Moya v. City of Albuquerque

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 CHRISTOPHER R. MOYA, 3 Worker-Appellant, 4 v. NO. 34,349 5 CITY OF ALBUQUERQUE, 6 Employer-Appellee. 7 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 8 Terry S. Kramer, Workers’ Compensation Judge 9 Gerald A. Hanrahan 10 Albuquerque, NM 11 for Appellant 12 Hoffman Kelley Lopez, LLP 13 Phyllis Savage Lynn 14 Albuquerque, NM 15 for Appellee 16 MEMORANDUM OPINION 17 GARCIA, Judge. 18 {1} Worker filed a docketing statement, appealing from the workers’ compensation 1 administration’s IME order, entered on December 24, 2014. This Court issued a notice 2 of proposed disposition, proposing to summarily dismiss the appeal for lack of a final 3 order. Worker filed a timely memorandum in opposition (MIO). We have given due 4 consideration to the memorandum in opposition, and, remaining unpersuaded, we 5 dismiss the appeal for lack of a final order. 6 {2} In our notice of proposed disposition, we explained that, because Worker has 7 not yet reached MMI and the new evaluation sought by Employer may result in a 8 finding that Worker has now reached MMI, the workers’ compensation IME order 9 permitting the six-month evaluation is “intertwined with issues relating to benefits[.]” 10 [CN 2–3] See Murphy v. Strata Prod. Co., 2006-NMCA-008, ¶¶ 1, 15, 138 N.M. 809, 11 126 P.3d 1173 (holding that an order allowing a change in healthcare provider is not 12 a final, appealable order when a claim for benefits is pending before the workers’ 13 compensation administration); cf. Flores v. J.B. Henderson Constr., 2003-NMCA14 116, ¶¶ 5, 7–8, 134 N.M. 364, 76 P.3d 1121 (holding that the workers’ compensation 15 judge’s order allowing a periodic examination by a non-healthcare provider is final 16 and appealable because the order fully disposed of all the issues before the workers’ 17 compensation judge). We therefore proposed to conclude that the IME order was not 18 final and appealable because it could result in piecemeal appeals. [CN 3] See Flores, 19 2003-NMCA-116, ¶ 7. 2 1 {3} In his MIO, Worker responds that, at the time Employer filed its application for 2 an independent medical examination (IME) of Worker and through the date when 3 Worker filed his notice of appeal, no other matters were pending before the WCA. 4 [MIO 1] Worker also clarifies that Employer withdrew its request for an IME and 5 instead requested a periodic examination at the hearing. [MIO 1–2] Worker concludes 6 that the IME order is a final, appealable order since no other matters are currently 7 pending before the WCA. [MIO 2] 8 {4} As indicated above, we addressed Worker’s argument in our notice of proposed 9 disposition and concluded that the IME order was non-final because Worker has not 10 yet reached MMI; the new evaluation may result in such a finding; and, thus, the order 11 is “intertwined with issues relating to benefits[.]” [CN 2–3] See Murphy, 200612 NMCA-008, ¶¶ 1, 15; Flores, 2003-NMCA-116, ¶¶ 5, 7–8. In response, Worker 13 quotes City of Albuquerque v. Sanchez, 1992-NMCA-038, ¶ 9, 113 N.M. 721, 832 14 P.2d 412 (stating that, when “the only proceedings before the WCA [a]re the 15 proceedings concerning the change of health care providers[,]” the order is a final, 16 appealable order), and argues that the IME order “is a final, appealable order, because 17 no other matters are currently pending before the WCA.” [MIO 2] Worker’s reliance 18 on Sanchez is misplaced in light of the reasons asserted above and in our notice of 19 proposed disposition. [See CN 2–3] Indeed, the IME order is not a final, appealable 3 1 order because it does not resolve “the only proceedings before the WCA[.]” See id. 2 Rather, whether Worker has now reached MMI and is therefore subject to a change 3 in benefits is still pending before the WCA. 4 {5} Worker additionally argues that the present case “is the mirror image” of Flores 5 and requires a conclusion that the order is a final, appealable order [MIO 2] Worker 6 contends that the cases are the same essentially because the procedural postures of the 7 cases appear similar: in both cases, a resolution was entered awarding temporary total 8 disability (TTD), and, in both cases, a request for a periodic examination, while no 9 other matters appeared to be pending, triggered the argument that the order regarding 10 the periodic examination was non-final. [See MIO 2–3] In Flores, we concluded that 11 the order was a final and appealable order because the only pending issue was whether 12 the worker could see the doctor. [MIO 3] See 2003-NMCA-116, ¶ 8. Worker argues 13 that, since whether he can see the doctor identified by Employer is the only pending 14 issue in the present case, and since we held that the order was final in Flores, we must 15 hold that the IME order is final in this case as well. [MIO 3–4] We are unpersuaded. 16 {6} The facts in Flores appear to be similar when examined superficially. However, 17 upon a closer examination, the facts are distinguishable from those in the present case 18 in key ways. In particular, in Flores, the parties entered into a stipulated recommended 19 resolution whereby they agreed upon the worker’s TTI, reserved other issues for later, 4 1 and “agreed that any future action would be commenced by the filing of a new 2 complaint.” Id. ¶ 3. Additionally, after the stipulated recommendation was filed, a 3 notice of completion was filed, closing the case. Id. These facts formed the crux of our 4 reasoning for determining that the order in that case was a final, appealable order. 5 Indeed, we stated that the worker’s argument that issues such as disability, 6 impairment, and medical benefit had been reserved, thus rendering the order non-final, 7 “overlooks the fact that this reservation contemplated that a new complaint would be 8 filed in the event that Worker chose to pursue additional benefits in the future, and a 9 notice of completion was filed[,] . . . closing the file in the case.” Id. ¶ 8. 10 {7} Conversely, in the present case, the compensation order did not include a 11 statement that any future action would be commenced by the filing of a new complaint 12 [RP 143–48; see also RP 217–18 (order on remand)], and we have found no notice of 13 completion, closing the present case. Additionally and importantly, in the application 14 for the IME, Employer stated that the application was being filed because Worker had 15 not yet reached MMI when he was last seen by Dr. Granados, that Dr. Granados 16 predicted Worker would be at MMI within six months, and that Employer requests an 17 IME to address whether Worker has now reached MMI. [RP 271] In other words, as 18 we indicated above and in our notice of proposed disposition, Worker has not yet 19 reached MMI and the new evaluation may result in such a finding, so the order is 5 1 “intertwined with issues relating to benefits[.]” [ CN 2–3] See Murphy, 2006-NMCA2 008, ¶¶ 1, 15; Flores, 2003-NMCA-116, ¶¶ 5, 7–8. Because we seek to avoid 3 piecemeal appeals, see Flores, 2003-NMCA-116, ¶ 7, we conclude that the IME order 4 is a non-final order. 5 {8} Thus, for the reasons stated in this opinion and set forth in this Court’s notice 6 of proposed disposition, we dismiss the appeal for lack of a final order. 7 {9} IT IS SO ORDERED. 8 9 ________________________________ TIMOTHY L. GARCIA, Judge 10 WE CONCUR: 11 _______________________________ 12 JAMES J. WECHSLER, Judge 13 _______________________________ 14 CYNTHIA A. FRY, Judge 6

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