Mieras v. Dyncorp

Citation925 P.2d 518,1996 NMCA 95,122 N.M. 401
Decision Date16 August 1996
Docket Number16376,Nos. 16572,s. 16572
PartiesRochelle MIERAS, Claimant-Appellee and Cross-Appellant, v. DYNCORP and National Union Fire Insurance Company, Employer-Insurer-Appellants and Cross-Appellees.
CourtCourt of Appeals of New Mexico


1. This workers' compensation case involves an appeal and a cross-appeal. Dyncorp and its insurance carrier, National Union Fire Insurance Company (Appellants), argue that: (1) the workers' compensation judge (WCJ) erred in allowing an out-of-state health care provider, who had never treated the deceased Worker (the decedent), to testify in the workers' compensation hearing on the substantive issue concerning causation between the events leading to the decedent's death and the work performed; and (2) the WCJ's finding that the decedent suffered a fatal myocardial infarction as a natural and direct result of his employment is not supported by substantial evidence.

2. The cross-appeal of decedent's surviving widow (Claimant) challenges the constitutionality of NMSA 1978, Section 52-1-54(I) (Repl.Pamp.1991) (effective Jan. 1, 1991), which establishes a general cap of $12,500 on an award of attorney fees in workers' compensation cases. We affirm the decision of the WCJ as to each of the issues raised in the appeal and cross-appeal.


3. The decedent was employed by Dyncorp at the Holloman Air Force Base as an aircraft mechanic and structural repair technician. On December 1, 1992, the decedent was assigned to launch and recover three T-38 jet aircraft. The launch and recovery procedure utilized by Dyncorp on the date in question was normally performed by one or two individuals.

4. During the first launch the decedent was assisted by a co-worker. The launch and recovery proceeded at the normal operational pace. During the recovery phase of the second launch, the decedent appeared out of breath. After the recovery, the decedent went to the men's rest room. Approximately thirty minutes later, employees heard a noise inside a bathroom stall. The decedent was found half-dressed on the floor of one of the bathroom stalls. Cardiopulmonary resuscitation was administered to the decedent and he was transferred to Holloman Air Force Base Hospital where he was pronounced dead. Claimant filed a claim for workers' compensation benefits against Appellants.

5. The medical evidence was conflicting as to the cause of the decedent's death. An autopsy was not performed. The Air Force physician who attended the decedent listed the cause of death as possible myocardial ischemia. Two physicians had previously treated the decedent, including Dr. Donald F. Draney and Dr. Jerry W. Miller, a board-certified cardiologist. Appellants hired Dr. Barry Ramo, a board-certified cardiologist, as their medical expert. Claimant's expert, Dr. Murray Mittleman, is a resident of Boston, Massachusetts.


6. We initially address a threshold issue directed to the timeliness of Appellants' appeal. Claimant contends that this Court does not have jurisdiction to consider the issues raised in this appeal because Appellants did not properly file their notice of appeal. Appellants originally filed their notice of appeal with the Workers' Compensation Administration (WCA). Although Claimant concedes that a notice of appeal was timely filed with the Clerk of the Court of Appeals, Claimant claims the notice of appeal was deficient because it was the same notice that was originally filed with the WCA and it contained a WCA caption and case number.

7. The present case is distinguishable from those situations where a notice of appeal was filed in the wrong place or was not timely filed. See Lowe v. Bloom, 110 N.M. 555, 798 P.2d 156 (1990) (notice of appeal must be timely filed in the correct tribunal); Singer v. Furr's, Inc., 111 N.M. 220, 804 P.2d 411 (Ct.App.1990) (workers' compensation claimant's failure to timely file notice of appeal in Court of Appeals deprived Court of Appeals of jurisdiction over appeal even though claimant filed notice of appeal with Workers' Compensation Division within thirty days of dismissal).

8. Since Appellants did file a notice of appeal with the Clerk of the Court of Appeals within the specified deadline and substantially complied with the provisions of NMRA 1996, 12-601(B), we conclude that this Court has jurisdiction to resolve this appeal. See id.; Trujillo v. Serrano, 117 N.M. 273, 276, 871 P.2d 369, 372 (1994) (appellate rules should be construed liberally so as to permit resolution of appeal on merits where such result is consistent with efficient administration of justice); Mitchell v. Dona Ana Sav. & Loan Ass'n, 111 N.M. 257, 258, 804 P.2d 1076, 1077 (1991) (attorney's failure to prosecute appeal in own name did not deprive appellate court of jurisdiction); Board of County Comm'rs v. Ogden, 117 N.M. 181, 183, 870 P.2d 143, 145 (Ct.App.) (notice of appeal held sufficient despite technical deficiencies where violations did not affect substantive rights of parties), cert. denied, 117 N.M. 215, 870 P.2d 753 (1994); Brewster v. Cooley & Assocs., 116 N.M. 681, 684, 866 P.2d 409, 412 (Ct.App.1993) (workers' compensation claimant did not have to file notice of appeal both with district court and with the WCA; it was enough that claimant served a copy of her notice of appeal on agency).


9. Appellants contend that the WCJ erred in allowing Dr. Mittleman, Claimant's medical expert, to provide expert testimony because Dr. Mittleman was not the decedent's treating physician, see NMSA 1978, § 52-1-51(C) (Repl.Pamp.1991) (effective Jan. 1, 1991), nor was Dr. Mittleman a licensed New Mexico health care provider. Under NMSA 1978, Section 52-4-1(O) (Cum.Supp.1996), the director of the WCA can approve any person or facility that provides health-related services as a health care provider. In this case, the director approved Dr. Mittleman as a health care provider, subject to "the determination of the [WCJ] concerning [the] admissibility and credibility of [such] testimony." As a result, the director properly left to the WCJ the determination of whether the deposition testimony of Dr. Mittleman should be admitted. Claimant argues that Appellants failed to preserve this issue for appeal and that the decision of the director was not appealable. See Sun Country Physical Therapy Assocs. v. New Mexico Self-Insurers' Fund, 121 N.M. 248, 250, 910 P.2d 324, 326 (Ct.App.1995) (order of WCA director awarding attorney fees held not appealable). We agree with Claimant that Appellants failed to raise any issue concerning the admissibility of Dr. Mittleman's testimony below; hence the issue was not preserved. NMRA 1996, 12-216(A); Cisneros v. Molycorp, Inc., 107 N.M. 788, 794, 765 P.2d 761, 767 (Ct.App.) (failure to preserve non-jurisdictional error below waives issue for purposes of appellate review), cert. denied, 107 N.M. 785, 765 P.2d 758 (1988).

10. Appellants could have preserved the alleged error by objecting to specific parts of the deposition testimony of Dr. Mittleman. Instead, Appellants' attorney specifically informed the WCJ that he had no objection to the admission of the deposition testimony of Dr. Mittleman. 1 Appellants argue that any objection would have been futile in light of the director's decision, and that the WCJ's willingness to admit the testimony shown by his approval of Claimant's request to amend the discovery order underscores their claim concerning the futility of objecting to the admission of such deposition testimony at trial. Appellants also argue that Kerr-McGee Nuclear Corp. v. New Mexico Environmental Improvement Board, 97 N.M. 88, 95, 637 P.2d 38, 45 (Ct.App.), cert. quashed, 97 N.M. 242, 638 P.2d 1087 (1981), supports their contention that any further objection on their part would have been in vain or futile. We disagree.

11. The facts of the instant case are distinguishable from the situation in Kerr-McGee because a timely objection, if offered during the trial before the WCJ, would have preserved the alleged error pursuant to the New Mexico Workers' Compensation Administration Rules and Regulations 92.3.13 (1992). The order of the WCA director expressly provided that the issue of the admissibility and credibility of Dr. Mittleman was left to the determination of the WCJ.

12. Appellants also argue that the WCJ had a duty to evaluate the admission of Dr. Mittleman's expert testimony sua sponte under NMRA 1996, 11-702 and that such testimony failed to satisfy the test enunciated in State v. Alberico, 116 N.M. 156, 167, 861 P.2d 192, 203 (1993), for the admissibility of scientific evidence. Appellants do not cite any authority for their contention that the WCJ was required to disregard their concession that the deposition testimony could be admitted into evidence without objection. See Wilburn v. Stewart, 110 N.M. 268, 272, 794 P.2d 1197, 1201 (1990) ("Issues raised in appellate briefs that are unsupported by cited authority will not be reviewed ... on appeal."). Moreover, a party may not agree to the admission of evidence and thereafter claim error from his or her own action. See McCauley v. Ray, 80 N.M. 171, 176, 453 P.2d 192, 197 (1968).


13. Appellants additionally contend that there is no substantial evidence to support the WCJ's determination that the cause of the decedent's death was a myocardial infarction related to his work with Dyncorp. We review the challenge to the sufficiency of evidence under the whole-record standard of review. Gomez v. Bernalillo County Clerk's Office, 118 N.M. 449, 451, 882 P.2d 40, 42 (Ct.App.1994) (court will not...

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26 cases
    • United States
    • Supreme Court of New Mexico
    • May 24, 2005
    ......         {8} AGW claims Worker lacks standing to challenge the constitutionality of the fee limitation under Mieras v. Dyncorp, 1996-NMCA-095, ¶ 22, 122 N.M. 401, 925 P.2d 518, because the WCJ specifically found the $12,500 attorney fee to be reasonable and ......
  • Morris v. Brandenburg, Docket No. 33,630
    • United States
    • Court of Appeals of New Mexico
    • August 11, 2015
    ...important individual interest entitled to heightened protection under intermediate scrutiny. See Mieras v. Dyncorp, 1996-NMCA-095, ¶ 26, 122 N.M. 401, 925 P.2d 518 (noting that important individual interests, although not fundamental, are entitled to a intermediate standard of constitutiona......
  • Morris v. Brandenburg, 33,630
    • United States
    • Court of Appeals of New Mexico
    • August 11, 2015
    ...important individual interest entitled to heightened protection under intermediate scrutiny. See Mieras v. Dyncorp, 1996-NMCA-095, ¶ 26, 122 N.M. 401, 925 P.2d 518 (noting that important individual interests, although not fundamental, are entitled to a intermediate standard of constitutiona......
  • Morris v. Brandenburg
    • United States
    • Court of Appeals of New Mexico
    • August 11, 2015
    ...important individual interest entitled to heightened protection under intermediate scrutiny. See Mieras v. Dyncorp, 1996–NMCA–095, ¶ 26, 122 N.M. 401, 925 P.2d 518 (noting that important individual interests, although not fundamental, are entitled to a intermediate standard of constitutiona......
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