Bishop v. Don Chalmers Ford

• Court: New Mexico Court of Appeals
• Decided: October 30, 2012
• Docket: 32,184
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 KEVIN BISHOP,

3 Worker-Appellant,

4 v. NO. 32,184

5 DON CHALMERS FORD, INC. and 6 SENTRY INSURANCE COMPANY,

7 Employer/Insurer-Appellees.

8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 9 Gregory D. Griego, Workers’ Compensation Judge

10 Rodney Ralph Dunn 11 Rio Rancho, NM

12 for Appellant

13 Lisa Mack 14 Albuquerque, NM

15 for Appellees

16 MEMORANDUM OPINION 1 CASTILLO, Chief Judge.

2 Worker appeals from the workers’ compensation judge’s (WCJ’s) order

3 denying Worker benefits. This Court issued a calendar notice proposing to affirm.

4 Worker has filed a memorandum in opposition, which this Court has duly considered.

5 Unpersuaded, we affirm.

6 In his docketing statement, Worker argued that the WCJ should have applied

7 the doctrine of laches to bar Employer from denying Worker’s claim after Employer

8 had paid the claim without dispute for five years. Worker argued that he suffered a

9 disadvantage by no longer being able to prove his claim given the lapse in time. In

10 our calendar notice, we proposed to conclude that the WCJ did not abuse its discretion

11 in refusing to apply the doctrine of laches. Worker does not address our proposed

12 analysis with respect to the doctrine of laches, and we therefore consider his argument

13 abandoned. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955

14 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the

15 burden is on the party opposing the proposed disposition to clearly point out errors in

16 fact or law.”); State v. Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App.

17 1988) (providing that, when a case is decided on the summary calendar, an issue is

18 deemed abandoned where a party fails to respond to the proposed disposition of the

19 issue).

2 1 Instead, in his memorandum in opposition, Worker relies on Delgado v. Phelps

2 Dodge Chino, Inc., 2001-NMSC-034, ¶ 23, 131 N.M. 272, 34 P.3d 1148, and NMSA

3 1978, Section 52-5-1 (1990), for the proposition that workers and employers should

4 be treated equally. [MIO unpaginated 1]1 Worker contends that if Employer had

5 originally denied his claim he would have been required to file a workers’

6 compensation complaint for benefits within one year or be “forever barred.” [MIO

7 unpaginated 2 (citing NMSA 1978, Section 52-1-31(A) (1987)) ] Worker argues that

8 limitation periods are intended to “compel the exercise of a right of action within a

9 reasonable period of time so that the party against whom the action is brought will

10 have a fair opportunity to defend.” [MIO unpaginated 2 (citing West v. Home Care

11 Res., 1999-NMCA-037, 127 N.M. 78, 976 P.2d 1030)] Worker contends that “[j]ust

12 as the Worker is limited in the amount of time within which to make a claim for

13 benefits to one year, the Employer/Insurer must also be limited in the amount of time

14 within which to deny Worker’s claim.” [MIO unpaginated 3]

15 To the extent Worker is arguing that this Court should impose a limitations

16 period on employers within which to dispute claims, we decline to do so. “Workmen’s

17 compensation statutes are sui generis and create rights, remedies[,] and procedures

18 1 The Court directs Worker to Rule 12-305(B)(3) NMRA, which requires that 19 documents filed with this Court be “paginated with consecutive page numbers at the 20 bottom.”

3 1 [that] are exclusive.” Anaya v. City of Santa Fe, 80 N.M. 54, 56, 451 P.2d 303, 305

2 (1969). This Court is therefore bound by the procedures established by our

3 Legislature in its enactment and amendment of the WCA as stating the bargain

4 between workers and employers. See Section 52-5-1 (“The workers’ benefit system

5 in New Mexico is based on a mutual renunciation of common law rights and defenses

6 by employers and employees alike. Accordingly, the [L]egislature declares that the

7 Workers’ Compensation Act . . . [is] not remedial in any sense and [is] not to be given

8 a broad liberal construction in favor of the claimant or employee on the one hand, nor

9 are the rights and interests of the employer to be favored over those of the employee

10 on the other hand.”). As a result, we cannot create a limitations period for employers

11 where our Legislature has not done so.

12 For the reasons stated above and in this Court’s notice of proposed disposition,

13 we affirm.

14 IT IS SO ORDERED.

15 __________________________________ 16 CELIA FOY CASTILLO, Chief Judge

17 WE CONCUR:

18 __________________________________ 19 MICHAEL D. BUSTAMANTE, Judge

4 1 __________________________________ 2 MICHAEL E. VIGIL, Judge