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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 MARIA A. RIVERO,

 3          Worker-Appellee,

 4 v.                                                     NO. 33,377 consolidated with 33,519

 5 ST. VINCENT HOSPITAL and
 6 HOSPITAL SERVICES CORPORATION,

 7          Employer-Insurer-Appellants.

 8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
 9 David L. Skinner, Workers’ Compensation Judge

10 Gerald A. Hanrahan
11 Albuquerque, NM

12 for Appellee

13 Hale & Dixon PC
14 Timothy S. Hale
15 Albuquerque, NM

16 for Appellants

17                                 MEMORANDUM OPINION

18 ZAMORA, Judge.

19   {1}    St. Vincent Hospital and its insurer (collectively, “Employer”) appeal a

20 workers’ compensation judge’s (WCJ) order awarding compensation to Worker. In
 1 our notice of proposed summary disposition, we proposed to affirm. Employer has

 2 filed a memorandum in opposition, as well as a document that we have construed as

 3 a motion to amend the docketing statement, both of which we have duly considered.

 4 As we do not find Employer’s arguments to be persuasive, we deny its motion to

 5 amend and we affirm.

 6 Credit for Benefits Paid

 7   {2}   In Employer’s docketing statement, Employer argued that the WCJ erred in

 8 failing to credit Employer for benefits paid for an initial injury against benefits due

 9 for a second injury. [DS 8] In support of this claim of error, Employer relied on cases

10 involving circumstances where a different employer or insurer is liable for the second

11 accident than was liable for the first, such that the second employer or insurer should

12 not be responsible for injuries occurring when the worker was employed by or insured

13 by another entity. [DS 9-11] We pointed out that those authorities appeared to be

14 inapplicable as that did not appear to be what had occurred here. However, Employer

15 had also alleged at trial that Worker had suffered even earlier workplace injuries,

16 presumably while working for other employers. [RP 710, 711] Therefore, we stated

17 that to the degree that Employer sought to argue that Employer is entitled to an offset

18 for benefits paid for these prior injuries, Employer did not explain what these were or

19 describe the evidence presented regarding these prior injuries. Finally, we noted that


                                              2
 1 although Employer cited NMSA 1978, Section 52-1-47(D) (1990) in its docketing

 2 statement, it did not appear that Employer raised an argument regarding its claim of

 3 entitlement to a credit based on that statute before the WCJ, and therefore had failed

 4 to preserve the issue. See Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 22, 137

 5 N.M. 734, 114 P.3d 1050 (stating that “because this issue was not raised and briefed

 6 by the parties below, [the appellate court] will not consider it for the first time on

 7 appeal”). Because Employer had failed to make its claim of error clear or to

 8 demonstrate that its arguments were supported by evidence in the record, we proposed

 9 to conclude that Employer had failed to demonstrate error. See Headley v. Morgan

10 Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not

11 review unclear arguments, or guess at what [a party’s] arguments might be.”).

12   {3}   In Employer’s memorandum in opposition, Employer takes a new tack, now

13 arguing that although the compensation order provides Employer with a credit against

14 liability to pay temporary disability benefits based on Employer’s payment of weekly

15 compensation of benefits from the date of Worker’s first accident forward, the order

16 nevertheless “appears to violate” Section 52-1-47(B), which provides that

17 “compensation benefits for any combination of disabilities . . . shall not exceed an

18 amount equal to seven hundred multiplied by the maximum weekly compensation

19 payable at the time of the accidental injury resulting in disability . . . exclusive of


                                              3
 1 increased compensation that may be awarded” for failure of an employer to use safety

 2 devices, death benefits, and attorney fees. This is a new argument, and we therefore

 3 treat Employer’s presentation of it as a motion to amend the docketing statement.

 4   {4}   The essential requirements to show good cause for our allowance of an

 5 amendment to an appellant’s docketing statement are: (1) that the motion be timely,

 6 (2) that the new issues sought to be raised were either (a) properly preserved below

 7 or (b) allowed to be raised for the first time on appeal, and (3) the issues raised are

 8 viable. See State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91,

 9 overruled on other grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537,

10 817 P.2d 730. First, we note that it does not appear that Employer preserved any

11 argument before the WCJ based on Section 52-1-47(B), and therefore the matter is not

12 properly before this Court. Even if it did so, on appeal, Employer does not provide this

13 Court with any calculations or analysis to support its belief that the order “appears to

14 violate” this statute. And if Employer is not certain, it is not this Court’s responsibility

15 to persuade. We therefore conclude that Employer has failed to demonstrate that this

16 is a viable issue and we deny the motion to amend.

17 Worker’s Alleged Refusal to Return to Work After an Offer of Modified
18 Employment

19   {5}   Employer contends that the WCJ erred in failing to terminate Worker’s benefits

20 due to Worker’s refusal to return to work after Employer offered modified

                                                4
 1 employment. [DS 8-9] In our notice of proposed summary disposition, we proposed

 2 to decline to address this issue because it did not appear that it had been preserved.

 3 [See RP 665 (pretrial order limiting the contested issues at trial); RP 706 (Employer’s

 4 requested findings and conclusions)]

 5   {6}   In Employer’s memorandum in opposition, Employer points to its proposed

 6 findings of fact, in which it asserted that “Worker is collecting social security and

 7 despite being released to return to work has not sought employment.” [MIO 5-6

 8 (citing RP 706 FOF 23)] This proposed finding simply does not present the issue

 9 raised in Employer’s docketing statement. Most notably, nothing in this proposed

10 finding suggests that Employer actually offered Worker modified employment.

11 Accordingly, we conclude that this issue was not properly preserved.

12 Sufficiency of the Evidence

13   {7}   Employer contends that the evidence was insufficient to support the judgment

14 in this case. [DS 8] In our notice of proposed summary disposition, we explained that,

15 to the degree that Employer’s argument was based on its contention that Worker was

16 not credible, credibility is for the WCJ to determine, and does not provide a basis for

17 reversal on appeal. See Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M.

18 258, 175 P.3d 926 (stating that it is for the WCJ as the fact-finder to assess credibility

19 and weigh the evidence). In Employer’s memorandum in opposition, it continues to


                                               5
 1 argue that Worker was not credible. [MIO 7-10] However, as credibility was a matter

 2 for the WCJ to determine, we hold that the evidence was sufficient to support

 3 Worker’s description of events.

 4 Employer’s Motion to Amend the Docketing Statement

 5   {8}   After Employer filed its original appeal in this case, Employer filed a second

 6 appeal, attempting to address other issues arising from the same proceedings before

 7 the WCJ. This Court consolidated the two cases, and we treat the second docketing

 8 statement, which was filed in case No. 33,519 prior to consolidation, as a motion to

 9 amend the original docketing statement filed in this case.

10   {9}   In its motion to amend, Employer first argues that the WCJ erred in considering

11 Worker’s second motion for reconsideration and clarification, because Employer

12 contends that the motion was untimely since it was not filed within ten days of the

13 amended judgment on Worker’s first motion. [Second DS 9, 10-11] However, the law

14 does not support this claim of error. Within thirty days after the WCJ filed its original

15 compensation order, Worker filed a motion for clarification and reconsideration. [RP

16 719] That motion was timely pursuant to NMSA 1978, Section 39-1-1 (1917). See

17 Bianco v. Horror One Productions, 2009-NMSC-006, ¶ 10, 12, 145 N.M. 551, 202

18 P.3d 810 (holding that Section 39-1-1 applies to workers’ compensation cases, and

19 that when a Section 39-1-1 motion is filed, it tolls the time for filing a notice of appeal


                                                6
 1 pursuant to Rule 12-201 NMRA). The WCJ then filed an order granting Worker’s

 2 motion. [RP 726] Because the amended order did not address certain aspects of

 3 Worker’s original motion for clarification and reconsideration, Worker filed a second

 4 motion for clarification and reconsideration within thirty days of the order granting

 5 her first motion. [RP 730] This motion was also timely filed pursuant to Section 39-1-

 6 1, and tolled the time for filing the notice of appeal until the district court entered an

 7 express ruling on the motion. See Rule 12-201(D) NMRA (prior to 2013

 8 amendments). As the second motion need not have been filed within ten days of the

 9 first order amending the judgment, this issue presents no claim of error on appeal.

10   {10}   Employer then asserts that the WCJ erred in addressing Worker’s second

11 motion for reconsideration and clarification despite the fact that Employer had already

12 filed a notice of appeal. [Second DS 10, 11-12] However, because Worker had already

13 filed her second motion for reconsideration and clarification at the time that Employer

14 filed its notice of appeal, the notice of appeal was premature, because no final order

15 had yet been entered resolving the motion. The notice of appeal therefore did not

16 deprive the district court to rule on the motion for reconsideration. See In re Byrnes,

17 2002-NMCA-102, ¶ 39, 132 N.M. 718, 54 P.3d 996 (“An appeal from a manifestly

18 non-final order cannot divest a court of jurisdiction. Otherwise a litigant could

19 temporarily deprive a court of jurisdiction at any and every critical juncture.” (internal


                                               7
 1 quotation marks and citations omitted)). Cf. State v. McClaugherty, 2008-NMSC-044,

 2 ¶ ¶ 21-24, 144 N.M. 483, 188 P.3d 1234 (holding that a notice of appeal from a final

 3 order filed before a motion to reconsider divested the district court of jurisdiction to

 4 consider the motion).

 5   {11}   Employer argues that the WCJ erred in finding that Employer made the initial

 6 selection of a healthcare provider for Worker’s second injury. [Second DS 10, 12-13]

 7 However, Worker’s motion to amend fails to discuss any of the evidence relevant to

 8 the district court’s determination [Second DS 8], and therefore provides no basis for

 9 this Court’s review of the issue. See Rule 12-213(A)(4) (“A contention that a . . .

10 finding of fact is not supported by substantial evidence shall be deemed waived unless

11 the argument identifies with particularity the fact or facts that are not supported by

12 substantial evidence[.]”); Martinez v. Sw. Landfills, Inc., 1993-NMCA-020, ¶ 18, 115

13 N.M. 181, 848 P.2d 1108 (stating that where the appellant fails to “include the

14 substance of all the evidence bearing upon a proposition,” the Court of Appeals will

15 not consider a challenge to the sufficiency of the evidence).

16   {12}   Employer also asserts that the WCJ erred in finding that Worker is entitled to

17 a 10% enhancement of her indemnity benefits as a result of Employer’s failure to

18 supply appropriate warning devices. [Second DS 10, 13] However, Employer

19 acknowledges that Worker testified that she did not see any warning signs or devices,


                                               8
 1 and Employer points to no contrary evidence that might establish, under whole record

 2 review, that such signs were provided. [Second DS 8] Viewing that evidence in the

 3 light most favorable to the WCJ’s determination, it was sufficient to establish that

 4 such signs were not present.

 5   {13}   Finally, Employer contends that there was insufficient evidence to support the

 6 WCJ’s order on Worker’s second motion for reconsideration and clarification [Second

 7 DS 10, 14-15] In that order, the WCJ determined that Employer made the initial

 8 selection of a healthcare provider and that Employer was liable for failing to supply

 9 appropriate warning signs or devices. [RP 746-47] We have already explained that

10 Employer has failed to present a claim of error with respect to these two issues.

11   {14}   Because none of the issues Employer seeks to add to its original docketing

12 statement are viable, we deny Employer’s motion to amend. See Moore, 1989-NMCA-

13 073, ¶ 42.

14   {15}   Accordingly, for the reasons stated here and in our notice of proposed summary

15 disposition, we affirm.

16   {16}   IT IS SO ORDERED.


17                                                 _______________________________
18                                                 M. MONICA ZAMORA, Judge

19 WE CONCUR:


                                               9
1 __________________________________
2 JONATHAN B. SUTIN, Judge


3 __________________________________
4 TIMOTHY L. GARCIA, Judge




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