2021 New Mexico Statutes
Chapter 52 - Workers' Compensation
Article 5 - Workers' Compensation Division
Section 52-5-8 - Judicial review of decision by workers' compensation judge.

A. Any party in interest may, within thirty days of mailing of the final order of the workers' compensation judge, file a notice of appeal with the court of appeals.

B. A decision of a workers' compensation judge is reviewable by the court of appeals in the manner provided for other cases and is subject to stay proceedings as provided by the rules of civil procedure for the district courts, except that the appeal shall be advanced on the calendar and disposed of as promptly as possible.

C. When an appeal is taken to the court of appeals by the worker or the person appointed by a court of competent jurisdiction to act on behalf of dependents, he is entitled to the record of the hearing and proceedings in the case, which shall be prepared, transcribed, certified and forwarded by the director to the clerk of the court of appeals without cost. No docket fee or other costs shall be charged the worker on appeal.

History: Laws 1986, ch. 22, § 34; 1989, ch. 263, § 77.

Final order. — A compensation order of the workers' compensation administration awarding compensation and medical benefits but not resolving the issue of attorney fees was not a final order for purposes of appeal. Trujillo v. Hilton of Santa Fe, 1993-NMSC-017, 115 N.M. 397, 851 P.2d 1064, rev'g 1993-NMCA-005, 115 N.M. 398, 851 P.2d 1065.

Extension of time to file notice of appeal. — Rule 12-601 NMRA applies to requests for extensions of time to file a notice of appeal challenging a decision by the workers' compensation administration, and a workers' compensation judge does not have authority to grant an extension of time to file a notice of appeal. Schultz v. Pojoaque Tribal Police Dep't, 2010-NMSC-034, 148 N.M. 692, 242 P.3d 259.

Where petitioner mailed a notice of appeal four days before the filing deadline, but the notice of appeal was filed two days after the filing deadline, the workers' compensation judge did not have authority under Rule 12-601 NMRA to grant petitioner's unopposed motion for an extension of time to file the notice of appeal. Schultz v. Pojoaque Tribal Police Dep't, 2010-NMSC-034, 148 N.M. 692, 242 P.3d 259.

Calculation of time for filing a notice of appeal. — Section 39-1-1 NMSA 1978 applies to workers' compensation cases. Bianco v. Horror One Prods., 2009-NMSC-006, 145 N.M. 551, 202 P.3d 810.

Where the worker filed a motion to reconsider within thirty days after a final compensation order had been entered and filed a notice of appeal within thirty days after the motion to reconsider had been denied, but more that thirty days after the final compensation order had been entered, the defendant's notice of appeal was timely filed. Bianco v. Horror One Prods., 2009-NMSC-006, 145 N.M. 551, 202 P.3d 810.

Motion for reconsideration. — Where defendants filed a motion for reconsideration sixteen days after the workers' compensation judge filed a final order and defendants filed a notice of appeal twenty days after the workers' compensation judge denied the motion, defendants' notice of appeal was timely filed under Section 39-1-1 NMSA 1978 and Rule 12-201 NMRA. Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070.

Rule 12-601 NMRA governs over this section. — Rule 12-601 NMRA, which allows appeal within 30 days from the filing, governs over this section, which allows appeal within 30 days from the mailing. Maples v. State, 1990-NMSC-042, 110 N.M. 34, 791 P.2d 788.

Inapplicability to appeals from district court. — This section is not applicable to appeals taken from the district court. Torres v. Smith's Mgmt. Corp., 1990-NMCA-022, 111 N.M. 547, 807 P.2d 245.

An order by the director of the workers' compensation administration is not appealable to the court of appeals. Sun Country Physical Therapy Assocs. v. N.M. Self-Insurers' Fund, 1996-NMCA-008, 121 N.M. 248, 910 P.2d 324.

Notice of appeal from a final disposition order of the workers' compensation administration had to be filed within 30 days from the date of the order, as provided in Rule 2-601A, rather than within 30 days, of mailing of the final order as provided in Subsection A. Tzortzis v. County of Los Alamos, 1989-NMCA-031, 108 N.M. 418, 773 P.2d 363.

Standard of review. — The whole record review standard applies to court of appeals review of workers' compensation cases decided by the workers' compensation division. Tallman v. Arkansas Best Freight, 1988-NMCA-091, 108 N.M. 124, 767 P.2d 363, cert. denied, 109 N.M. 33, 781 P.2d 305.

Appellate court considers evidence in most favorable light. — In reviewing a workmen's (workers') compensation case, the appellate court will consider the evidence, and the inferences that may be drawn reasonably therefrom, in the light most favorable to support the findings. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347; Marez v. Kerr-McGee Nuclear Corp., 1978-NMCA-128, 93 N.M. 9, 595 P.2d 1204, cert. denied, 92 N.M. 532, 591 P.2d 286 (1979).

Appellate court considers evidence that supports the finding. — In workmen's (workers') compensation cases, as in other cases, an appellate court, in determining whether or not a finding of the trial court is supported by substantial evidence, considers only that evidence and the reasonable inferences deducible therefrom, which support the finding, and this evidence and these inferences are viewed in their most favorable light to support the finding. Lucero v. Los Alamos Constructors, Inc., 1969-NMCA-005, 79 N.M. 789, 450 P.2d 198.

Appellate review of a workman's (worker's) compensation case requires that the appellate court view the entire record in the light most favorable to support the trial court's findings; considering any reasonable inferences that can be drawn therefrom to support the findings, and disregarding any inferences to the contrary. Gallegos v. Duke City Lumber Co., 1975-NMCA-039, 87 N.M. 404, 534 P.2d 1116.

If there is substantial evidence to support the findings of the trial court they will not be disturbed. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347; Marez v. Kerr-McGee Nuclear Corp., 1978-NMCA-128, 93 N.M. 9, 595 P.2d 1204, cert. denied, 92 N.M. 532, 591 P.2d 286.

In viewing the evidence in compensation hearing to determine whether or not it substantially supports the findings, it must be viewed, together with all reasonable inferences deducible therefrom, in the light most favorable to support the findings. Lopez v. Schultz & Lindsay Constr. Co., 1968-NMCA-064, 79 N.M. 485, 444 P.2d 996, cert. denied, 79 N.M. 448, 444 P.2d 775.

Unfavorable part of evidence not considered. — Where judgment was rendered for plaintiff in action for compensation, on jury's special findings, part of physician's testimony unfavorable to plaintiff would not be considered on appeal. Robinson v. Mittry Bros., 1939-NMSC-038, 43 N.M. 357, 94 P.2d 99 (decided under former law).

Evidence to be stated as favorably as possible. — Where the sole question on appeal was whether there was substantial evidence of a causal connection between accident and disability, the evidence was to be stated as favorably as possible in support of the special verdict that "plaintiff's disability, and his suffering from atrophy and his blindness" were caused "by an accident." Janes v. Aguadero Corp., 1935-NMSC-025, 39 N.M. 159, 42 P.2d 775 (decided under former law).

In reviewing workmen's (workers') compensation cases an appellate court considers only evidence and inferences that may be reasonably drawn therefrom, in the light most favorable to support the findings. Quintana v. East Las Vegas Mun. Sch. Dist., 1971-NMCA-029, 82 N.M. 462, 483 P.2d 936.

Trial court to weigh all evidence. — It was not the duty of the appellate court to weigh the testimony of the doctors, but rather, the duty of the trier of fact; and although there was testimony of the medical experts from which the trial court might have found other than it did, nevertheless, it was for the trial court, as the fact finder, to evaluate all the evidence and determine where the truth lay. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347.

The credibility of the witnesses and the weight to be given their testimony in compensation hearings are to be determined by the trial court and not by the appellate court. The appellate court may not properly substitute its judgment for that of the trial court as to the credibility of any witness or as to the weight to be given his testimony. It is not for the appellate court to say what testimony should be given credence and what should be disbelieved. Lopez v. Schultz & Lindsay Constr. Co., 1968-NMCA-064, 79 N.M. 485, 444 P.2d 996, cert. denied, 79 N.M. 448, 444 P.2d 775; Marez v. Kerr-McGee Nuclear Corp., 1978-NMCA-128, 93 N.M. 9, 595 P.2d 1204, cert. denied, 92 N.M. 532, 591 P.2d 286.

It is not the function of an appellate court to substitute its judgment for that of the trier of fact. Its sole duty is to determine if the findings of fact are supported by substantial evidence. Gallegos v. Duke City Lumber Co., 1975-NMCA-039, 87 N.M. 404, 534 P.2d 1116.

Interest on compensation orders. — A review of the Workers' Compensation Act as a whole demonstrates a legislative intent to apply post-judgement interest to final compensation orders. Sanchez v. Siemens Transmission Sys., 1991-NMCA-028, 112 N.M. 236, 814 P.2d 104, rev'd on other grounds, 1991-NMSC-093, 112 N.M. 533, 817 P.2d 726.

Appeal not dismissed because claimant accepts benefits. — The claimant's appeal should not be dismissed because he accepted benefits under the judgment. Howard v. El Paso Natural Gas Co., 1982-NMCA-075, 98 N.M. 184, 646 P.2d 1248, cert. denied, 98 N.M. 336, 648 P.2d 794.

Subsection B does not provide that appeal for benefit of attorney be free to the attorney or that the public bear the cost of the appeal. Holloway v. N.M. Office Furniture, 1983-NMCA-028, 99 N.M. 525, 660 P.2d 615; Manzanares v. Lerner's, Inc., 1985-NMSC-022, 102 N.M. 391, 696 P.2d 479.

The legislature did not intend to permit interlocutory appeals from the workers' compensation division, and appellate review is limited to final orders as specified in Subsection A. Sanchez v. Bradbury & Stamm Constr., 1989-NMCA-076, 109 N.M. 47, 781 P.2d 319, cert. denied, 109 N.M. 54, 781 P.2d 782.

No interlocutory appellate review of nonfinal orders. — Subsection B does not provide statutory authority for interlocutory appellate review of nonfinal administrative orders of the workers' compensation division. Sanchez v. Bradbury & Stamm Constr., 1989-NMCA-076, 109 N.M. 47, 781 P.2d 319, cert. denied, 109 N.M. 54, 781 P.2d 782.

Order reopening lacked finality to render it appealable. — The order reopening the claim for workmen's (workers') compensation lacked the finality indispensable to render it an appealable order under this section or under Supreme Court Rule 5(2) (now superseded). Davis v. Meadors-Cherry Co., 1957-NMSC-093, 63 N.M. 285, 317 P.2d 901.

Order opening up judgment in workmen's (workers') compensation case is not final order, but merely interlocutory and not appealable. Davis v. Meadors-Cherry Co., 1957-NMSC-093, 63 N.M. 285, 317 P.2d 901 (decided under former law).

Mandamus will lie to determine the proper place of trial, before trial, where great delay and expense would result from pursuing an appeal and where a change in venue was made without authority. State ex rel. Cardenas v. Swope, 1954-NMSC-028, 58 N.M. 296, 270 P.2d 708 (decided under former law).

Where historical facts of case are undisputed, the question whether the accident arose out of and in the course of the employment is a question of law. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.

Issue whether determination is finding of fact or conclusion of law is itself a question of law and, therefore, freely reviewable in the supreme court. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.

Whether findings of fact reviewable. — In workmen's (workers') compensation cases findings of fact are reviewable only to the extent of determining whether they are supported by substantial evidence, whereas conclusions of law are freely reviewable. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.

Review precluded by failure to file timely request for findings. — The failure of a party to file a timely request for findings of fact and conclusions of law precludes evidentiary review by the court of appeals. Pennington v. Chino Mines, 1990-NMCA-023, 109 N.M. 676, 789 P.2d 624.

Review of judgment was limited to correction of errors at law. N.M. State Hwy. Dep't v. Bible, 1934-NMSC-025, 38 N.M. 372, 34 P.2d 295; De Lost v. Phelps Dodge Corp., 1927-NMSC-077, 33 N.M. 15, 261 P. 811 (decided under former law).

Order reopening judgment not vacating judgment. — The order reopening the judgment in workmen's (workers') compensation case was not, in effect, an order vacating the judgment. Davis v. Meadors-Cherry Co., 1957-NMSC-093, 63 N.M. 285, 317 P.2d 901 (decided under former law).

Order allowing ex parte contract by insurer's agent with claimant's physician. — An order allowing consultants of a medical management company hired by the insurer to have ex parte contact with the claimant's private physician outside the presence of the claimant's counsel was final and appealable. Gomez v. Nielson's Corp., 1995-NMCA-043, 119 N.M. 670, 894 P.2d 1026.

Failure to object in district court. — Where an employer against whom an award was made failed to object in the district court to the award on the ground that it was excessive, such question could not be raised in the supreme court for the first time. Albuquerque & Cerrillos Coal Co. v. Lermuseaux, 1920-NMSC-016, 25 N.M. 686, 187 P. 560 (decided under former law).

Supreme court not bound by trial court's conclusion. — In workmen's (workers') compensation case, supreme court is not bound by the trial court's conclusion, but may independently draw its own conclusion from the facts. Ward v. Halliburton Co., 1966-NMSC-124, 76 N.M. 463, 415 P.2d 847.

Workman (Worker) is entitled to record of hearing without cost when he takes an appeal. 1969 Op. Att'y Gen. No. 69-37.

This section entitles workman (worker) to transcript of testimony when the parties are unable to agree on a statement of facts. 1969 Op. Att'y Gen. No. 69-37.

Except where issues can be determined without transcript. — This section does not require a transcript of the testimony to be furnished without cost in those cases where the issues on appeal can be determined without a transcript of the testimony or with a partial transcript of the testimony. 1969 Op. Att'y Gen. No. 69-37.

Law reviews. — For comment on Johnson v. C & H Constr. Co., 78 N.M. 423, 432 P.2d 267 (Ct. App. 1967), see 8 Nat. Resources J. 522 (1968).

For survey of 1990-91 appellate procedure, see 22 N.M.L. Rev. 623 (1992).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation § 688 et seq.

99 C.J.S. Workmen's Compensation § 287; 100 C.J.S. Workmen's Compensation §§ 669 to 781; 101 C.J.S. Workmen's Compensation §§ 782 to 816(2).