1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 ILDEFONSO HERNANDEZ,
8 Worker-Appellant,
9 v. NO. 29,369
10 ED MANZANARES d/b/a ED’S FRAMING,
11 and WCA UNINSURED EMPLOYERS’ FUND,
12 Employer/Insurer-Appellees.
13 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
14 Juanita Roibal-Bradley, Workers’ Compensation Judge
15 Annie-Laurie Coogan
16 Santa Fe, NM
17 for Appellant
18 Ed Manzanares
19 Santa Fe, NM
20 Pro Se Employer/Appellee
21 Amee Hogan
22 Albuquerque, NM
23 for Appellee WCA Uninsured Employer’s Fund
24 MEMORANDUM OPINION
1 VIGIL, Judge.
2 Worker seeks to appeal the order of the workers’ compensation administration
3 (WCA) sustaining the certificate of eligibility determination and dismissal of the
4 recommended resolution. We issued a notice of proposed summary disposition,
5 proposing to affirm. Worker has filed a response to our notice. We have considered
6 Worker’s response and are not persuaded that our proposed analysis was incorrect.
7 We therefore affirm.
8 Our notice proposed to hold that we cannot excuse the untimeliness of the
9 request for review of the certificate. We stated that without a showing that Worker
10 sought to escape the consequences of his attorney’s failure to file a timely request
11 through personal diligence that the attorney thwarted, Worker is bound by the inaction
12 of his counsel. See Adams v. Para-Chem Southern, Inc., 1998-NMCA-161, ¶ 15, 126
13 N.M. 189, 967 P.2d 864. We stated that there is no indication that Worker argued his
14 attorney thwarted his efforts to seek review and there is no indication that it occurred.
15 In response to our notice, Worker represents that he contacted the law firm he
16 retained “on several . . . occasions over the next several months” following his
17 retention of the firm, asking about the status of his appeal. [MIO 2] Worker states that
18 the firm told him that the matter had been appealed and that they would let him know
2
1 what happened. [Id.] Worker further states that in September or October of 2007, he
2 asked the firm for a copy of the appeal, and that the firm told Worker that he was
3 rushing them and that they would not represent him if he bothered them. [Id.] Worker
4 discovered “several months after the fourteen day appeal period had elapsed” that no
5 appeal had been filed. [Id.]
6 Worker does not state that he sought an extension to seek review or otherwise
7 sought appropriate relief that would permit him to demonstrate personal due diligence
8 that was thwarted. See Adams, 1998-NMCA-161, ¶¶ 8, 12-15, 21-24 (discussing
9 relief sought for exceptional circumstances considered under Rule 1-060(B) NMRA
10 for the gross negligence of a party’s attorney). Even assuming that Worker has
11 properly raised this matter, Worker’s representations fall short of the requisite
12 showing that his attorney thwarted his efforts to timely seek review of the certificate.
13 Worker’s representation do not specifically and clearly demonstrate personal due
14 diligence that was thwarted during the fourteen-day period for him to seek review.
15 Therefore, we hold that Worker is bound by the inaction of his counsel.
16 Worker also argues that the fourteen-day time limit for seeking review of the
17 certificate violates his right to due process. [MIO 2-3] Our notice recognized that
18 Worker has not explained how the time limit violates due process. We observed that
19 he does not state that he lacked notice or opportunity to appeal, for example. In fact,
3
1 Worker sought and retained counsel within plenty of time to request review of the
2 certificate. In response, Worker restates that the fourteen-day time period for seeking
3 review of the certificate of eligibility determination has been expanded since he
4 sought review. [MIO 2] Worker also states that time limits for other actions within
5 the workers’ compensation act are significantly greater. [Id.] Worker does not,
6 however, demonstrate that the time limit in the regulation lacks any rational
7 relationship to a legitimate government interest. Cf. Cummings v. X-Ray Assocs.,
8 1996-NMSC-035, ¶¶ 17, 21, 121 N.M. 821, 918 P.2d 1321 (describing the standard
9 for a constitutional challenge to the time limit applicable for bringing claims of
10 medical malpractice). Worker again does not allege that he lacked notice or
11 opportunity to appeal. This is not a sufficient showing that the applicable regulation
12 violates due process.
13 For the reasons stated above and in our notice, we affirm the order of the WCA.
14 IT IS SO ORDERED.
15 _______________________________
16 MICHAEL E. VIGIL, Judge
17 WE CONCUR:
18 _______________________________
19 CYNTHIA A. FRY, Judge
4
1 _______________________________
2 ROBERT E. ROBLES, Judge
5