The plain language of Section 52-5-5(C) reveals that the time limit prescribed by that Section applies only to an untimely acceptance or rejection of a recommended resolution, not to the modification of a subsequent compensation order. See Norman, 112 N.M. at 622, 817 P.2d at 1264 ("The language of Section 52-5-5(C) specifically addresses a party's obligation to respond to a recommended resolution."); Armijo v. Save `N Gain, 108 N.M. 281, 285, 771 P.2d 989, 993 (Ct.App. 1989) ("[M]otions filed by the parties, including a motion to withdraw a prior acceptance of a proposed informal resolution, must be filed within thirty days after the issuance of the prehearing officer's recommendations."); see also Medina, 2005-NMCA-123, ¶ 25, 138 N.M. 472, 122 P.3d 839 (Wechsler, J., dissenting) ("I agree with the special concurrence in Armijo that Section 52-5-5(C) `applies only to a situation where a party has failed to notify the director of acceptance or rejection of the recommendation.'" (quoting Armijo, 108 N.M. at 286, 771 P.2d at 994 (Apodaca, J., specially concurring))).

"); Hupp v. Employment Sec. Comm'n, 715 P.2d 223, 227-28 (Wyo. 1986) (Urbigkit, J., concurring specially, joined by Thomas, C.J., Brown, J., in separate special concurrence) ("[A]n agency . . . may reconsider a decision if the agency has adopted rules . . . regarding such reconsideration procedures."). But see In re Application for Authority to Conduct Savings Loan Activities, 182 Mont. 361, 597 P.2d 84, 87-88 (1979) (declining to rule on "whether an administrative agency has inherent power to reconsider its decision"); Suryan v. Alaska Indus. Bd., 12 Alaska 571, 573 (1950) ("[A]n administrative body has no power to grant a rehearing or to set aside or modify its decisions except by virtue of express statutory provision or by necessary implication."); Yamada v. Natural Disaster Claims Comm'n, 54 Haw. 621, 513 P.2d 1001, 1004 (1973) (holding that "a statutory basis is necessary for an administrative body to initiate reconsideration of its prior final quasi-judicial decisions"); Armijo v. Save 'N Gain, 108 N.M. 281, 771 P.2d 989, 993 (Ct.App. 1989) (holding that "the power of any administrative agency to reconsider its final decision exists only where the statutory provisions creating the agency indicate a legislative intent to permit the agency to carry into effect such power"). We thus find that the Board was not without jurisdiction to issue the 1994 Order. Until an appeal was perfected, the Board retained jurisdiction and had the inherent authority to reconsider and modify its 1993 Order in light of subsequently discovered facts.

Appeals Bd. , 363 A.2d 735, 736-38 (Me. 1976) ; Rowe v. Dep’t of Emp’t & Econ. Dev. , 704 N.W.2d 191, 195-96 (Minn. Ct. App. 2005) ; Armijo v. Save ’N Gain , 108 N.M. 281, 771 P.2d 989, 993-94 (N.M. Ct. App. 1989) ; Heier , 820 N.W.2d at 399-400 ; State ex rel. Borsuk v. City of Cleveland , 28 Ohio St.2d 224, 277 N.E.2d 419, 420-21 (Ohio 1972) ; Sexton v. Mount Olivet Cemetery Ass’n , 720 S.W.2d 129, 137-45 (Tex. App. 1986). ¶45 These courts have given various reasons for this rule, including the following:

(2) mistake, inadvertence, surprise or excusable neglect[.] {12} In Armijo v. Save `n Gain, 108 N.M. 281, 286, 771 P.2d 989, 994 (Ct.App. 1989), we held that a party who desires to set aside an acceptance of a recommended resolution must apply to the WCA to set aside the acceptance within the same time limits set out in Section 52-5-5(C) for applying for leave to file a belated rejection. In Armijo, we upheld a denial of a worker's application to withdraw an acceptance because it was filed nine weeks after she had filed her acceptance of the recommended resolution.

It is also undisputed that the Chapels requested a pre-decision hearing, and Derringer responded that a pre-decision hearing was unnecessary in the interest of judicial economy because all the information the state engineer needed to decide the case was included in the record. The Chapels rely on Armijo v. Save 'N Gain, 108 N.M. 281, 284, 771 P.2d 989, 992 (Ct.App. 1989), to argue that Derringer's action in opposing the pre-decision hearing constituted a waiver of his right to any hearing. {11} We are not persuaded that the analysis in Armijo applies to this case.

See 3 Arthur Larson, The Law of Workmen's Compensation § 81.31(a), at 15-988 (1994). Employer disputes this authority to modify for a change in condition, citing this Court's decision in Armijo v. Save'N Gain, 108 N.M. 281, 771 P.2d 989 (Ct.App. 1989), and Quintana v. Motel 6, Inc., 102 N.M. 229, 693 P.2d 597 (Ct.App. 1984). We are not persuaded.

See Johnson v. C H Constr. Co., 78 N.M. 423, 432 P.2d 267 (Ct.App. 1967) (reviewing court looks to substance and not form of judgment or order to determine finality); see also Lucero v. Yellow Freight Sys., Inc., N.M., 818 P.2d 863 (Ct.App. 1991) (determining that Section 52-5-9(B) permits modification of compensation order upon showing of mistake or inadvertance). In Armijo v. Save 'N Gain, 108 N.M. 281, 771 P.2d 989 (Ct.App. 1989), we characterized a recommended resolution as a final decision where Section 52-5-5(C) time limits had expired and stated: "[I]n the absence of an express grant of authority, the power of any administrative agency to reconsider its final decision exists only where the statutory provisions creating the agency indicate a legislative intent to permit the agency to carry into effect such power." 108 N.M. at 286, 771 P.2d at 994.

” Armijo v. Save N Gain, 108 N.M. 281, 282 (Ct. App. 1989). Plaintiff provided no argument or law to the contrary, and therefore, has not shown that dismissal sua sponte of the NMHRA claim for failure to allege exhaustion of administrative remedies was in error.

The issue turns on legislative intent as expressed in the enabling legislation. See Grand Lodge v. Taxation & Revenue Dep't, 106 N.M. 179, 181, 740 P.2d 1163, 1165 (Ct.App.1987) ; cf.Armijo v. Save 'N Gain, 108 N.M. 281, 285–86, 771 P.2d 989, 993–94 (Ct.App.1989) (whether administrative agency-here, the Workers' Compensation Division-properly exercised authority is dependent upon the agency's enabling legislation). The enabling legislation is found in the Municipal Code, NMSA 1978, §§ 3–1–1 to 3–64–5 (1965).

"A jurisdictional defect may not be waived and may be raised at any stage of the proceedings, even sua sponte by the appellate court." Armijo v. Save 'N Gain , 1989-NMCA-014, ¶ 4, 108 N.M. 281, 771 P.2d 989 ; see Rule 12-216(B) NMRA. 1. The District Court Erred When It Did Not Exercise Its AppellateJurisdiction over the Board's Determination