This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 DANIEL HERRERA, 2 Worker-Appellee, 3 v. No. 32,387 4 ZANIOS FOODS AND FOOD 5 INDUSTRIES SELF INSURANCE 6 FUND OF NEW MEXICO, 7 Employer/Insurer-Appellant. 8 APPEAL FROM THE WORKERS COMPENSATION ADMINISTRATION 9 David L. Skinner, Workers’ Compensation Judge 10 Daniel Herrera 11 Albuquerque, NM 12 Pro Se Appellee 13 H. Jesse Jacobus III 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge. 182 Employer/Insurer appeals from a co mpensation order awarding Worker 1 benefits. This Court issued a notice of proposed summary disposition proposing to 2 dismiss the appeal for lack of a final order. Specifically, we noted that the 3 compensation order was entered on July 12,2012, and a motion for reconsideration 4 was filed on August 7, 2012. [CN 2] We further noted that the record before this 5 Court did not indicate that Employer/Insurer’s motion for reconsideration was ruled 6 on. [Id.] We therefore proposed to dismiss for lack of a final order. See Bianco v. 7 Horror One Productions , 2009-NMSC-006, ¶ 12, 145 N.M. 551, 202 P.2d 810 8 (holding that the time for filing the worker’s notice of appeal did not begin to run until 9 an express denial of the post-judgment motion was entered). 10 Employer/Insurer has filed a response to this Court’s notice of proposed 11 summary disposition, stating that it concurs with this Court’s notice provided that the 12 Court is concluding Employer/Insurer timely filed its motion for reconsideration under 13 NMSA 1978, Section 39-1-1 (1917). Given that Employer/Insurer’s motion does not 14 reference a specific rule of procedure, it may be properly considered as a motion 15 falling within the purview of Section 39-1-1. See, e.g. , Albuquerque Redi-Mix, Inc. 16 v. Scottsdale Ins. Co. , 2007-NMSC-051, ¶¶ 7-10, 142 N.M. 527, 168 P.3d 99 17 (recognizing that, when considering how a post-judgment motion should be 18 characterized, nomenclature isnot controlling and instead the determinative factor is 193 the time frame in which the motion was f iled). Because Employer/Insurer filed a 1 timely motion for reconsideration that the workers’ compensation judge has not yet 2 ruled on, we dismiss for lack of a final order. 3 Furthermore, we note that Worker filed a motion requesting that this Court 4 dismiss Employer/Insurer’s appeal. This C ourt denied Worker’s motion in our notice 5 of proposed disposition on the ground that Worker had failed to state a valid basis for 6 dismissal. Worker has filed a motion asking this Court to reconsider its denial of his 7 motion for reconsideration, asserting the same grounds as in his original motion to 8 dismiss. Worker’s motion for reconsideration is denied. Employer/Insurer’s appeal 9 is dismissed for lack of a final order. 10 IT IS SO ORDERED. 11

__________________________________ 12 JONATHAN B. SUTIN, Judge 13

WE CONCUR: 14

_______________________________ 15 JAMES J. WECHSLER, Judge 16

_______________________________ 17 LINDA M. VANZI, Judge 18