Franco v. Nelson Meats, Inc.

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JOSE FRANCO, 3 Worker-Appellant, 4 v. No. A-1-CA-36536 5 NELSON MEATS, INC., LARRY 6 and BEN LLC, and NEW MEXICO 7 MUTUAL CASUALTY INSURANCE 8 COMPANY, 9 Employer/Insurer-Appellees. 10 APPEAL FROM THE WORKER’S COMPENSATION ADMINISTRATION 11 Reginald Woodard, Worker’s Compensation Judge 12 Narcisco Garcia, Jr. 13 Albuquerque, NM 14 for Appellant 15 Jacob R. Candelaria 16 Albuquerque, NM 17 for Appellees 18 MEMORANDUM OPINION 19 ZAMORA, Judge. 1 {1} Jose Franco appeals from the Workers’ Compensation Judge’s (WCJ) order 2 denying benefits on the basis that he was not employed by Nelson Meats, Inc., and 3 Larry and Ben, LLC (Nelson Meats) at the time of his injury. This Court issued a 4 calendar notice proposing to summarily affirm. Franco filed a memorandum in 5 opposition to the proposed disposition. Not persuaded by Franco’s arguments, we 6 affirm. 7 {2} Franco argues that this Court reframed the issue raised in a manner that places 8 the WCJ’s findings on a deferential pedestal that the findings do not deserve under the 9 appropriate standard of review. [DS 1-2] Initially, we note that Franco’s reliance on 10 Harger v. Structural Services., Inc., 1996-NMSC-018 , 121 N.M. 657 , 916 P.2d 1324 , 11 in framing the issue is misplaced. Harger enumerates factors to consider in evaluating 12 the right to control as exercised by an employer when determining whether a worker 13 is an independent contractor, servant, or employee. Id. ¶¶ 12-13. At issue here is not 14 whether Franco was an independent contractor or a servant/employee, but whether he 15 was even an employee of Nelson Meats at the time of his injury. 16 {3} Insofar as Franco asserts that our review was unduly deferential, we disagree. 17 “Generally speaking, whole record review of WCJ determinations is deferential.” 18 Sanchez v. Zanio’s Foods, Inc., 2005-NMCA-134, ¶ 11 , 138 N.M. 555 , 123 P.3d 788 . 19 “We view the evidence in the light most favorable to the agency decision, but may not [2] 1 view favorable evidence with total disregard to contravening evidence.” Barela v. 2 ABF Freight Sys., 1993-NMCA-137 , ¶ 21, 116 N.M. 574 , 865 P.2d 1218 (internal 3 quotation marks and citation omitted). Nevertheless, “[a]lthough there [is] contrary 4 evidence, it is for the trial judge, not this Court, to determine the credibility of 5 witnesses and weigh the evidence.” Todacheene v. G & S Masonry, 1993-NMCA-126 , 6 ¶ 6, 116, N.M. 478, 863 P.2d 1099 . 7 {4} To the extent Franco reasserts the conflicting evidence [MIO 5-8], “where the 8 testimony is conflicting, the issue on appeal is not whether there is evidence to support 9 a contrary result, but rather whether the evidence supports the findings of the trier of 10 fact.” Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 13 , 137 N.M. 497 , 113 11 P.3d 320 (internal quotation marks and citation omitted). Based on the whole record, 12 we proposed to affirm that the evidence supported the WCJ’s conclusion that Franco 13 was not an employee of Nelson Meats. [CN 5] Because Franco does not otherwise 14 point to any error in fact with this Court’s proposed disposition, we affirm. See 15 Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754, 760 , 955 P.2d 683 (“Our 16 courts have repeatedly held that, in summary calendar cases, the burden is on the party 17 opposing the proposed disposition to clearly point out errors in fact or law.”). 18 {5} For all of these reasons, and those stated in the notice of proposed disposition, 19 we affirm. [3] 1 {6} IT IS SO ORDERED. [2] 3 M. MONICA ZAMORA, Judge 4 WE CONCUR: [5] 6 EMIL J. KIEHNE, Judge [7] 8 DANIEL J. GALLEGOS, Judge