Mendoza v. PES Payroll

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JOSE MENDOZA, 3 Worker-Appellant 4 v. No. A-1-CA-36364 5 PES PAYROLL and BERKELEY 6 SPECIALTY UNDERWRITING 7 MANAGERS, 8 Employer/Insurer-Appellees, 9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 10 Terry S. Kramer, Workers’ Compensation Judge 11 Jose Mendoza 12 Santa Fe, NM 13 Pro Se Appellant 14 Garcia Law Group, LLC 15 Katherine E. Tourek 16 Albuquerque, NM 17 for Appellees 18 19 VIGIL, Judge. MEMORANDUM OPINION 1 {1} Worker Jose Mendoza (Worker) appeals the compensation order of the 2 Workers’ Compensation Judge (WCJ). In response to Worker’s docketing statement, 3 we issued a calendar notice proposing to affirm. Now pro se, Worker has filed a 4 memorandum in opposition (MIO). After due consideration, we are unpersuaded and 5 therefore affirm. 6 {2} To the extent possible, we will avoid repetition of background, analytical 7 principles, and analysis set forth in our calendar notice. Worker revisits the issues 8 raised in his docketing statement. 9 {3} Worker contends that the Workers’ Compensation Administration committed 10 reversible error when the WCJ failed to take judicial notice of Worker’s award of 11 Social Security Disability Benefits (SSDB). [MIO 3; DS 2] Among the reasons we 12 offered in our calendar notice for proposing to reject this contention of error is that 13 Worker did not indicate when, how, or even if, Worker petitioned the court to take 14 judicial notice of the fact that he was granted SSDB. [CN 2] In his MIO, worker 15 indicates that he offered a proposed finding of fact on the basis of his testimony, and 16 also seems to have offered supporting documentation in the form of an exhibit. [MIO 17 3-4; RP 189 ¶ 122; RP 200] Worker summarizes this as “evidence . . . introduced to 18 the court.” [MIO 3] Worker has not indicated whether, how, or if he asked the court 19 to take judicial notice of his SSDB, as distinct from providing evidence of his SSDB. 2 1 See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our 2 courts have repeatedly held that, in summary calendar cases, the burden is on the party 3 opposing the proposed disposition to clearly point out errors in fact or law.”). 4 Moreover, Worker’s argument that he presented evidence to the court indicating that 5 he was granted SSDB signals that his SSDB is not the sort of fact subject to judicial 6 notice. See State v. Hudson, 1967-NMSC-164, ¶ 18, 78 N.M. 228, 430 P.2d 386 7 (stating that a fact that is not “so notorious that the production of evidence would be 8 unnecessary” cannot be the subject of judicial notice). Accordingly, for the reasons 9 stated here and in our notice of proposed summary disposition, we reject this 10 contention of error. 11 {4} Worker seems to contend that the district court committed error by ruling that 12 he does not qualify for workers’ compensation benefits on the basis of his vision 13 problems. [MIO 32; MIO 5-13; DS 3] We engage in whole record review to review 14 workers’ compensation orders. Leonard v. Payday Prof’l, 2007-NMCA-128, ¶ 10, 142 15 N.M. 605, 168 P.3d 177. “Where the testimony is conflicting, the issue on appeal is 16 not whether there is evidence to support a contrary result, but rather whether the 17 evidence supports the findings of the trier of fact.” Tom Growney Equip. Co. v. Jouett, 18 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320 (internal quotation marks and 19 citation omitted). Although we may not “view favorable evidence with total disregard 3 1 to contravening evidence[,]” Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085, ¶ 5, 308 2 P.3d 983, (internal quotation marks and citation omitted, and the fact- finder “[cannot] 3 reject uncontradicted medical evidence that [a] disability is causally connected to [an] 4 accidental injury[,]” Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMCA-016, 5 ¶ 18, 133 N.M. 199, 62 P.3d 290, “[a]bsent unequivocal and uncontradicted testimony 6 establishing causation, a workers’ compensation judge is charged with weighing 7 expert opinion[,]” Trujillo v. Los Alamos Nat’l Lab., 2016-NMCA-041, ¶ 44, 368 P.3d 8 1259. In other words, when we engage in whole record review, we cannot “choose 9 between two fairly conflicting views,” regardless of whether we might have made a 10 different choice under a less deferential standard of review. Id. ¶ 45 (internal quotation 11 marks and citation omitted). 12 {5} Worker has not addressed or challenged the evidence to which we pointed in 13 our notice of proposed summary disposition indicating that Worker’s vision-related 14 complaints were not related to the work-related accident. [See CN 3-4] Accordingly, 15 for the reasons stated here and in our notice of proposed summary disposition, we 16 reject this contention of error. See Grine ex rel. Grine v. Peabody Nat. Res., 200517 NMCA-075, ¶ 30, 137 N.M. 649, 114 P.3d 329 (“The rule is established that where 18 conflicting medical testimony is presented as to whether a medical probability of 19 causal connection existed between [the injury] and work being performed, the trial 4 1 court’s determination will be affirmed.” (internal quotation marks and citation 2 omitted)), rev’d on other grounds, 2006-NMSC-031, 140 N.M. 30, 139 P.3d 190 3 {6} IT IS SO ORDERED. 4 5 _______________________________ MICHAEL E. VIGIL, Judge 6 WE CONCUR: 7 __________________________ 8 LINDA M. VANZI, Chief Judge 9 __________________________ 10 HENRY M. BOHNHOFF, Judge 5

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