June 21, 2017- Don R. Baca v. State of New Mexico and Risk Management Division, No. 34,640

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June 21, 2017

NO. 34,640

DON R. BACA,
Worker-A ppellant,

V.

STATE OF NEW MEXICO and
RISK MANAGEMENT DIVISION,

Employer/Insurer-A ppellee.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Terry S. Kramer, Workers’ Compensation J udge

Gerald A. Hanrahan
Albuquerque, NM

for Appellant

Hatcher Law Group, P.A.
Scott P. Hatcher

Mark A. Cox

Santa Fe, NM

for Appellee

OPINION
GARCIA, Judge.
{1} 	The primary issue in this workers’ compensation appeal is the enforceability of
the parties’ stipulated compensation order (the SCO) that was filed on August 4, 2004.
Although much has happened since the SCO was approved and both parties have
substantially contributed to the procedural dilemma since 2004, we are able to resolve
the present appeal succinctly. We conclude that the workers’ compensation judge (the
WCJ) was without authority to approve the SCO containing a partial lump-sum
payment to Worker because the SCO did not comply with the Workers’ Compensation
Administration Act (the WCAA), NMSA 1978, §§ 52-5-1 to -22 (1987, as amended
through 2013), specifically Section 52-5-12(C). In 2014, when addressing a motion
by the State (Employer), the WCJ erred by determining that the SCO was enforceable
against Worker. As a result, we reverse and remand this matter to the Workers’
Compensation Administration (the WCA) for further proceedings.
BACKGROUND
{2} 	On August 4, 2004, the parties entered into the SCO to settle a dispute
regarding Worker’s entitlement to workers’ compensation benefits as the result of an
accident and injuries to Worker’s back that occurred on July 24, 2002. It is undisputed
by Employer that no hearing was held by the WCJ to approve the provisions of the

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SCO or otherwise confirm Worker’s knowledge of the partial lump-sum settlement
or any of the material facts contained therein. The SCO set Worker’s permanent
partial disability (PPD) benefits at $193,554.62, offset $54,746.12 for previous PPD
benefits paid, allowed a $60,000 partial lump-sum payment to Worker to pay debts,
and provided for the remaining PPD benefits to be paid at $250 per week, on a bi-
weekly basis, for 315.234 weeks. In 2010, Worker underwent the first of several
additional surgeries due to the further deterioration of his back injury. Without any
modification of the SCO or Worker’s previous 2004 benefits and without any
application, hearing, or order of modification pursuant to the Workers’ Compensation
Act (the Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2016) and
the WCAA, specifically Section 52-1-56 and Section 52-5-9, Employer unilaterally
notified and paid Worker additional workers’ compensation indemnity benefits of
approximately $92,530.72.
{3} 	In 2014, Employer filed an application seeking an independent medical
examination (IME) of Worker for the purpose of determining his current medical
condition, ascertaining whether Worker has attained maximum medical improvement
(MMI), 	whether 	Worker 	had 	an 	impairment 	rating, 	and 	to 	determine 	the
reasonableness, necessity, and scope of future medical care. After Employer’s
application for an IME was addressed and denied by the WCJ, Employer filed a

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complaint seeking a determination of compensability/benefits and a credit for any
overpayment, as well as a motion for supplemental compensation order (the MSCO).
In response to the MSCO, Worker asserted that: (1) the SCO was not enforceable
because a hearing to approve the SCO was never held; (2) Employer waived any
overpayment of additional benefits that Employer had voluntarily paid to Worker
pursuant to the provisions of the SCO; and (3) Worker was entitled to a reinstatement
of temporary total disability (TTD) payments and a modification of benefits pursuant
to Section 52-1-56, Section 52-5-9, Benny v. Moberg Welding, 2007-NMCA-124, 142
N.M. 501, 167 P.3d 949, and also applying Fowler v. Vista Care, 2014-NMSC-019,
329 P.3d 630. Worker also filed a counterclaim for the approval of a spinal cord
stimulator, approval of TTD payments until he reached MMI in the future, and
approval of PPD payments once MMI was reached in the future. Employer asserted
that the issues to be resolved were only legal and that the WCJ could rule from the
pleadings without the need for an evidentiary hearing. The WCJ granted Employer’s
MSCO and ruled that (1) the SCO was enforceable “as written,” (2) Employer
mistakenly overpaid benefits to Worker, and (3) Worker was required to reimburse
Employer 	for 	the 	excess 	benefits 	paid 	in 	the 	amount 	of 	approximately
$92,530.72.Worker timely appealed.
{4} 	Worker raises four separate arguments on appeal. Worker asserts that the WCJ

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erred by: (1) failing to mutually apply the principle of waiver to all provisions in the
SCO; (2) converting the MSCO into a strictly legal argument and granting summary
judgment in favor of Employer; (3) failing to apply the holding in Benny to effectuate
a modification of the SCO based upon the parties’ actions since 2004; and (4) failing
to determine that the SCO was invalid and unenforceable under Sommerville v.
Southwest Firebird, 2008-NMSC-034, 144 N.M. 396, 188 P.3d 1147. Because we
reverse and remand based upon our determination that the SCO was unenforceable,
it is not necessary that we address Worker’s other issues at this time.
DISCUSSION
I. 	The WCJ Erred by Enforcing the SCO
{5} 	We review “a summary judgment ruling de novo.” Id. ¶ 5; see Paradiso v.
Tipps Equip., 2004-NMCA-009, ¶ 23, 134 N.M. 814, 82 P.3d 985 (“We therefore
review the issue de novo and determine whether the applicable law was correctly
applied to the facts.”). Depending upon the statutory section in dispute, our appellate
courts may still apply principles of liberal construction to the Act and the WCAA as
“one of many tools employed in construing legislation.” Benavides v. E. N.M. Med.
Ctr., 2014-NMSC-037, ¶ 44, 338 P.3d 1265. When a statute is not clear, “we must
attempt to construe [it] according to its obvious spirit or reason.” Id. ¶ 24 (internal
quotation marks and citation omitted); see Michaels v. Anglo Am. Auto Auctions, Inc.,

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1994-NMSC-015, ¶ 13, 117 N.M. 91, 869 P.2d 279 (“There are three points to be
considered in the construction of all remedial statutes; the old law, the mischief, and
the remedy; that is, how the common law stood at the making of the act; what the
mischief was, for which the common law did not provide; and what remedy the
parliament hath provided to cure this mischief. And it is the business of the judges so
to construe the act as to suppress the mischief and advance the remedy.” (internal
quotation marks and citation omitted)).
{6} 	The statutory construction considerations in the present case—the old law, the
mischief, and the remedy—regarding lump-sum payments to injured workers have
been clearly articulated. Lump-sum payments are specifically disfavored in workers’
compensation cases. See § 52-5-12(A) (“It is stated policy for the administration of
the [Act] . . . that it is in the best interest of the injured worker or disabled employee
that 	the 	worker 	or 	employee 	receive 	benefit 	payments 	on 	a 	periodic
basis.”); Sommerville, 2008-NMSC-034, ¶ 6 (“The Act’s express policy is that it is in
an injured worker’s best interest to receive workers’ compensation benefits on a
periodic basis, rather than in a lump[-]sum.”). As a result, the Legislature has
specifically restricted their use. See §§ 52-5-12 to -14; Paradiso, 2004-NMCA-009,
¶ 25 (emphasizing that “[t]he Legislature set unmistakable policy [when it limited]
lump[-]sum payments under the [WCAA]”). These restrictions are aimed at protecting

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workers from future financial risk. See Sommerville, 2008-NMSC-034, ¶ 7 (“Payment
of disability benefits in a lump[-]sum creates a risk that the worker will need to rely
on public benefits during the time that periodic disability payments would otherwise
be available.” (alteration, internal quotation marks, and citation omitted)); Cabazos
v. Calloway Constr., 1994-NMCA-091, ¶ 12, 118 N.M. 198, 879 P.2d 1217 (“The
chief reason not to grant a lump-sum benefit is that it creates a risk that the worker
will need to rely on welfare during the time that periodic disability payments would
otherwise be available.” (internal quotation marks and citations omitted)).
{7} 	Section 52-5-12(A) expressly states that “[e]xcept as provided in this section,
lump-sum payments in exchange for the release of the employer from liability for
future payments of compensation or medical benefits 	shall not 	be allowed.”
(Emphasis added.) As explained in Sommerville:
The [only] two exceptions to this policy are set out in Sections 52-5-
12(B) and (C). Both sections allow a worker, with the approval of [the]
WCJ, to elect to receive a lump[-]sum payment under specified
circumstances. Section 52-5-12(B) permits a worker to elect to receive
a lump[-]sum payment award if he or she has returned to work for at
least six months and is earning at least eighty percent of his or her
pre-injury wage. Section 52-5-12(C) permits a worker who has reached
[MMI] to elect to receive a partial lump[-]sum payment for the sole
purpose of paying debts that have accumulated during the worker’s
period of disability.
2008-NMSC-034, ¶ 6. Section 52-5-13 requires WCJ approval for all lump-sum
settlements and requires the WCJ to “assure that the worker or his dependents

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understand the terms and conditions of the proposed settlement[.]” Section 52-5-14(A)
states,
If the [WCJ] finds the lump-sum payment agreement to be fair,
equitable[,] and consistent with the provisions of the [Act,] . . . he shall
approve the agreement by order[.] . . . The [WCJ] may refuse to approve
a settlement if he does not believe that it provides substantial justice to
the parties.
A. 	Whether the SCO Was in Compliance With Section 52-5-12(B) and (C)
{8} 	We first address the two limited exceptions, Sections 52-5-12(B) and (C), that
allow a worker to elect, with the approval of the WCJ, to receive a lump-sum payment
in lieu of future workers’ compensation benefits. Because Worker only received a
partial lump-sum payment of his disability benefits under the SCO, Section 52-5-
12(B) is not applicable in this case. See Cabazos, 1994-NMCA-091, ¶ 9 (recognizing
that Subsection B only applies when the worker has received a full lump-sum payment
of all compensation benefits). Neither Worker nor Employer contend that the $60,000
partial lump-sum settlement payment in the SCO meets the “for the sole purpose of
paying debts” exception set forth in Section 52-5-12(C). Based upon our review of the
record, we agree that this $60,000 amount is unsupportable. Worker filed an
unverified petition and affidavit alleging that “debts . . . may have accumulated during
the course of [his] disability,” identified an amount of “$21,000,” and referenced
outstanding itemized sources totaling $20,084.94. See Souter v. Ancae Heating & Air

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Conditioning, 2002-NMCA-078, ¶ 12, 132 N.M.608, 52 P.3d 980 (recognizing that
“partial lump-sum payments are restricted to the amount necessary to pay accumulated
debts of workers who may never be able to return to work and are based on need”).
Instead, the parties primarily argue about the approval process for lump-sum
payments, the disputed application of Sommerville, and any requirements for a formal
hearing to approve lump-sum payments under Section 52-5-13 and Section 52-5-14.
{9} 	The second issue we address is whether a proper review and determination
under Section 52-5-13 is required to enforce the parties’ SCO that contains a lump-
sum payment of benefits to Worker under Subsection 52-5-12(C). See Quintana v.
Ilfelds, 1993-NMCA-158, ¶ 6, 116 N.M. 836, 867 P.2d 1218 (determining sua sponte
that the proposed partial lump-sum payment pursuant to Section 52-5-12(C) was
unenforceable and must be set aside). Our Court, in a memorandum opinion that
carries no precedential effect in the present case, has previously addressed whether an
agreement 	that 	includes 	an 	impermissible 	lump-sum 	payment 	of 	workers’
compensation benefits is enforceable. See Lucero v. First Fleet, No. 31,096, mem. op.
(N.M. Ct. App. July 5, 2012) (non-precedential). We now address and resolve this
issue formally.
{10} 	The 	purpose 	for 	severely 	restricting 	lump-sum 	payments 	of 	workers’
compensation benefits under the WCAA is to prevent injured workers from “rely[ing]

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on public benefits during the time that periodic disability payments would otherwise
[have been] available.” Sommerville, 2008-NMSC-034, ¶ 7 (alteration, internal
quotation marks, and citation omitted). To grant the WCJ discretion to approve partial
lump-sum payments that do not qualify under Section 52-5-12(C) would clearly
circumvent the unmistakable policy restricting lump-sum payments under the WCAA
and the Act. See Cabazos, 1994-NMCA-091, ¶ 15 (noting that even qualifying partial
lump-sum payments under Subsection C must be carefully scrutinized by the WCJ
during the approval process to prevent abuse). Agreements have been rejected and
overturned by this Court for non-compliance with Section 52-5-12(C). See Quintana,
1993-NMCA-158, ¶¶ 6, 9 (reinstating the requirement for periodic payments when a
partial lump-sum payment of benefits under Subsection C of Section 52-5-12 was set
aside). As a result, where the parties’ SCO was not in compliance with Section 52-5-
12(C), the WCJ had no authority to approve the SCO containing a partial lump-sum
payment of benefits, and the SCO was invalid, unenforceable, and will “not be
allowed” under Section 52-5-12(A). Because the SCO continued to be invalid and
unenforceable when Employer filed the MSCO, the WCJ’s order granting the MSCO
and ruling that the SCO was enforceable “as written” was also error and is now
reversed.

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B. 	Whether the SCO Was in Compliance With Sections 52-5-13, 52-5-14(A)
and Sommerville
{11} 	We continue our analysis of the WCJ’s approval of the SCO under Sommerville
because this analysis effectively overlaps our determination that the SCO is
unenforceable under Section 52-5-12. This overlap occurs because the plain language
of Section 52-5-14(A) required the WCJ to approve the SCO and partial lump-sum
payment agreement only after it determined that it was “fair, equitable[,] . . .
consistent with provisions of the . . . Act,” and “provides substantial justice to the
parties.” (Emphasis added.) As emphasized above, the partial lump-sum payment
presented to the WCJ was, based upon the undisputed facts in the record, inconsistent
with Section 52-5-12(C). Employer argues that “Sommerville did not interfere with
[the] WCJ’s discretion” to approve a lump-sum payment of benefits, but should be
limited to cases “when a worker is not represented by counsel.” Employer also argues
that even if Sommerville is applicable to Worker’s arguments under Sections 52-5-13
and -14(A), “it does not have retroactive effect to 2004” and its holding should only
have “prospective application” under the factors established by the Marckstadt, case.
See Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 31, 147 N.M. 678, 228
P.3d 462 (setting out the factors to determine whether an appellate court’s decision is
to be applied retroactively or only prospectively). We reject Employer’s arguments.
{12} 	First, the need for strict scrutiny regarding the approval of lump-sum payments

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of benefits to a worker is to ensure that the WCJ fulfills its “integral role in ensuring
that the [WCAA’s] policy regarding lump[-]sum settlements is preserved [and t]he
WCJ is required to consider all material circumstances surrounding the lump[-]sum
settlement agreement[.]” Sommerville, 2008-NMSC-034, ¶ 8. The importance for this
strict compliance “with the [review and approval] requirements of Sections 52-5-13
and -14(A) is . . . to assure adherence to the policies established by the Legislature
favoring periodic payments over lump[-]sum payments[.]” Sommerville, 2008-NMSC-
034, ¶ 8 (internal quotation marks and citation omitted). “Lump[-]sum agreements that
do not follow the express requirements of the Act are not enforceable.” Id. ¶ 9
(emphasis added); see Paradiso, 2004-NMCA-009, ¶ 31 (recognizing that a lump-sum
settlement agreement was not enforceable when it failed to comply with Sections 52-
5-13 and -14(A) of the WCAA). Therefore, “[t]he WCJ must . . . play an active role
in the approval of lump[-]sum settlements.” Sommerville, 2008-NMSC-034, ¶ 13.
{13} 	We reject a narrow reading of Sommerville’s policy analysis imposing strict
adherence to the review and approval requirements of Sections 52-5-13 and -14(A).
Although Sommerville involved the rejection of a lump-sum settlement agreement
where the worker was not represented by counsel, its ruling was directed toward
compliance with the WCAA and specified that where “[t]he WCJ [fails to] follow the
express requirements of the [WCAA,] the lump[-]sum agreement is unenforceable.”

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2008-NMSC-034, ¶ 11. Accordingly, we reject Employer’s argument that our
Supreme Court’s holding in Sommerville was only intended to apply in cases
involving unrepresented workers. It is applicable under Sections 52-5-12, -13 and -
14(A) whenever “[t]he WCJ [fails to] follow the express requirements of the
[WCAA].” Sommerville, 2008-NMSC-034, ¶ 11.
{14} 	Like Sommerville, we hold that the WCJ failed to strictly adhere to the review
and approval requirements of Sections 52-5-13 and 14(A) in this case. The petition
and unverified affidavit only supported a partial lump-sum payment of no more than
$20,084.94. No hearing was even held to approve the SCO. To ignore the strict review
and approval requirements under Sections 52-5-13 and -14(A), as Employer suggests,
would render the language in Section 52-5-12 surplusage, which is “contrary to
ordinary rules of statutory construction.” Benny, 2007-NMCA-124, ¶ 8. Since the
partial lump-sum payment did not conform to Section 52-5-12(C), the WCJ erred in
approving the SCO under Sections 52-5-13 and -14. See Sommerville, 2008-NMSC-
034, ¶ 9 (confirming that “[l]ump[-]sum agreements that do not follow the express
requirements of the [WCAA] are not enforceable”). As a result, the SCO was equally
unenforceable due to the WCJ’s failure to comply with the review and approval
requirements of Sections 52-5-13 and -14(A).
{15} 	Finally, we address Employer’s argument that our Supreme Court’s holding in

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Sommerville should not have retroactive effect over settlement agreements entered
into prior to April 9, 2008, the date the Sommerville opinion was filed. See 2008-
NMSC-034 (including a filing date of April 9, 2008). Nothing in Sommerville
indicates that our Supreme Court understood or even considered that its ruling would
overrule clearly established past precedent, establish a new principle of law, or create
an injustice or hardship. Id. Employer provides no supporting evidence or cited
authority that remotely establishes or confirms that its fears of retroactive injustice and
hardship materialized between 2008 and 2014, the date Employer filed its MSCO. See
Atma v. Munoz, 1944-NMSC-016, ¶ 20, 48 N.M. 114, 146 P.2d 631 (noting that where
there is a lack of evidence to support a finding, the court cannot assume evidence
exists in support of a party’s view of the law); Pickett Ranch, LLC v. Curry, 2006-
NMCA-082, ¶ 45, 140 N.M. 49, 139 P.3d 209 (noting that when no authority is cited
for a proposition, we are “entitled to assume that there is no applicable or analogous
authority”).
{16} 	The general presumption is that the holding established in a civil case will
“apply retroactively.” Marckstadt, 2010-NMSC-001, ¶ 31. Our Supreme Court’s
decision in Sommerville does not satisfy the first factor established in Marckstadt to
prevent its retroactive application to prior lump-sum distributions under Section 52-5-
12. 	See Marckstadt, 2010-NMSC-001, ¶ 31 (stating that the first factor for

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determining that a decision will not be applied retroactively is it “must establish a new
principle of law, either by overruling clear past precedent on which litigants may have
relied, or by deciding an issue of first impression whose resolution was not clearly
foreshadowed” (internal quotation marks and citation omitted)). We conclude that
Employer’s prospective application argument is not persuasive.
{17} 	First, whether the analysis in Sommerville could be considered an issue of first
impression is disputed by Worker. We agree. Although the review and approval
process under Sections 52-5-13 and -14(A) were addressed in Sommerville, the
requirement that the WCJ play an active role in determining whether a worker—not
represented by counsel—understands the terms and conditions of a settlement
agreement should not be considered unique or contrary to recognized precedent. See
Sherrill v. Farmers Ins. Exch., 2016-NMCA-056, ¶¶ 3, 11, 19, 374 P.3d 723
(recognizing the vulnerability of unrepresented parties in the insurance settlement
process and its public policy implications); State v. Reyes, 2005-NMCA-080, ¶ 10,
137 N.M. 727, 114 P.3d 407 (recognizing that, in a criminal prosecution, special care
must be taken to make sure the defendant is advised “as to the ramifications of
proceeding pro se [and] is aware of the pitfalls of self-representation”). We recognize
the WCJ must fulfill its role—assuring that the worker understands the terms and
conditions of the settlement and determining that a worker’s lump-sum payment of

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benefits is fair and just—but this role is not a unique or novel legal issue of first
impression. See §§ 52-5-13 and -14(A).
{18} 	Second, no new rule of law or rejection of past precedent was established in
Sommerville. As noted in 	Marckstadt, “a matter of statutory and regulatory
interpretation drawing on explicit language in the relevant provisions [is a result] the
parties could have foreseen.” 2010-NMSC-001, ¶ 31; see Padilla v. Wall Colmonoy
Corp., 2006-NMCA-137, ¶¶ 12-19, 140 N.M. 630, 145 P.3d 110 (recognizing that the
first factor limiting retroactive application of a court’s ruling was not met because the
Act was not ever intended to immunize employers from liability for intentional torts,
even where Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272,
34 P.3d 1148, articulated a new rule or principle of law). In effect, it “is not . . . a new
rule[,] it does not supplant any prior rule,” and it does not weigh in favor of the factors
limiting a ruling to prospective application. Marckstadt, 2010-NMSC-001, ¶ 31. The
interpretations 	of 	Sections 	52-4-13 	and 	-14(A) 	in 	Sommerville 	were 	equally
foreseeable and are consistent with the Legislature’s unmistakable policy limiting
lump-sum payments under the WCAA. See Paradiso, 2004-NMCA-009, ¶ 25 (“The
Legislature set unmistakable policy [when it limited] lump[-]sum payments under the
. . . Act[.]”). As a result, Employer has failed to satisfy the first factor under
Marckstadt for establishing that Sommerville should not have retroactive effect over

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lump-sum settlement agreements entered into prior to April 9, 2008. Our Supreme
Court’s holding in Sommerville will be applied retroactively and, to the extent it is
applicable to our decision in the present case, it is controlling precedent. See Aguilera
v. Palm Harbor Homes, Inc., 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993
(“encourag[ing] the Court of Appeals to express its rationale for any reservations it
might harbor over Supreme Court precedent[,]” but emphasizing “the Court of
Appeals, nonetheless, remains bound by Supreme Court precedent” (alteration,
internal quotation marks, and citations omitted)).
II. 	Remand to Address Worker’s Claims
{19} 	Now that this Court has held the SCO invalid and unenforceable, our remand
to the WCA will place a burden on the parties and the WCJ to reconcile the actions
of the past. See Scott v. Rizzo, 1981-NMSC-021, ¶¶ 8, 16-22, 96 N.M. 682, 634 P.2d
1234 (recognizing that some decisions by the appellate courts can result in difficulties
that must be addressed on remand), superseded by statute as stated in Safeway, Inc.
v. Rooter 2000 Plumbing & Drain SSS, 2016-NMSC-009, 368 P.3d 389. Initially, we
note that much has happened since the SCO was erroneously approved in 2004. The
WCJ will need to address the subsequent deterioration of Worker’s back injury that
required additional surgeries in 2010 and 2011, reconcile the various benefit payments
actually made by Employer, and incorporate the many applicable appellate court

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workers’ compensation cases since 2004. See Fowler, 2014-NMSC-019; Sommerville,
2008-NMSC-034; Rodriguez v. Scotts Landscaping, 2008-NMCA-046, 143 N.M. 726,
181 P.3d 718; Benny, 2007-NMCA-124. In our view, the ramifications of reversal in
this case do not present circumstances that common sense and a reasonable application
of the Act and the WCAA will not resolve. See Scott, 1981-NMSC-021, ¶¶ 16, 18-19
(noting that common sense and basic theories of law should be sufficient to address
the difficulties imposed upon fact-finders when confusion and uncertainty arise in a
case).
CONCLUSION
{20} 	We reverse the WCJ’s ruling that the SCO is valid and enforceable against
Worker. We do not address the remaining arguments presented by Worker and remand
to the WCA for further proceedings consistent with this opinion.
{21} 	IT IS SO ORDERED.
______________________________
TIMOTHY L. GARCIA, Judge

WE CONCUR:

LINDA M. VANZI, Chief J udge

J. MILES HANISEE, Judge

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