Levan v. Hayes Trucking & Concrete, Inc. ( 2014 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MICHAEL LEVAN,
3 Worker-Appellee,
4 v. NO. 33,301
5 HAYES TRUCKING AND CONCRETE,
6 INC., AND GREAT WEST CASUALTY
7 COMPANY,
8 Employer/Insurer-Appellants.
9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
10 Leonard J. Padilla, Workers’ Compensation Judge
11 Gordon E. Berman
12 Las Cruces, NM
13 for Appellee
14 Maestas & Suggett, PC
15 Paul Maestas
16 Albuquerque, NM
17 for Appellant
18 MEMORANDUM OPINION
19 ZAMORA, Judge.
1 {1} Employer/Insurer appeals from the compensation order awarding Worker
2 benefits. We issued a calendar notice proposing to dismiss for lack of finality.
3 Employer has filed a response, and Worker has filed a memorandum in opposition.
4 We dismiss the appeal.
5 {2} The compensation order was entered on August 1, 2013. [RP 172]
6 Employer/Insurer filed a motion for reconsideration on August 30, 2013. [RP 188]
7 The Worker’s Compensation Judge issued an order on October 17, 2013, that did not
8 reach the merits of the motion, but rather deemed it to be denied by operation of law
9 under NMSA 1978, Section 39-1-1 (1917). Employer/Insurer then filed a notice of
10 appeal with this Court on October 28, 2013.
11 {3} “[O]ur appellate jurisdiction is limited to review of ‘any final judgment or
12 decision, any interlocutory order or decision which practically disposes of the merits
13 of the action, or any final order after entry of judgment which affects substantial
14 rights[.]’” Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 17, 140
15 N.M. 920, 149 P.3d 1017 (citing NMSA 1978, § 39-3-2 (1966)). When a post-
16 judgment motion is filed that could alter, amend, or moot the judgment, the judgment
17 is no longer final for purposes of appeal, and the time for filing a notice of appeal
18 begins to run from the filing of the order disposing of the post-judgment motion. See
2
1 Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865; Dickens
2 v. Laurel Healthcare LLC, 2009-NMCA-122, ¶ 6, 147 N.M. 303, 222 P.3d 675. Our
3 Supreme Court has held that this principle also applies in workers’ compensation
4 cases. See Bianco v. Horror One Productions, 2009-NMSC-006, ¶ 12, 145 N.M. 551,
5 202 P.3d 810 (holding that the time for filing the worker’s notice of appeal did not
6 begin to run until an express denial of the post-judgment motion was entered). It
7 appears that the WCJ misconstrued Bianco with respect to Section 39-1-1. Although
8 that section retains jurisdiction in the WCA for a period of 30 days after the entry of
9 the compensation order, it does not deny such motions by operation of law at the end
10 of that period; instead, the motion must be ruled on before the time for running the
11 notice of appeal commences. See Bianco, 2009-NMSC-006, ¶ 12. Accordingly,
12 because the WCJ never ruled on the merits, we lack a final, appealable order. In light
13 of the fact that the notice of appeal was prematurely filed in this case, we decline
14 Employer/Insurer’s request that we instruct the WCJ to rule on the motion within a
15 given time frame.
16 {4} IT IS SO ORDERED.
17 ___________________________
18 M. MONICA ZAMORA, Judge
3
1 WE CONCUR:
2 __________________________________
3 JAMES J. WECHSLER, Judge
4 __________________________________
5 J. MILES HANISEE, Judge
4