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

 2 MARTIN CHAVIRA,

 3        Worker-Appellee,

 4 v.                                                                 NO. 29,364

 5 PIRTLE FARMS and NEW MEXICO
 6 MUTUAL CASUALTY COMPANY,

 7        Employer/Insurer-Cross-Appellee,

 8 and

 9 JAMES HAMILTON CONSTRUCTION
10 COMPANY and MOUNTAIN STATES
11 MUTUAL CASUALTY COMPANY,

12        Employer/Insurer-Appellant.

13 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
14 Gregory Griego, Workers’ Compensation Judge

15 Chavez Law Firm
16 Gonzalo Chavez
17 Roswell, NM

18 for Appellee Chavira

19 Hale & Dixon, P.C.
20 Timothy S. Hale
21 Albuquerque, NM

22 for Appellee Pirtle Farms and New Mexico Mutual Casualty Company
 1   Robert Bruce Collins
 2   Holly R. Harvey
 3   Julie A. Koschtial
 4   Albuquerque, NM

 5 for Appellant

 6                             MEMORANDUM OPINION

 7 VIGIL, Judge.

 8         James Hamilton Construction Company and Mountain States Mutual Casualty

 9 Company (“Hamilton/MSMCC”), appeal from a worker’s compensation order

10 requiring Hamilton/MSMCC to pay Worker benefits and offsetting the amount to be

11 paid by Worker’s subsequent employer, Pirtle Farms and New Mexico Mutual

12 Casualty Company (“Pirtle/NMMCC”).              This Court issued a calendar notice

13 proposing to reverse. Pirtle/NMMCC has filed a memorandum in opposition, which

14 we have duly considered. Because we are unpersuaded, we reverse.

15         In this Court’s notice, we proposed to reverse on the following grounds: (1) that

16 the workers’ compensation judge (WCJ) erred by allowing Worker’s action against

17 Hamilton/MSMCC pursuant to NMSA 1978, Section 52-1-56 (1989) where no

18 previous compensation order existed; (2) that the WCJ erred by determining that

19 Hamilton/MSMCC was liable for Worker’s disability benefits where Worker was not

20 disabled until he had left Hamilton’s employment and was employed by Pirtle; and


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 1 (3) that the WCJ erred in determining that Pirtle/NMMCC was entitled to an offset of

 2 its obligation.

 3        In this Court’s notice, we proposed to rely on Henington v. Technical-

 4 Vocational Institute, 2002-NMCA-025, 131 N.M. 655, 41 P.3d 923, to conclude that

 5 where there was no determination of disability, no impairment rating, and no further

 6 obligation to pay, there was, as a result, no compensation order that Worker could then

 7 try and modify. Id. ¶¶ 15-17 (holding that where the parties had “agreed to the

 8 payment of benefits at a specific amount, for a specific time, based on a specific

 9 disability and a specific percentage loss of use or impairment rating,” entry of an

10 actual compensation order was a mere technicality and Section 52-1-56 still applied).

11 We noted that, here, it did not appear that there was any agreement that

12 Hamilton/MSMCC pay a weekly compensation amount or a lump-sum payment, and

13 that Hamilton/MSMCC only provided medical benefits. To the extent Pirtle/NMMCC

14 states that “Worker received both indemnity and medical benefits for this work

15 injury,” [MIO 2] Pirtle/NMMCC has not indicated what indemnity benefits it is

16 referring to, who was responsible for paying them, or when they were received.

17 Instead, Pirtle/NMMCC only indicates that Worker sought disability benefits from

18 Hamilton/MSMCC. Pirtle/NMMCC does not indicate that Worker ever received

19 disability benefits prior to the WCJ’s January 21, 2009, compensation award currently
                                              3
 1 being appealed, and there is nothing in the record that reflects that Hamilton/MSMCC

 2 was ordered to or agreed to pay Worker disability benefits prior to January 21, 2009.

 3 Thus, Pirtle/NMMCC has not satisfied its obligation to clearly point out an error in

 4 fact on the summary calendar. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124

 5 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar

 6 cases, the burden is on the party opposing the proposed disposition to clearly point out

 7 errors in fact or law.”). To the extent Pirtle/NMMCC asserts that Worker sought

 8 disability benefits from Hamilton/MSMCC and both parties agreed to a recommended

 9 resolution [MIO 6], there is no indication that Worker received or was granted

10 disability benefits, only authorization for a medical procedure.              Although

11 Pirtle/NMMCC attempts to create an issue of Hamilton/MSMCC’s payment of

12 medical benefits, we conclude that, here, where there was no agreement to pay future

13 benefits, only medical benefits as they accrued, and there was no determination of

14 disability or impairment rating, there was not a compensation order in place for

15 Worker to modify. See Henington, 2002-NMCA-025, ¶¶ 15-17; see also Brooks v.

16 Hobbs Mun. Schs., 101 N.M. 707, 709-10, 688 P.2d 25, 27-28 (Ct. App. 1984)

17 (holding that Section 52-1-56 did not apply where there had never been a prior

18 judgment awarding future compensation or any determination of disability). To the

19 extent the WCJ relied on Section 52-1-56 as a mechanism to address Worker’s claims
                                              4
 1 against Hamilton/MSMCC, we reverse.

 2        In this Court’s notice, we also relied on our Supreme Court’s decision in Tom

 3 Growney Equipment Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320,

 4 and proposed to conclude that the WCJ erred in determining that Worker suffered an

 5 injury to the whole person as a combined result of the 1999 and 2003 accidents, where

 6 the 1999 accident did not result in disability. [CN 7]           We pointed out that

 7 “[d]isability arising from an accident is the event that triggers the obligation,” and

 8 “[w]hen a disability develops gradually, or when it comes as the result of a succession

 9 of accidents, the insurance carrier covering the risk at the time of the most recent

10 injury or exposure bearing a causal relation to the disability is usually liable for the

11 entire compensation.” Id. ¶ 24. Pirtle/NMMCC had not challenged our reliance on

12 Jouett. Thus, here, where the WCJ determined that both the 1999 accident and 2003

13 accident bore a causal connection to Worker’s disability [RP 00:411]1, and

14 Pirtle/NMMCC has not challenged the WCJ’s determination with respect to the 2003

15 accident, we conclude that Pirtle/NMMCC, and not Hamilton/MSMCC, should be

16 initially liable for the entire compensation award.


17       ¹This appeal involves two worker’s compensation complaints that were
18 consolidated below. There are two sets of record proper. All citations to the record
19 proper include a two digit number that represents the year of the complaint and the
20 corresponding record proper.

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 1        To the extent Pirtle/NMMCC urges that there was sufficient evidence to support

 2 the WCJ’s determination that there was a causal connection between the 1999 injury

 3 Worker sustained when he was employed by Hamilton and Worker’s current disability

 4 [MIO 6], the existence of such a connection does not render the holding of Jouett

 5 inapplicable. In Jouett, our Supreme Court rejected this Court’s analysis in which we

 6 distinguished Salinas-Kendrick v. Mario Esparza Law Office, 118 N.M. 164, 879 P.2d

 7 796 (Ct. App. 1994), on the basis that in Salinas-Kendrick, unlike in Jouett, there was

 8 no evidence that the initial accident was causally connected to the subsequent

 9 disability. 2005-NMSC-015, ¶ 17; see also Salinas-Kendrick, 118 N.M. at 165, 879

10 P.2d at 797 (holding that, where the initial accident occurred over a year before

11 disability, the insurer who covered the employee at the time she became disabled,

12 rather than the insurer who covered the employee when she was initially accidentally

13 injured, is liable for medical and compensation benefits). Based on our Supreme

14 Court’s rejection of that analysis in Jouett, we conclude that, here, evidence of a

15 causal connection between Worker’s 1999 accident while employed with Hamilton

16 and his subsequent disability does not change that, under Jouett, Pirtle/NMMCC is

17 liable for the entire compensation award.

18        To the extent that Pirtle/NMMCC points out that Worker had ten jobs between

19 quitting work at Hamilton and beginning with Pirtle, we note that, in Jouett, the
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 1 worker had been employed by different employers in between Growney (his employer

 2 at the time of the initial accident) and Big Dog (his employer at the time of the

 3 disability). However, Jouett’s multiple employers between his injury and disability

 4 did not alter our Supreme Court’s decision that Big Dog was liable, since the disability

 5 occurred when the worker was employed by Big Dog. See Jouett, 2005-NMSC-015,

 6 ¶ 29. Moreover, to the extent that Pirtle/NMMCC points out that Worker continued

 7 to experience pain and receive medical treatment between 1999 and 2003, continued

 8 pain, alone, does not establish disability or render the first employer liable. See

 9 Jouett, 2005-NMSC-015, ¶¶ 3-7, 21-25 (acknowledging that the worker experienced

10 pain in his shoulder between his initial injury and when he became disabled, but still

11 determining that the subsequent employer was liable for the full compensation award).

12        To the extent that Pirtle/NMMCC contends that Worker’s zero percent

13 impairment rating is irrelevant [MIO 6], Jouett indicates otherwise. Pirtle/NMMCC

14 has not demonstrated to this Court that our analysis is erroneous, and has not cited to

15 this Court any authority or made any argument that would compel us to not rely on

16 our Supreme Court’s decision in Jouett as we proposed. See Hennessy, 1998-NMCA-

17 036, ¶ 24. Accordingly, we reverse the WCJ’s determination that Hamilton/MSMCC

18 was liable for Worker’s compensation award.

19        Finally, we proposed to conclude that the WCJ erred by permitting
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 1 Pirtle/NMMCC to offset its liability pursuant to NMSA 1978, Section 52-1-47(D)

 2 (1991). We noted that, according to Jouett, Section 52-1-47(D) only permits a

 3 subsequent employer/insurer to an offset if “the worker received benefits for the initial

 4 injury and subsequently suffers a work-related injury to the same member or function

 5 and benefits for the subsequent injury would duplicate benefits paid or payable for the

 6 initial injury.” Jouett, 2005-NMSC-015, ¶ 45. Pirtle/NMMCC has not challenged this

 7 argument in its memorandum in opposition. We therefore conclude that, where

 8 liability for disability benefits lies with Pirtle/NMMCC and Hamilton/MSMCC has

 9 never previously paid disability benefits, Pirtle/NMMCC was not entitled to offset its

10 payment of disability benefits to Worker pursuant to Section 52-1-47. To the extent

11 the WCJ permitted such an offset, we reverse.

12        For the reasons stated above and in this Court’s notice of proposed disposition,

13 we reverse the compensation award and remand for further proceedings consistent

14 with this opinion.

15        IT IS SO ORDERED.

16                                                 _______________________________
17                                                 MICHAEL E. VIGIL, Judge

18 WE CONCUR:




                                               8
1 ________________________________
2 MICHAEL D. BUSTAMANTE, Judge


3 ________________________________
4 CELIA FOY CASTILLO, Judge




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