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Rodriguez v. McAnally Enterprises2/7/1994
e appellate rules do not commence to apply until after appellant has filed a docketing statement. Thus, since Worker filed his notice of appeal before the filing of any docketing statement, Worker argues that his appeal was timely.
We disagree with Worker's interpretation. Nothing in SCRA 12-601 explicitly authorizes a party to file cross-appeals later than the ten days as specifically outlined in SCRA 1986, 12-201(A) (Repl. 1992). To interpret the rule as Worker argues would be to assume that the Supreme Court adopted a rule inconsistent with a rule directly on point. We will not do so, because such a holding would lead to an inconsistent and absurd result. See ), cert. denied, 109 N.M. 262, 784 P.2d 1005 (1990); see also ) (same canons of construction applied to rules of procedure as those applied to statutes), cert. denied, 108 N.M. 681, 777 P.2d 1325 (1989). As such, we consider Rule 12-201(A), which specifically governs cross-appeals, as controlling.
In this case, it appears that Worker tried to proceed in accordance with SCRA 12-201(A) in that he filed a separate notice of cross-appeal and then filed a docketing statement within thirty days of it, rather than filing a docketing statement within thirty days of the original notice of appeal. However, Worker made the procedural error of filing his notice of appeal more than ten days from the date Employer filed its notice of appeal. Thus, Worker's appeal was untimely as provided by SCRA 12-201(A) and was appropriately dismissed.
Worker also argues that NMSA 1978, Section 39-3-8 (Repl. Pamp. 1991), allowing fifteen days to file a cross-appeal, governs. However, since rules of appellate procedure govern over statutes which are inconsistent, SCRA 12-201(A) controls in this situation. See (a rule adopted by the Supreme Court governs over an inconsistent statute). Consequently, Worker's arguments fail, and we dismiss his cross-appeal.
FIREMAN'S FUND'S CLAIMS
Fireman's Fund is not taking the position that the WCJ erred in applying the law. Therefore, we review whether there was sufficient evidence to support the WCJ's result. When reviewing the sufficiency of evidence, we account for the whole record, including what fairly detracts from the result the fact finder reached. See . We defer to the fact finder's resolution of conflicts in the evidence and indulge all inferences in favor of the findings. Id. After doing so, we affirm if there is such evidence in the whole record that a reasonable mind would accept as adequate support for a finding. Id. In other words, if we can conscientiously say the evidence supporting a finding is substantial, we will not set it aside. See Tallman v. ABF (Arkansas ), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988).
First, Fireman's Fund contends that it should not be responsible for total temporary disability benefits between June 25, 1990, to July 17, 1991, because the disability to Worker's left arm was the result of the second accident, when Legion was the insurer. To resolve this issue, we look to the definition of disability in what the parties concede is the applicable "third law" of Workers' compensation. Under the third law, disability is a measure of an inability to do work for which the particular Worker is fitted by age, experience, and knowledge. See NMSA 1978, ยงยง 52-1-25(A) & -26(B) (Repl. Pamp. 1987). In support thereof, Fireman's Fund contends that Worker testified
that when he went back to work for Employer in August of 1989, he was performing the same duties he performed prior to the April 1989 accident. Furthermore, Fire
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