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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

THOMAS M. YOCOM , 7 Worker-Appellee, 8

v. NO. 30,971 9 B J SERVICES CO., and 10 CRAWFORD & CO. , 11 Employer/Insurer-Appellants. 12 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 13 Gregory D. Griego, Workers’ Compensation Judge 14 Dorato & Weems, LLC 15 Derek L. Weems 16 Albuquerque, NM 17 for Appellee 18 Hale & Dixon PC 19 Timothy S. Hale 20 Albuquerque, NM 21 for Appellants 22 MEMORANDUM OPINION 23 VIGIL, Judge. 242 Employer and Insurer (Appellants) app eal the workers’ compensation judge’s 1 (WCJ) order awarding compensation to Worker for his injuries and a 25% penalty for 2 Appellants’ bad faith conduc t. In this Court’s notice of proposed summary 3 disposition, we proposed to affirm. Appellants have filed a memorandum in 4 opposition, which we have duly considered. As we are not persuaded by Appellants’ 5 arguments, we affirm. 6 In this Court’s notice of proposed summary disposition, we proposed to 7 conclude that (1) Appellants had not pres erved any argument that they were entitled 8 to discovery on the issue of their own bad faith conduct, and theyfailed to explain to 9 this Court why they would need discoveryregarding their own conduct in any case, 10 and (2) applying the whole record standard of review, there was evidence in the record 11 that a reasonable mind could accept as adequate to support the conclusion that 12 Appellants engaged in “intenti onal conduct in the handling of a claim . . . that amounts 13 to . . . willful or reckless disreg ard of the rights of [Worker].” See 11.4.1.7(C) NMAC 14 (1/24/1991) (recompiled 11/30/2001). 15 In Appellants’ memorandum in opposition, they fail to respond to this Court’s 16 proposed summary disposition of the discovery issue. Accordingly, they have not met 17 their burden of demonstrating reversible error on this basis. See State v. Johnson , 107 18 N.M. 356, 358, 758 P.2d 306, 308 (C t. App. 1988) (stating that when a case is decided 193 on the summary calendar, an issue is deemed abandoned where a party fails to respond 1 to the proposed disposition of the issue). 2 With respect to the merits of the WCJ’ s decision, Appellants argue that 11.4.3.6 3 NMAC (6/1/1996 (amended 11/30/2004) and 11.4.3.12 NMAC (5/26/1987) (amended 4 11/30/2004), which require cooperation and information sh aring among the parties to 5 a workers’ compensation clai m, indicate that the communication between Insurer and 6 Worker’s doctor was proper. [MIO 2-3] We disagree. The regulations discuss 7 cooperation and information sharing ge nerally, and do not expressly address 8 communications between an insurer and a physician. NMSA 1978, Section 9 52-10-1(A) (1990), does address such communications, and as we explained in our 10 notice, Section 52-10-1 only permits an insurer to ask a worker’s physician to release 11 certain preexisting records. See Church’s Fried Chi cken No. 1040 v. Hanson , 114 12 N.M. 730, 733-34, 845 P.2d 824, 827-28 (Ct. App. 1992). It does not permit the 13 insurer to engage in other discussions with the physician without the worker’s 14

consent. Id. 15 Appellants assert that Church’s Fried Chickenis distinguishable because here 16 Worker “had not even filed an accident/inci dent report, and had not even told his 17 employer that he suffered a work related in jury.” [DS 4; MIO 5] However, in our 18 notice of proposed summary disposition, we stated that it appeared that there was 19 evidence from which the WCJ could reasonabl y conclude that Worker had informed 204 Employer that he suffered a work-related injury. [RP 468] Worker has not responded 1 to our proposed conclusion. We therefore conclude that the evidence was sufficient, 2 and that Church’s Fried Chickenis not distinguishable on this basis. See Hennessy 3 v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have 4 repeatedly held that, in summary calendar cases, the burden is on the party opposing 5 the proposed disposition to clearly point out errors in fact or law.”). 6 Appellants also argue that Church’s Fried Chickenis distinguishable because 7 there the communications that were prohibite d by the district court’s order were oral, 8 and here, the Insurer wrote a letter asking fo r the doctor’s opinions. [MIO 5] We are 9 not persuaded. First, we note that the original ex parte co mmunication between the 10 insurer and the physician in Church’s Fried Chickenwas a letter, and that the district 11 court’s order prohibited all further ex parte communications and noted that the worker 12 did not object to the insurer interviewing his doctor in person or by phone so long as 13 his attorney was present. See 114 N.M. at 732, 845 P.2d at 826. Therefore, it appears 14 that Church’s Fried Chickenapplies to both written and or al communications. To the 15 degree there is any ambiguity in the opini on, however, the distinction between oral 16 and written communications is a distin ction without a difference. In Church’s Fried 17 Chicken , we stated that Section 52-10-1 only permits an insurer to ask a worker’s 18 physician to release certain preexisting record s, and that it does not permit the insurer 19 to engage in other discussi ons with the physician without the worker’s consent. 114 205 N.M. at 733-34, 845 P.2d at 827- 28. Appellants have not explained why the rationale 1 of Church’s Fried Chickenwould permit a party to ask questions in writing that it 2 would not be permitted to ask in person or over the telephone. 3 Appellants also ask this Court to reconsider Church’s Fried Chickenand to 4 adopt the dissent in that cas e. [MIO 2, 7-9] Appellants argue that the decision is 5 twenty years old, that the dissent is morepersuasive than the majority opinion, and 6 that a worker’s privacy concerns shoul d give way to the expedient handling of 7 workers’ compensation claims. We do not view these as compelling reasons to 8 overrule Church’s Fried Chicken , and we therefore decline to do so. See State ex rel. 9 Martinez v. City of Las Vegas , 2004-NMSC-009, ¶ 24, 135 N.M. 375, 89 P.3d 47 10 (“Based on the importance of stare decisis, we require a compelling reason to overrule 11 one of our prior cases.” (internal quotation marks and citation omitted)). 12 Finally, Appellants argue that the Insu rer’s conduct should not constitute bad 13 faith, since sending the letter was necessary in order to comply with the requirement 14 that Appellants fairly process Worker’s clai m. [MIO 6-7] We disagree. Appellants 15 were required to investigate and process Worker’s clai m in accordance with the law, 16 which includes Section 52-10-1(A) as it ha s been interpreted by this Court. 17 Therefore, for the reasons stated in this opinion and in our notice of proposed 18 summary disposition, we affirm. 19 IT IS SO ORDERED. 206 _________________________ 1 MICHAEL E. VIGIL, Judge 27 WE CONCUR: 1

_________________________________ 2 MICHAEL D. BUSTAMANTE, Judge 3

_________________________________ 4 CYNTHIA A. FRY, Judge 5