This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 fr om 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 LEROY GALLEGOS, 2 Worker-Appellee, 3

v. NO. 32,751 4 OWENS & MINOR, INC., 5 and INDEMNITY INSURANCE 6 COMPANY OF NORTH AMERICA, 7 Employer/Insurer-Appellants. 8

APPEAL FROM THE NEW MEXICO WORKERS’ COMPENSATION 9 ADMINISTRATION 10 David L. Skinner, Workers’ Compensation Judge 11 Mark Jarner 12 Los Lunas, NM 13 for Appellee 14 Paul L. Civerolo, L.L.P. 15 Paul L. Civerolo 16 Albuquerque 17 for Appellants 18 MEMORANDUM OPINION 192 GARCIA, Judge. 1
{1} Appellants Emplo yer Owens & Minor, Inc. and Insurer Indemnity Insurance 2 Company of North Ame rica ( E mployer) appeal from the Workers’ Compensation 3 Judge’s ruling that Appellee Leroy Gallegos (Worker) is entitled to payment of 86% 4 permanent partial disability (PPD) benefits, which includes eight modification points 5 for his physical capacity, one modific ation point for his training, and three 6 modification points for his skills. [RP 172, 174] In our notice of proposed summary 7 disposition, we proposed to affirm. Employer has filed a memorandum in opposition 8 and Worker has filed a memorandum in support of the proposed disposition, both of 9 which this Court has duly consid ered. We do not find Employer’s arguments 10 persuasive, and therefore, we affirm. 11 Motion to Amend 12
{2} In the docketing statement, Employer aske d this Court to determine whether the 13 WCJ erred in calculating Worker’s physical capacity, training, and skills modification 14 points. [DS 14-15] In the context of the procedural posture, th e docketing statement 15 also me ntioned issues that were raised be fore the WCJ, including the date of 16 maximum medical improvement (MMI) and whether Worker was entitled to modifier 17 enhancements for PPD benef its because Worker had subm itted a letter of resignation, 18 dated November 17, 2010, to Employer indi cating that his last day of employment 193 with Employer would be January 7, 2011. [DS 2-3; RP 107-11, 134-43] Employer did 1 not present these issues as issues on appea l; therefore, this Court did not address the 2 MMI issue in the proposed calendar noti ce, and we only briefly addressed the 3 resignation issue because it is relevant to Worker’s award of modifiers. S ee In re 4 Adoption of Doe , 1984-NMSC-024,¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that to 5 present an issue on appeal for review, a party must submit argument and authority). 6 [DS 14-15; see also DS 3] 7
{3} Our calendar notice proposed to affirm Worker’s award of modifiers. [CN 12] 8 Worker filed a memorandum in support, which addresses the MMI and resignation 9 letter issues, in addition to the award of modifier benefits. [MIS 3-13] Subsequently, 10 Employer filed a memorandum in opposition, which states that Employer is appealing: 11 (1) the date of MMI; (2) whether Worker was entitled to modifier enhancements for 12 PPD benefits because Worker ha d submitted a letter of resignation before he was 13 injured; and (3) the specific calculations of modifier enhancements for PPD benefits 14 if Worker was entitled to enhancements. [MIO 2-3] 15
{4} We construe Employer’s arguments that the WCJ erred in de termining the date 16 of MMI and the effect of Worker’s resigna tion letter as new issues because Employer 17 did not list them as issues in his docketi ng statement or provide any authorities that 18 might have indicated they were issues Employer sought to raise. Cf. State v. Fuentes , 194 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (explaining that this Court does 1
not review unclear or undeveloped arguments). Nevertheless, Employer did not move 2 to amend the docketing statem ent to add these issues. See Rule 12-208(F) NMRA 3 (permitting the amendment of the docketi ng statement based on good cause shown); 4 State v. Rael , 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309 (setting out 5 requirements for a successful motion to amend the docketing statement). 6
{5} We need not address the i ssues. Nevertheless, if we were to construe the 7 memorandum in opposition as a motion to am end, we would deny the motion because 8 the issues are not viable. The essentia l requirements to show good cause for our 9 allowance of an amendment to an appellant’s doc keting statement are: (1) that the 10 motion be timely, (2) that the new issue s ought to be raised was either (a) properly 11 preserved below or (b) allowed to be rais ed for the first time on appeal, and (3) that 12 the issues raised are viable. See State v. Moore , 1989-NMCA-073, ¶ 42, 109 N.M. 13 119, 782 P.2d 91, overruled on other grounds by State v. Salgado , 1991-NMCA-044, 14 ¶ 2, 112 N.M. 537, 817 P.2d 730. Employer has failed to demonstrate that it meets the 15 requirements for granting a motion to amend, including the requirement that the issue 16 must be viable. See id. (“By viable, we meant to de scribe an argument that was 17 colorable, or arguable, and to distinguish arguments that are devoid of any merit.”). 185 {6} We review workers’ compensation cases under a whole record standard of 1 review. Moya v. City of Albuquerque , 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 2 926. In conducting our review, we defer to the expertise of the administrative judge 3 and “[w]e will not . . . substitute our judgm ent for that of the agency; although the 4 evidence may support inconsistent findings, we will not disturb the agency’s finding 5 if supported by substantial evidence on the record as a whole.” Herman v. Miners’ 6 Hosp. , 1991-NMSC-021, ¶ 6, 111 N.M. 550, 807 P.2d 734. 7
{7} In this case, Worker had a nerve ab lation procedure—a facet radio-frequency 8 neurotomy at the L3, L4, and L5 levels on the right side of Worker’s lumbar 9 spine—on April 20, 2011. [RP 135, 138, 167] Dr. Zuniga performed the procedure, 10 discharged Worker on the same day, and instructed Worker to return to Dr. Zuniga’s 11 pain clinic in three months or earlier, if necessary. [RP 138, 167] Worker testified that 12 he returned to the pain clinic approximate ly three months later and in three-month 13 intervals thereafter. [RP 139, 168] Dr. Z uniga continued to prescribe Hydrocodone 14 and Gabapentin to Worker to relieve his pain. [RP 168] 15
{8} On November 10, 2011, Dr. Garcia and Dr. Patterson met with Worker for an 16 independent medical evaluation (IME). [R P 110-11, 135, 167] They determined that 17 Worker had reached MMI as of that da te. [RP 111, 135, 137, 167, 168] According to 18 Employer, Dr. Garcia testified at her depositi on that she did not give Worker an earlier 196 MMI date because no other health care pr ovider had documented that Worker was 1 pain free until the IME. [RP 137, 140] 2
{9} Employer asserts that the medical reco rds and undisputed testimony established 3 that Worker experienced immediate and significant improvement after his nerve 4 ablation procedure on April 20, 2011; theref ore, “Worker’s date of MMI should have 5 been approximately the date of the abla tion procedure or shor tly thereafter, well 6 before the IME.” [MIO 4] Worker, on the ot her hand, asserts that the only health care 7 providers that testified regarding the date of MMI were Dr. Ga rcia and Dr. Patterson 8 in their IME report, and these health care providers determined the date of the MMI 9 was November 10, 2011. [MIS 3-4] 10
{10} Pursuant to NMSA 1978, Section 52-1- 24.1 (1990), a health care provider must 11 determine the date of MMI. See Smith v. Cutler Repaving , 1999-NMCA-030, ¶ 10, 12 126 N.M. 725, 974 P.2d 1182 (“Key to dete rmining MMI is ‘expert medical 13 testimony’ regarding whether the injured work er ‘is more likely than not’ to recover 14 further.”). Both Dr. Garcia and Dr. Patte rson agreed that Worker reached MMI on 15 November 10, 2011, and Employer does not asse rt that another health provider offered 16 a different opinion. Even if that were the case, the WCJ is “responsible for resolving 17 any conflicts in medical testim ony as to the date of MMI.” Madrid v. St. Joseph 18 Hosp. , 1996-NMSC-064, ¶ 39, 122 N.M. 524, 928 P.2d 250; see also Easterling v. 197 Woodward Lumber Co. , 1991-NMCA-036, ¶ 19, 112 N.M. 32, 810 P.2d 1252 (“In 1 making a whole record review, it is not a function of this court to reweigh the 2 evidence.”). Therefore, there was substan tial evidence to support the WCJ’s decision 3 that Worker’s date of MMI was Nove mber 10, 2011. Because Employer’s arguments 4 are not viable, we deny Employer’s motion to amend with respect to the date of MMI. 5
{11} Similarly, Employer’s argument regard ing Worker’s resignation letter lacks 6 merit. Even though Employer did not develop this argument in his docketing 7 statement, we addressed this issue in our calendar notice. [CN 6-7] We proposed to 8 disagree with Employer that Worker was not entitled to an award of modifiers because 9 he “had effectively resigned or retired and was voluntarily removing himself from the 10 work-force before the injury occurred.” [DS 3; CN 6-7] 11
{12} As we discussed in our proposed dis position, Worker’s accident occurred while 12 he was still working for Employer, and th ere was testimony that Worker intended to 13 find another job that required less phys ical exertion upon his resignation from 14 Employer. [CN 7] We proposed to concl ude that Worker was entitled to modifier 15 enhancements for PPD benefits, despite th e fact that he had submitted a letter of 16 resignation to Employer prior to the date he was injured. [CN 6- 7, 12] In support of 17 this conclusion, we relied on Cordova v. KSL-Union , 2012-NMCA-083, ¶¶ 2-3, 25, 18 285 P.3d 686, in which this Court held that the worker was entitled to modifier-based 198 PPD benefits even though she had begun pape rwork and preparations for retirement 1 before she was injured on the job, cert. denied , 2012-NMCERT-007, 295 P.3d 599. 2
{13} We are not persuaded by Employer’s argum ent that the facts in this case are 3 distinguishable from those in Cordova . [MIO 5] Likewise, we are not persuaded that 4 Worker’s testimony regarding finding anothe r job was “self-serving speculation.” [CN 5 6] See Moya , 2008-NMSC-004, ¶ 6 (stating that it is for the WCJ as the fact finder to 6 assess credibility and weigh the evidence). Because we are not persuaded that Worker 7 voluntarily removed himself from the work-fo rce, we conclude that he was entitled 8 to modifier enhancements for PPD benefits and that this issue is also not viable. 9 Physical Capacity Points 10
{14} In this Court’s calendar notice, we a ddressed Employer’s arguments that the 11 WCJ erred in determining th at Worker’s usual and cust omary work required “heavy” 12 physical capacity instead of “medium” physical capacity, and the WCJ erred in 13 awarding Worker eight modification points based on the difference between his usual 14 and customary work physical capacity of “heavy” and his residual physical capacity 15 of “sedentary.” [DS 14-15] Applying a whol e record standard of review, we proposed 16 to conclude that there was substantial evidence to support the WCJ’s decision that 17 Worker’s usual and customary work re quired “heavy” physical capacity. [CN 2-6] 189 Similarly, we proposed to conclude that Worker was entitled to eight modification 1 points for his physical capacity. [CN 6-7] 2
{15} “Our courts have repeatedly held th at, in summary cale ndar cases, the burden 3 is on the party opposing the proposed disposition to clearly point out errors in fact or 4 law.” Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683. 5 Instead of pointing out errors of law or fact, Employer’s memorandum in opposition 6 reiterates his previous arguments. See State v. Mondragon , 1988-NMCA-027, ¶ 10, 7 107 N.M. 421, 759 P.2d 1003 (stating that a pa rty responding to a summary calendar 8 notice must come forward and specifically poi nt out errors of law and fact, and the 9 repetition of earlier arguments does not fulfill this requirement), superseded by statute 10 on other grounds as stated in State v. Harris , 2013-NMCA-031, 297 P.3d 374. 11
{16} As a result, we affirm the WCJ’s de termination that Worker’s usual and 12 customary work required “heavy” physical capacity, and we affirm Worker’s award 13 of eight modification points for his physical capacity. 14 Training Point (Specific Vocational Pursuit) 15
{17} In this Court’s calendar notice, we proposed to affirm the WCJ’s ruling that 16 Worker was entitled to one training point because Worker could not “competently 17 perform a specific vocational pursuit.” See NMSA 1978, § 52-1-26.3(D) (2001). [CN 18 7-9] We explained that Worker was not able to competently return to driving rental 1910 cars, which is a “light” job, because hi s residual physical capacity was “sedentary” 1 and he was taking narcotic pain me dication on a daily basis. [CN 8] See Medina v. 2 Berg Constr., Inc. , 1996-NMCA-087, ¶¶ 22-23, 122 N.M. 350, 924 P.2d 1362 3 (interpreting “competently” to include “re quisite physical, mental, natural or legal 4 qualifications” and determining that the work er could not competently return to work 5 as a truck driver, which was considered to be a “medium” job, because his residual 6 physical capacity was classified as “light” ). 7
{18} In its memorandum in opposition, Employer argues that Worker could have 8 returned to work as a rental car or shu ttle driver because Work er’s physicians did not 9 restrict his ability to drive. Worker could le gally drive and he had already been trained 10 for this type of work. [MIO 14-17] Empl oyer minimizes Worker’s daily reliance on 11 pain medications, which made him drowsy, by stating that Worker “calls attention to 12 his habit of napping each afternoon, somethi ng he attributes to his medication.” [MIO 13 14-15; RP 113, 172] 14
{19} The fact that Worker must take narco tic medication to relieve his pain is not 15 insignificant, and the WCJ determined that this was sufficient to demonstrate that 16 Worker could not competently return to dr iving as an occupation. [RP 172] Under our 17 whole record standard of review, we do not disturb the WCJ’s assessment of the 18 evidence and of Worker’s credibility. See Easterling , 1991-NMCA-036, ¶ 19. 1911 Accordingly, we affirm the WCJ’s dete rmination that Worker is entitled to one 1 modification point for his training. 2 Skills Points (Specific Vocational Preparation) 3
{20} Employer continues to argue that there was not substantial evidence to support 4 the WCJ’s determination that the highest specific vocational preparation (SVP) level 5 demonstrated by Worker over the last ten years of his employment was a four, 6 entitling him to three skills points. [MIO 18-21; DS 15] See Section 52-1-26.3(C). 7 Employer asserts that, based on the eviden ce below, Worker’s highest SVP rating was 8 at least a five or six, which made him eligible for only two points. [MIO 19-21; DS 9 11-12] We addressed these issues in de tail in our proposed disposition and proposed 10 to affirm. [CN 9-12] 11
{21} “A party opposing summary disposition is required to come forward and 12 specifically point out errors in fact and/or law.” State v. Ibarra , 1993-NMCA-040, 13 ¶ 11, 116 N.M. 486, 864 P.2d 302. Employer did not point out any errors in fact or 14 law in response to our calendar notice. To the extent that Employer is asking this 15 Court to reweigh the evidence presented below, we will not do so. See DeWitt v. 16 Rent-A-Center, Inc. , 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341 17 (“Substantial evidence on the record as a whole is evidence demonstrating the 1812 reasonableness of [the WCJ’s] decision, and we neither reweigh the evidence nor 1 replace the [factfinder’s] conclusions with our own.” (citation omitted)). 2
{22} Therefore, we affirm Worker’s award of three modification points for his skills. 3 Conclusion 4
{23} For the reasons stated in this opinion and in our notice of proposed summary 5 disposition, we affirm. 6
{24} IT IS SO ORDERED. 7

8 TIMOTHY L. GARCIA, Judge 9

WE CONCUR: 10

11 MICHAEL D. BUSTAMANTE, Judge 12

13 J. MILES HANISEE, Judge 14