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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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 PAUL CALBERT, 7 Worker-Appellee, 8

v. NO. 29,666 9 NATIONAL RESTAURANT SUPPLY 10 CO., INC. and THE HARTFORD, 11 Employer/Insurer-Appellants. 12 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 13 Gregory D. Griego, Workers’ Compensation Judge 14 Paul Calbert 15 Edgewood, NM 16 Pro Se Appellee 17 Law Offices of Eva K. Rappaport 18 Ned S. Fuller 19 Eva K. Rappaport 20 Albuquerque, NM 21 for Appellants 22 MEMORANDUM OPINION 23 VIGIL, Judge. 242 This is a Workers’ Compensation Administration reimbursement case under 1 NMSA 1978, Section 52-5-17 (1990), and Gutierrez v. City of Albuquerque , 1998- 2 NMSC-027, 125 N.M. 643, 964 P.2d 807. Employer and Insurer argue that the 3 Workers’ Compensation Judge (WCJ) erred in its computation of the reimbursement 4 owed. In the circumstances of this case, we agree and reverse the compensation order. 5

PROCEDURAL BACKGROUND 6 Worker initially filed a claim for worker s’ compensation benefits with the New 7 Mexico Workers’ Compensation Administration (WCA) based on an injury he 8 sustained in a car accident, which occurred inthe scope and courseof his employment 9 as a driver for Employer. Wo rker also filed a tort action in district court against the 10 third party involved in the work-related car accident. After the tort action was 11 resolved, an application for a determination of the subrogation interests of 12 Employer/Insurer was filed. Employer/In surer asserted that under Section 52-5-17 13 and Gutierrez , it was entitled to a reimbursement for compensation benefits paid to 14 Worker for medical and indemnity benefits plus its costs, minus attorney fees paid by 15 Worker in the tort case. 16 A trial was held on the reimbursement issu e. The parties stipulated that Worker 17 recovered a judgment in the tort case for $27,500, and that Empl oyer/Insurer had paid 183 Worker $13,616.24 in medical benefits and $10,919.71 in indemnity benefits. 1 Further, there was no dispute that the documents presented to th e jury as evidence of 2 Worker’s medical benefits and loss of earni ngs were the identical documents used in 3 the underlying compensation case as eviden ce of these identical amounts. Worker 4 testified that the jury award did not ad equately compensate him for his damages 5 because $27,500 was only sufficient compensation for his pain and suffering. In 6 addition, he was required to pay costs and attorney’s fees amounting to forty percent 7 of the total recovery. 8 Following arguments, the WCJ stated th at the calculation of the right to 9 reimbursement based on Gutierrezwas complex and that hecould not fully reconcile 10 that calculation with the jury verdict in this case. 11 So I’m sort of shooting in the dark here. And I realize maybe 12 what I’m doing is reversible error. I don’t know. But I’m trying to come 13 up with a fair outcome. Considering all the evidence that has been 14 presented, it’s my determination that the reasonable amount of the 15 employer’s right to reimbursement would be $13,750, plus gross receipts 16 tax thereon. From that would be deducted the [forty] percent for attorney 17 fees. And the net recovery to the insurer would be $8,250. 18 In the compensation order, the WCJ first determined that Worker suffered lost wages 19 of $16,379.56. This was calculated from i ndemnity payments of $10,919.71, which 20 represents two-thirds of lost wages based on NMSA 1978, Section 52-1-41(A) (1999). 21 To this, the WCJ added the medical benef its of $13,616.24, resulting in a calculation 224 of special damages in the total amount of $29,995.80. However, the jury returned a 1 general verdict in the amount of $27,500. The WCJ theref ore concluded, “The jury 2 verdict is clearly in error as it failed to compensate Worker for medical bills and lost 3 wages. Special damages total $29,995.80. Special damages alone exceed the jury 4 verdict, before any award of pain and suffering damages.” The WCJ then recalculated 5 Worker’s damages in the tort action, in di sregard of the jury verdict: “Worker suffered 6 special damages of $29,995.80, and damages for pain and sufferi ng of $25,000 or total 7 damages of $54,995.80.” Further, the WCJ concluded, “The to rt recovery in this case 8 approximates 1⁄2 of the damage s suffered by Worker.” Us ing these figures, the WCJ 9 then performed a calculation under Gutierrez , resulting in a determination that 10 Employer is entitled to a reimbursement of $7,314 from the tort recovery of $27,500. 11 Employer/Insurer appeals. 12 We assigned the appeal to the general calendar. Af ter Employer/Insurer filed 13 its brief in chief, no answer brief was filed on behalf of Worker. We directed 14 Worker’s counsel to show cause why the case should not be submitted on the brief in 15 chief, and counsel advised us that he was not retained, nor did he agree, to represent 16 Worker in this appeal. We thereupon gave notice to Worker that he had twenty days 17 to either retain counsel and have new counsel file an entry of appearance in this case 18 or file a pro se answer brief. Worker did neither. We are therefore left with the task 195 of deciding the important issues raised in this case without the benefit of any 1 arguments on behalf of Worker. 26 DISCUSSION 1 To calculate an employer’s reimbursement under Section 52-5-17, Gutierrez 2

states: 3 The employer is entitled to only that part of the tort recovery 4 which represents monies paid that duplicatecompensation it has paid or 5 is liable to pay. The judge must start from the presumption that the 6 employer is entitled to full reimbursement, because, as we said in 7 Montoya [ v. AKAL Security , 114 N.M. 354, 838 P.2d 971 (1992)], “if the 8 worker has dealt with the third party in good faith and at arm’s length, 9 then the net amount paid presump tively would be the amount by which 10 the employer’s liability is reduced .” 114 N.M. at 358, 838 P.2d at 975 11 (citing Transport Indemnity [ Co. v. Garcia , 89 N.M. 342, 552 P.2d 473 12 (Ct. App. 1976)]); see also 44 Am.Jur.2d Insurance§ 1818 (1982) 13 (insured’s tort recovery shall be presumed to include the full amount of 14 the insurer’s subrogated interest, and it is the insured’s burden to rebut 15 the presumption with evidence that th e recovery includes elements of the 16 cause of action for which there is no right of subrogation). However, a 17 worker who has resolved her third-party suit can no longer be said, as a 18 matter of law , to have been made financially whole. See Montoya , 114 19 N.M. at 357-58, 838 P.2d at 974-75. A worker must be given the 20 opportunity to show, and has the burden to prove, that in fact the tort 21 recovery was fairly and reas onably calculated in good faith to 22 compensate for injuries not covere d by the benefits the employer has 23 paid. If a worker does so, the worker’s compensation judge must 24 apportion a worker’s tort recovery into its reasonable elements, and 25 compare those with a breakdown of the compensation benefits paid by 26 employer. An employer has an interestin those elements of the worker’s 27 tort recovery which are also covered by worker’s compensation, but no 28 interest in those elements of a worker’s tort recovery that were calculated 29 in good faith to remedy losses not covered. 30 Gutierrez , 1998-NMSC-027, ¶ 14 (footnote omitted). 317 Worker did not present evidence that th e general verdict he received in the 1 third-party tort case compensates for in juries not covered by the benefits the 2 Employer/Insurer has paid. We are therefore left with the presumption that 3 Employer/Insurer is entitled to full reimburseme nt. Moreover, the ev idence is that the 4 verdict of $27,500 represents medical bene fits of $13,616.24 and indemnity benefits 5 of $10,919.72, with the balance of $2,964.04 allocated for pain and suffering. Finally, 6 we have not been provided with any arguments that the foregoing statement from 7 Gutierrez does not govern this case. Worker ha s not presented any arguments on his 8 own behalf, and we theref ore have no factual or public policy basis on which to 9 distinguish or modify Gutierrezas applied to this case. Under the circumstances, we 10 must reverse the compensation order of th e WCJ. We remand with instructions to 11 reimburse Employer/Insurer for compensation benefits paid Worker for medical and 12 indemnity benefits plus costs, minus attorney fees paid by Worker. We limit our 13 holding to the facts in this case. 14 CONCLUSION 15 The compensation order is reversed. 16 IT IS SO ORDERED. 17

______________________________ 18 MICHAEL E. VIGIL, Judge 198 WE CONCUR: 1

_________________________________ 2 LINDA M. VANZI, Judge 3

_________________________________ 4 TIMOTHY L. GARCIA, Judge 5