Armijo v. Save 'N Gain , 108 N.M. 281 ( 1989 )

APODACA, Judge,

specially concurring.

I concur in the majority opinion except for the holding that claimant’s attempt to withdraw her prior written acceptance of the informal resolution was not timely under NMSA 1978, Section 52-5-5(C) (Repl. Pamp.1987). In my view, that statute applies only to a situation where a party has failed to notify the director of acceptance or rejection of the recommendation. Here, claimant did not fail to notify the director; instead, she filed an acceptance. Consequently, this case does not fall within the provisions of Section 52-5-5(C).

Rather, claimant’s motion to withdraw her written acceptance was properly denied because there is no provision for reconsidering a Workers’ Compensation Division prehearing officer’s recommended resolution. Claimant argues that her motion is analogous to a motion under SCRA 1986, 1-060(B). However, the legislature repealed the statute that applied the rules of civil procedure to workers’ compensation proceedings, see 1986 N.M. Laws, chapter 22, section 102 (repealing NMSA 1978, Section 52-1-34), and gave authority to the Division to promulgate its own rules and regulations. See NMSA 1978, § 52-5-4 (Repl.Pamp.1987). Although the Division could have provided for a procedure analogous to a motion under Rule 1-060(B), it has not done so. In the absence of a Division rule or regulation providing a procedure for reconsidering recommended resolutions, claimant’s motion was properly denied. The decision of the hearing officer must be affirmed on these grounds.