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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 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 PAUL CALBERT,

8 Worker-Appellee,

9 v. NO. 29,666

10 NATIONAL RESTAURANT SUPPLY

11 CO., INC. and THE HARTFORD,

12 Employer/Insurer-Appellants.

13 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION

14 Gregory D. Griego, Workers’ Compensation Judge

15 Paul Calbert

16 Edgewood, NM

17 Pro Se Appellee

18 Law Offices of Eva K. Rappaport

19 Ned S. Fuller

20 Eva K. Rappaport

21 Albuquerque, NM

22 for Appellants

23 MEMORANDUM OPINION

24 VIGIL, Judge.
2

1 This is a Workers’ Compensation Administration reimbursement case under

2 NMSA 1978, Section 52-5-17 (1990), and Gutierrez v. City of Albuquerque, 1998-

3 NMSC-027, 125 N.M. 643, 964 P.2d 807. Employer and Insurer argue that the

4 Workers’ Compensation Judge (WCJ) erred in its computation of the reimbursement

5 owed. In the circumstances of this case, we agree and reverse the compensation order.

6 PROCEDURAL BACKGROUND

7 Worker initially filed a claim for workers’ compensation benefits with the New

8 Mexico Workers’ Compensation Administration (WCA) based on an injury he

9 sustained in a car accident, which occurred in the scope and course of his employment

10 as a driver for Employer. Worker also filed a tort action in district court against the

11 third party involved in the work-related car accident. After the tort action was

12 resolved, an application for a determination of the subrogation interests of

13 Employer/Insurer was filed. Employer/Insurer asserted that under Section 52-5-17

14 and Gutierrez, it was entitled to a reimbursement for compensation benefits paid to

15 Worker for medical and indemnity benefits plus its costs, minus attorney fees paid by

16 Worker in the tort case. 

17 A trial was held on the reimbursement issue. The parties stipulated that Worker

18 recovered a judgment in the tort case for $27,500, and that Employer/Insurer had paid
3

1 Worker $13,616.24 in medical benefits and $10,919.71 in indemnity benefits.

2 Further, there was no dispute that the documents presented to the jury as evidence of

3 Worker’s medical benefits and loss of earnings were the identical documents used in

4 the underlying compensation case as evidence of these identical amounts. Worker

5 testified that the jury award did not adequately compensate him for his damages

6 because $27,500 was only sufficient compensation for his pain and suffering. In

7 addition, he was required to pay costs and attorney’s fees amounting to forty percent

8 of the total recovery. 

9 Following arguments, the WCJ stated that the calculation of the right to

10 reimbursement based on Gutierrez was complex and that he could not fully reconcile

11 that calculation with the jury verdict in this case. 

12 So I’m sort of shooting in the dark here. And I realize maybe

13 what I’m doing is reversible error. I don’t know. But I’m trying to come

14 up with a fair outcome. Considering all the evidence that has been

15 presented, it’s my determination that the reasonable amount of the

16 employer’s right to reimbursement would be $13,750, plus gross receipts

17 tax thereon. From that would be deducted the [forty] percent for attorney

18 fees. And the net recovery to the insurer would be $8,250. 

19 In the compensation order, the WCJ first determined that Worker suffered lost wages

20 of $16,379.56. This was calculated from indemnity payments of $10,919.71, which

21 represents two-thirds of lost wages based on NMSA 1978, Section 52-1-41(A) (1999).

22 To this, the WCJ added the medical benefits of $13,616.24, resulting in a calculation
4

1 of special damages in the total amount of $29,995.80. However, the jury returned a

2 general verdict in the amount of $27,500. The WCJ therefore concluded, “The jury

3 verdict is clearly in error as it failed to compensate Worker for medical bills and lost

4 wages. Special damages total $29,995.80. Special damages alone exceed the jury

5 verdict, before any award of pain and suffering damages.” The WCJ then recalculated

6 Worker’s damages in the tort action, in disregard of the jury verdict: “Worker suffered

7 special damages of $29,995.80, and damages for pain and suffering of $25,000 or total

8 damages of $54,995.80.” Further, the WCJ concluded, “The tort recovery in this case

9 approximates 1⁄2 of the damages suffered by Worker.” Using these figures, the WCJ

10 then performed a calculation under Gutierrez, resulting in a determination that

11 Employer is entitled to a reimbursement of $7,314 from the tort recovery of $27,500.

12 Employer/Insurer appeals.

13 We assigned the appeal to the general calendar. After Employer/Insurer filed

14 its brief in chief, no answer brief was filed on behalf of Worker. We directed

15 Worker’s counsel to show cause why the case should not be submitted on the brief in

16 chief, and counsel advised us that he was not retained, nor did he agree, to represent

17 Worker in this appeal. We thereupon gave notice to Worker that he had twenty days

18 to either retain counsel and have new counsel file an entry of appearance in this case

19 or file a pro se answer brief. Worker did neither. We are therefore left with the task
5

1 of deciding the important issues raised in this case without the benefit of any

2 arguments on behalf of Worker. 
6

1 DISCUSSION

2 To calculate an employer’s reimbursement under Section 52-5-17, Gutierrez

3 states:

4 The employer is entitled to only that part of the tort recovery

5 which represents monies paid that duplicate compensation it has paid or

6 is liable to pay. The judge must start from the presumption that the

7 employer is entitled to full reimbursement, because, as we said in

8 Montoya [v. AKAL Security, 114 N.M. 354, 838 P.2d 971 (1992)], “if the

9 worker has dealt with the third party in good faith and at arm’s length,

10 then the net amount paid presumptively would be the amount by which

11 the employer’s liability is reduced.” 114 N.M. at 358, 838 P.2d at 975

12 (citing Transport Indemnity [Co. v. Garcia, 89 N.M. 342, 552 P.2d 473

13 (Ct. App. 1976)]); see also 44 Am.Jur.2d Insurance § 1818 (1982)

14 (insured’s tort recovery shall be presumed to include the full amount of

15 the insurer’s subrogated interest, and it is the insured’s burden to rebut

16 the presumption with evidence that the recovery includes elements of the

17 cause of action for which there is no right of subrogation). However, a

18 worker who has resolved her third-party suit can no longer be said, as a

19 matter of law, to have been made financially whole. See Montoya, 114

20 N.M. at 357-58, 838 P.2d at 974-75. A worker must be given the

21 opportunity to show, and has the burden to prove, that in fact the tort

22 recovery was fairly and reasonably calculated in good faith to

23 compensate for injuries not covered by the benefits the employer has

24 paid. If a worker does so, the worker’s compensation judge must

25 apportion a worker’s tort recovery into its reasonable elements, and

26 compare those with a breakdown of the compensation benefits paid by

27 employer. An employer has an interest in those elements of the worker’s

28 tort recovery which are also covered by worker’s compensation, but no

29 interest in those elements of a worker’s tort recovery that were calculated

30 in good faith to remedy losses not covered. 

31 Gutierrez, 1998-NMSC-027, ¶ 14 (footnote omitted).
7

1 Worker did not present evidence that the general verdict he received in the

2 third-party tort case compensates for injuries not covered by the benefits the

3 Employer/Insurer has paid. We are therefore left with the presumption that

4 Employer/Insurer is entitled to full reimbursement. Moreover, the evidence is that the

5 verdict of $27,500 represents medical benefits of $13,616.24 and indemnity benefits

6 of $10,919.72, with the balance of $2,964.04 allocated for pain and suffering. Finally,

7 we have not been provided with any arguments that the foregoing statement from

8 Gutierrez does not govern this case. Worker has not presented any arguments on his

9 own behalf, and we therefore have no factual or public policy basis on which to

10 distinguish or modify Gutierrez as applied to this case. Under the circumstances, we

11 must reverse the compensation order of the WCJ. We remand with instructions to

12 reimburse Employer/Insurer for compensation benefits paid Worker for medical and

13 indemnity benefits plus costs, minus attorney fees paid by Worker. We limit our

14 holding to the facts in this case. 

15 CONCLUSION

16 The compensation order is reversed.

17 IT IS SO ORDERED.

18 ______________________________

19 MICHAEL E. VIGIL, Judge
8

1 WE CONCUR:

2 _________________________________

3 LINDA M. VANZI, Judge

4 _________________________________

5 TIMOTHY L. GARCIA, Judge