*1
Rodriguez
10. As we
stated
when insurance. explained Stone, As we in Allstate Ins. v.Co. (1993), concern- ing “repugnancy” of irreconcilable exclu-
sionary language, exclusionary “when ‘an simply grant’
clause
coverage,
nullifies the
apply
this Court will ‘refuse to
the clause
deprives
the insured of the insurance
coverage which the
reasonably
insured
un-
”
policy.’
derstood was afforded
Id. at
(quoting
ambiguous language purporting preclude stacking is apparent irreconcilable with the grant coverage exclusionary language given no stacking effect. Id. Whether proper question is thus a of contract inter-
pretation, interests, not one of fundamental governed by Virginia therefore law. For
these reasons we reverse.
IT IS SO ORDERED. MINZNER, JJ.,
FRANCHINI and concur. *3 Lane, Lane, P.C.,
Wendell B. Overstreet & NM, Alamogordo, Appellee/Cross-Appel- lant. Jr., Christopher Babington,
William R. W. Nickels, Curran, Sager, Sturges Tepper, & P.C., Cruces, NM, Appellants/Cross- Las Appellees.
OPINION
DONNELLY, Judge.
1. This case in- appeal cross-appeal. Dyn- volves an and a carrier, corp National and its insurance Un- Company (Appellants), ion Fire Insurance argue that: the workers’ (WCJ) allowing judge an out-of-state erred decedent, including Dr. Donald treated the provider, care who had never treated health (the Miller, decedent), Jerry Draney to testi- F. and Dr. board- Worker W. the deceased hearing fy cardiologist. hired Dr. the workers’ certified concerning Ramo, cardiologist, Barry substantive issue causation a board-certified leading expert, decedent’s expert. between events as their medical performed; Mittleman, death and work Murray is a of Bos- Dr. resident finding ton, that the decedent suffered WCJ’s Massachusetts. myocardial infarction as natural
fatal
and.
sup-
employment
is not
direct result
his
THE
AP-
OF
NOTICE OF
TIMELINESS
n
ported
substantial evidence.
PEAL
cross-appeal
of decedent’s surviv-
initially address
threshold issue
6. We
*4
(Claimant) challenges the constitu-
ing widow
ap-
Appellants’
timeliness
directed to the
of
1978,
tionality of
NMSA
peal.
contends that
this Court
Claimant
(effective
1991),
1,
(Repl.Pamp.1991)
Jan.
jurisdiction
does not have
to consider
$12,500
general cap of
establishes a
which
appeal
Appel-
issues
in this
because
raised
of
com-
an award
fees workers’
of
properly
lants
not
file their notice
did
eases.
affirm the decision of
pensation
We
appeal. Appellants originally filed their no-
as to
of the issues raised
the WCJ
each
Compensa-
appeal
tice of
with the Workers’
cross-appeal.
appeal
(WCA). Although
tion Administration
appeal
that a
Claimant concedes
notice of
FACTS
timely
of the Court
was
filed with
Clerk
Dyn-
employed by
3. The decedent was
Appeals,
of
of
Claimant claims the notice
Air Force
as an
eorp at
Holloman
Base
appeal
the same
was deficient because was
repair
aircraft mechanic and structural
tech-
originally
notice
with the WCA
that was
filed
1, 1992, the
nician. On December
decedent
caption
and it
and case
contained WCA
assigned to
T-
launch and recover three
was
number.
recovery
jet aircraft. The launch
present
distinguishable
case
7. The
by Dyncorp on
procedure utilized
the date
ap
where a notice of
from those situations
normally performed by
question was
one
wrong
not
peal
place
filed in the
or was
was
two individuals.
Bloom,
timely
Lowe v.
110 N.M.
filed. See
During
launch the
the first
decedent
(1990)
555,
(notice
appeal
of
798 P.2d
assisted
a co-worker. The launch
was
tribunal);
timely
in the
must
filed
correct
be
recovery proceeded
opera-
at the normal
Furr’s, Inc.,
220,
Singer
804 P.2d
N.M.
recovery
pace. During
phase of
tional
(workers’ compensation
411 (Ct.App.1990)
launch,
appeared
the decedent
out
the second
timely
ap
file notice of
claimant’s failure
recovery, the
After the
decedent
of breath.
Appeals
of
peal
deprived
of
Court
Court
Approximately
to the
rest room.
went
men’s
.Appeals
jurisdiction
appeal even
of
over
later,
thirty
employees
minutes
noise
heard a
though
appeal
filed
of
with
claimant
notice
The
a bathroom stall.
decedent was
inside
thir
Division within
floor of
found half-dressed on the
one of the
dismissal).
ty days of
Cardiopulmonary
bathroom stalls.
resuscita-
to the decedent and he
tion was administered
Appellants
notice
did file a
8. Since
Air
Base
was transferred to Holloman
Force
appeal
of
of
with the Clerk of the Court
pronounced'
Hospital where he was
dead. Appeals
specified
deadline and
within
compen-
filed a claim for workers’
Claimant
substantially complied
provisions
with the
Appellants.
against
sation benefits
1996, 12-601(B),
conclude
NMRA
we
jurisdiction
this
conflicting this Court has
to resolve
5. The medical evidence was
Serrano,
id.; Trujillo
appeal.
cause
An
See
as to the
of the decedent’s death.
276,
369,
273,
(ap
N.M.
871 P.2d
autopsy
performed.
was
Air Force
liberally
pellate
so
listed
rules should
construed
physician who attended
decedent
merits
permit
appeal
resolution
possible myocardial
as
the cause
death as
efficient
previously
result is consistent with
physicians
Two
had
where such
ischemia.
justice);
324,
(order
administration of
Mitchell v. Dona
(Ct.App.1995)
of WCA
Ass’n,
Ana Sav. & Loan
111 N.M.
awarding attorney
director
fees held
ap
(attorney’s
804 P.2d
failure
pealable).
agree
Ap
Claimant that
prosecute appeal
in own name did not
pellants
failed to raise
concerning
issue
deprive
appellate
jurisdiction);
court
admissibility
of Dr. Mittleman’s testimo
County
Board
Ogden,
Comm’rs v.
below;
ny
hence the
preserved.
issue was not
N.M.
(Ct.App.)
870 P.2d
1996, 12-216(A);
NMRA
Moly
Cisneros v.
(notice
appeal
held
despite
sufficient
tech
Inc.,
corp,
107 N.M.
nical deficiencies where violations did not
(failure
(Ct.App.)
preserve non-juris
rights
affect
parties),
substantive
de
cert.
dictional error below
pur
waives issue for
nied,
(1994);
was successful lenge state under the federal or constitutions compensation pro in this workers’ benefits constitutionality tradi to the of a statute has ceeding, found that reasonable the WCJ tionally applied one three standards of of of her in ob value the services of scrutiny, scrutiny review: strict intermediate taining at the trial level was the award Marrujo v. New or the rational-basis test. $12,500; statutory limitation excess Highway Transp. Dep’t, 118 Mexico State hence, the statuto under such circumstances 753, 757, 747, (1994); 751 see N.M. 887 P.2d prohibits any ry cap further Chavez, 732, 738-39, v. also Alvarez pay for fees and bars Claimant 461, (Ct.App.1994) (recogniz 886 P.2d 467-68 at any for ment additional “heightened ing rational basis” as standard torney sustaining defending fees review). applicable re standard of v. appeal. award on See Corn New Mexico specific governed by in a view case is 199, Union, N.M. Educators Fed. Credit 119 in importance nature of the individual (where (Ct.App.1994) 889 237 P.2d relationship terests asserted between precluded paying from counsel for claimant is statutorily-created classification and necessary services, legal claimant additional governmental involved. importance of the interest claims), standing has to assert constitutional ujo, P.2d Marr N.M. at denied, 889 P.2d 751; Trujillo City Albuquer v. at see also (1995); Fleming see also Pedrazza Sid 621, 627, que, 110 798 P.2d N.M. Inc., Contractor, N.M. (1990). reviewing employed for The tests (1980) (purpose Equal Protection equal protection challenges generally the are protect individuals from unrea Clause is and federal same under both New Mexico treatment). disparate sonable Carnegie Library Res law. Richardson this held that the stat Com Court taurant, Inc., 688, 693, P.2d utory limit on the award of (1988). 1153, 1158 legal of a claimant’s services value scrutiny 25. Under the strict stan legal limitation on the the absence (the scrutiny), highest level dard differen employer of an services rendered behalf only upheld tial will be treatment when discouraged representation workers question compelling statute advances guaran counsel and violated constitutional necessary legislation state and the interest protection. at tees of Id. to the See achievement of interest. Although legislature at 242-43. Richardson, 107 N.M. at provisions of amended the 1158; see also Kramer v. Union Free Sch. infirmity ad remedy the constitutional No. 395 U.S. Dist. S.Ct. Com, challenge as specific dressed L.Ed.2d present serted in the case was not raised prior this decision and constitutes Court’s *8 review, A level 26. second impression. v. Mt. matter of first See Garcia heightened that of or standard intermediate Millwork, Inc., 20-21, 17, Taylor 111 N.M. review, applies process a due chal when 87, (declining (Ct.App.1989) 801 P.2d 90-91 upon in lenge impinges important individual constitutionality of to address limitation upon imposes terests or a class of burden attorney failure to issue fees due to brief sufficiently harm persons “sensitive” asserted), 282, quashed, 110 795 cert. N.M. Richardson, at which asserted. 107 N.M. (1990). P.2d 87 693, 763 P.2d at The intermediate scrutiny heightened standard of review or LEVEL APPLICABLE OF SCRUTINY legislation implicating apply tests some that, although necessarily funda analyzing interest not mental, significance as equal protection challenge to constitu is nevertheless of such scrutiny study tionality on the to be afforded more than the of the limitation fees, applied we basis minimal amount of her counsel’s under rational or Alvarez, 738, ju- scrutiny N.M. 886 identify appropriate standard of test. 118 at first
409
See Alvarez,
by
738,
recently
N.M. at
P.2d at 467. As
observed
basis test.
118
886
Supreme
(noting
“heightened
P.2d at 467
United
Court
in United
rational-
States
— U.S. -, -,
formally
116 basis” standard has
Virginia,
States v.
never
been
2264,
adopted by
2275,
Supreme
un
either the
States
S.Ct.
28. determine 239. As observed Because we regulating attorney in ate standard of review in the instant case is islation fees workers’ test, cases, legislature we need not address “the has a rational-basis reducing in question “heightened legitimate of ra- cost of whether interest recog- proceeding, deterring in tional-basis” continue to an administrative test should be claims, lowering or and in the cost of process nized as a fourth level of due frivolous review, disadvantaged financially for liti protection litigation or such whether Id., 208, reality at gants.” a 119 N.M. at standard is in facet of the rational- 410 monetary recovery. Lar See 4 Arthur designed to ful total enacting legislation In son, Compensation, objective, must Law the means selected Workmen’s
fill this of (Jan. 1994). 18B, legitimate Ev relationship App. B-18B-1 a rational Table bear Nevada, state, places equally persons to all with some re goals apply ery except (citing Murphy attorney v. Com class. Id. amount of fees in such striction Accidents, 415 Dep’t Indus. in missioner be recovered workers’ can of of (1993)). 218, 1149, specifi 1156 612 N.E.2d Id. A of also Mass. cases. number states of attor cally authorize an additional award constitution reviewing a When representation of ney fees for the successful statute, validity we challenge al to the of See, injured appeal. e.g., Alas worker on in favor of the indulge every presumption in (Oct. 1990); § Ark.Code ka Stat. 23.30.145 statute, not be validity of and the Act will 11-9-715(a)(3) (Michie Repl.1996); § Ann. clearly unless court declared invalid (Cum.Supp.1995); § 8-43-403 Colo.Rev.Stat. overstepped its legislature satisfied that (1995); § 656.388 S.D.Codified Or.Rev.Stat. leg authority enacting constitutional (1993 rev.); § Ann. Vt.Stat. Laws 62-7-36 Richardson, 107 N.M. at islation. (1987 Cum.Supp.1995); tit. 21 & Ann. 678 P.2d at 763 1158-60. (1994 ed.). Al § 51.52.130 Wash.Rev.Code statutory challenges 32. Constitutional authorizing though provision an additional on awards or administrative restrictions attorney necessary of reasonable and award attorney equal protection fees based appeal adopted has fees for services on been when grounds have met with little success states, legislatures of a number of jurisdic by the courts in other considered 52-1- provision of such omission Section Comm’n, v. tions. See Rhodes Industrial 54(1) Compen of the New Mexico Workers’ (1993); 139, 467, P.2d 470 125 Idaho 868 Act statute on sation does not invalidate the 219, Hilt, 541, N.E. Buckler v. 209 Ind. 200 v. Doe equal protection grounds. See Heller Servs., Inc., (1936); 567 Ayotte 221 v. United Doe, 312, 320-21, 113 rel. 509 U.S. S.Ct. ex 430, (Me.1989); Employ Burris v. A.2d 434 (1993) (under 2642-43, 125 2637, L.Ed.2d 257 Div./Dep’t & In ment Relations Labor review, will rational-basis standard of statute (1992); dus., 376, 639, 252 Mont. practice stricken because results be Bd., State, Crosby v. Workers inequality); v. M.M. in some Sanchez cf. (1981), A.D.2d 445 N.Y.S.2d Co., Constr. Sundt 680, 442 aff'd, 57 N.Y.2d N.Y.S.2d (Ct.App.1985) (merely P.2d because (1982); Texas Com N.E.2d 1191 provide every for contin legislation fails to Garcia, pensation v. 893 S.W.2d Comm’n or act unreasonable gency does not render IBM, (Tex.1995); 659 A.2d Miller v. arbitrary). 1126, 1128 (Vt.1995); Dist. No. Seattle Sch. Indus., Department Labor & examining provisions (en Wash.2d legislative establishing a banc); Virginia see also Hudock State attorney limit on the fees that amount Bar, 233 Va. 355 S.E.2d cases, awarded in workers’ has cases Each the courts above although legislation we conclude that equal protec process the due evaluated preclude may under circumstances certain involving limitations challenges tion attorney any additional award of fees compen awards fees workers’ legal when maximum appellate services under the rational-basis stan sation cases legal has services limit been attained dard of review. level, nevertheless, at the trial rendered regula- has to establish that the stat Claimant failed 33. Our review imposing cap at- on awards of tory provisions governing amount of ute existing here is torney compensa- under the circumstances fees fees authorized support no that a devoid of rational or serves cases in states indicates so tion other governmental interest as amount to majority jurisdictions limitations valid impose Richardson, restricting caprice. on a mere claimant’s *10 the chosen P.2d at Unless means percentage of the worker’s the fee award to
4H by legislature implement legisla- surance, premiums higher the to can also affect arbitrary by reducing tion is shown to be and unreason- money the available workers — able, imposed by under the limitation the for employee salaries and other benefits. In separation powers, response state constitutional premiums concerns about the may inquire insurance, courts the compensation into wisdom of workers’ leaders statutory policy or their agreed substitute views re- labor and business have various design garding compensation of workers’ modifications of New Mexico law. On the Gallegos, 97 legislation. assumption premiums N.M. at drop would if 286-87; Valdez, Eturriaga lowered, legislature P.2d see also costs were has tried (1989) to reduce maintaining acceptable costs while (courts may not their substitute view for benefit levels. policy by legisla- substantive choices made (39) Some cost reductions are achieved
ture). above, For the reasons discussed we by placing upon limits the benefits workers hold that Section survives Claim- can high receive. how No matter the work- challenge, ant’s statute does not vio- salary, compensation er’s benefits cannot ex- process guar- protection late due or average weekly wage ceed 85% the in the antees the United or States the New (Cum. § state. See 52-1-41 NMSA Mexico Constitutions. Supp.1995). disability If results from a primary impairment, mental see NMSA CONCLUSION 52~1-24(B) (definition § (Repl.Pamp.1991) “primary impairment”), affirm the mental WCJ’s worker can receive benefits for no order. 52-Hl(B). more than 100 weeks. Section IT SO IS ORDERED. The total duration benefits for other dis- weeks, ability cannot exceed 700 NMSA ALARID, J., concurs. 1978, § (Repl.Pamp.1991), 52-1-47 except for id.; concurs). 52-l-41(A), § HARTZ, disability, total (specially which in- J. only permanent cludes “the and total loss or HARTZ, Judge (specially concurring.) loss of use of or both hands both arms or join I legs eyes concur the result and both or feet both or both majority 52-l-25(A) portion opinion affirming § two of them.” NMSA decision below as each (Repl.Pamp.1991). of the issues raised Workers receive no addi- Appellants’ appeal. separately I pain suffering. write tional benefits for explain my rejecting short, reasons for the constitu- the worker receive far less than challenge to tional the fee restriction. would in tort be recoverable action.
(38) First, because attempts Claimant contends The Act to achieve addi- (not rights by that it is the savings reducing workers attor- tional cost the transac- neys) by assessing that are violated the limitation on tional costs what benefits are fees, attorney’s devoting provisions, it worth a mo- due a is worker. Some such as the put requirement this limitation ment context of of informal conferences to re- by placed disputes, 1978, § other limitations workers solve see NMSA 52-5-5 (Cum.Supp.1995), Act. The Act cre- should have no effect on injured system ates an insurance recovery by for workers the amount of obtained however, scope Others, employment. the course their worker. could affect the typical privately acquired ability As insur- For example, recover benefits. ance, partial disability benefits are not unlimited. The is determined a formula objective reason for the limit on benefits the same uses criteria: im- worker’s (based why pairment people as the reason most do obtain American Medical Asso- 52-l-24(A)), § coverage guidelines, the maximum amount of insurance ciation modified possible money. Although points deriving age, costs from the worker’s edu- —insurance worker, employer, cation, pays physical than capacity. rather See NMSA 52-1-26(0 premiums in- (Repl.Pamp.1991). There *11 special is to constitutional certainly computa- this assistance entitled cases in which
will be protection. But there is no evidence in before significantly understates the reduction tion attorney’s in us the limitation on that work —the former capacity the worker’s to Compensation deprives any benefits, Act the Workers’ disability to see used set measure of (effective 1991). of access to the courts. Because workers Of § until Jan. 52-1-26 her to Act challenge Claimant bases the effect, are greater practical workers perhaps protection, I alleged equal devel- an denial potentially in use of favorable restricted their analysis op my in context. 1978, Sec- expert Under NMSA witnesses. 52-l-51(C) only (Repl.Pamp.1991) the tion (43) protection clauses of the testify con- providers who health care Mexico Constitutions United States and New (1) cerning injury who have the are those require us to determine whether statute the under the Act to treat authorized been classes, improperly persons into two divides (2) by the one selected worker favorably treating one class more than the compensation judge an official list of from Typically, identi other. the two classes are providers to conduct health care authorized example, question. fied in the statute in For examinations, § 52- independent see medical in Educators Federal Corn New Mexico 1-51(B). (It apparent how is not me Union, Credit expert in this case witnesses denied, 168, 889 either (Ct.App.1994), cert. but, statutory requirement, as satisfied (1995), P.2d 203 we held that majority opinion, that issue explained improperly Act discriminated preserved appeal.) for was not review respect employers between workers and paid attorney’s to what fees. The could be (41) from limita- savings Further derive employers are, and two classes—workers — paid to assist tions on what can be those who course, throughout Act. distinguished injured payments No whatsoever workers. (44) case, however, present In longer permitted any reha- are vocational attorney’s statutory provision fees does § See NMSA 52-1- services. bilitation (effective explicitly not name classes are be (Repl.Pamp.1991) until Jan. employers All 1991). distinguished. workers fees are set for health care Maximum $12,500 subject are to the same limitation of (Cum.Supp. § providers, 52-4-5 NMSA 52-1-54(1). attorney’s fees. See Nev- 1995), witnesses, 1978, § expert NMSA 52- ertheless, is Claimant contends that there an 5-4(C) attorneys, (Repl.Pamp.1991), and implicit classification. The classification is 1978, § (Cum.Supp.1995). NMSA upon or not the worker is based whether employer (Ordinarily, each the worker injured attorney’s statutory limit on attorney’s fee. pay one half of the worker’s (1) words, are fees. In other the two classes 52-l-54(J).) (2) injured by statutory those limit and (42) speculate regarding which could One Or, injured by not the limit. those the most harm to statutory limitations cause (1) in- precise, more the classes are those practical as a matter. Given workers jured specific way limit choice, prefer an increase would workers (2) injured by limit. those so benefits, from opportunity to receive care (45) us, clarify To the issue before is doctors, opportunity or the higher-paid important identify specific type first to attorneys? for their If the limita- pay more injury distinguish at issue. One must be- unconstitutional, attorney’s tion on fees is (1) obtaining tween interest the worker’s all the limitations are constitution- then other possible legal representation with the best (1) the ally suspect, unless service of respect to a claim and worker’s extent, is, at least some constitu- (2) obtaining ade- the worker’s interest tionally restricting earn- special and begin by I quate legal representation. dis- ings attorneys special harms that service. cussing the first interest. met, my view, first condition but would, aside, any litigant one. To the extent that the assis- Cost the second course, possible necessary at- for the want to obtain best tance of an courts, every torney devote to the have worker obtain access
413
possibly
malpractice cases);
bit of time and resources that could
medical
v.
Johnson
St.
litigant
achieving
in
assist the
the most fa-
374,
Hosp.,
585,
Vincent
273 Ind.
404 N.E.2d
Undoubtedly,
cap
vorable result.
on attor-
(1980) (same); Crosby
602-03
v. State Work
ney’s
injures
Gerry
fees
interest.
Bd.,
810,
Compensation
ers’
85 A.D.2d
445
Spence
unlikely
is
to
if
take a ease
the maxi-
(1981) (restrictions
634
N.Y.S.2d
on attor
$12,500.
mum fee is
Even the skilled attor-
ney’s
cases),
in
compensation
fees workers’
neys,
attorney,
such as Claimant’s
who take
305,
aff'd,
680,
57 N.Y.2d
456 N.Y.S.2d
442
unlikely
many
cases
to
these
are
devote
(1982);
Cox,
N.E.2d 1191
v.
Newton
878
computer legal
hours to
research.
105,
(Tenn.)
S.W.2d
(percentage
109-10
limi
(47)
having
But the interest
in
the best
contingency
tations on
in
fees medical mal
possible legal representation is entitled to
practice cases),
denied,
869,
513 U.S.
little,
very
any,
protection.
if
constitutional
189, 130
(1994);
115 S.Ct.
L.Ed.2d 122
Texas
protects
The constitution no more
a worker’s
Garcia,
v.
Comm’n
in
possible legal representa
interest
the best
(Tex.1995)
504,
893
(percentage
S.W.2d
533
protects
tion
it
than
the worker’s interest in
on contingency
limitation
in
fees
workers’
possible
expert
best
medical care or
wit
cases);
compensation
Dep’t
United States
cf.
Even those
capital
nesses.
accused of
of
715,
Triplett,
Labor v.
494
110 S.Ct.
U.S.
constitutionally
are
fenses
not
entitled
1428,
(1990)
701
(regulation
108 L.Ed.2d
Otherwise,
possible
best
representation.
we
attorney’s
lung
fees in black
cases does not
justify
providing every
would need to
process);
violate due
v.
Coleman
United
Simpson
defendant with the O.
Dream
J.
Constructors,
Eng’rs &
Recognition
right
Team.
of a
to the best
(1994)
996,
(equal-protection
chal
possible representation
require raising
would
lenge
procedural
recovery
on
limitation
pay
public
to that of senior
defenders
test);
reviewed under rational-basis
Miller v.
partners
major
in
firms
slashing
law
IBM,
(Vt.1995) (upholding cap
peal
474 U.S.
106 S.Ct.
deprives
ability
someone
to obtain
(1985); Khoury
discrimination willing attorneys accept the risk same are do, however, fads to Claimant What cap will result their time that the identify are a class workers who *13 being compensated at less than on a case representation of adequate because denied least, ordinary At there is rates. the their attorney’s statutory cap on fees. Her the is presume no us that there a reason for to statutory that the appeal brief on contends compensation of cases for class workers’ complex and con- cap “treats workers adequate repre- which workers cannot obtain differently workers whose claims from tested class, In the of such a sentation. absence relatively simple or whose claims claims are argument equal-protection must Yet, no presents she evi- can be settled.” course, such a fail. Of if the existence of complex, contested that workers with dence be at an class of cases could demonstrated workers) (or even a subclass of such claims hearing, equal-protection the evidentiary adequate representation, are unable to obtain reexamined. claim would need to be persuasive argument a nor does she make (51) to above discussion relates the why question so. The is The that should be ease cap representation of the worker the as statutory result of the there whether as a however, argue, a that the which no whole. One could are workers’ cases impact representation attorney regard, cap particular has a on this qualified will take. may appear a will recognize cap appeal. the on It that worker important it is that representation appeal attorney only inadequate on an to refuse a case receive would cause already attorney if has attorney tell the that it the been awarded the if the could at outset statutory require maximum fee for work before the likely more work than could be would Compensation compensated cap. under the Workers’ Administration. adequately attorney agrees represent a Once an only if But this concern is valid the client, knowing cap that the statute sets a on obligation pro- attorney violates the ethical attorney charged, can the fee that the adequate representation the client with vide diligent client efforts and cannot owes the stated, appeal. already attorney As an representation on the withdraw from the case with no- takes workers’ ground required the turned out to that work statutory cap the that there is a fee tice anticipated. was Claimant has exceed what accepts the could risk at shown that there exist cases that the attorney’s customary hourly be below clearly as complex are so to cause all outset required if work rate substantial additional is attorneys reject qualified them. appeal. at trial level or on either merely sure, possibility appellate which duties is one To be there are cases for compen contingencies attorney an attorney, several the efforts of worker’s hourly rates, deciding into justify at would a must take consideration sated normal Moreover, represent a greater cap. The whether to worker. fee than has a financial self-interest compensation judge found this to be often likely appeal. appellee, If is (although that much of in the the worker such case of the award time of Claimant’s related to unsuccessful defense attor- testimony by expert apparent could result reduction witnesses who worker testify ney’s appeal fee If the is on ly under the on remand. were not authorized to worker, Act, Compensation the worker’s see 52-1- behalf 51(C)). only may larger obtain a fee as a result But we know of such cases Thus, again, is no hindsight. According appeal. relied there reason to statistics Corn, presume, is no evidence to estab- this reasonable and there upon Court lish, statutory cap attorney’s statutory cap prevents that the class fee exceeds the Corn, adequate repre- obtaining from only one out of 500 cases. See workers claims, sentation for their either at level 889 P.2d at Given that attorneys Administra- representing workers take the risk of Workers’ receive, appeal. if tion or they will no fee whatsoever (53) Finally, I to empha- policy add few words under banner constitutional principles. proposition many size a that too over- To affirm constitutionality
look. of a approve policy grounds. statute not to it on Unfortunately, fortunately, judges are not legislature.
ex officio members should refrain imposing from our views of