PENNINGTON V. CHINO MINES, 1990-NMCA-023,
109 N.M. 676, 789 P.2d 624 (Ct. App. 1990)
ROBERT PENNINGTON, Claimant-Appellee,
vs.
CHINO MINES, KENNECOTT and MITSUBISHI PARTNERSHIP, KEENAN
&
ASSOCIATES, Respondents-Appellants
COURT OF APPEALS OF NEW MEXICO
1990-NMCA-023, 109 N.M. 676, 789 P.2d 624
Administrative Appeal from the New
Mexico Department of Labor, Workers' Compensation Division, Gregory D. Griego,
Hearing Officer.
BEVERLY J. SINGLEMAN, HUBERT & HERNANDEZ,
P.A., Las Cruces, New Mexico, FREDERICK H. SHERMAN, SHERMAN & SHERMAN,
P.C., Deming, New Mexico, Attorneys for Claimant-Appellee.
CHARLES E. STUCKEY, RODEY, DICKASON,
SLOAN, AKIN & ROBB, P.A., Albuquerque, New Mexico, Attorneys for
Respondents-Appellants.
{1} Appellant Chino Mines
(employer) appeals the hearing officer's award of attorney's fees to appellee
Pennington (claimant) under the interim provisions of the Workers' Compensation
Act. NMSA 1978, §
52-1-54(C)(2) (Cum. Supp. 1986). Employer challenges the
hearing officer's judgment on the grounds that the evidence does not support
the findings that employer acted in reckless disregard of the rights of
claimant and that claimant suffered an economic loss. Claimant argues, in part,
that employer's failure to submit findings and conclusions prior to entry of
the judgment and order precludes evidentiary review by this court. We agree
with claimant and affirm the hearing officer's decision. In addition, claimant
requests we remand for determination of the issue of prejudgment interest. We
find the hearing officer decided the issue and that remand is unnecessary.
{2} This matter came before
the hearing officer on March 3, 1989. The hearing officer indicated the
proceedings would be bifurcated, and the issues of bad faith and economic loss
were argued on that date. Arguments as to the total dollar amount of attorney's
fees and a motion to supplement the record, together with closing arguments,
were left for a later date. Claimant filed his petition for attorney's fees on
March 17, 1989, filed a motion to supplement
{*678}
the record on March 27, 1989, and filed requested findings of fact and
conclusions of law on April 14, 1989.
{3} Claimant's petition for
attorney's fees and motion to supplement were argued at a hearing which
occurred on April 18, 1989. At that time, the hearing officer indicated the
parties could anticipate receiving a decision within approximately a week. The
hearing officer entered findings and conclusions on April 25, 1989, and
rendered a judgment and order on May 10, 1989. Employer then filed requested
findings and conclusions on May 12, 1989.
{4} We first note that under
the Interim Act a hearing officer's decision is reviewable by this court
"in the manner provided for other cases." NMSA 1978, §
52-5-8(B)
(Cum. Supp. 1986). In cases tried to the district court, a party must tender
requested findings of fact and conclusions of law prior to the entry of
judgment.
University of Albuquerque v. Barrett,
86 N.M. 794,
528 P.2d
207 (1974);
Gilmore v. Baldwin,
59 N.M. 51,
278 P.2d 790 (1955). We
apply a similar rule to administrative proceedings tried by hearing officers of
the workers' compensation division. Under Section 52-5-7(B), following an
evidentiary hearing, a workers' compensation hearing officer is required to
file a decision with the director within thirty days, unless the time for
filing the decision is extended by the director. The decision also is required
to contain findings of fact and conclusions of law. The failure of a party to
file a timely request for findings of fact and conclusions of law, precludes
evidentiary review by this court.
See Macnair v. Stueber,
84 N.M. 93,
500 P.2d 178 (1972):
see also SCRA 1986, 1-052(B)(1)(f).
{5} Employer submits, and we
agree, that Rule 1-052(B)(1)(h) requires that counsel be allowed a reasonable
opportunity to submit requested findings and conclusions. However, we disagree
with employer's contention that since the hearing officer did not specify a
date for the submission of requested findings and conclusions, employer's
failure to timely make such requests should not preclude review of the evidence
in this case. Employer was aware that claimant's requested findings and
conclusions were filed on April 14, 1989, and that a decision from the hearing
officer was forthcoming within approximately a week of the April 18, 1989
hearing. Moreover, as noted above, Section 52-2-7(B) requires the hearing
officer to file a written decision, including findings of fact and conclusions
of law, within thirty days. Employer had ample opportunity to submit requests.
Nothing in the record before us indicates employer was deprived of the right to
submit requests to the hearing officer and have them considered prior to entry
of judgment.
See Gillit v. Theatre Enter., Inc.,
71 N.M. 31,
375 P.2d
580 (1962).
{6} Employer also argues that
requested findings were submitted in sufficient time to allow the hearing
officer to amend his findings or make additional findings pursuant to Rule
1-052(B)(2). We find this argument without merit. Employer made no motion
pursuant to Rule 1-052(B)(2) or any applicable statutory provisions.
See
Kipp v. McBee,
78 N.M. 411,
432 P.2d 255 (1967). Further, nothing in the
record indicates employer's requests were in any way brought to the attention
of the hearing officer or that the hearing officer took any action concerning
the issues now on appeal subsequent to the entry of judgment on May 10, 1989.
See
Gillit v. Theatre Enter., Inc. Accordingly, we decline to review the
evidence in this case due to employer's failure to timely submit requested
findings and conclusions for the hearing officer's consideration prior to entry
of judgment.
{7} In this answer brief,
claimant argues the hearing officer erred by failing to decide the issue of
prejudgment interest and requests we remand for determination of that issue.
Claimant submitted proposed findings and conclusions on the issue of
prejudgment interest and argues the hearing officer failed to rule on the issue
in his decision since there are no specific references to prejudgment interest
in the hearing officer's adopted findings and conclusions.
{*679} {8} The hearing officer's final adopted conclusion of
law states that any findings and conclusions "not expressly adopted are
hereby expressly rejected." Further, failure to make a specific finding of
fact is regarded as a finding against the party with the burden of establishing
that fact. Gibbons & Reed Co. v. Bureau of Revenue, 80 N.M. 462, 457
P.2d 710 (1969); Brundage v. K.L. House Constr. Co., 74 N.M. 613, 396
P.2d 731 (1964). The hearing officer's express rejection of findings not
adopted and his failure to include findings regarding prejudgment interest
indicate rejection of the factual basis for claimant's argument. We do not
address the correctness of the hearing officer's decision because the only
question claimant properly brings before us is whether the issue was decided.
Thus, the issue of prejudgment interest was decided by the hearing officer, and
claimant's request for remand is denied.
{9} For the above reasons,
the judgment of the hearing officer is affirmed. Claimant is awarded $1,000 in
attorney's fees, to be paid by employer, for defending this appeal.
A. JOSEPH ALARID, Judge, THOMAS A. DONNELLY, Judge, RUDY S.
APODACA, Judge concur