Bishop v. Don Chalmers Ford ( 2012 )

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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
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1 __________________________________
2 MICHAEL E. VIGIL, Judge
5