Trujillo v. The GEO Group ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 RAYMOND TRUJILLO,
3 Worker-Appellee,
4 v. No. 32,487
5 THE GEO GROUP, INC. and
6 NEW HAMPSHIRE INSURANCE
7 COMPANY,
8 Employer/Insurer-Appellants.
9 APPEAL FROM WORKERS’ COMPENSATION ADMINISTRATION
10 Gregory D. Griego, District Judge
11 Benito Sanchez
12 Albuquerque, NM
13 for Appellee
14 Allen, Shepherd, Lewis & Syra, P.A.
15 Kimberly A. Syra
16 Sebastian A. Dunlap
17 Albuquerque, NM
18 for Appellants
19 MEMORANDUM OPINION
20 FRY, Judge.
1 Employer-Insurer appeals from a workers’ compensation order. We issued a
2 notice of proposed summary disposition proposing to affirm on December 12, 2012.
3 Appellant filed a timely memorandum in opposition on December 21, 2012. Worker
4 filed a memorandum in support on December 28, 2012. We remain unpersuaded that
5 our original proposed disposition was incorrect, and we therefore affirm.
6 In its docketing statement, Appellant argued that the Workers’ Compensation
7 Judge (WCJ) erred in failing to accept deposition testimony regarding maximum
8 medical improvement (MMI) as conclusive for determining Worker’s entitlement to
9 all benefits, and that other evidence was not admissible to show Worker’s MMI for
10 a psychological condition. [DS 1-4] We proposed to affirm on the basis that the
11 deposition testimony Appellant cited was irrelevant to the issue of MMI for the
12 psychological condition and that the evidence supporting MMI on the psychological
13 condition was admissible. [CN 2-4]
14 In its memorandum in opposition, Appellant does not argue that this proposed
15 disposition is incorrect. Rather, Appellant now argues that Worker violated the terms
16 of the pre-trial order by presenting the issue of entitlement to temporary total
17 disability benefits (TTD) for the psychological condition. [MIO 2] Appellant argues
18 that the pre-trial order does not list Worker’s entitlement to TTD for the psychological
19 issue as a contested issue, and the WCJ improperly allowed the amendment, causing
2
1 prejudice to Appellant. [MIO 2-3] See NMAC 11.4.4.12(L)(3), (10) (2010, prior to
2 amendments through Dec. 2012) (stating that the pre-trial order shall contain a list of
3 contested issues and the WCJ can only modify that pre-trial order “as provided by
4 law”).
5 We disagree that the amendment of the pre-trial order caused any prejudice to
6 Appellant. The memorandum opinion signed by the WCJ indicates that, at trial,
7 counsel for Worker moved to amend the pre-trial order to include the issue of TTD
8 benefits for the psychological condition, and Appellant consented to the amendment.
9 [RP 136] Appellant does not dispute this in its memorandum in opposition. [MIO 2-3]
10 We therefore find no error in the amendment of the pre-trial order in this case. See
11 Lucero v. City of Albuquerque, 2002-NMCA-034, ¶ 11, 132 N.M. 1, 43 P.3d 35212 (finding no error in the WCJ’s amendment of the pre-trial order to add a contested
13 issue where there was no prejudice to the employer).
14 For these reasons, and those stated in our notice of proposed summary
15 disposition, we affirm.
16 IT IS SO ORDERED.
17
18 CYNTHIA A. FRY, Judge
3
1 WE CONCUR:
2
3 TIMOTHY L. GARCIA, Judge
4
5 J. MILES HANISEE, Judge
4