February 13, 2020- Larry Sims v. Tri State Employment Services, No. A-1-CA-37681

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 2/13/2020 12:58 PM

LARRY SIMS, W/
Worker-Appellant, ~fe4
rk Reynolds

Ma
V. No. A-1-CA-37681

TRI STATE EMPLOYMENT SERVICES
SESSIONS PAYROLL MANAGEMENT,
LUMBERMANS UNDERWRITING
ALLIANCE,

Employer/Insurer-Appellees.

APPEAL FROM THE WORKER’S COMPENSATION ADMINISTRATION
Shanon S. Riley, Admininstrative Hearing Judge

Larry Sims
Albuquerque, NM

Pro Se Appellant
Butt, Thornton & Baehr, PC
Sean Peter Dolan

Jonathan A. Elms
Albuquerque, NM

for Appellees

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1 MEMORANDUM OPINION
2 VANZI, Judge.
3 {1} Worker, Larry Sims, appeals from an order of the Worker’s Compensation
4 Judge (WCJ). We issued a notice of proposed summary disposition proposing to
5 affirm, and Worker has responded with a timely memorandum in opposition. We have
6 duly considered Worker’s arguments, and we remain unpersuaded that our initial
7 proposed disposition was incorrect. We therefore affirm.
8 DISCUSSION
9 {2} Worker raised three issues in his docketing statement: (1) whether the WCJ
10 erred in finding that his dental and cervical spine conditions were not causally related
11 to the work injury, (2) defense counsel and the WCJ engaged in improper conduct,
12 and (3) defense counsel engaged in an incident of intimidation and harassment
13 towards him. We proposed affirmance on all issues.
14 {3} Worker has responded with a memorandum in opposition in which he asks this
15 Court to consider a letter from his current treating physician discussing the causal
16 relationship between his medical conditions and his work injury. However, “[o]ur
17 review of the order from which [a w]orker appeals cannot be based on evidence that
18 had not been presented to the WCJ at the time the order was issued.” Gallegos v. City
19 of Albuquerque, 1993-NMCA-050, ¶ 20, 115 N.M. 461, 853 P.2d 163. As this letter

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1 was not introduced in the proceedings below, we are unable to consider the letter on
2 appeal as a basis to conclude that the WCJ erred in rendering it’s the compensation
3 order. See Howell v. Marto Elec., 2006-NMCA-154, ¶ 12, 140 N.M. 737, 148 P.3d
4 823 (“Generally speaking, this Court’s review is limited to evidence presented to the
5 WCJ in the first instance.”). As we do not consider the letter on appeal, Employer’s
6 motion to strike is moot.
7 {4} Worker has not otherwise responded to the proposed bases for affirmance in
8 our notice of proposed summary disposition. See Griffin v. Thomas,
9 1997-NMCA-009, ¶ 7, 122 N.M. 826, 932 P.2d 516 (recognizing that an issue is
10 deemed abandoned where a party fails to respond to the proposed summary
11 disposition of the issue).
12 CONCLUSION
13 {5} For these reasons and those stated in our proposed notice of summary
14 dispostion, we affirm the decision of the WCJ.
15 {6} IT IS SO ORDERED.
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17 LINDA M. VANZI, Judge

WE CONCUR:

Gi A

JULI J. VARAGS;dudge

ZACHARY AXIVES, Judge