 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 SANDRA L. SHERMAN,

 8          Worker-Appellant,

 9 v.                                                                           NO. 30,834

10 PLATINUM LEADS USA, LLC
11 and STATE FARM INSURANCE,

12          Employer/Insurer-Appellee.

13 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
14 Gregory D. Griego, District Judge

15 Sandra L. Sherman
16 Albuquerque, NM

17 Pro Se Appellant

18 David Skinner
19 Albuquerque, NM

20 for Appellee


21                                 MEMORANDUM OPINION

22 VIGIL, Judge.
 1        Sandra L. Sherman (Worker) appeals from the Workers Compensation Judge’s

 2 (WCJ’s) Order filed on June 22, 2010. [RP 68] Under the order, Worker’s complaint

 3 for workers’ compensation benefits was dismissed with prejudice. [RP 69] Worker

 4 filed the notice of appeal in this Court on November 30, 2010. [Ct. App. File]

 5 DISCUSSION

 6        The calendar notice proposed to dismiss the appeal because the notice of appeal

 7 was filed in this Court on November 30, 2010, more than thirty days after entry of the

 8 WCA’s final order on June 22, 2010, contrary to Rule 12-601(B) NMRA. As a result,

 9 this Court lacks jurisdiction to review the appeal on the merits absent extraordinary

10 circumstances. See, e.g., Chavez v. U-Haul Co., 1997-NMSC-051, ¶¶ 19-22, 124

11 N.M. 165, 947 P.2d 122 (hearing an appeal where notice was filed 58 minutes late);

12 see also Trujillo v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994) (stating

13 that “[o]nly the most unusual circumstances beyond the control of the parties—such

14 as error on the part of the court—will warrant overlooking procedural defects”). [Our

15 analysis in this opinion is not affected by any pending or existing changes in the

16 Appellate Rules and the case law thereunder relating to the three-day mailing rule].

17        Worker has filed a response to the proposed summary disposition. [First

18 Amended Response, No. 1, Ct. App. File] The first amended response states that this

19 Court’s Clerk’s Office “lost” the docketing statement due to a filing error, which



                                             2
 1 delayed “presentation of the case for approximately 1 month.” [Id.] We note that

 2 Worker indicates that this Court’s alleged error in filing the docketing statement

 3 delayed the appeal in general, not the filing of the notice of appeal. Since Worker

 4 filed the notice of appeal in this Court on the same date as she filed the docketing

 5 statement, however, we assume that Worker is attributing a one-month delay in the

 6 filing of the notice of appeal to this Court’s filing error, as well. Even subtracting one

 7 month’s time from the November 30, 2010 filing date, however, Worker’s notice of

 8 appeal was filed in this Court more than four months after the WCJ issued the final

 9 order, on June 22, 2010. Under the circumstances, we cannot say that Worker’s

10 untimely filing of the notice of appeal in this Court is attributable to this Court’s

11 filing error.

12        In addition, Worker indicates that she filed her notice of appeal in this Court

13 based on information given to her by the New Mexico Insurance Division. [First

14 Amended Response, No. 2, Ct. App. File] According to Worker, “several people” at

15 the Insurance Division told Worker that she had thirty days after “they” closed “their”

16 file (presumably the WCA) to file the appeal. [Id.] Worker’s file was “closed,”

17 however, when the final order dismissing her complaint for workers compensation

18 benefit was dismissed with prejudice on June 22, 2010. [RP 68] While Worker

19 claims that she filed her appeal in this Court before she got a final letter from the



                                               3
 1 WCJ, Worker’s notice of appeal was filed in this Court more than five months after

 2 June 22, 2010, on November 30, 2010. This is more than four months after June 22,

 3 2010, assuming any error by this Court in filing the docketing statement and/or the

 4 notice of appeal. [Ct. App. File] In this regard, we note that Worker’s form “affidavit

 5 of service for the notice of appeal in a worker’s compensation appeal” states that

 6 Worker mailed the notice appeal to the WCA and to opposing counsel on November

 7 16, 2010. [Ct. App. File] This Court’s file stamp date of filing for the notice of

 8 appeal is November 30, 2010. [Id.] Finally, Worker’s postage receipt that she states

 9 in the first amended response is dated July 13, 2010, appears to indicate that the

10 mailing for which postage was purchased was sent to “NM Regulatory Stella,” not to

11 this Court. [First Amended Response, last document]. Moreover, Worker does not

12 allege in the first amended response that the postage she purchased on July 13, 2010,

13 was purchased to mail the notice of appeal to this Court or that the notice of appeal

14 was actually mailed on that date to this Court. As discussed above, Worker’s affidavit

15 of mailing attached to the notice of appeal certifies mailing on November 16, 2010,

16 to the WCA and to opposing counsel only.

17 CONCLUSION

18        Under the circumstance of this case, therefore, we dismiss the appeal because

19 Worker failed to file a timely notice of appeal.



                                              4
1      IT IS SO ORDERED.



2                                     _______________________________
3                                     MICHAEL E. VIGIL, Judge


4 WE CONCUR:



5 _________________________________
6 JAMES J. WECHSLER, Judge



7 _________________________________
8 RODERICK T. KENNEDY, Judge




                                  5
