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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 KATHY BLAKELY, 3 Worker-Appellant, 4 v. No. A-1-CA-35889
5 LOVELACE HOSPITAL and 6 HARTFORD INSURANCE 7 COMPANY OF THE MIDWEST,
8 Employer/Insurer-Appellees.
9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 10 Terry S. Kramer, Workers’ Compensation Judge
11 Dunn Law Offices 12 Rod Dunn 13 Rio Rancho, NM
14 for Appellant
15 Camp Law, LLC 16 Minerva Camp 17 Albuquerque, NM
18 for Appellees
19 MEMORANDUM OPINION
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1 HANISEE, Judge. 2 {1} Worker Kathy Blakely appeals from the September 1, 2016, Workers’ 3 Compensation Judge’s (WCJ) compensation order awarding her temporary total 4 disability (TTD) benefits from April 17, 2015, to January 29, 2016, following an 5 accident she suffered at work. Worker contends that the WCJ’s order—specifically 6 its findings and conclusions regarding the date Worker reached maximum medical 7 improvement (MMI) for her work-related right hip injury and the overall 8 compensability of that injury—is not supported by substantial evidence. 9 Concluding that the whole record does not support the WCJ’s ruling, we reverse 10 and remand for further proceedings. 11 BACKGROUND 12 {2} On April 17, 2015, Worker, a registered nurse employed by Lovelace 13 Hospital (Employer), was injured in a work-related accident when a patient she 14 was assisting grabbed her arm and pulled her down, causing Worker to hit her right 15 hip and lower back on a toilet. Worker experienced immediate pain in her right hip 16 and back and was referred by Employer to Concentra Medical Center, where she 17 was seen by Dr. David Lyman. Worker received medical treatment and care from 18 various providers, including Dr. Lyman, Dr. Evan Knaus, and Dr. Arnold Kiburz, 19 in the months following the accident and was eventually taken off of work
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1 completely by Dr. Lyman on June 30, 2015, based upon her complaints of 2 worsening pain. 3 {3} On January 25, 2016, Employer filed a complaint with the Workers’ 4 Compensation Administration (WCA) seeking a determination of compensability 5 and benefits, a suspension or reduction of benefits, and a credit for overpayment. 6 Employer filed the complaint “in the interest [of] . . . see[ing] whether Worker’s 7 injuries have reached [maximum medical improvement (MMI)]” and indicated that 8 it was “contemplat[ing] whether a six month re[]evaluation[] with Dr. Lyman . . . 9 would be helpful to assess Worker’s achievement of MMI.” Employer alternatively 10 posited that an independent medical examination (IME) “may be helpful to allow 11 an objective provider . . . to give clinical opinions on treatment recommendations 12 and achievement of MMI.” Neither a reevaluation by Dr. Lyman nor an IME ever 13 occurred. 14 {4} At the trial held on August 15, 2016, the depositions of Drs. Lyman and 15 Knaus—the only treating physicians of Worker who were deposed—were admitted 16 into evidence. Also admitted were medical records from various physicians and a 17 form letter to health care provider completed by Dr. Kiburz. 18 {5} In its compensation order, the WCJ first found that Worker “suffered an on- 19 the-job accident on April 17, 2015” in which she “injured her low back and right 20 hip.” Regarding Worker’s right hip, the WCJ found that “Worker suffered a
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1 pre[]existing right hip injury” and that she “did not suffer problems to her right hip 2 other than a temporary exacerbation” of that preexisting injury. The WCJ 3 additionally found that “Worker reached [MMI]” for the right-hip-exacerbation 4 injury “with no permanent impairment[,]” but provided no specific date of MMI 5 for that injury. The WCJ separately found that “Worker reached [MMI] for all 6 conditions no later than January 29, 2016.” The WCJ also found that “[t]he opinion 7 of Dr. Kiburz . . . is that Worker’s current right hip complaints are not causally 8 related to the . . . work accident[,]” an opinion that the WCJ “accepted.” From the 9 foregoing, the WCJ concluded that Worker “is not entitled to additional benefits 10 for her right hip.” Worker appealed. 11 DISCUSSION 12 {6} Neither party challenges the WCJ’s determination of benefits with respect to 13 Worker’s back-related injury. 1 Thus, the only issue we address in this appeal is 14 whether the record supports the WCJ’s findings and conclusions regarding the 15 compensability of Worker’s right hip injury. 16 {7} Worker argues that substantial evidence does not support the WCJ’s findings 17 that (1) Worker had a preexisting right hip injury, (2) the only injury to the right 18 hip that Worker suffered was a temporary exacerbation of her preexisting injury,
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To the extent we discuss issues and evidence related to Worker’s back injury, we do so only to provide context for our analysis of the compensability of Worker’s right hip injury.
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1 and (3) Worker had reached MMI for that injury. Worker, therefore, contends that 2 the WCJ’s conclusion that Worker is entitled to no additional benefits for her right 3 hip injury cannot be sustained. We agree with Worker that the WCJ’s ruling 4 regarding Worker’s right hip is, on the whole, unsupported, requiring reversal and 5 remand. 6 Standard of Review 7 {8} “We review workers’ compensation orders using the whole record standard 8 of review.” Leonard v. Payday Prof’l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 9 P.3d 177. “In applying whole record review, this Court reviews both favorable and 10 unfavorable evidence to determine whether there is evidence that a reasonable 11 mind could accept as adequate to support the conclusions reached by the fact[- 12 ]finder.” Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, ¶ 15, 120 13 N.M. 734, 906 P.2d 266. While “this Court is not empowered to choose between 14 two fairly conflicting views, even though the court would justifiably have made a 15 different choice had the matter been before it de novo,” Trujillo v. Los Alamos 16 Nat’l Lab., 2016-NMCA-041, ¶ 45, 368 P.3d 1259 (internal quotation marks and 17 citation omitted), cert. denied, 2016-NMCERT-___, (No. S-1-SC-35805, Apr. 7, 18 2016), an administrative agency’s findings “must . . . be set aside when the record 19 before the reviewing court precludes the agency’s decision from being justified by 20 a fair estimate of the worth of the testimony of witnesses[.]” Tallman v. ABF
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1 (Arkansas Best Freight), 1988-NMCA-091, ¶ 16, 108 N.M. 124, 767 P.2d 363 2 (internal quotation marks and citation omitted). We will set aside a workers’ 3 compensation judge’s findings of fact only if “they are shown to be clearly 4 erroneous or not supported by requisite evidence.” St. Clair v. Cty. of Grant, 1990- 5 NMCA-087, ¶ 30, 110 N.M. 543, 797 P.2d 993. 6 {9} “The reviewing court starts out with the perception that all evidence, 7 favorable and unfavorable, will be viewed in the light most favorable to the 8 agency’s decision.” Tallman, 1988-NMCA-091, ¶ 18. “This would, however, not 9 preclude the court from setting aside the agency decision when it cannot 10 conscientiously say that the evidence supporting the decision is substantial, when 11 viewed in the light that the whole record furnishes.” Id. “To determine whether a 12 finding of fact is amply supported by the whole record, we do not rely solely on 13 one part of the evidence if to do so would be unreasonable.” Herman v. Miners’ 14 Hosp., 1991-NMSC-021, ¶ 6, 111 N.M. 550, 807 P.2d 734. “We must find 15 evidence that is credible in light of the whole record and that is sufficient for a 16 reasonable mind to accept as adequate to support the conclusion reached by the 17 agency.” Id. (internal quotation marks and citation omitted). “Substantial evidence 18 on the record as a whole is evidence demonstrating the reasonableness of an 19 agency’s decision.” Begay v. Consumer Direct Pers. Care, 2015-NMCA-025, ¶ 6, 20 344 P.3d 1083 (alteration, internal quotation marks, and citation omitted).
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1 Whether the Evidence Supports the WCJ’s Finding That Worker’s Right Hip 2 Injury Was a “Temporary Exacerbation” of a Preexisting Injury
3 {10} The WCJ found that “Worker suffered a pre[]existing right hip injury[,]” a 4 finding that Worker challenges as unsupported by the evidence. As the record 5 reflects, Worker testified at trial that she suffered a labral tear of her right hip in 6 2005 that was repaired through arthroscopy surgery. Worker’s previous right hip 7 surgery is documented throughout the record, including in the treatment notes of 8 Dr. Lyman. In challenging the evidence supporting the finding of a preexisting 9 right hip injury, Worker points to what she describes as “the uncontradicted 10 evidence [showing] that [she] had no pain, problems, or limitations relative to her 11 right hip in the days, months, and years prior to the April 17, 2015 work-related 12 accident.” It is true that Worker testified that following the 2005 surgery, she 13 experienced no problems “with right hip pain at all” and that she was never placed 14 on work restrictions as a result of her prior hip injury. But simply because Worker 15 was not experiencing problems with, or pain in, her right hip and was under no 16 work restrictions following her successful surgery in 2005 does not render the 17 WCJ’s finding of a preexisting right hip injury unsubstantiated. The WCJ’s finding 18 that Worker had a preexisting injury to her right hip is supported by substantial 19 evidence. That finding, however, addresses but a threshold issue related to the 20 WCJ’s separate finding that Worker suffered only a temporary exacerbation of that
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1 preexisting injury. Whether that finding is supported by the record is a separate 2 matter entirely, to which we next turn. 3 {11} While Dr. Knaus, who had treated Worker in 2012 for back-related 4 problems, described the injury to Worker’s back as an “exacerbation” of a 5 preexisting condition, none of Worker’s health care providers stated or were asked 6 whether Worker’s post-accident right hip complaints arose from a “temporary 7 exacerbation” of a preexisting condition. Rather, each diagnosed her with various 8 new injuries: Dr. Lyman, a “contusion of the right hip . . . indicative of a trauma”; 9 and Drs. Knaus and Kiburz, a right hip labral tear. Indeed, Dr. Knaus specifically 10 noted that his prior treatment of Worker involved only her back, and he described 11 Worker’s “right[-]side hip and groin complaints” in 2015 as “new[.]” And while 12 Dr. Kiburz additionally diagnosed Worker with right hip osteoarthritis—a 13 condition that he opined, via his form letter, was not caused by the April 2015 14 work accident, i.e., was preexisting—that diagnosis indicates little, if anything, 15 about whether Worker’s work-related injuries were limited solely to an 16 exacerbation of a preexisting right hip condition. 17 {12} While undoubtedly possible that some of Worker’s post-accident right hip 18 pain could be described as indicating an exacerbation of Worker’s prior right hip 19 injury, the WCJ’s order provides no explanation of the evidence that supports its 20 finding that Worker suffered only a “temporary exacerbation” injury. See Sanchez
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1 v. Zanio’s Foods, Inc., 2005-NMCA-134, ¶ 70, 138 N.M. 555, 123 P.3d 788 2 (explaining that “WCJ clarity and expressed reasoning is essential to our effective 3 and meaningful review”). Moreover, on appeal, Employer points to no 4 jurisprudence that would permit such a conclusion to be reached based solely upon 5 the known existence of a prior injury or an existing arthritic condition. On the 6 whole record, we conclude that the WCJ’s finding that Worker suffered only a 7 “temporary exacerbation” of her right hip injury is unreasonable as it is supported 8 nowhere in the record. However, even assuming, arguendo, that Worker suffered 9 only an exacerbation injury, the WCJ’s order must nevertheless be reversed 10 because there is no evidence that Worker has reached MMI for that injury, as we 11 next explain.
12 Whether the Evidence Supports a Finding That Worker Had Reached MMI 13 for Her Right Hip
14 {13} As defined in the Workers’ Compensation Act, MMI “means the date after 15 which further recovery from or lasting improvement to an injury can no longer be 16 reasonably anticipated based upon reasonable medical probability as determined by 17 a health care provider[.]” NMSA 1978, § 52-1-24.1 (1990). The determination of 18 MMI is important because “[e]ligibility for the various temporary benefits 19 provided under the [Workers’ Compensation] Act ends at the date of MMI.” 20 Madrid v. St. Joseph Hosp., 1996-NMSC-064, ¶ 7, 122 N.M. 524, 928 P.2d 250. 21 TTD benefits, at issue in this case, are available to a worker only from the time the
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1 inability to work arises until the worker is declared to have reached MMI. See 2 NMSA 1978, § 52-1-25.1(A) (2017). “Key to determining MMI is expert medical 3 testimony regarding whether the injured worker is more likely than not to recover 4 further.” Smith v. Cutler Repaving, 1999-NMCA-030, ¶ 10, 126 N.M. 725, 974 5 P.2d 1182 (internal quotation marks and citation omitted). There must be some 6 evidence that the worker “has reached a plateau of medical stability for the 7 foreseeable future.” Rael v. Wal-Mart Stores, Inc., 1994-NMCA-017, ¶ 14, 117 8 N.M. 237, 871 P.2d 1. Where an expert’s uncontradicted testimony, read as a 9 whole, suggests a probability of future improvement rather than the achievement of 10 a static, stable state, a finding that MMI has been reached is unsupported. Cf. 11 Smith, 1999-NMCA-030, ¶¶ 15-16 (explaining, in a case involving a secondary 12 mental impairment, that where an expert’s report and testimony, “[r]ead as a 13 whole, . . . indicate a probability of future psychological improvement, not a static 14 and stabilized emotional state[,]” and where other doctors opined that the worker 15 was “benefitting from outpatient therapy” and “needs considerable 16 psychotherapeutic work[,]” the workers’ compensation judge’s finding that the 17 worker had reached MMI was “not supported by substantial evidence” (alteration, 18 internal quotation marks, and citation omitted)). 19 {14} Here, the evidence bearing on MMI was in the form of (1) Dr. Lyman’s 20 deposition testimony, (2) Dr. Knaus’s deposition testimony, and (3) Dr. Kiburz’s
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1 form letter. We consider each source separately to determine whether any supplied 2 the necessary evidence to support the WCJ’s finding that Worker had reached 3 MMI “for all conditions no later than January 29, 2016.” 4 {15} Dr. Lyman testified that as of June 30, 2015, the last date on which he 5 treated Worker, he had not placed Worker at MMI for any of the injuries—hip- or 6 back-related, or whether characterized as “exacerbation” or separate, new 7 injuries—for which he treated Worker following the work accident. In response to 8 questioning by Employer, he specifically explained, “[MMI] means that you have 9 reached as good as you’re going to get as a result of the injury.” Dr. Lyman’s 10 testimony and medical records evince that Worker’s condition not only did not 11 stabilize or plateau but in fact steadily worsened during the time he treated her. 12 One indicator of Worker’s worsening condition was that Dr. Lyman, who initially 13 released Worker to return to work with certain modifications and restrictions, 14 continued to increase those restrictions due to Worker’s “continued level of 15 disability and discomfort” and eventually took Worker off of work completely due 16 to her complaints of worsening pain. As of June 2015, Dr. Lyman “felt that 17 [Worker] needed more treatment[,]” specifically physical therapy and physiatry. 18 He explained that he does not “place someone at [MMI] until everything has been 19 tried” and, noting that his records lacked “evidence that everything has been 20 tried[,]” stated, “It was my opinion that she had not reached [MMI].” Dr. Lyman’s
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1 testimony thus fails to supply evidence in support of the WCJ’s finding regarding 2 MMI. 3 {16} Dr. Knaus, for his part, first saw Worker in July 2015. At that time he 4 recommended that she “undergo[] further diagnostic evaluation of the right hip” 5 and referred her to Dr. Kiburz, a hip specialist, believing that Worker’s hip pain 6 could be “help[ed].” In August 2015 Dr. Knaus performed an inter-articular 7 injection on Worker’s right hip, believing that Worker would “see further recovery 8 from or lasting improvement to her right hip complaints if she underwent th[e] 9 injection.” When Worker did not receive lasting improvement benefit from the 10 injection, Dr. Knaus referred Worker back to Dr. Kiburz for additional 11 consultation. In December 2015, when Worker reported to Dr. Knaus that her 12 follow-up appointment with Dr. Kiburz had been “canceled by her adjuster,” Dr. 13 Knaus and Worker discussed the possibility of “obtaining a second opinion from 14 an orthopedic hip doctor” or “undergoing an [IME].” Dr. Knaus, indeed, referred 15 Worker to a different orthopedic specialist. When Dr. Knaus saw Worker on 16 January 29, 2016, he recommended “starting an aquatic therapy program to work 17 on ongoing strengthening and mobility.” He did so because he “was hopeful that it 18 would be beneficial for [Worker].” Dr. Knaus expressly stated that as of January 19 29, 2016, the last date on which he treated Worker, he had not placed Worker’s
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1 right hip at MMI. So too, Dr. Knaus’s testimony fails to supply evidence to support 2 the WCJ’s finding on the issue of MMI. 3 {17} With respect to Dr. Kiburz, he treated Worker only once, on August 19, 4 2015. In his treatment notes, Dr. Kiburz explained that Worker “presents for 5 evaluation of right hip pain after a work[-]related injury. Her injury occurred on or 6 about 4/17/2015.” Under “Impressions,” Dr. Kiburz indicated that Worker was 7 suffering from two conditions: (1) “right Labral Tear Hip” and (2) “right 8 Osteoarthritis Localized Primary Hip/Thigh.” Dr. Kiburz recommended an intra- 9 articular injection, which was performed by Dr. Knaus, and that Worker follow up 10 with him in one month. Three months later and without seeing Worker again, Dr. 11 Kiburz filled out a form letter to health care provider. In response to the form’s 12 preprinted question, “What is your diagnosis of the condition(s) for which you 13 have treated the Worker?” Dr. Kiburz wrote “R Hip OA,” indicating right hip 14 osteoarthritis. As to that condition, Dr. Kiburz indicated that Worker had reached 15 MMI as of August 19, 2015, the date on which he saw Worker. Nowhere in the 16 statements made by Dr. Kiburz in the form letter does he so much as mention 17 Worker’s right hip labral tear. Thus, Dr. Kiburz’s opinion at most supports a 18 finding that Worker’s right hip osteoarthritis had reached MMI, and nothing more. 19 {18} Against the backdrop of this uncontradicted medical evidence, the WCJ’s 20 finding that Worker had reached MMI “for all conditions” no later than January
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1 29, 2016, is unsupportable on this record. Notably absent from the WCJ’s order is 2 any discussion of the testimony and opinions of either Dr. Lyman or Dr. Knaus, 3 with the order instead focusing solely, and unreasonably, on the opinion contained 4 in Dr. Kiburz’s form letter to support its determination. But in the context of 5 determining whether Worker had reached MMI for the discrete injuries she 6 suffered as a result of the work accident, Dr. Kiburz’s form letter responses 7 provide little, if any, probative worth, particularly in light of the evidence supplied 8 by the whole record. See Trujillo, 2016-NMCA-041, ¶ 15 (“After reviewing all the 9 evidence, both favorable and unfavorable, we disregard that which has little or no 10 worth and then decide if there is substantial evidence in the whole record to 11 support the agency’s finding or decision.” (internal quotation marks and citation 12 omitted)). In all, we conclude that the WCJ’s ruling is not supported by substantial 13 evidence and must, therefore, be reversed. 14 Remand is Necessary 15 {19} This Court has not hesitated to remand a case when the WCJ’s order fails to 16 clearly and meaningfully address the ultimate issues presented. See Zanio’s Foods, 17 Inc., 2005-NMCA-134, ¶ 70 (“WCJ clarity and expressed reasoning is essential to 18 our effective and meaningful review.”); St. Clair, 1990-NMCA-087, ¶ 40 (“Where 19 the findings of fact are insufficient to permit meaningful appellate review, the 20 cause may be remanded in the interests of justice for the adoption of additional
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1 findings.”). We do so in this case because on the record and briefing before us, we 2 cannot say that the WCJ’s findings and conclusions with respect to the 3 compensability of Worker’s right hip injury are reasonable.2 On remand, the WCJ 4 must render a determination regarding the compensability of Worker’s right hip 5 injury that is supported by substantial evidence, including express findings relating 6 to the date of MMI of Worker’s right hip injury and the degree of disability caused 7 by that injury. The WCJ may order additional discovery or an IME or may follow 8 such other procedures as may be necessary to reach a reasonable compensation 9 determination, one supported by substantial evidence. 10 {20} Our cases have previously cautioned parties and workers’ compensation 11 judges about the need to “take exceptional care to adequately cover the questions 12 raised” in cases involving multiple injuries and where preexisting injuries may be 13 at issue. Molinar, 2018-NMCA-011, ¶ 49 (internal quotation marks and citation 14 omitted); see Zanio’s Foods, Inc., 2005-NMCA-134, ¶¶ 54, 57. This case serves as 15 yet another example of how the failure to do so can unnecessarily prolong an
2
Because of the deficient nature of the original briefs filed in this appeal, this Court ordered each of the parties to submit a supplemental brief addressing specific issues the Court identified as needing clarification. Worker’s supplemental brief sufficiently clarifies her appellate argument to at least facilitate our ability to meaningfully review the compensation order herein. Employer’s briefs have failed to provide this Court with either convincing counterarguments to the issues Worker raises or any reasoned analysis supporting affirmance of the decision below.
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1 otherwise uncomplicated proceeding and delay the final disposition of cases that 2 are intended to be resolved swiftly and efficiently.3 3 CONCLUSION 4 {21} For the foregoing reasons, we reverse the WCJ’s compensation order and 5 remand for the WCJ to make a reasonable and supportable determination regarding 6 the compensability of Worker’s right hip injury.
3
We reject Employer’s attempt to shift to this Court any responsibility for the delay in resolving this appeal. Employer’s speculative statement that “[e]lections, re-appointments[,] and staff turnover are likely the root cause of delay” not only has no place in an appellate brief but also ignores the primary source of delay: Employer’s own preoccupation with baseless allegations and specious issues, and its concomitant failure to both develop a sufficient record below and present and argue only relevant facts and dispositive issues on appeal.
We caution Employer and its counsel regarding the use of such disparaging assertions in future briefing to this Court.
Contrary to Employer’s apparent belief, this Court has invested an inordinate amount of time and resources attempting to decipher and unravel both the parties’
briefs and the WCJ’s order. As noted above, this Court ordered supplemental briefing in order to provide both parties the opportunity to meaningfully aid the Court’s review because of the obvious shortcomings of their initial briefs. Instead of making the most of the opportunity to clarify its argument, defend the WCJ’s order, and offer this Court a possible path to affirmance, Employer does little more in its supplemental brief than recite myriad ancillary facts without providing any explanation or analysis of how these facts apply to workers’ compensation law or inform our analysis of the issues presented herein. We are under no obligation to consider, more than we already have, Employer’s unclear, undeveloped, unsupported contentions. See Elane Photography, LLC v. Willock, 2013-NMSC-
040, ¶ 70, 309 P.3d 53 (“We will not review unclear arguments, or guess at what a party’s arguments might be.” (alteration, internal quotation marks, and citation omitted); Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty to review an argument that is not adequately developed.”); ITT Educ.
Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (explaining that this Court will not consider propositions that are unsupported by citation to authority).
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1 {22} IT IS SO ORDERED.
2 _______________________________ 3 J. MILES HANISEE, Judge
WE CONCUR:
4 _________________________________ 5 JULIE J. VARGAS, Judge
6 _________________________________ 7 BRIANA H. ZAMORA, Judge