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Curliss v. B & C Auto Parts11/2/1993
Opinion
Worker appeals the denial of his petition to set aside the March 13, 1989 Workers' Compensation lump sum settlement order pursuant to NMSA 1978, Section 52-5-9(B) (Repl.Pamp.1987). Worker relies upon the following grounds to reverse the denial of his petition to set aside the settlement order: (1) he justifiably relied upon the misrepresentations made by Insurer's agent in approving the lump sum settlement; (2) the lump sum settlement was entered into under a mutual mistake of fact; (3) the post-settlement diagnosis of injury to Worker's brain constitutes newly discovered evidence; and (4) Worker lacked the mental capacity to enter into the settlement agreement. See ยง 52-5-9(B).
B & C Auto Parts (Employer) and Travelers Insurance Company (Insurer) attempt to challenge the substantiality of the evidence which would support the following findings and Conclusion:
13. Travelers had notice that [Worker] had a serious permanent facial disfigurement in September, 1988.
18. As a result of the occupational accident . . . [Worker] suffered injuries to his left eye, facial bones and brain which are permanent.
19. [Worker] suffered a brain injury to a reasonable medical probability as a result of the accident of September 12, 1988.
32. [Insurer's agent] negligently misrepresented the provisions of the New Mexico Workers' Compensation Act to [Worker].
5. . . . [Insurer's agent] misrepresented [Worker's] entitlement to benefits under the New Mexico Workers' Compensation Act.
Employer and Insurer make their arguments by raising the sufficiency of the evidence in their answer brief rather than upon cross-appeal pursuant to SCRA 1986, 12-201(C) (Repl.1992). Even assuming arguendo that Employer and Insurer properly challenge the above findings of fact and Conclusion of law under SCRA 12-201(C), they have failed to comply with the requirements of SCRA 1986, 12-213(A)(3) (Repl.1992). Employer and Insurer cited only to evidence which supports their position and failed to cite to any contrary evidence which would support affirming the decision below. See . Thus, they have waived their sufficiency challenge on appeal. Id.
We reverse the Workers' Compensation Judge's (judge) denial of Worker's petition to set aside the lump sum settlement on the basis of issue two. Therefore, we need not reach the remaining issues. In considering whether Worker should receive compensation in addition to that received for the loss of Worker's eye, the Judge, on remand, should, under NMSA 1978, Section 52-1-54 (Repl.Pamp.1987), also consider an award for attorney fees.
Facts
A brief Discussion of the facts follows. Additional facts will be included throughout the opinion as relevant to the Discussion. On September 12, 1988, Worker suffered an occupational accident when he was hit in the face with a fan blade which flew off a nearby automobile engine. At the time of the injury , Worker was an employee of Employer working as an auto dismantler. As a result of the accident, Worker sustained serious injuries including the enucleation of the left
eye, permanent facial disfigurement, and permanent brain damage. Although Worker was advised by an attorney shortly after the accident not to accept a lump sum settlement offer, Worker was not represented by an attorney when he entered into the settlement agreement. Nor were the full benefits to which Worker was entitled expl
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