Romero v. ARCA
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 MANUEL ROMERO, 3 Worker-Appellant, 4 v. NO. 33,662 5 ARCA and NEW MEXICO 6 MUTUAL CASUALTY COMPANY, 7 Employer/Insurer-Appellee. 8 APPEAL FROM WORKERS’ COMPENSATION ADMINISTRATION 9 David L. Skinner, Workers’ Compensation Judge 10 Manuel Romero 11 Albuquerque, NM 12 Pro Se Appellant 13 Miller Stratvert P.A. 14 Nathan A. Cobb 15 Albuquerque, NM 16 for Appellee 17 18 VANZI, Judge. MEMORANDUM OPINION 1 {1} Appellant Manuel Romero (Worker) appeals from the Workers’ Compensation 2 Judge’s (WCJ) order denying benefits for what he asserts was the aggravation of a 3 pre-existing work-related injury. [DS 1] This Court’s first calendar notice proposed 4 to affirm the WCJ’s order. Worker filed a memorandum in opposition to the proposed 5 disposition. We are not persuaded by Worker’s arguments and affirm the WCJ’s 6 order. 7 {2} Initially, we address the motion to strike filed by Employer/Insurer, ARCA and 8 NMMCC (Employer). Employer moves the Court to strike the affidavits attached to 9 Worker’s informal memorandum in opposition because they constitute an 10 inappropriate submission of testimony and improper supplementation to the record. 11 “As an appellate court, we are a court of review and are limited to a review of the 12 questions that have been presented to and ruled on by the trial court. Moreover, our 13 review is limited to the record presented on appeal.” Graham v. Cocherell, 198714 NMCA-013, ¶ 16, 105 N.M. 401, 733 P.2d 370 (citation omitted). Because the 15 affidavits were not a part of the record in the Workers’ Compensation Administration, 16 we grant Employer’s motion and strike the affidavits. See Kepler v. Slade, 199517 NMSC-035, ¶ 13, 119 N.M. 802, 896 P.2d 482 (“Matters outside the record present 18 no issue for review.” (internal quotation marks and citation omitted)). 2 1 {3} This Court’s first notice proposed to affirm on the bases that: (1) Worker had 2 reached maximum medical improvement (MMI) for his prior work-related injuries; 3 (2) Worker’s third intervening accident occurred outside the course of work; (3) 4 Employer provided reasonable and necessary medical care for the prior work-related 5 injuries; (4) Worker’s third accident changing a flat tire was not compensable because 6 the injury was not the natural and direct result of either the first or second work7 related accidents; and (5) Worker’s need for medical care since the date of the third 8 accident, when he had already reached MMI for the injuries resulting from the first 9 and second accidents, was not the natural and direct result of either the first or second 10 work-related accidents. [RP 9, 75] 11 {4} Worker continues to argue that he was entitled to benefits because the present 12 injury was an aggravation of his pre-existing work-related injuries. [MIO 1] Worker 13 asserts that he “is not trying to recover for the pre-existing conditions; he is trying to 14 recover for aggravation caused and the extent of the injury from pre-existing injuries.” 15 [MIO 1] The aggravation caused to Worker’s back did not result from a work-related 16 injury but from changing a tire. Worker does not dispute that his present disability is 17 not compensable because it did not result from a work-related accident. See NMSA 18 1978, § 52-1-28(A) (1987) (requiring accident to arise out of, incident to, and in the 19 course of employment). Nor does Worker assert that there was expert testimony to 3 1 support his contention that his injury from the third accident was a natural and direct 2 result of either of the prior work-related accidents as required by statute. See § 52-13 28(B). Not having pointed out any errors in fact or law in this Court’s proposed 4 disposition, Worker has not met his burden on appeal. See Hennessy v. Duryea, 5 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly 6 held that, in summary calendar cases, the burden is on the party opposing the proposed 7 disposition to clearly point out errors in fact or law.”). 8 {5} For all of the above reasons, and those stated in this Court’s first notice of 9 proposed disposition, we affirm the WCJ’s compensation order. 10 {6} IT IS SO ORDERED. 11 12 __________________________________ LINDA M. VANZI, Judge 13 WE CONCUR: 14 _________________________________ 15 CYNTHIA A. FRY, Judge 16 _________________________________ 17 J. MILES HANISEE, Judge 4
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