This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 JOHN W. KEMPER, 7 Worker-Appellant, 8 v. No. 30,277 9 LITHIA OF SANTA FE and 10 LIBERTY MUTUAL, 11 Employer/Insurer-Appellees. 12
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 13 Helen L. Stirling, Workers’ Compensation Judge 14
Gerald A. Hanrahan 15 Albuquerque, NM 16 for Appellant 17 Allen, Shepherd, Lewis, Syra & Chapman PA 18 Kimberly A. Syra 19 Albuquerque, NM 20 for Appellees 21
MEMORANDUM OPINION 22 SUTIN, Judge. 232 Worker appeals from the workers’ compensation judge’s (WCJ’s) 1 compensation order. We issued a notice of proposed summary disposition, proposing 2 to affirm. Worker has responded to our notice with a memorandum in opposition. We 3 have considered Worker’s response and re main unpersuaded that the WCJ erred. We 4 therefore affirm. 5 On appeal, Worker asks whether the WCJ erred in asse ssing his permanent 6 partial disability (PPD) benefits. [MIO 9- 13] Worker also asks whether the WCJ 7 violated the Workers’ Compensation Ac t by entering the compensation order far 8 outside the mandated thirty days, and if so, what is the consequence of that breach of 9 duty. [MIO 13-21] By not responding to our proposed analysis rejecting Worker’s 10 contention that the WCJ manifested an improper bias against him, Worker has 11 abandoned that issue. See State v. Martinez , 97 N.M. 585, 586, 642 P.2d 188, 189 (Ct. 12 App. 1982) (stating that a party may abandon an issue by failing to argue it in the 13 memorandum in opposition). Accordingly, we do not address that matter further. 14 Permanent Partial Disability 15 Worker argues that the WCJ erred in the application of NMSA 1978, Section 16 52-1-26.4 (2003), by not finding that Worke r’s usual and customary occupation was 17 as a refrigeration unit repairer, which required heavy physical capacity and should 18 have increased his points for loss of physi cal capacity modification. [DS 8; MIO 9- 19 10] He argues that he was entitled to modi fier values of 64% and PPD benefits at 20 99%. [DS 9; MIO 12-13] 213 To the extent that Worker’s challenge to PPD benefits involves his usual and 1 customary work, we must interpret the Legislature’s intent of the Workers’ 2 Compensation Act. Interpretation of a statute is a question of law that we review de 3

novo. See Morgan Keegan Mortgage Co. v. Candelaria , 1998-NMCA-008, ¶ 5, 124 4 N.M. 405, 951 P.2d 1066 (filed 1997). Our goal in construing a statute is to give 5 effect to legislative intent. See Key v. Chrysler Motors Corp. , 121 N.M. 764, 768-69, 6 918 P.2d 350, 354-55 (1996). “[W]hen presen ted with a question of statutory 7 construction, we begin our analysis by examining the language utilized by the 8 Legislature, as the text of the statute is the primary indicator of legislative intent.” 9 Bishop v. Evangelical Good Samaritan Society , 2009-NMSC-036, ¶ 11, 146 N.M. 10 473, 212 P.3d 361. “We also consider the statutory subsection in reference to the 11 statute as a whole and read the several sec tions together so that all parts are given 12 effect.” Id. 13 In the current case, the WCJ rejected Worker’s argument that his usual and 14 customary work was heavy, not light. [See RP 307 (¶ 80)] The WCJ ruled, instead, 15 that Worker’s accident caused his residual physical capacity to change from light to 16 sedentary, reasoning that this work-related accident did not cause his capacity to 17 change from heavy to sedentary, only li ght to sedentary. [RP 307 (¶¶ 80-81)] We 18 proposed to agree based on a plain reading of the statute. 19 Subsection 52-1-26.4(B) states that “[t]heaward of points to a worker shall be 20 based upon the difference between the phys ical capacity necessary to perform the 21 worker’s usual and customary work and the worker’s residual physical capacity.” 224 (Emphasis added.) The table contained in Subsection (B), measuring a worker’s 1 residual physical capacity, describes a worke r’s usual and customary work as “pre2 injury physical capacity.” Also, Subsec tion (C) explains that, for purposes of 3 determining the physical capacity modification, the statute examines the type of work 4 performed, ranging from heavy to sedentary and those ranges are defined as “the 5 ability” to lift various pounds in varying frequency. 6 We disagree with Worker that our proposedanalysis read terms into the statute 7 that were unwritten. We agree with the WCJ that, for purposes of determining the 8 physical capacity modification, Worker’s us ual and customary work would be the type 9 of work he was able to perform prior to the current work-related injury. Although it 10 appeared that Worker mostly had employment that could be identified as heavy, see 11 Levario v. Ysidro Villareal Labor Agency , 120 N.M. 734, 736-38, 906 P.2d 266, 268- 12 70 (Ct. App. 1995), it appeared that Worker did not have the ability to perform at 13 heavy capacity at the time of Worker’s current work-related injury. See Moya v. City 14 of Albuquerque , 2007-NMCA-057, ¶ 22, 141 N.M. 617, 159 P.3d 266 (“In 15 determining [a] [w]orker’s disability, the WCJ must consider the difference between 16 [the] [w]orker’s physical capacity to perform his usual and customary work and [the] 17 [w]orker’s residual physical capacity after the injury.”), rev’d on other grounds by 18 2008-NMSC-004, 143 N.M. 258, 175 P.3d 926. 19 In response to our notice, Worker began with a recitation of the history and 20 purposes of the Workers Compensation Act. [MIO 1-9] He argue s that, contrary to 21 the intent of the Legislature, we should see the Act as remedial and construe PPD 225 benefits broadly. [Id.] Our role is to effectuate the intent of the Legislature. Key , 121 1 N.M. at 768-69, 918 P.2d at 354- 55. Worker’s remedy is to seek change in the 2 legislation, not in the judiciary. 3 In response to the proposed analysis inour notice, Worker simply disagrees 4 with our reading of the statute and does notassert any new legal or factual argument 5 in support of his position. [M IO 10] Without reason to believe otherwise, we hold 6 that our reading is the correctmanner in which to construethe statute. Accordingly, 7 we agree with the WCJ that it would be improper for Worker to be compensated by 8 Employer for the difference between Worke r’s ability to perform at heavy capacity, 9 when he did not have this capacity at the time of his current, separate injury. [RP 308- 10 09] 11 As we understand Worker’s remaining arguments about PPD benefits, the 12 difference between his usual and customary work found by the WCJ to be light, as 13 opposed to heavy, accounts for the differe nce between the PPD benefits he was 14 awarded and those to which he claimed entitlement. Worker does not contend 15 otherwise. 16 Extending his argument that Worker’s usual and customary work was heavy, 17 Worker argues that the WCJ should haveadded his impairment rating from his 18 previous compensation order to his current impairment rating for a total of 99%. [MIO 19 12] This is not a case involving an aggrav ated, preexisting injury, however; these are 20 separate and distinct injuries. As westated in our notice, “the Workers’ 21 Compensation Act does not allow an award of compensation benefits based on later 226 injuries or illnesses that are wholly unrelat ed to either the empl oyment or the original 1 compensable injury.” Leo v. Cornucopia Restaurant , 118 N.M. 354, 359, 881 P.2d 2 714, 719 (Ct. App. 1994). Because the record shows that the injuries for which 3 Worker seeks compensation inthis case were not the re sult of preexisting conditions 4 and are separate and distin ct from his previously compensated injuries [RP 255, 307- 5 09], we affirm the WCJ’s award of PPD benefits, based on th e WCJ’s understanding 6 of Worker’s usual and customary work. See id. at 358-59, 881 P.2d at 718-19 7 (distinguishing between compensation for preexisting conditions and a work-related 8 injury combining for a disability and compensation for injuries wholly unrelated to 9 the injury related to current employment). 10 Untimely Entry of the Compensation Order 11 Lastly, Worker asks whether the WCJ vi olated the Workers’ Compensation Act 12 by entering the compensation order far outsidethe mandated thirty days, and if so, 13 what is the consequence of thatbreach of duty. [DS 9; MIO 13-21] 14 Our notice observed that Worker did not st ate that he raised this matter below 15 or that he sought any relief or promptly moved to compel a compensation order. “To 16 preserve an issue for review on appeal, it must appear that [the] appellant fairly 17 invoked a ruling of the trial court on the same grounds argued in th e appellate court.” 18 Woolwine v. Furr’s, Inc. , 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987). 19 “[O]n appeal, the party must specifically poi nt out where, in the record, the party 20 invoked the court’s ruling on the issue. Abse nt that citation to the record or any 21 obvious preservation, we will not consider the issue.” Crutchfield v. N.M. Dep’t of 227 Taxation & Revenue , 2005-NMCA-022, ¶ 14, 137 N.M . 26, 106 P.3d 1273 (filed 1 2004). Also, we noted that Worker did not explain how he was prejudiced by the late 2 entry of the compensation order. “In the absence of prejudice, there is no reversible 3 error.” State v. Fernandez , 117 N.M. 673, 677, 875 P.2d 1104, 1108 (Ct. App. 1994); 4 see In re Estate of Heeter, 113 N.M. 691, 695, 831 P.2d 990, 994 (Ct. App. 1992) 5 (“On appeal, error will not be correctedif it will not change the result.”). 6 In response to our notice, Worker explains that he received a lump-sum 7 payment and arrears, but complains that the WCJ’s delay in rendering a decision 8 caused him to be temporarily destitute. [MIO 14-15, 20] Worker states that he was 9 prejudiced by overdraft charges, having to pawn valuables, having to borrow money 10 from his brother, and by not being able to pay rent fo r three months. [MIO 20] 11 However, contrary to our instructions in the calendar notice, Worker does not 12 demonstrate that these representations were made to the WCJ. In fact, Worker does 13 not state what relief he believe s is appropriate. Without th is information, Worker does 14 not establish prejudicial error for which we can provide relief on appeal. 15 Worker again describes for us the purpose of the Workers’ Compensation Act 16 and questions why there ar e no consequences for an untimely compensation order. 17 [MIO 15-21] Much information Worker relays in his response are not matters of 18 record and are not, therefore, properly before this Court. See State v. Reynolds , 111 19 N.M. 263, 267, 804 P.2d 1082, 1086 (Ct. App. 1990) (“Matters outside the record 20 present no issue for review.”). Again, webelieve that many of Worker’s complaints 21 should be addressed in the political process, not in this Court. 228 For the reasons discussed in this opinion and in our notice, we affirm the 1 compensation order of the WCJ. 2 IT IS SO ORDERED. 3

__________________________________ 4 JONATHAN B. SUTIN, Judge 5
WE CONCUR: 6

_____________________________ 7 ROBERT E. ROBLES, Judge 8

_____________________________ 9 TIMOTHY L. GARCIA, Judge 10