbursement' based upon Chavez’ recovery under S.E.D. Laboratories’ uninsured motorist policy. {5} As at trial, Chavez contends that he made only a partial financial recovery. The WCA, however, declined to consider the extent of Chavez’ damages or whether he had been made whole.

Chavez nonetheless adduced evidence at trial supporting the following claims of damages: a 70% loss of access to the labor market, a 50% loss in earning capacity, a 76% loss in his ability to perform “household services” (valued at $93,665), and lost wages (valued between $94,073 and $242,065, depending on whether calculation is based upon actual, pre-injury earnings or pre-injury earning capacity, respectively).

If accurate, this evidence indicates that Chavez has suffered between $187,738 and $335,730 in damages, of which he has actually recovered only $58,723.71 through his employer-provided benefits; that is, a net of $38,837.50 in uninsured- motorist coverage and $19,-886.21 in workers’ compensation benefits. {6} S.E.D./USF & G made a pretrial offer of judgment.

The offer included: $11,490.90 in cash reimbursement; (2) an $8,201.70 credit against future workers’ compensation benefits; (3) a provision that upon satisfaction of credit, Chavez would be entitled to future medicals with a mutually agreed-upon provider; and (4) a provision that S.E.D./ USF & G would pay one-half of attorney’s fees.

Chavez rejected the offer. {7} Upon completion of the formal hearing, the WCA awarded S.E.D./USF & G $12,214.22 in direct reimbursement, a $12,-267.02 credit against Chavez’ future permanent partial disability claims, a $4,366.31 credit against future medicals, and a $483.27 credit for previously overpaid permanent partial disability benefits.

The WCA calculated these figures upon its conclusion that S.E.D./USF & G were entitled to a full, dollar-for-dollar reimbursement, subject only to the parties’ agreement to reduce S.E.D./ USF & G’s “reimbursement by one-third for attorney’s fees and tax and by one-half the cost of [Chavez’] action” to collect upon S.E.D. Laboratories’ uninsured motorist policy. {8} The WCA further determined that Chavez had returned to work at a wage equal to or greater than his pre-injury wage.

Finally, the WCA concluded that S.E.D./USF & G’s pretrial offer of judgment was more favorable to Chavez than the results at trial, requiring Chavez to pay his own attorney’s fees. Chavez appeals the WCA’s judgment. DISCUSSION {9} Chavez makes three challenges to the WCA’s rulings below: (1) is S.E.D./USF & G entitled to a pro tanto reimbursement for workers’ compensation benefits paid and an offset against future benefits due?; (2) upon reaching maximum medical improvement, did Chavez return to work at a wage equal to or greater than his pre-injury wage?; and (3) is Chavez entitled to attorney’s fees?

We address each issue in turn. 1. Is S.E.D./USF & G entitled to a pro tanto reimbursement for workers’ compensation benefits paid? {10} On the one hand, S.E.D./USF & G contends that it is entitled to a full, dollar-for-dollar reimbursement. On the other hand, Chavez argues that such reimbursement is contrary to New Mexico law; he argues instead that S.E.D./USF & G is only entitled to be reimbursed to the extent that the uninsured motorist policy coverage it provided duplicates the workers’ compensation benefits it has already paid.

This issue, in the context of uninsured motorist coverage, has not previously been raised in New Mexico’s appellate courts. However, we hold that our Supreme Court’s recent decision in Gutierrez v. City of Albuquerque, 1998—NMSC-027, 125 N.M. 643, 964 P.2d 807, decided less than one month prior to the filing of Chavez’ docketing statement is controlling. {11} In Gutierrez, an injured worker suffered in excess of $367,000 in damages, including amounts for medical expenses, pain and suffering, and lost wages.

She had received from her employer (the City) workers’ compensation benefits covering her medical expenses and’ partially covering her lost wages. She subsequently settled a third-party tort claim, based upon the same injuries, for $140,000, or 38% of her actual damages. After paying attorney’s fees, related costs, and medical expenses not covered by workers’ compensation, she was left with approximately $77,000 of the settlement.

See id. ¶ 6. {12} Upon entry of the third-party settlement, the City sought a dollar-for-dollar reimbursement for all workers’ compensation benefits it had provided, an amount, it was estimated, that would leave her with “nothing at all or a marginal sum at best.” Id. ¶ 6 (quoting Gutierrez v. City of Albuquerque, 121 N.M. 172, 175, 909 P.2d 732, 735 (Ct.App.1995), cert. granted, 120 N.M. 828, 907 P.2d 1009 (1995)).

The WCA denied the employer’s claim, concluding instead that since the worker’s $140,000 settlement covered only 38% of her actual damages, the City’s reimbursement award should likewise be reduced to 38% of the cash benefits it provided. In addressing the issue presented in Gutierrez, our Supreme Court provided an in-depth analysis of how to calculate an employer’s reimbursement from a worker’s fair, but partial, third-party tort recovery.

Upon consideration of NMSA 1978, § 52-5-17 (1990), the Court prescribed the following method of calculation: [T]he employer’s extent of reimbursement for compensation paid is determined by identifying the nature and purpose of the payments made by the employer, and comparing the elements of the tort recovery with those which are duplicative of the employer’s compensation payments. Gutierrez, 1998-NMSC-027, ¶ 8, 125 N.M. 643, 964 P.2d 807.

In effect, the Court delimited, for the first time, the nature and extent of an employer’s legal interest in an injured worker’s third-party tort recovery: An employer has an interest in those elements of the worker’s tort recovery which are also covered by worker’s compensation, but no interest in those elements of a worker’s tort recovery that were calculated in good faith to remedy losses not covered. Id. ¶ 14. The focus of the Gutierrez analysis is, therefore, upon the elements of the worker’s recoveries.

Upon reimbursement requests, workers’ compensation judges are now required to conduct an element-by-element comparison of the benefits paid under workers’ compensation and the damages awarded in tort. See id. ¶ 8. “The total of the duplicative payments is the amount which must be reimbursed.” Id. {13} S.E.D./USF & G argues that Gutierrez does not apply in this case. It argues that the Legislature did not intend, nor did our Supreme Court, for employer-provided uninsured motorist policy pay-outs to be treated in the same manner as third-party tort recoveries.

It asserts that Gutierrez involved a claim against, and recovery from, a third party; it did not involve a claim against the employer’s uninsured motorist policy. We do not agree with this narrow reading of Gutierrez, and we will address, in turn, the case authorities relied upon by S.E.D./USF & G. {14} In Draper v. Mountain States Mutual Casualty Co., 116 N.M. 775, 867 P.2d 1157 (1994), the first case upon which S.E.D./USF & G relies, our Supreme Court first construed

Section 52-5-17(C), a then-recent amendment to our workers’ compensation statute.

Section 52-5-17(0 in part provides: The worker or his legal representative may retain any compensation due under the uninsured motorist coverage provided in [the uninsured motorist statute] if the worker paid the premium for that coverage. If the employer paid the premium, the worker or his legal representative may not retain any compensation due under [the uninsured motorist statute], and that amount shall be due to the employer.

The issue presented in Draper was narrow: should this provision be construed as foreclosing an injured worker from making a claim on an uninsured motorist policy for which his employer paid the premiums? See Draper, 116 N.M. at 777, 867 P.2d at 1159. A literal reading of the provision would indicate that it should.

However, the Court succinctly rejected this reading, concluding instead that “[t]he legislature could not have intended that the employer receive more money than it is paying its employee in workers’ compensation benefits when it is the employee who suffered the injury.” Id. at 778, 867 P.2d at 1160; see also Gutierrez, 1998-NMSC-027, ¶ 23, 125 N.M. 643, 964 P.2d 807.

The Court held that the worker was entitled to “receive and retain uninsured motorist benefits in excess of what he must reimburse his employer for workers’ compensation.” Draper, 116 N.M. at 778, 867 P.2d at 1160. {15} In Mountain States Mutual Casualty Co. v.

Vigil, 1996-NMCA-062, 121 N.M. 812, 918 P.2d 728, another case upon which S .E.D./USF & G relies, this Court faced a complementary issue: is the provider of an uninsured motorist policy entitled to an offset, or credit, prior to its provision of uninsured motorist benefits to an injured worker who has already received a settlement of his claim against a third-party tortfeasor? See id. ¶ 4. While recognizing an employer’s right to reimbursement for workers’ compensation benefits paid, see id. ¶ 6, we held that such right accrues to the employer, not its insurer, see id. ¶¶ 8, 12.

Therefore, where the insurer had not provided the workers’ compensation benefits upon which the offset was sought and the employer had already settled its reimbursement claim with the injured worker, we concluded that the insurer had nothing to claim. See id. ¶ 8 (“Insurer’s obligation to pay [uninsured motorist] benefits is not affected by

Section 52-5-17(C).”). {16} Both Draper and Vigil address well-established and long-recognized statements of intent motivating

Section 52-5-17; that is, that an employer has a right to be reimbursed from funds an injured worker obtains upon a third-party tort claim for any workers’ compensation benefits it has paid. Accord Montoya, 114 N.M. at 355, 838 P.2d at 972 (recognizing

Section 52-5-17 as protecting employer’s right to reimbursement). However, neither case explains how this right is to be quantified in the context of uninsured motorist coverage. {17} S.E.D./USF & G next invokes rules of statutory construction and legislative intent. Its argument is straightforward: why would the Legislature have amended

Section 52-5-17 to include Subsection (

C) if it intended an employer’s reimbursement right to be calculated in the same manner no matter that the worker collected upon an employer-provided insurance policy and not a third-party tort action? In other words, it argues that by its plain structure,

Section 52-5-17 treats, for purposes of reimbursement, recoveries upon third-party tort actions and uninsured motorist policies differently. Compare Sections 52-5-17(A) & (

B) with

Section 52-5-17(C). As S.E.D./USF & G emphasizes, Gutierrez’s language appears to reflect this distinction. See Gutierrez, 1998-NMSC-027, ¶ 1, 125 N.M. 643, 964 P.2d 807 (limiting discussion to partial recoveries in tort). Accordingly, it concludes, this Court would have to ignore clear legislative intent, as demonstrated by the statute’s structure and language, to apply the Gutierrez method of reimbursement calculation in the present case. {18} First, we do not agree with S.E.D./ USF & G’s assertion that the addition of

Section 52-5-17(0) to the workers’ compensation statute indicates a legislative intent to treat reimbursement from insurance proceeds differently from third-party tort recoveries. As we noted in Vigil, the Legislature amended the workers’ compensation statute in order to preserve an employer’s reimbursement right in the context of uninsured motorist policies, not to distinguish it based upon the mode of a worker’s recovery. See Vigil, 1996-NMCA-062, ¶ 11, 121 N.M. 812, 918 P.2d 728 (discussing Continental Ins. Co. v. Fahey, 106 N.M. 603, 606, 747 P.2d 249, 252 (1987)); see also Dominguez v. Dairy-land Ins.

Co., 1997-NMCA-065, ¶ 9, 123 N.M. 448, 942 P.2d 191. {19} In addition, we adopted a plain-meaning construction of the language of Sections 52-5-17(A) & (B), similar to that advocated by S.E.D./USF & G here for

Section 52-5-17(C), in Gutierrez, 121 N.M. at 176-78, 909 P.2d at 736-38, and our Supreme Court reversed. In Gutieirez, we were construing statutory language that allowed the employer an assignment “to the extent of payment.” Our Supreme Court held that, notwithstanding this language, the assignment or reimbursement would not be to the actual extent of payment. Likewise, in this case, we do not believe that the similar language (“that amount shall be due to the employer”) was intended to mean that the actual amount would be due to the employer.

For these reasons, we reject S.E.D./USF & G’s construction of the statute and the conclusions it draws as to legislative intent. {20} Second, for purpose of calculating the amount of reimbursement due an employer, we believe that S.E.D./USF & G’s attempt to distinguish recoveries based upon an employer-provided uninsured motorist policy as opposed to a third-party tort action is a distinction without a difference. In this regard, we return to and emphasize the factors that triggered our Supreme Court’s analysis in Gutierrez: (1) a partial recovery upon (2) a third-party tort action.

S.E.D./USF & G isolates the latter factor to the exclusion of the first; that is, it asserts that Gutierrez dealt with, and its holding should be confined to, reimbursement upon workers’ recoveries in tort. It makes no substantive argument as to why this aspect of the opinion is of critical importance, and we see none to be made. Cf. Brown v. Arapahoe Drilling Co., 70 N.M. 99, 104, 370 P.2d 816, 820 (1962) (“[WJhatever right the employer or its insurer has to reimbursement follows payment of compensation, but does not precede it.”) (citation omitted); Enriquez v.

Cochran, 1998-NMCA-157, ¶ 117, 126 N.M. 196, 967 P.2d 1136 (recognizing that workers’ compensation statute is in

part intended to facilitate full compensation of injured workers and equitably distribute loss). {21} What was of analytical importance to the Gutierrez Court was not simply that the recovery upon which the insurer sought reimbursement was in tort, but that the elements of damages afforded in tort differ from those benefits provided under the workers’ compensation statute. See Gutierrez, 1998-NMSC-027, ¶¶ 8, 10, 125 N.M. 643, 964 P.2d 807. We recognize that recovery under an uninsured motorist policy also differs from recovery under the workers’ compensation statute. See NMSA 1978, § 66-5-301 (1983); Stinbrink v.

Farmers Ins. Co., 111 N.M. 179, 180, 803 P.2d 664, 665 (1990) (recognizing the availability of punitive damages under uninsured motorist policies); cf. Continental Ins. Co., 106 N.M. at 606, 747 P.2d at 252 (“We emphasize that we have never declared a worker’s compensation judgment to be the full and actual value of the worker’s damages.”). We thus do not read Gutierrez as limiting its application only to those injured workers for whom a third-party tort claim is available and viable.

Cf. id. ¶ 11 n. 3 (recognizing potential for insurance policies to make an injured worker whole in the event of an incomplete tort recovery). It is our Supreme Court’s emphasis on this lack of parity in damages versus benefits that makes clear that the crucial factor in Gutierrez is that the worker received only a partial recovery. {22} Consistent with our reading of Gutierrez, we note the two discrete policies animating

Section 52-5-17: “(1) prohibition against [a worker’s] double recovery, and (2) protection of the employer’s right to reimbursement from the proceeds of the third-party action.” Montoya, 114 N.M. at 355, 838 P.2d at 972. S.E.D./USF & G’s general reimbursement right is not at issue. However, S.E.D./USF & G argues that by disallowing a dollar-for-dollar reimbursement, this Court would allow Chavez to recover doubly, in derogation of the well-established prohibition imposed by

Section 52-5-17. We do not agree. Indeed, this component of S.E.D./ USF & G’s argument reveals its basic flaw: upon a worker’s partial recovery, how is this Court to determine whether an injured worker is impermissibly receiving a double recovery unless we apply the Gutierrez method of reimbursement? Cf.

Gutierrez, 1998-NMSC-027, ¶ 10, 125 N.M. 643, 964 P.2d 807 (“A windfall occurs only to the extent that the tort recovery duplicates the elements of damage covered by compensation benefits.”). {23} Accordingly, we hold that the Gutierrez method of calculating an employer’s right to reimbursement is appropriately triggered when (1) a worker has been awarded a partial recovery, and (2) the elements of damages provided by that recovery differ from those provided by workers’ compensation insurance.

We emphasize that S.E.D./ USF & G has expressly made no claim against Chavez’ recovery from his mother’s uninsured motorist policy. We express no opinion as to potential claims for reimbursement an employer may have on such policies. {24} Upon Chavez’ evidence tendered at trial, it appears that he has made only a partial financial recovery. However, damages were not fully litigated or determined. Given the questions left unanswered below, we remand this matter for hearing on the actual extent of Chavez’ damages.

If the WCA concludes he has been afforded only a partial recovery, then it shall apply the method of calculation announced in Gutierrez to determine the amount to which S.E.D./USF & G is entitled in reimbursement and, if applicable, offset credit against future workers’ compensation benefits due. 2. Did Chavez return to ivork at a wage equal to or greater than his pre-injury wage? {25} As computed per NMSA 1978, § 52-1-20(B) (1990), the WCA determined that Chavez’ average weekly wage prior to his injury was $226.21.

Upon the evidence presented at trial, it concluded that his wage upon returning to work was greater than or equal to his pre-injury wage. On appeal, Chavez challenges the sufficiency of the evidence supporting this determination. {26} Chavez’ challenge focuses primarily on the WCA’s failure to enter specific findings of fact in support of this conclusion. This is not grounds for reversal. See Villanueva v. Sunday School Bd. of the Southern Baptist Convention, 121 N.M. 98, 104, 908 P.2d 791, 797 (Ct.App.1995).

We will only reverse if, upon our review of the whole record, there is not substantial evidence to support the WCA’s ultimate finding. See Mieras v. Dyncorp, 1996-NMCA-095, ¶ 13, 122 N.M. 401, 925 P.2d 518. Moreover, we review substantial evidence claims only if the appellant apprises the Court of all evidence bearing upon the issue, both that which is favorable and that which is contrary to appellant’s position. See Rule 12-213(A)

(3) NMRA 1999; Gallegos v. New Mexico Bd. of Educ., 1997-NMCA-040, ¶ 26, 123 N.M. 362, 940 P.2d 468; see also Martinez v. Southwest Landfills, Inc., 115 N.M. 181, 185-86, 848 P.2d 1108, 1112-13 (Ct.App.1993) (emphasizing appellant’s duty to apprise appellate court of all evidence bearing on the issue). Failure to do so may result in our deeming the issue waived. See Rule 12-213(A)(3); Gallegos, 1997-NMCA-040, ¶ 26, 123 N.M. 362, 940 P.2d 468; cf. State v.

Martinez, 1996-NMCA-109, ¶ 13, 122 N.M. 476, 927 P.2d 31 (noting noncompliance with Rule 12-213 does not require the Court to reject appellate claim). {27} In the present case, Chavez has failed to comply with this rule. Indeed, he fails to mention any evidence accepted below that contradicts his position on appeal, instead claiming that S.E.D./USF & G’s rendition of such evidence is mere “spin” or “twisting” of the evidence.

As appellee, however, S.E.D./USF & G is permitted to argue its “spin” as reasonable inferences from the evidence and Chavez, as appellant, is required to acknowledge those inferences as evidence supporting the decision below. We, therefore, deem Chavez’ argument on this point waived and affirm the WCA’s ruling that Chavez returned to work at a wage equal to or greater than his pre-injury wage. 3.

Was Chavez entitled to an award of attorney’s fees? {28} Finally, the WCA ruled that Chavez was not entitled to attorney’s fees because he had rejected S.E.D./USF & G’s pretrial offer of judgment, which it concluded was more favorable to Chavez than the results at trial. We do not reach this issue. Because we remand this ease for recalculation of S.E.D./ USF & G’s right to reimbursement, it is unnecessary for us to review whether the actual results at trial were less or more favorable to Chavez than was S.E.D./USF & G’s pretrial offer of judgment.

Instead, we remand the matter of attorney’s fees to the WCA for reconsideration in light of its application of Gutierrez to S.E.D./USF & G’s reimbursement claim. CONCLUSION {29} For the foregoing reasons, we reverse the WCA’s reimbursement award and its ruling relating to imposition of attorney’s fees. The matter is remanded to the WCA so that it can recalculate the amount of S.E.D./USF & G’s actual reimbursement right in light of Gutierrez, and again consider the attorney’s fee issue after recalculation of those amounts.

We affirm the WCA’s determination that Chavez returned to work at a wage greater than or equal to his pre-injury wage. {30} IT IS SO ORDERED. LYNN PICKARD, Chief C.J., concurs.