Romero v. ARCA

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MANUEL ROMERO,
3 Worker-Appellant,
4 v. NO. 33,662
5 ARCA and NEW MEXICO
6 MUTUAL CASUALTY COMPANY,
7 Employer/Insurer-Appellee.
8 APPEAL FROM WORKERS’ COMPENSATION ADMINISTRATION
9 David L. Skinner, Workers’ Compensation Judge
10 Manuel Romero
11 Albuquerque, NM
12 Pro Se Appellant
13 Miller Stratvert P.A.
14 Nathan A. Cobb
15 Albuquerque, NM
16 for Appellee
17 MEMORANDUM OPINION
18 VANZI, Judge.
1 {1} Appellant Manuel Romero (Worker) appeals from the Workers’ Compensation
2 Judge’s (WCJ) order denying benefits for what he asserts was the aggravation of a
3 pre-existing work-related injury. [DS 1] This Court’s first calendar notice proposed
4 to affirm the WCJ’s order. Worker filed a memorandum in opposition to the proposed
5 disposition. We are not persuaded by Worker’s arguments and affirm the WCJ’s
6 order.
7 {2} Initially, we address the motion to strike filed by Employer/Insurer, ARCA and
8 NMMCC (Employer). Employer moves the Court to strike the affidavits attached to
9 Worker’s informal memorandum in opposition because they constitute an
10 inappropriate submission of testimony and improper supplementation to the record.
11 “As an appellate court, we are a court of review and are limited to a review of the
12 questions that have been presented to and ruled on by the trial court. Moreover, our
13 review is limited to the record presented on appeal.” Graham v. Cocherell, 1987-
14 NMCA-013, ¶ 16, 105 N.M. 401, 733 P.2d 370 (citation omitted). Because the
15 affidavits were not a part of the record in the Workers’ Compensation Administration,
16 we grant Employer’s motion and strike the affidavits. See Kepler v. Slade, 1995-
17 NMSC-035, ¶ 13, 119 N.M. 802, 896 P.2d 482 (“Matters outside the record present
18 no issue for review.” (internal quotation marks and citation omitted)).
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1 {3} This Court’s first notice proposed to affirm on the bases that: (1) Worker had
2 reached maximum medical improvement (MMI) for his prior work-related injuries;
3 (2) Worker’s third intervening accident occurred outside the course of work; (3)
4 Employer provided reasonable and necessary medical care for the prior work-related
5 injuries; (4) Worker’s third accident changing a flat tire was not compensable because
6 the injury was not the natural and direct result of either the first or second work-
7 related accidents; and (5) Worker’s need for medical care since the date of the third
8 accident, when he had already reached MMI for the injuries resulting from the first
9 and second accidents, was not the natural and direct result of either the first or second
10 work-related accidents. [RP 9, 75]
11 {4} Worker continues to argue that he was entitled to benefits because the present
12 injury was an aggravation of his pre-existing work-related injuries. [MIO 1] Worker
13 asserts that he “is not trying to recover for the pre-existing conditions; he is trying to
14 recover for aggravation caused and the extent of the injury from pre-existing injuries.”
15 [MIO 1] The aggravation caused to Worker’s back did not result from a work-related
16 injury but from changing a tire. Worker does not dispute that his present disability is
17 not compensable because it did not result from a work-related accident. See NMSA
18 1978, § 52-1-28(A) (1987) (requiring accident to arise out of, incident to, and in the
19 course of employment). Nor does Worker assert that there was expert testimony to
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1 support his contention that his injury from the third accident was a natural and direct
2 result of either of the prior work-related accidents as required by statute. See § 52-1-
3 28(B). Not having pointed out any errors in fact or law in this Court’s proposed
4 disposition, Worker has not met his burden on appeal. See Hennessy v. Duryea,
5 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
6 held that, in summary calendar cases, the burden is on the party opposing the proposed
7 disposition to clearly point out errors in fact or law.”).
8 {5} For all of the above reasons, and those stated in this Court’s first notice of
9 proposed disposition, we affirm the WCJ’s compensation order.
10 {6} IT IS SO ORDERED.
11 __________________________________
12 LINDA M. VANZI, Judge
13 WE CONCUR:
14 _________________________________
15 CYNTHIA A. FRY, Judge
16 _________________________________
17 J. MILES HANISEE, Judge
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