Tafoya v. Nals Apartment Homes LLC and Federal Insurance Co.

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 MARTIN TAFOYA, 3 Worker-Appellant, 4 v. NO. 35,987 5 NALS APARTMENT HOMES, LLC 6 and FEDERAL INSURANCE COMPANY, 7 Employer/Insurer-Appellees. 8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 9 Shanon Riley, Workers’ Compensation Judge 10 Narciso Garcia, Jr. 11 Albuquerque, NM 12 for Appellant 13 Evie Jilek 14 Albuquerque, NM 15 for Appellees 16 MEMORANDUM OPINION 17 GARCIA, Judge. 18 {1} Worker seeks to appeal from the WCA’s order denying Worker’s objection to 1 Employer/Insurer’s selection of, and the change in, health care providers (HCPs). We 2 issued a notice of proposed summary disposition, proposing to dismiss for lack of a 3 final, appealable order. Worker has responded with a memorandum in opposition to 4 our notice. We remain unpersuaded that the order is final and immediately appealable. 5 We, therefore, dismiss. 6 {2} Our notice relied on case law directly applicable to Worker’s appeal, holding 7 that “an order regarding a change of healthcare provider (HCP) is not a final, 8 appealable order when a claim for benefits is pending before the Workers’ 9 Compensation Administration (WCA).” Murphy v. Strata Prod. Co., [10] 2006-NMCA-008, ¶ 1 , 138 N.M. 809 , 126 P.3d 1173 (citing Kellewood v. BHP 11 Minerals Int’l., 1993-NMCA-148 , ¶¶ 5-11, 116 N.M. 678 , 866 P.2d 406 ). In the 12 current case, Worker filed the complaint for benefits long before the change in HCP, 13 and the complaint is pending. [RP 1-2] We also explained that the collateral order 14 doctrine does not apply such orders to permit immediate appeal because changes to 15 HCPs can be reviewed on appeal from final compensation orders and rulings 16 regarding HCPs are often intertwined with the progress and outcome of workers’ 17 compensation cases. See Murphy, 2006-NMCA-008, ¶¶ 12-13 . 18 {3} In response to our notice, Worker contends that we should decide the issues 19 raised in his appeal because they involve substantial public interest, involve a [2] 1 substantial right, and are capable of repetition, yet evading review. [MIO 1] Worker 2 is referring to the standard we apply to determine whether to address an issue we may 3 deem to be moot. [MIO 1] See Howell v. Heim, 1994-NMSC-103 , ¶ 7, 118 N.M. 500 , [4] 882 P.2d 541 . Worker seems to presume that because the same issue has been raised 5 in different factual contexts, and we continue to dismiss for lack of finality, the issue 6 evades review. Worker misunderstands. As our notice stated, rulings on HCPs can be 7 changed throughout the proceedings, are intertwined with the merits and progress of 8 the case, and can be reviewed on appeal after a final compensation order has been 9 entered, which are some of the reasons why the collateral order doctrine does not 10 apply to permit an immediate appeal. See Murphy, 2006-NMCA-008, ¶¶ 12-13 . 11 {4} Worker’s memorandum in opposition does not persuade us that the order is 12 final and appealable. If Worker wishes to pursue this matter further, we believe his 13 remedy should be sought politically from the Legislature, which can authorize an 14 immediate appeal in this context by statute. 15 {5} For the reasons stated in our notice and in this opinion, we dismiss Worker’s 16 appeal for lack of a final, appealable order. 17 {6} IT IS SO ORDERED. 18 ________________________________ 19 TIMOTHY L. GARCIA, Judge 20 WE CONCUR: [3] 1 _______________________________ 2 JAMES J. WECHSLER, Judge 3 _______________________________ 4 M. MONICA ZAMORA, Judge