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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 DANIEL DORADO AYALA,
3 Worker-Appellee,
4 v. No. 33,974
5 TOP LINE MAINTENANCE,
6 Employer-Appellee,
7 v.
8 REPUBLIC UNDERWRITERS
9 INSURANCE COMPANY/FIRST
10 COMP INSURANCE COMPANY,
11 Insurer-Appellant.
12 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
13 Shanon S. Riley, Workers’ Compensation Judge
14 Academy Compensation Clinic, P.C.
15 George Wright Weeth
16 Albuquerque, NM
17 for Worker-Appellee
18 Hoffman Kelley Lopez, LLP
19 Jeffrey L. Federspiel
20 Albuquerque, NM
1 for Employer-Appellee
2 Maestas & Suggett, P.C.
3 Paul Maestas
4 Albuquerque, NM
5 for Insurer-Appellant
6 MEMORANDUM OPINION
7 VIGIL, Chief Judge.
8 {1} This is a workers’ compensation case in which Employer’s Insurer appeals from
9 the Workers’ Compensation Judge’s (WCJ) conclusion that Worker is entitled to
10 workers’ compensation benefits for an accident which occurred in Tustin, California
11 under the extra-territorial provision of NMSA 1978, Section 52-1-64 (2007) of the
12 Workers’ Compensation Act (WCA), NMSA 1978, §§ 52-1-1 to -70 (1929, as
13 amended through 2016). We conclude that we have no jurisdiction to decide the
14 appeal. We therefore dismiss the appeal.
15 BACKGROUND
16 {2} Worker’s compensation complaint seeks temporary total disability benefits,
17 permanent partial disability benefits, medical benefits, attorney fees, and pre-judgment
18 and post-judgment interest as a result of an accidental work injury occurring on March
19 4, 2010, in Tustin, California. Employer’s answer generally denies that Worker is
2
1 entitled to workers’ compensation benefits. Insurer’s answer also sets forth a general
2 denial and raises affirmative defenses, which include that Worker was not hurt on the
3 job; Worker is not disabled; Insurer did not authorize the healthcare provider; the
4 statute of limitations bars weekly compensation benefits; a causal link between
5 disability and accident has not been shown to a reasonable medical probability; and
6 Worker is not entitled to any benefits under the WCA, because Worker’s employment
7 was not principally localized in New Mexico.
8 {3} The parties entered into a stipulated discovery order, approved by the (WCJ),
9 which recited that the parties contemplated an order bifurcating the issues for trial, and
10 that discovery would be “limited to matters relevant to the issues to be tried in the first
11 stage of this litigation.” Following a pre-trial conference, the WCJ filed an order
12 bifurcating issues for trial in which it was ordered that the initial formal hearing “will
13 be limited to the issue of the extra-territorial application of New Mexico law to the
14 alleged accident of March 4, 2010, in Tustin, California[,]” and “[a]ll other issues
15 raised by the [c]omplaint and the [a]nswers filed herein are deferred.” A pre-trial order
16 was then filed setting the case for a formal hearing. The order provides that the order
17 bifurcating issues for trial remains in effect, that the formal hearing would be “limited
18 to the issue of the extra-territorial application of New Mexico law to the accident of
19 March 4, 2010, in Tustin, California,” and that “[a]ll other issues raised by the
3
1 [c]omplaint and the [a]nswers filed herein are deferred.” The contested issues were
2 therefore limited to the extra-territorial jurisdictional question.
3 {4} Following the formal hearing and the submission of requested findings of fact
4 and conclusions of law by the parties, the WCJ filed a compensation order
5 determining that the Worker is entitled to benefits under the extra-territorial
6 provisions of the WCA. However, the WCJ also concluded that the order bifurcating
7 issues for trial “remains in effect” and “[a]ll other issues raised in the [c]omplaint and
8 the [a]nswers filed herein are deferred.”
9 {5} Insurer appeals from the foregoing compensation order. Issues remaining for
10 resolution by the WCJ in this case include Worker’s claims for temporary total
11 disability benefits, permanent partial disability benefits, medical benefits, attorney
12 fees, and pre-judgment and post-judgment interest as a result of the accidental work
13 injury occurring on March 4, 2010, in Tustin, California. Based on the foregoing facts,
14 this Court issued an order to show cause why the appeal should not be dismissed.
15 Having received responses from the parties, we now dismiss the appeal. ANALYSIS
16 {6} This Court only has jurisdiction over appeals from final orders, and when it
17 appears that an order appealed from is not final, we are required to raise the question
18 on our own motion. See Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680,
19 964 P.2d 844. WCA appeals are subject to the final order jurisdictional requirement.
4
1 Kellewood v. BHP Minerals Int’l, 1993-NMCA-148, ¶ 1, 116 N.M. 678, 866 P.2d
2 406. Generally, “an order or judgment is not considered final unless all issues of law
3 and fact have been determined and the case [is] disposed of by the [district] court to
4 the fullest extent possible.” Clinesmith v. Temmerman, 2013-NMCA-024, ¶ 35, 298
5 P.3d 458 (internal quotation marks and citation omitted).
6 {7} The order which Insurer seeks to appeal from is clearly not a final order. In
7 Kellewood, the employer and insurer attempted to appeal from an order of the WCJ
8 denying their objection to the worker’s notice of change of health care provider while
9 the worker’s claim for compensation and medical benefits was still pending. 1993-
10 NMCA-148, ¶ 1. In concluding that there was no final order, this Court said:
11 In this case, the ‘judgment’ is the judge’s order denying [the]
12 objection to [the w]orker’s notice of change of health care provider. The
13 ‘judgment’ is interrelated to a determination on the merits of the
14 underlying compensation claims. Here, the ‘question remaining’ to be
15 decided is a determination of whether [the w]orker's injuries are causally
16 related to his employment, and thus whether [the w]orker is entitled to
17 compensation, including medical benefits. If [the w]orker is unable to
18 prove a compensable injury, he will not be entitled to an award of medical
19 benefits. In such an event, this Court’s determination of the issue on
20 appeal regarding the health care provider order would become irrelevant,
21 unnecessary, and moot.
22 Id. ¶ 9. Here, the “judgment” is the order of the WCJ concluding that the accident is
23 subject to the WCA under its provision providing for extra-territorial coverage. Just
24 as in Kellewood, the “question remaining” is whether Worker is entitled to
5
1 compensation benefits. There is no final order before us, and we, therefore, have no
2 jurisdiction to decide Insurer’s appeal. See Flores v. J.B. Henderson Constr., 2003-
3 NMCA-116, ¶¶ 6-8, 134 N.M. 364, 76 P.3d 1121 (concluding that where the only
4 issue before the WCJ was whether the worker was entitled to the same six-month
5 periodic review that is statutorily granted to employers, the compensation order fully
6 disposed of all the issues that were before the WCJ, which resulted in a final,
7 appealable order); City of Albuquerque v. Sanchez, 1992-NMCA-038, ¶¶ 8-9, 113
8 N.M. 721, 832 P.2d 412 (concluding that where the only issue before the WCJ
9 concerned a change of health care providers, the order that fully disposed of that issue
10 {8} An exception to the finality requirement is the collateral order doctrine, the
11 essence of which is “that the order sought to be reviewed implicates rights that will
12 be irretrievably lost, absent immediate review[,] and regardless of the outcome of an
13 appeal from the final judgment[.]” Carrillo v. Rostro, 1992-NMSC-054, ¶ 17, 114
14 N.M. 607, 845 P.2d 130. Insurer and Worker ask us to overlook the lack of a final
15 order and review the appeal under the collateral order rule. We decline to do so for the
16 following reasons.
17 {9} First, no petition seeking a writ of error was ever filed, as required by Rule 12-
18 503 NMRA for review of a non-final order under the collateral order doctrine. See
19 Carrillo, 1992-NMSC-054, ¶ 32) (“prescribing the writ of error as the appropriate
6
1 means for invoking the collateral order doctrine”), see also Breen v. N.M. Taxation
2 & Revenue Dep’t, 2012 NMCA-101, ¶ 6, 287 P.3d 379 (noting that appellate review
3 of the order was sought both by way of direct appeal and writ of error); Williams v.
4 Rio Rancho Pub. Sch., 2008-NMCA-150, ¶6, 145 N.M. 214, 195 P.3d 879,(noting that
5 rather than appealing directly from the order in question, a petition for writ of error
6 was filed).
7 {10} Secondly, the collateral order doctrine is a disfavored doctrine, and its
8 application has been severely limited to prevent piecemeal appeals becoming routine.
9 See Williams, 2008-NMCA-150, ¶ 7. Accordingly, review is allowed under the
10 collateral order doctrine only when three requirements are satisfied: “(1) the order
11 must finally determine the disputed question; (2) it must concern an issue that is
12 entirely separate from the merits of the claim; and (3) there must be no effective
13 remedy by appeal.” Handmaker v. Henney, 1999-NMSC-043, ¶ 9, 128 N.M. 328, 992
14 P.2d 879; accord Rule 12-503(E)(2). Here, the order of the WCJ concluding that the
15 Worker is entitled to benefits under the extra-territorial provisions of the WCA is
16 reviewable on direct appeal from any final compensation order awarding workers’
17 compensation benefits following a trial on the merits. Therefore, the order fails to
18 satisfy the third requirement, which lies at the heart of the collateral order doctrine.
19 Kellewood, 1993-NMCA-148, ¶ 12.
7
1 CONCLUSION
2 {11} We have no jurisdiction to decide this appeal because the order appealed from
3 is not a final order. In addition, appellate review of the order is not permitted under
4 the collateral order doctrine. Accordingly, the appeal is dismissed.
5 {12} IT IS SO ORDERED.
6 _______________________________
7 MICHAEL E. VIGIL, Chief Judge
8 WE CONCUR:
9 ___________________________
10 JAMES J. WECHSLER, Judge
11 ___________________________
12 J. MILES HANISEE, Judge
8