Hernandez v. Sears

• Court: New Mexico Court of Appeals
• Decided: March 1, 2011
• Docket: 30,777
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 CARIDAD HERNANDEZ,

8 Worker-Appellant,

9 v. NO. 30,777

10 SEARS HOLDING CORPORATION 11 and SEDGWICK CMS,

12 Employer/Insurer-Appellees.

13 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 14 Gregory D. Greigo, Workers’ Compensation Judge

15 Caridad Hernandez 16 Albuquerque, NM

17 Pro Se Appellant

18 Butt Thornton & Baehr, PC 19 Emily A. Franke 20 Glenna C. Hayes 21 Albuquerque, NM

22 for Appellees

23 MEMORANDUM OPINION

24 KENNEDY, Judge.

25 Caridad Hernandez (Worker) appeals from a compensation order by which her

26 claim for benefits was denied. We issued a notice of proposed summary disposition, 1 proposing to uphold the underlying decision. Worker has filed a memorandum in

2 opposition. After due consideration, we remain unpersuaded. We therefore affirm.

3 As we described in the notice of proposed summary disposition, the docketing

4 statement appeared to contain five issues. In her memorandum in opposition, Worker

5 has narrowed these to two issues. [MIO 4-5] We will limit our discussion

6 accordingly. See Castillo v. Weatherly, 107 N.M. 135, 136, 753 P.2d 1323, 1324 (Ct.

7 App. 1988) (addressing only the two issues advanced in the memorandum in

8 opposition, and observing that all other issues initially asserted but not renewed were

9 deemed abandoned).

10 First, Worker renews her challenge to the determination of the Workers’

11 Compensation Judge (WCJ) that she abandoned her employment, [MIO 4] contending

12 that she only left her job because she was improperly being required to perform tasks

13 which conflicted with the restrictions which had been imposed by her treating

14 physicians. [MIO 4]

15 Below, the WCJ expressly found that Worker was offered employment within

16 her physical limitations, but elected to abandon her employment. [RP 105] By all

17 appearances, the WCJ’s determinations were based on credibility assessments.

18 [RP106] As we previously explained, this Court cannot re-weigh the evidence or

19 second-guess the credibility determinations of the WCJ. See generally Sanchez v.

2 1 Homestake Mining Co., 102 N.M. 473, 476, 697 P.2d 156, 159 (Ct. App. 1985) (“It

2 is for the trier of fact to weigh the testimony, determine the credibility of the

3 witnesses, reconcile inconsistent statements of the witnesses, and determine where the

4 truth lies.”); Marez v. Kerr-McGee Nuclear Corp., 93 N.M. 9, 11, 595 P.2d 1204,

5 1206 (Ct. App. 1978) (stating that in workers’ compensation cases “[w]e will not

6 weigh the evidence or determine the credibility of witnesses . . . [because the] trier of

7 facts is the sole judge of the credibility of witnesses and the weight to be given their

8 testimony” (citations omitted)). As a result, we conclude that Worker’s first argument

9 presents no basis for reversal.

10 Second, Worker contends that she was not given an opportunity to explain her

11 situation. She argues that she has not received adequate treatment or compensation

12 for her injuries, and in this regard, she suggests that Employer/Insurer has engaged in

13 deliberate misconduct. [MIO 4-5]

14 Worker’s argument might be construed as a procedural challenge. See

15 generally Madrid v. St. Joseph Hosp., 1996-NMSC-064, ¶ 25, 122 N.M. 524, 928

16 P.2d 250 (observing that “[p]rocedural due process requires . . . notice and an

17 opportunity to be heard”). To the extent that this is an accurate characterization of

18 Worker’s argument, we perceive no impropriety. Neither the record proper nor

19 Worker’s submissions to this Court reflect that Worker was denied the opportunity to

3 1 be heard. By all appearances, Worker participated in a full hearing with fair

2 procedures. The WCJ considered such admissible evidence as Worker offered, as well

3 as her arguments. Under such circumstances, “[w]e are at a loss to understand how

4 much more process [Worker] feels [she was] due.” Schmitz v. Smentowski, 109 N.M.

5 386, 392, 785 P.2d 726, 732 (1990).

6 Alternatively, Worker’s argument might be construed as a challenge to the

7 WCJ’s ultimate evaluation of the merits. However, the fact that the WCJ’s rejected

8 Worker’s evidence and arguments does not signify either that Worker was denied the

9 opportunity to present her case, or that the WCJ’s ultimate determinations are

10 unsupported. As previously stated, the WCJ’s various findings appear to reflect that

11 Employer/Insurer’s evidence was deemed more pertinent and credible, in light of

12 which Employer/Insurer’s arguments were ultimately deemed more persuasive.

13 Insofar as it was for the WCJ, as the trier of fact, “to weigh the testimony, determine

14 the credibility of the witnesses, reconcile inconsistent statements of the witnesses, and

15 determine where the truth lies,” Sanchez, 102 N.M. at 476, 697 P.2d at 159, we

16 conclude that Worker’s argument presents no basis for reversal.

17 CONCLUSION

18 Accordingly, for the reasons stated above and in our notice of proposed

19 summary disposition, the compensation order is affirmed.

4 1 IT IS SO ORDERED.

2 3 RODERICK T. KENNEDY, Judge

4 WE CONCUR:

5 6 JONATHAN B. SUTIN, Judge

7 8 MICHAEL E. VIGIL, Judge