Wagner v. AGW CONSULTANTS

2005-NMSC-016 P.3d 1050 WAGNER, Worker-Appellee/Cross-

David

Appellant, CONSULTANTS, Turner Envi d/b/a Consultants, and M. William

ronmental individually trustee,

Turner, and as Em

ployer-InsurerAppellants/Cross-Appel

lees. 28,348.

No. Mexico.

Supreme Court of New

May 2005.

As June Corrected Cronin, Berlin, Spring P.A.

Duhigg, & Nancy Wagner, Albuquerque, NM for C. Worker-Appellee/Cross-Appellant. NM, Albuquerque, R. Beam for James Employer-Insurer-Appellants/Cross-Appel- lees. Turner, M. Pro Se.

William NM, Albuquerque, B. Browde Michael McGinn, P.A., Carpenter, & Randi McGinn NM, scrutiny. Amicus New that the Albuquerque, Curiae We hold fee limitation is Lawyers rationally Trial Association. legitimate government Mexico related to purposes, particularly maximizing those of Aurbach, Special M. Assistant At- Robert may currently the limited benefits workers General, NM, torney Albuquerque, for Ami- through obtain the workers’ Compensation cus Adminis- Curiae facts, system. On these were we to declare tration. unconstitutional, the fee limitation the work- $26,761 er’s benefits of would be insufficient OPINION $61,125 pay requested his share of the CHÁVEZ, Justice. $12,500 fees. The limi- tation, which in this case limits the worker’s prevailed heavily litigated in a $6,250, share of fees to still allows compensation claim worker’s and was award- $20,511 the worker to take in home benefits. $58,599 $26,761 expenses, plus in ed medical Therefore, while we do not decide whether past weekly and future benefits. At the provisions other of 52-1-54 Section would fees, hearing attorney on the worker’s attor- muster, pass uphold constitutional we $61,125 fees, ney sought attorney which of adopt append limitation itself. We the the worker would have been liable for Appeals’ analysis of to all Court other issues 52-l-54(J) $30,562. § See NMSA cross-appeal. raised in this (providing employer worker and shall share Consultants, 22,370 Wagner v. AGW No. payment attorney equally except of fees as 2003) (certification (N.M.Ct.App. Oct. or- statute). provided by the otherwise Worker der). $12,500 argued attorney the limitation on 52-1-54(1) (1993, fees NMSA Section amendment) BACKGROUND

prior apply to 2003 not should such a limitation because violated constitu- (Worker) Wagner David filed a claim guarantees equal protection tional of and due compensation against workers’ benefits process.1 Compensation The Workers’ Consultants, AGW Turner Environ- d/b/a judicial Judge chilling took notice of the ef- (AGW), ground-water mental Consultants a miserly representation fect of fees on but hydrology consulting firm in- where he was $12,500 attorney found the award for fees to jured employed geologist. while as a After be reasonable. trust, realizing that a AGW was business employer appealed complaint The a the worker’s Worker amended his to add as Turner, Appeals award to the defendant Court of and the work- William AGW’s sole trus- tee, cross-appealed attorney er the in the that Turner fee award. event was the real Appeals party appeared pro of in interest. to Court certified the issue of Turner se claim, constitutionality challenge separate the of the limitation on at- Worker’s while torney proposed affirming represented fees and otherwise counsel AGW. accepted the award. We certi- heavily litigated Several issues were fication to decide whether limitation on the trial, including applicability the of the Work- 52-1-54(1) attorney fees in Section of the (WCA) AGW, Compensation Act ers’ to Compensation

Workers’ Act violates Work- interest, party whether Turner was a real equal pro- er’s state constitutional injury, the extent of and the consti- process. tection and due tutionality attorney of the fee limitation. attorney significant We review the fee limitation Turner himself a of filed number 2,500 provision scrutiny, roughly pages pleadings, under rational basis inde- pendent post-judgment in this record ease fails to demonstrate motions and this impact Compensation Judge that the limitation has a sufficient The Workers’ (“WCJ”) important rights trigger higher although level noted issues were case, 52-1-54(1) 52-1-54(1) (2003). 1. At the time Because this case was al- of this Section $12,500. ready pending ed, WCA limited fees to Sec- at the time the statute was amend- 52-1-54(1) Opinion tion attorney was amended in 2003 to raise the considers the constitution- $16,500. ality pre-2003 fee limitation to NMSA of the fee limitation. chilling representation, effect on complexity, the case had the most has average (3) $12,500 fee in this case. reasonable pleading record he had ever seen. extensive certification, argues the point stated on the record On Worker At one the WCJ equal protection attorney, fee limitation violates state the WCJ that had Turner been claiming process, due that as against him for and substantive have issued sanctions would in- applied, unconstitutionally the limitation merit. The repeatedly filing motions without fringes right to access the courts and initially findings of fact or on the enter WCJ did appeal guaranteed in to an the New regarding whether conclusions of law faith, contends and therefore Mexico Constitution. AGW Work- parties engaged in bad standing challenge er does not have party was entitled addition- whether either $2,500 limitation and that in event the fee up under al Section 52-1-54(1). Appeals limitation is constitutional. appeal the Court of On jurisdiction the WCJ to retained but ordered Standing Challenge I. Has regarding findings and conclusions enter Fee Limitation found that issue of bad faith. The WCJ pleadings Turner’s were frivolous some of claims lacks stand law, conclud- and without sound basis but challenge constitutionality ing to that Turner’s bad faith was irrelevant to ed Dyncorp, limitation under Mieras v. awarding fees under Sec- additional 1996-NMCA-095, ¶22, 51-2-54(1) Turner was not tion because specifically P.2d because the WCJ found ultimately employer. The Worker’s WCJ $12,500 attorney the fee to be reasonable and employee was an of AGW found that Worker attorney declined to find that would Worker’s WCA, subject and that AGW was attorney higher have been entitled to a fee $58,599 ordering pay to in Worker disagree. the limitation. We but-for $26,671 expenses past and in and medical standing, To either have Worker must weekly future benefits. show, find, explicitly or the must WCJ subsequent hearing attorney At the on limitation, but for the fee reasonable attor- fees, attorney Worker’s claimed to have ney fees would have exceeded the awarded hours, per more than 400 worked $150 Meyers amount. v. Western Auto & See hour, pre-trial on the and trial work. Work- Cos., 2002-NMCA-089, ¶29, CNA Ins. $12,500 statutory attorney argued the er’s 79; Mieras, N.M. 1996- cf. attorney limitation on fees was unreasonable ¶ NMCA-095, 22, 925 P.2d 518 given extraordinary in this case the amount (holding standing the claimant had where the involved, that the limitation of time specifically at- WCJ found the value of the chilling to its on unconstitutional due effect limitation). torney’s to services exceed the ability adequate represen- to obtain workers’ $12,500 Although the found to be a rea- WCJ testimony presented expert tation. Worker fee, sonable the WCJ also found that Work- limitation can be unfair can the fee attorney reasonably expended over 200 er’s attorneys pursue make it uneconomical for representing hours at a fee of $175 time-consuming certain cases. AGW and per findings appear hour. these in- While jurisdiction challenged Turner the of the consistent, the latter indicates at a minimum to declare Section 52-1-54 unconstitu- WCJ limitation, attorney that but for the Worker’s present sup- tional and did not evidence reasonably would have been entitled to at port of limitation. $35,000 attorney least fees even before $12,500 appeal. Meyers, where the The WCJ awarded Worker Unlike following standing fees and made the find- claimant lacked because he neither (1) attorney reasonably nor ings: ex- reached the fee limitation showed pended hourly higher at an of he would have secured a over 200 hours rate limitation, hour,2 per miserly limitation in the absence of the 2002- the $175 Apparently judge hourly requested. rate she mistook Worker’s attor- ney’s $175 $150 fees for an hour instead of the NMCA-089, 29, significant injury is at risk of because of his 675Í limitation, inability compensate lawyer here Worker not reached appeal. on the WCJ found that his reason- prohibits but Section 52-1-54 pay- Worker from ably expended over 200 hours at $12,500, ing $175 his counsel more than either hour, bringing him well over the limitation of before or on See 52-1- WCA $12,500. (N) 54(A), (I), (making accept it unlawful to Act, except provided punisha- fees in the We note that the fact offense). ble as a misdemeanor The ethical counsel, represented by who continues to lawyer rules allow Worker’s if withdraw him, duty represent honor her ethical does poses the case an “unreasonable financial preclude standing in this case. Rule See burden,” and Worker would be unable to 116(B)(5) (declining NMRA 2005 or ter- 16— attorney any offer a new minating representation). In Corn v. New id.; 116(B)(5). appeal. Rule This evi- 16— Union, Mexico Educators Fed. Credit certainly dence does not detract from Work- Appeals Court held the claimant had having standing; anything, strength- er’s if it standing challenge constitutionality argument. ens his We hold Worker has the unilateral limitation on workers’ standing challenge constitutionality although repre- claimant continued to be the fee limitation. sented counsel. (Ct.App.1994), overruled on Appropriate II. Rational Basis is grounds Trujillo City other Albu- Scrutiny Level of 1998-NMSC-031, ¶32, querque, III) (Trujillo (overruling turning Before to the merits adopted Com to the extent it fourth tier equal protection and due chal scrutiny, affirming holding while Corn’s lenges, identify appropriate we must lev subsuming “heightened its rational basis” scrutiny reviewing challenged el of analysis under a “modern rational basis” scrutiny depends law. What level of we use standard). The WCJ Com found that but importance on the nature and of the individu limitation, for the the claimant’s al interests asserted and the classifications $20,000, nearly would have been entitled to Mieras, created the statute. See 1996— although attorneys and noted that exceeded NMCA-095, 1124, 401, 925 P.2d the limitation in one five hundred Ordinarily Legislature’s 518. we defer to the cases, the limitation caused workers to be at judgment enacting social and economic disadvantage compared employ- an unfair Com, legislation such as the WCA. See 119 significantly ers and reduced the number of 204, long N.M. at 889 P.2d at 239. So competent attorneys willing to take workers’ legislation impact such important does not 201, 208, at eases. Id. 889 classes, rights protected upheld or it is un 236, Although P.2d at 243. the claimant in challenger provision less the can show the at represented, Com was the court found a rationally legitimate issue is not related to a significant injury risk future because his III, government purpose. Trujillo See 1998- during appeals could withdraw ¶¶ NMSC-031, 14, 26,125 721, N.M. process payment posed if the lack of an Mieras, 305; 1996-NMCA-095, ¶30, 122 burden, unreasonable financial which would 401, legislation If im N.M. 925 P.2d 518. required “pursue have claim'ant to matters of pacts important rights, but not fundamental impairment permanent disability and without classifications, suspect or sensitive but not 202, the aid of counsel.” Id. at P.2d at 889 scrutiny intermediate is warranted and we 237. require the State to demonstrate that the law Thus, despite substantially important gov fact that Worker is is related to an Mieras, counsel, represented by purpose.3 has he shown that he ernment 1996-NMCA- 305, emphasize requires Carnegie Library 3. We that this standard either P.2d and Richardson v. class, Rest., Inc., 688, 693, 1153, important right contrary a sensitive or 763 (1988), may suggested Trujil- grounds by Trujil- to what we have in dicta in 1158 overruled on other III, 15, ¶ ¶¶ 1998-NMSC-031, 721, III, 1998-NMSC-031, 18-21, 32, lo 125 965 lo 125 N.M. N.M. 740 ¶ 401, synonymous in right appeal If a to an are 122 925 P.2d 518. N.M. compensation system, impacts context of the workers’ suspect classifications or

law draws scrutiny implicated litigant when a seeks rights, apply strict as both are fundamental we an administrative decision require the State to demonstrate branch, closely judicial we them collective- provision at is tailored to a consider issue Herndon, ly. P.2d at government purpose. See See 92 N.M. at compelling id. ¶ III, 1998-NMSC-031, 21, 435; Trujillo Mieras, 305; N.M. 1996- Trial and amicus New Mexico Worker ¶¶ 48, 51, NMCA-095, (NMTLA) Lawyers urge us to Association J., (Hartz, specially concurring). P.2d 518 limitation under in- review the Any legislation truly impact shown to these scrutiny, arguing that termediate or strict subjected appellate rights should be to more impacts important limitation or fun- the fee See, e.g., than rational basis review. Carson rights. They damental contend that certain Maurer, 120 N.H. 424 A.2d 830- representa- adequate claimants cannot obtain (1980) scrutiny (applying intermediate discourages limitation tion because the fee a statute that limited medical mal- invalidate cases, lawyers taking from their and that this practice recovery, holding right after adequate representation lack of threatens injuries personal impor- was an recover rights: meaningful separate exercise of two constitution). right tant under the state (1) implied meaningful access to the courts as consti- the due clause the state argues cap Const, II, 18; tution, N.M. art. Rich- see impacts appellate rights workers’ because it ardson, 1161; 763 P.2d at N.M. lawyers discourages taking complex from right explicit constitutional to an cases, time-consuming depriving those claim Const, appeal in New Mexico. N.M. art. meaningfully exercising appel ants of their VI., § 2. To warrant intermediate or strict rights. Meaningful appel late access to our scrutiny, persuade Worker must first us that depends part late courts on an individual’s “important” least one of these is ability adequate representation. to obtain “fundamental,” secondly that such a Herndon, 92 N.M. at 587 P.2d at sufficiently impacted to warrant more Mieras, 1996-NMCA-095, ¶48, 435; scrutiny. minimal than (Hartz, J., specially (“A deprives concurring) statute that some Impact Fails to Demonstrate the ability adequate repre one of the to obtain Rights Important Constitutional Is could, litigation very in a sentation real Trigger Sufficient Intermediate Scruti- sense, deprive person right of a of access ny courts.”); Com, 210, to the 119 N.M. at 889 J., (Apodaca, concurring). appellate New Mexico courts P.2d at 245 recognized right representation “adequate,” previously have that the how Whether ever, circumstances, depends right access the to an on the includ courts and fundamental, important, although ing proceedings ability are the nature of and the rights purposes analysis. representation. of the other side to secure for of constitutional ¶¶ III, 1998-NMSC-031, 18-19, Trujillo Dep’t Triplett, See Labor v. See United States of 721, 305; 715, 733-34, 1428, 125 N.M. 965 P.2d Herndon v. 494 U.S. 110 S.Ct. 108 Schools, (Marshall, J., 287, 288, concurring) 701 Albuquerque Pub. L.Ed.2d 434, (1978); Mieras, (distinguishing complexities 435 1996- and adver 587 ¶¶ NMCA-095, 401, regulatory system 122 for 925 sarial nature of the N.M. (Hartz, J., specially concurring). obtaining Lung Black P.2d 518 benefits under Because the to access the courts and Benefits Act from the more informal Veter- 721, (adopting scrutiny basis test cated that intermediate is used when a 965 P.2d 305 rational reviewing equal protec- impacts important appropriate standard for statute and sensitive Chavez, 732, challenge damage cap, v. tion rather than the classes. See Alvarez 461, (Ct.App.1994); Plyler scrutiny intermediate standard used in Richard- 465 Doe, 202, 223-24, son, upholding the result Richardson un- 457 U.S. 102 S.Ct. but in test). (1982). der modem rational basis Both cases indi- L.Ed.2d system in preventing ans Administration issue Wal access the courts class Survivors, obtaining v. Nat’l Radiation from adequate representa- ters Ass’n workers Mieras, 1996-NMCA-095, ¶¶27, 473 U.S. 105 S.Ct. 87 L.Ed.2d 220 tion. See (1985), process challenge such that the due in 518; see also id. ¶¶ Triplett (Hartz, J., would have been successful had specially 49-52 concurring) deprived claimants shown the fee limitation (noting that cap claimant failed to show the legal representation proceed claimants of in actually prevented complex workers with Corn, Act); ings under the 119 N.M. at 207- obtaining adequate representa- cases from OS, P.2d at 242-43.4 tion). Mieras, the claimant demonstrated that the limitation on prevented fees arguing scrutiny that intermediate being compensated her from for the enough applies, simply point it is not to an reasonably expended time he on behalf of his important right; challeng- constitutional ¶¶ failed, client. Id. 17-19. The claimant legislation er must in show fact however, to illustrate how the fee limitation impacts right. the exercise of this Mier- See being adequate resulted workers ¶¶ denied as, 1996-NMCA-095, 48-52,122 representation, theory either in or fact. Id. (Hartz, J., concurring). To ¶¶ (Hartz, J., specially concurring). 49-52 support argument their that the fee limita- applied The court therefore rational basis complex tion makes it difficult those with review. Id. 27. highly represen- contested cases to obtain tation, “chilling and that such effect” effec- Mieras, As in the record here fails to tively deprives appel- these workers of their demonstrate that some claimants are unable rights, rely late Worker and amicus NMTLA representation compen- to obtain in workers’ testimony presented on at trial about the proceedings, initially sation either ap- or on impact representa- limitation on peal, attorneys or that a decrease in available expert, compensa- tion. Worker’s a workers appellate any renders access to our courts attorney, opined tion that the number of New meaningful. expert less Worker’s did not attorneys exclusively represent Mexico who directly attribute a decline in law- available compensation proceed- claimants in workers’ limitation, yers nor did ings have decreased to about two or three support Worker offer direct evidence in since the benefits scheme was restructured Rather, testimony. expert this 1991,5 light and that in this reduction emphasize seemed to that the decline in law- benefits, available the fee limitation can be yers representing workers was due to the attorneys unfair to workers’ in some circum- injured overall reduction in benefits work- stances, may discourage attorneys claimants’ “chilling ers. found a While the WCJ effect pursuing complex time-consuming from miserly attorney representation,” cases, particularly and should be relaxed chilling the record fails to show that time-consuming cases. impacted ability effect has claimants’ to ac- sufficiently trigger The record this case is not mean- cess the courts inter- Mieras, 52-1-54(1). ingfully scrutiny different from that in where mediate of Section Appeals unpersuaded the Court of Triplett, U.S. S.Ct. 1428 infringed right (holding lawyers, the fee limitation on the the affidavits of three representation summary process, supported by 4. The dissent maintains that is calendar level, particularly important appellate at the Dis- Prehearing skilled and dedicated Division. sent, ¶¶ 48-49, and we cautions that "should not encourage parties attempt rigors the Compensation 5. Amicus Workers' Administration Dissent, appellate process unaided counsel.” alleges that in fact there was an increase in so, ¶ doing 62. In the dissent seems to minimize attorneys represented who workers before the significance hearings the of administrative Again, WCA. because this information is not in fact, compensation workers cases. In it is at the subject the record and was not to cross-examina- compensation workers level that skilled counsel accuracy, rely to test we on tion its cannot it. ultimately preserving is most crucial to benefits Martin, 595, 603, See State v. 101 N.M. P.2d 686 injured awarded to an worker. The better the (1984) (appellate court cannot consider below, quality greater of the record the the likeli- record). facts that are not of prevailing par- appeal, hood of ticularly given the on merits on Appeals' the Court of efficient of “frivolous and excessive” anecdotally that there were few- the volume which stated litigant at pleadings pro filed se the lawyers to take black qualified available er limitation, Because this case fails administrative level. fee lung cases due im- the fee limitation to demonstrate to demonstrate “blatantly insufficient” were classes, rights or sensitive representa- pacts important claimants could not obtain limitation, of re- proper if rational basis is the standard even asser- tion due to the unrebutted); equal protection Trujillo reviewing for see also view tions were left ¶¶ III, 1998-NMSC-031, 19-23, challenges. 125 N.M. due Equal Challenge III. Protection finding that the fee limitation Before Fee Limitation appellate meaningfully impacts claimants’ The New Mexico Constitution therefore, require more evi- rights, we would provides person equal shall be denied that no record, testimony in the such as dence Const, II, protection of laws. N.M. art. complex showing that workers with data equivalent, § 18. Like its federal representation due cases are unable to obtain similarly essentially a mandate that situated Triplett, 494 to the fee limitation. See U.S. alike, a suffi individuals be treated absent 723-24, 110 1428. Our conclusion S.Ct. justify disparate reason to treat cient which, in a case in might also be different City ment. See Cleburne Cleburne Liv limitation, a worker’s law- because of the Ctr., Inc., 432, 439, ing 473 U.S. 105 S.Ct. yer representing unable to continue were (1985); ex rel. 87 L.Ed.2d 313 Garcia on because of the unreason- worker Farge, v. La Garcia burden, relieving the law- able financial thus (1995). yer duty represen- to continue of the ethical tation, or a worker were dissatisfied with his Com, equal we evaluated an attorney but could not afford to hire a new challenge limita protection to the WCA fee See, e.g., Crosby v. on State limitation unconsti tion and declared the fee York, Bd., Compensation New Workers’ applied tutional it to the work because 680, 442 456 N.Y.S.2d N.E.2d N.Y.2d Corn, attorney. er’s (1982); Mieras, 1996- 1194-95 cf pending, P.2d at 244. While Com NMCA-095, 34, partially inequality Legislature corrected the (recognizing “may limitation un- the fee by amending provision limitation any preclude circumstances addi- der certain apply employers to both and workers. 52- appellate for tional award of 1-54(A) (1990). Nonetheless, Legislature legal maximum limit has services when the employers continues to treat workers and rendered at been attained for services may differently disparate in a manner which level,” although the trial those circumstances appel ly affect workers’ to access our case). did not exist by requiring late courts workers to obtain judicial seeking approval to elevate our review to for fees without requirement employ scrutiny imposing under the facts of this the same intermediate 52-l-54(C). case, Employers, suggests the dissent a more “charita- ers under Section companies, approach, through their insurance are free ble” even to the extent selective- pay attorneys up to ly considering anecdotal not of to contract their information ¶¶ case, Dissent, $12,500 each workers record. 51-52. simply regardless expended of the work facts and record of this case do not assessing the factors relevant to reasonable impacts demonstrate how the fee limitation attorneys. Compare Tex. right to fees for workers’ to access the courts and the (Vernon 408.221, §§ Ann. 408.222 appeal. an was free to her Lab.Code 2005) agency judicial approval compensation pro- (requiring case from the workers’ claimants and em ceedings continues to be fees for both and did so. She Further, attorneys counsel, employers’ are represented by ployers). her whom we com- lose, they while advocacy compensated whether win or mend for her skilled and committed they client, attorneys only paid if se- particularly light of workers’ are on behalf of her § benefits for the worker. See 52-1- our cure While rational basis test is 54(G). statutory may The scheme allow em- stamp” neither “toothless” nor a “rubber for ployers time-consuming the cost of absorb challenged legislation, requires it nonetheless by compensating attorneys their over cases statute, validity us to defer to the of the with not, long way may run in a the workers challenger carrying the per the burden of and, result, may disparately impact aas the ¶¶ 14, suasion. See id. successfully 30. To appellate rights of workers. be- challenge the statute under this standard of cause this issue was not raised and briefed review, Worker must demonstrate that the below, by parties we will not consider it by classification legislation created is not Richardson, appeal. for the first time on See supported by a “firm rationale” or evi 692, 107 N.M. at 763 P.2d at 1157. There- Com, dence in the record. See 119 N.M. at fore, inquiry our is confined to whether the 203-04, 889 P.2d at 238-39. This Worker 52-1-54(1) fee limitation in Section distin- fails to do. guishes similarly between situated individu- als, if and so whether Worker has demon- 52-1-54(1) Rationally Section is Related to rationally strated that the limitation is not Legitimate Purpose a Government legitimate government purpose. related to a 52-1-54(1) applied, As Section creates an WCA enacted as exclu- compensation two classes of workers liti- remedy employees subject sive em- gants: those who do and do not reach the ployers liability without fault for work- limitation stage, at the administrative Mieras, injuries. 1996-NMCA-095, related consequently those who can and cannot law- ¶ 30, 401, 925 P.2d 518. We have fully pay an a reasonable fee consistently approval Legis- stated our appeal.6 Hopkins, Yick See Wo 118 U.S. objectives principal enacting lature’s 356, 373-74, (1886) 6 S.Ct. 30 L.Ed. 220 (1) maximizing recovery WCA: the limited (holding equal protection law ap- violated injured workers, available to keep order to face). plied, although neutral on its Al- minimally them and their families at least though urges recognize Worker also us to (2) secure; financially minimizing costs to complex class of workers with cases who are employers; ensuring quick adequate representation unable obtain be- system. § efficient NMSA 52-5-1 limitation, cause of the fee Worker fails to (1990); Trucking see Archer v. Roadrunner demonstrate both that this class exists and ¶ Inc., 1997-NMSC-003, 7, how he would be a member of such a class. 1155; Sanchez v. M.M. Sundt Constr. unusually Worker’s case was not found to be Co., 294, 296-97, 160- rather, complex; suggests the record (Ct.App.1985). goal, We believe the first time-consuming pro case was because maximizing recovery, particu- a worker’s is litigant’s plead- se frivolous and excessive larly important compensation in the workers’ Nonetheless, ings.7 having determined that arena, ability where workers’ to recover 52-1-54(1) Section does differentiate between legis- needed benefits is circumscribed two classes of workers liti- Walters, 321-22, lation itself. See atU.S. gants, we must now decide whether such (recognizing 105 S.Ct. 3180 the rational disparate rationally treatment related to a government policy maximizing claimants’ legitimate government purpose. Trujillo III, 1998-NMSC-031, 14,125 rejecting procedural awards in due challenge P.2d 305. to the ten dollar limitation on at- addition, above, Richardson, by subjecting 6. as discussed below. See 107 N.M. at workers, judicial employers, approval but P.2d at 1157. fees, of reasonable Section 52-1-54 cre- ates an additional classification of those who can case, may the WCJ been able have lawfully pay and cannot contract to expended by attorneys by minimize the time Again, of their choice reasonable fees on using appropriate sanctions to control the court- however, 52-5-6(B) (2001). the facts and record of this case do not room. See NMSA However, issue, squarely present such an nor was this whether WCJ was correct in his particular parties classification discussed use of sanctions is not us. before award, including spent ap- on seeking for total not time

torney for those benefits Further, $85,360 that the peal. deaths or disabilities WCJ service-connected Worker, $26,761 proceedings); only for Administration awarded to was Veterans cf. ¶39, Mieras, 1996-NMCA-095, 122 N.M. compensation, actual while the bulk of the (Hartz, J., specially concur- 925 P.2d 518 award was to cover medical ex- Worker’s restrictions on ring) (describing the severe penses. Because Worker would have been actions). compensation recovery in workers’ attorney’s proposed half fee liable for of his $61,125, attorney Worker’s fees would challenge does not Worker compensation. his actual have exceeded attorney government purposes for the these limitation, we to strike the fee Were limitation, argues rather that the fee fee but required deplete his entire com- would be to rationally to these limitation is not related dig pocket into own pensation award and his Contrary argument, purposes. to Worker’s attorney pay his fees. While we do not rationale, a firm we find there to be attorney pass on whether such fees were case, justi supported by record of this case, figures in this these certain- reasonable $12,500 attorney limitation as a fy the attorney ly suggest that the fee limitation of achieving Legislature’s rational means to $12,500 a rational to maximize a is means Corn, goals. recognized in it is cer As we worker’s take-home award. tainly to minimize the rational for the State attorneys seeking to maximize role of points legal authority to no awards, quickly efficiently. claimants’ or evidence the record to show P.2d at 243. In addi $12,500 arbitrary cap is an and irrational tion, noted, already as we have the fee limita objectives. means to achieve the State’s For important maximizing the limited tion is instance, no evidence in the record there is workers, particularly benefits available suggest percentage either what of claim pay generally when workers must half of approach ants or reach the fee limitation at 1—54(J); attorneys’ their fees. See Mi 52— level, typical the administrative eras, 1996-NMCA-095, ¶38, by attorneys expended amount of time either (Hartz, J., specially concurring); appeal in at the administrative level or on Corn, 119 N.M. at 889 P.2d at see also cases, to somehow demonstrate that such 242. Corn, $12,500 figure.8 is an irrational Cf. case, $12,500 (finding 889 P.2d at 243 In this Worker’s attor- just than fifth ney represented under fifteen that the WCA’s data less one fee award award, percent one exceeded the limitation un percent of Worker’s total not includ- by showing a ing This is well dermined the State’s rationale future medical benefits. effect from the unilateral limita parameters within the this Court has de minimus tion). simply in the generally appropriate for attor- There is no evidence identified as that, other than in ney compensation fees in workers’ cases. record to demonstrate Petroleum, case, $12,500 particular has insuffi Phillips this been Woodson attorney fees at the (noting, cient to cover workers’ alia, attorney appellate levels. The dis inter in states that set administrative proposes, as an alternative to the cur percentage fees at some of the worker’s re- sent inflexible, that covery, twenty percent generally rent scheme it describes as ten to Legislature an fee lim appropriate range). On the maintain considered be hand, separate category of fees proposed by itation but create a the other Dissent, $61,125, 60. The hours at dissent does or 407.5 $150 accept- necessarily quarrel with a fee limitation generally an hour. In contrast to the It recovery, disagrees but on where to draw the line. ed ratio of fees to total unclear what the dissent believes proposed fee would have amounted to remains appropriate appel- seventy-two percent would be an limitation roughly of the Worker’s WCA, Again, According prior this information was not reasonable to 2003. to amicus $12,500 record, fees would have exceeded the limitation use to us here. in the so it is of little workers' cases 1.5% ted)). fees, presumably argue of the lack of Worker and amicus NMTLA late because suggest unconstitutionally in the record to what the fee limitation inter- evidence be, process a limit should or how this alterna- feres with workers’ substantive due such tive would make the fee limitation more flex- the courts access and to an provided limit legislation lawyers If the for a of chilling qualified taking ible. from $10,000 attorney in fees the administrative Using their cases. the rational stan- basis $2,500 appeal, II, level and how would uphold in dard discussed Section we Sec- 52-1-54(1) more or less bur- make the scheme flexible pro- tion under substantive due on the worker? The dissent also densome rationally cess unless shows it is not fails to address the fact that such fees would legitimate governmental purpose. to a related ¶¶ reduce take-home award. still the worker’s Id. 101-02. nothing argu- We find above, For the reasons stated

ment to undermine the rationale and amicus fail to NMTLA show that Section $12,500, limiting attorney Section 52- 52-1-54(1) rationally is not related to the 1-54(1) helps to maximize workers’ take- legitimate government purposes. See Tri- awards, employers minimize home costs to 723-24, plett, 494 U.S. at 110 S.Ct. 1428 efficiency system and increase the for evidence, (holding that anecdotal in the form Further, the reasons discussed above.9 attorneys’ of conclusions that a fee limitation Legislature fact that increased negatively impact quality repre- would of $16,500 suggests limitation to to us attorneys sentation or cause leave the field setting that rather than the fee limitation practice, prove of was insufficient to due arbitrarily, Legislature continues to con- violation); process Rhodes v. Indus. sider the role of fees in order to Comm’n, 125 Idaho 470-71 minimizing maximize workers’ awards while (1993). Under the facts and record of the litigation fails to costs. Because Worker present challenge, the fee satisfies limitation $12,500 limitation not ration- show the is process equal pro- substantive due well as ally legitimate government pur- to a related tection. pose, equal protection challenge must his fail.10

CONCLUSION Challenge IY. Due Process We hold that under record this to Fee Limitation case, limitation satis- the WCA process The due clause guarantees equal protection fies state the New Mexico Constitution reads: “No 52-1-54(1) rationally process. due Section life, person deprived liberty or shall be legitimate government purposes, related to property process law ... ”. without due goal maximizing particularly important Const, II, § art. 18. Substantive due recovery. Assuming Legisla- workers’ inquire cases whether statute recovery in ture limits workers’ a constitu- government action “‘shocks the conscience’ manner, the fee limitation is a rational tional rights ‘implicit in or interferes with the con adopt goal. means to advance this We ” cept liberty.’ v. Roth of ordered See State analysis Appeals’ Court of and conclusions erham, 1996-NMSC-048, remaining that were regarding the issues 1131,1144 (quoting United States affirm. raised on We Salerno, 746, 107 481 U.S. S.Ct. IT (quoted L.Ed.2d 697 authorities omit- IS SO ORDERED. holding way suggests argues limited in no our

9. The WCA also that the fee limitation 10. This costs, keeps by requiring judicial approval minimizes insurance which down belief that premiums, workers', fees, devel- insurance increases economic employers’, Sec- but not employment, encourages opment and em- 52-l-54(C) rationally goals tion furthers the ployers support to continue to and follow employers maximizing minimizing costs to mandatory system. there is no evi- workers' take-home awards. support and we de- dence the record a cline to find this to be firm rationale. MINZNER, jority. PAMELA B. Ever since we overruled the fourth WE CONCUR: SERNA, judicial scrutiny heightened PETRA PATRICIO M. tier of defined as MAES, Trujillo City Albuquer Justices. in JIMENEZ rational basis of que, explaining we have avoided what we BOSSON, RICHARD C. Chief Justice by meant our so-called “modern articulation” dissenting part). in (concurring part in and 1998-NMSC-031, of the rational basis test. BOSSON, (concurring part in Chief Justice ¶ 32, 721, (Trujillo dissenting part) in and III)(overruling, “subsuming” fourth but the analysis applied tier of rational in Alva basis part part. I in in concur and dissent {34} Chavez, 732, 738-39, rez v. 886 P.2d case, reluctantly I Under the facts of this 461, (Ct.App.1994) v. New 467-68 and Corn in agree that the fee limitation Union, 52-1-54(1) (1993) Mexico Educators Fed. Credit Section NMSA (Ct. 199, 202-04, (the Act) N.M. 237-39 Compensation passes Act Workers’ App.1994)). I test, am afraid we continue to avoid the rational basis and is therefore con- stitutional, explaining today way that test in a that will proceedings before the Work- (the only perpetuate confusion. Compensation ers’ Administration Ad- ministration). separately express I write to majority professes The that our ra {38} my regarding concerns the effect of the at- test, simultaneously tional basis test is one torney right limitation on worker’s to validity to deferential the of the statute but appeal. stamp” Maj. not a “rubber “toothless.” mind, ¶ my any provi- the absence of Op. majority explains 24.

{35} The then the appellate sion for at the level requirements by of our rational basis test impermissibly burdens the constitutional using language City from Cleburne v. Cle complex Ctr., of those workers with Living burne 473 U.S. time-consuming Legisla- cases. I believe the S.Ct. 87 L.Ed.2d 313 that was Com, ture’s failure to allow additional fees the referred to in at N.M. limited number of cases that reach our courts (requiring legislative P.2d at 239 classifica exhausting cap contributing after the is to an supported by tions be either a factual adequate representa- rationale). decline in intolerable legal foundation or a firm tion the field of workers’ majority accepts although Com and Al yet law. I am not While convinced that this Trujillo, Trujillo varez were overruled in impacts decline workers’ access to the courts “heightened subsumed the rational basis” point violating to the due analysis from those cases in the ra modern equal protection rights pro- Thus, administrative majority’s tional basis test. in the ceedings, I would reach a different result successfully challenge words: “To the statute analyzing impact when review, the fee limita- under this standard of must appeal. tion on the demonstrate that the classification created legislation supported by ‘firm is not part, disagree majority I with the rationale’ or evidence the record.” apply scrutiny I would because intermediate ¶ Maj. Op. 24. important right to the to have to the access judiciary purpose for the of an Un- language I believe the from Cleburne scrutiny analysis, der intermediate I would type in fact than creates different test cap find the I unconstitutional. also dissent scrutiny usually of minimal we associate with way because I am troubled with the Cleburne, City the rational basis test. See majority presents the rational test. I basis 455-60, (Marshall, 473 U.S. at 105 S.Ct. 3249 courts, attorneys, litigants think our J., concurring) (noting analy- that the Court’s New Mexico would benefit from further elab- sis was at odds with traditional rational basis oration. by seeming require legislature prove has the burden to an act was constitu- Rational Basis Test tional, through that the Court could sift begin, respectfully disagree I To with record to find a firm factual foundation for an presented policy, legislation the rational basis test the ma- act’s and that could not Scrutiny incrementally). ra- Level The traditional proceed simply party basis test tional Equal protection challenges legis- challenging legislation has the burden infringe impor- lative classifications that is not prove “that the statute’s classification tant, rights, but not fundamental or involve goal.” rationally legislative related sensitive, classes, suspect but not must be 1998-NMSC-031, 14, 125 N.M. Trujillo, scrutiny. analyzed under intermediate “In rational scruti- 965 P.2d 305. basis Alvarez, legislative subject ny, ‘a choice is not fact-finding may recognized be based on This Court has courtroom right implicit of to by access the courts is an speculation unsupported evidence rational ” Druktenis, right. fundamental See Richardson v. Car 2004- empirical data.’ State Rest., Inc., 688, 696, negie Library ¶ 107 N.M. NMCA-032, 112, 223, 135 N.M. 86 P.2d, 1153, (1988), 763 1161 overruled on (quoting v. Beach Communica- 1050 FCC 1998-NMSC-031, grounds by Trujillo, other tions, 307, 315, 2096, 124 508 U.S. 113 S.Ct. ¶ 32, 721, 305; 125 N.M. 965 P.2d Otero v. (1993)). 211 L.Ed.2d Zouhar, 482, 486, 482, 102 N.M. 697 P.2d 486 object giving I do not our rational (1985), grounds by overruled on other Grant situations, if basis test more teeth some we Inc., 378, Reg’l Hosp., land v. Lea 110 N.M. clearly identify triggers heightened what 380, 599, (1990); 796 P.2d 601 v. Mah Jiron scrutiny, just Appeals did in as the Court lab, 311, 99 N.M. 659 P.2d 312 Alvarez, 740, 118 N.M. at 886 P.2d at 469 (1983). addition, impor and of utmost heightened leg- (applying rational basis when challenge attorney tance interest). implicated significant limitation, islation right appeal explicitly of one is appro- I by But do not believe it is desirable or guaranteed the New Mexico Constitution. Const, (“an VI, § priate expense aggrieved to do at the of the tradi- art. 2 so N.M. majority really party right If shall have an absolute to one tional deferential test. appeal”). Trujillo adopting single, intends to read test, rational basis I think the

but broader course, ability Of an individual’s provide explanation. should a detailed Court judiciary have access to the to resolve Jiron, not at claims is endless. See hand, if feels On the other this Court 427, majority at 659 P.2d 313. As ob by the traditional rational basis constrained serves, previously recog our “courts have test, prefer I would not to follow the lead of right nized that the to access courts See, Supreme e.g., the United States Court. important, al right to an are Texas, 558, Lawrence v. 539 123 S.Ct. U.S. fundamental, though purposes 2472, (2003); Ev 156 L.Ed.2d 508 Romer v. ¶ Maj. analysis.” Op. of constitutional ans, 620, 1620, 517 U.S. 116 S.Ct. (1996); Cleburne, City L.Ed.2d 855 right I believe that a worker’s 432, 105 3249; Hooper S.Ct. v. Bernalil U.S. attorney aspect right retain an is one Assessor, County lo 472 U.S. 105 S.Ct. Corn, of access to the courts. See (1985). confusing 86 L.Ed.2d 487 J., (Apodaca, specially at at eases, array professes the Court to have concurring). deprives A statute that a class test, rational one basis but sometimes persons ability adequate “of the to obtain appears apply heightened scrutiny. representation litigation deprive could” Tribe, H. Laurence American Constitutional right that class of a of access to the courts. ed.1988) (conclud (2d 16-33, Law at 1614 ¶48, 1996-NMCA-095, Dyncorp, Mieras v. explanation ing there is no coherent for when (Hartz, J., spe heightened scrutiny triggered). is It seems cially concurring). that the “To the extent approach that a would be to to me better necessary an is for the assistance of give flexibility courts, to our scru more intermediate such worker to obtain access standard, tiny forthrightly acknowl special and to is entitled to constitutional assistance doing protection.” Id. 42. edge that we are so. compensation system, Legislature argues, cap dis- which the As Worker taking complex

courages attorneys from designed as an administrative alternative for time-consuming resolution, workers’ dispute may legis it abe rational attorneys a risk that cases. It also creates lative choice to limit fees in order to they a case when have have to abandon will costs, discourage litigation, reduce and en cap hardship. to economic exceeded the due quick delivery sure the of benefits. See chilling represen- effect on As a result of this Corn, tation, Lawyers Mexico Trial Amicus New (stating concept that due is a flexible 52-1-54(1) unfair- Association claims Section devising pro it comes to alternative when ly complex or claimants with time- burdens resolution). Thus, dispute vesting cesses for deprives from consuming cases and them adjudicative power in administrative law exercising ap- an meaningfully not, itself, judges deny does workers the adequate repre- peal. Because I believe that right of access to the courts. See Walters v. necessary sentation to ob- Survivors, Nat’l Ass’n Radiation 473 U.S. meaningful tain access to the courts for an 105 S.Ct. 87 L.Ed.2d 220 compensation pro- appeal from a workers’ (1985) (holding that an limita ceeding, part I that this of the would hold tion, discouraging if it in even resulted attor equal protection challenge is entitled to inter- neys representing altogether, from claimants scrutiny. mediate did not violate due in a veterans’ majority acknowledges The that proceeding Congress administrative which “[m]eaningful appellate access to our courts keep simple wanted to as and informal as depends part ability on an individual’s to possible). Maj. adequate representation.” Op. obtain however, my opinion, analysis In ¶ Sch., (citing Albuq. 15 Herndon v. Pub. 92 changes appeals for before our courts. Un- (1978); N.M. 435 Constitution, like the United States our State Mieras, 1996-NMCA-095, ¶48, 122 N.M. concurring); guarantees right (Hartz, J., Constitution the absolute to specially 925 518 Const, VI, n, appeal. § an art. See 119 N.M. at at Cor Thus, J., once a worker’s case moves from (Apodaca, specially concurring)). ma the The holds, however, courts, jority attorney setting administrative to our “the na- the fee cap require scrutiny proceedings ability does not ture of the intermediate and the of the because Worker has not shown that representation” requires other side to secure prevented obtaining workers are from ade searching inquiry repre- a more into whether ¶¶ ¶ quate representation. Maj. Op. 17-20. Maj. adequate. Op. sentation is 15. The workers, cap prohibits already who have re- majority, I Unlike the would make statutory attorney ceived the maximum for pro- distinction between the administrative fees, compelled but are to defend their bene- ceedings appeals before our courts. appeal, paying fit awards on from for neces- proceedings administrative before a workers’ services, sary legal even out of their own compensation judge, willing agree I am Thus, pocket.1 cap the forces a class of attorney cap the fee survives rational position workers into a of intolerable risk. observes, scrutiny. majority basis As the They rely good graces must on the of their representation “adequate,” whether “de- attorneys representing circumstances, continue them pends including on the litigation hope compen- without of additional ability proceedings nature of and the of the withdraw, representation.” Maj. attorneys sation. If these other side to secure or even corners, Op. they 15. Given the nature of the workers’ worse cut because cannot af- 52-1-54(1) 52-l-54(A) (2003). (N) "applies 1. Section as a cumulative & As one state court compensation legal invalidating attorney cap, for all limitation on services noted in fee most proceedings,” including represen- statutory compen- rendered in all states with limits on workers' attorney appeal. tation before the courts on The Act sation fees allow fees to be increased accept except pro- necessary, acceptance makes it unlawful to when do not make vided; any violating person cap fee additional a crime. See Irwin v. misdemeanor, may up Surdyk’s Liquor, be convicted of a fined 599 N.W.2d 142 n. 3 $500, (Minn.1999). imprisoned up days. to 90 Section regime by Congress. 494 U.S. at fee enacted representation due continue the ford to re class of 1428. The Court thus hardship, this vulnerable S.Ct. economic they very challenging won the law to make “an may quired lose the benefits those workers proceedings. extraordinarily strong showing” that the fee during administrative process. due Id. at limitation violated majority declines to address The case, Triplett our did 110 S.Ct. 1428. Unlike ap limitation on impact of the fee right to an not involve absolute simply not it contends there is peals because guaranteed by our Constitution.2 Be State record to indicate enough evidence difference, Supreme of that Court cause exercising deprived from was apply rational test. In con could basis majority relies on The his trast, considering importance Triplett, 494 Dep’t Labor v. States United involved, presented I believe Worker 723-24, 110 1428, 108 L.Ed.2d U.S. S.Ct. enough challenge evidence (1990). Triplett, the United States expert cap. presented an wit rejected that an at Supreme a claim Court that, implemen testified since the ness who access to the torney fee restriction violated very cap, few attor tation of the courts, challengers only pre concluding the couple neys practicing, and are are that the fee limita anecdotal evidence sented compen specializing, in the field of workers’ representation. deprived them of tion expert testified that attor sation law. ruled 1428. The Court Id. S.Ct. neys representing workers those are not lawyers, which the affidavits of three in a injury will not result cases which the qualified law were fewer stated that there employer is large and the benefit award cases, yers lung were available to take black testimony not contest uninsured. This 724-25, “blatantly insufficient.” Id. Anecdotally, by parties. we opposing ed the majority Triplett, to the S.Ct. 1428. Similar addition, In the all know it to be true. in the record require would more evidence judge specific workers’ made complex or time-consum that workers with chilling effect finding cap that the causes representation to ing cases are unable obtain legal courts have Maj. Op. representation. on Our limitation. See because of the fee chilling acknowledged this effect. previously 19. Corn, at 242 at 889 P.2d See majority require to an seems {51} (“In fact, discourage rep cap appears the to evidentiary it is burden before enormous counsel.”). by resentation of workers scrutiny willing apply to intermediate —ei- completely appears of workers are ther that a class it is true While {53} that an representation enough to to obtain unable obtain to have been fortunate actually representa- attorney representation withdraw from before the Administration courts, financial represents an unreasonable a class tion because of our he still by charitable and not shared I would be more who face a burden burden. workers employers whose who seek to recognize a class of workers exists other claimants attorney right appeal. the to an For right appeal to is burdened exercise their reason, scrutiny appropriate. is cap. fee intermediate decisions of I the record and believe {52} Scrutiny Applied Intermediate sufficiently that the have indicated our courts scrutiny, the bur- intermediate legal counsel Under attorney fee limitation deters maintaining the statute’s party is on the Triplett, In den taking cases like this one. from is the classification validity prove “to “heavy pre- Supreme applied a the Court govern- important an attorney substantially related to constitutionality” an sumption of Jr., Brennan, State William J. on this issue. See the New Mexico raises his claim under Individual and the Protection when Constitutions cases do not control Constitution. Federal ("State Constitution, consti- Rights, L.Rev. used 90 Harv. interpreting but are our State liberties, tutions, too, of individual are font they persuasive. See Alva- extent are beyond extending rez, protections those often Because their at 886 P.2d at 464. interpretation required by Supreme Court's the appeal is a state constitutional the to one law.”). persuasive of federal right, cases are I do not think federal Marrajo compensation judge, v. N.M. State sion of a workers’ I do ment interest.” employer Highway Transp. Dep’t, 118 N.M. think that in some situations the authority (quoted nothing by appealing 887 P.2d has to lose a decision. omitted). Thus, already dry by this Court must examine the If the worker’s counsel is bled governmental by the attor attorney interests served cap, employ- fee then even if the statutory ney cap, fee and whether the classi appeal, employer er loses on will not have relationship to fications bear a substantial attorney pay any more of the worker’s Corn, important such interests. 119 fees. J., (Apodaca, at 246 N.M. at Meanwhile, might cap the fee not specially concurring). employers’ have the same effect on attor- problem accepting that I have no lose, neys. they Paid if win or and not cap advancing im- fee is aimed subject judicial fees, approval employ- portant government interests. may position ers’ counsel be a.better upon examining impact cap on prolong litigation through appeal. If re- participate in an those workers who must company, employers’ tained an insurance benefits, preserve their hard-won I may counsel be able to offset losses incurred employer do believe cap gains one case due to the fee with Administration have carried their burden of Usually, from future cases. workers’ attor- proving cap that the is substan- neys similarly prac- are not situated. its tially designed it related to the interests was effect, cap provides employers tical to address. advantage with an unfair tactical on scrutiny, Under intermediate a less addition, cap puts workers in a analysis appropriate. restrictive means position. vulnerable Workers who can no Corn, 119 N.M. at longer pay appeal might their J., (Apodaca, specially concurring). Interme lose benefits won at the administrative level. scrutiny requires diate a court to balance the Thus, level, appellate at the importance government interests cap substantially legislative is not related to against imposed the burdens on the individu goals reducing litigation providing society. way al and Id. One assess this quick delivery and efficient of benefits. for the balance is court “to determine wheth er alternatives exist that would not burden Reducing important costs is another protected heavily interests as as the classifi purpose attorney behind the fee limitation. (quoted cation scheme chosen.” Id. authori However, view, my in the evidence that omitted). ty Applying analysis, this it is cap, coupled a few eases will the with exceed Legislature to me that the clear could have go the fact that not all of those cases will goals ways in advanced its that would have through appeal, argues against the neces- right appeal burdened the to an less. sity cap present in of the its inflexible form.3 There is no in majority argues by The evidence the record that mak- discour- aging litigation, attorney cap ing allowances for the few the ad- cases deserve Act, purposes cap vances one of the of the which fees in excess of the for the quick delivery purposes appeal system. is to assure of an efficient will harm the I acknowledge uncertainty benefits to workers at reasonable cost to that actuarial ¶ case, employers. Maj. Op. might 26. In this if cap insurance costs rise the were cap prevented I fail to altogether. see how the has the eliminated But under a re- less employer prolonging litigation through analysis, from strictive means there are other brought ways potential its own problem. Worker was invol- to address this In- untarily judiciary, precluding and had no choice stead of a reasonable award alto- fees, gether appellate attorney I Legis- but to defend his benefits. While do not for the suggest employer provide mean to that an should not lature could for some additional fees right appellate Legislature have a constitutional for deei- services. The could potentially penetrated cap” 3. The Administration states in its amicus brief workers even percent that "less than 1.5 of all fees for 2001 and 2002. persuasive legislatures, cap I find it Some their zeal to save those fees. claimants from diminution of their net many legislatures allow workers an ad- ben- state fees, th[r]ough legal carry appeal, efits restrictions award of fees on ditional they may Thus, point on fees to the where well usually with restrictions.4 an absolute injure claimants as a class both hinder- prohibition appellate on fees is not substan- ing growth compensation of an able important tially related to the interest by making economically impossi- bar and it reducing Legislature could ad- costs. The lawyers give for claimants’ the nec- ble ways. goal in less burdensome vance essary preparation time to the of each majority also finds that the statu- case. tory Legislature’s cap promotes the interest Larson, 8 Arthur Larson & Lex K. Workers’ protecting limited workers’ benefits. See 133.07, Compensation Law at 133-44 form, Maj. Op. present In its the Act (2003). said, previously As we have responsible paying holds the worker for half any attorney. If the fee awarded to his policy practice [w]e must avoid a or a overturned, cap is then fewer net benefits discourage representation which would I will be available to the worker. acknowl- taking appeals where counsel feels edge argument. Protecting the force of this injured ag- that an work[er] has been important govern- workers’ benefits is an grieved at the trial court level. We must ment interest. I do not believe a preserve injured of an also appellate attorney prohibition paying on representation to have where the work[er] substantially protecting related to workers employer appealed. has Rather, it this situation. threatens them Herndon, at 587 P.2d at 435. severe harm. Forced to defend their with appeal, adequate workers need benefits recognize legislative I pow- While representation. appellate Unlike other lines, ways er to draw there are better of, party I know those workers have who accomplish important government goals cap rely either on an exceeded must drawing than stake the line zero. The free, working proceed who is Legislature is free to set a limit reasonable alone. long on fees as as it makes a reasonable possibility provision for the of fees incurred encourage parties We should during I am appellate review. also confident attempt rigors appellate process compensation judges that workers’ can deter- unaided As is evident from the counsel. supplemental awards that mine reasonable conclusion of the workers’ compensate attorneys unduly without would judge miserly attorney fees cause impairing workers’ benefits. chilling representation, cap effect on dis- courages representing counsel from workers APPENDIX money appeal.

when there is no available on extreme, attorneys may In the withdraw in representation continued will result

when THE THE COURT OF APPEALS OF IN financial Rule 16- unreasonable burden. See OF NEW MEXICO STATE 116(B)(5) 2005; Com, NMRA 119 N.M. at Oct. 2003. any change 889 P.2d at 237. While cap may money, cost workers some Appeal Compensation from the Ad- Workers’ greater threat awaits if workers even ministration respond inadequately on Without adequate representation, Gregory Griego, Compensation lose Worker could D. Workers everything. Judge As one treatise admonishes: See, (Michie 23.30.145(c) (Michie § e.g., § Ann. 62-7-36 Alaska Stat. Codified Laws 2000); 9—715(b)(1) (Michie rev.); (2003); § § Ark.Code Ann. Wash. Vt. Stat. Ann. tit. 21 11— 8-43-403(1) Repl.2002); § (West 2002). Colo.Rev.Stat. §Ann. 51.52.130 Rev.Code (2003); 656.382(2) (2001); § Or.Rev.Stat. S.D. certify concerning THE TO We issue

CERTIFICATION {67} constitutionality cap of the COURT SUPREME Supreme the New Mexico Court. FRY, Judge. statute, because certification NMSA 34-5-14(0) (1972), § and Rule 12-606 Consultants, AGW Turner Envi- d/b/a NMRA 2003 refer to the certification of “a (AGW) Consultants, appeals ronmental Court, Supreme matter” to the we conclude (Worker) Wagner cross-appeals from David certify that we must the entire case even if concerning order and order certify we wish one issue. See Col- Compensa- fees from the Workers’ Tabet, 391, 404, v. lins (WCJ). Judge tion AGW raises six issues on (1991) (construing 53 n. 10 “matter” to mean in appeal and raises three issues his Worker case). the entire In an effort assist the cross-appeal. ap- The issues raised both Court, Supreme analysis we submit our peals categories: fall into two broad those issues, the other which we would affirm for benefits, concerning Worker’s entitlement to Wilson, the reasons that follow. See State concerning and those the award (1994) 793, 796, fees to Worker. (attaching Appeals’ proposed opin- Court Supreme opinion ion to Court’s on certifica- As to to bene- Worker’s entitlement tion). (1) fits, argues: AGW that AGW does not BACKGROUND requisite employees three have the contem- Subsequent The Accident and Medical 52-l-6(A) (1990) plated by NMSA Care (the Act) Compensation the Workers’ Act (2) Act; subject AGW, and therefore is not ground-water hydrology con- firm, determining sulting that is a common-law trust. the WCJ erred that the business Turner William is AGW’s sole trustee. It is out accident arose of and the course of accident, undisputed that at the time of the (3) employment; that the WCJ part-time employees, AGW had two Worker determining erred in that Worker’s second and Todd McCabe. Whether Turner was a independent, intervening fall was not an employee disputed worker or of AGW is a (4) cause; finding that the WCJ’s that Dr. issue. pro- was an Gehlert authorized health care supported April vider is not substantial evi- On Worker and (5) well, dence; particular McCabe were sent to a finding that water the WCJ’s S-10, up equipment necessary to set responsible AGW is for Worker’s medical temperature readings to be taken of the supported by bills is not substantial evidence. climbing well. Worker was ladder on the (6) argues in cross-appeal his S-10, side of a water tank located near twenty percent determination of WCJ’s plastic order to fill a with tube water so that injury loss of use for Worker’s scheduled the tube could be inserted in the S-10. The supported by substantial evidence. fell, breaking ladder came loose and Worker respect concerning With to the issues leg just his left above the ankle. His first (1) fees, argues the WCJ Felter, treating physician, Dr. testified that erred the determination of the fee amount Worker had “what we considered a com- paid fifty-fifty. argues to be pound part fracture. That means rejecting request skin, erred in sticking through WCJ Worker’s was bone and it fracture, highly was a comminuted which to find that and Turner acted in bad AGW many pieces, means in it faith, involved the finding permitted a that would have joint ankle itself.” pursuant additional award of 52-1-54(1) (2003). 1978, § NMSA In addi- McCabe took Worker to Lovelace {70} tion, $12,500 argues Worker limit Center, performed Dr. Medical where Felter (cap) equal protec- on fees violates surgery. days Worker was released two la- tion or due leg Worker’s in a ter. His was cast the time and he crutches, put- access to the courts. was instructed to use avoid Second, weight injured leg, keep and to filed a ting on the AGW motion to dis- {75} miss, Turner, based on the contention that leg his elevated. trust, sole trustee of the business was not days his release from the Three after {71} within the definition of a “worker” and there- home, on crutches. hospital, Worker was employee. fore could not be counted as an reaching for a checkbook that was on He was Thus, argued, AGW had two em- AGW arm, top of a bookcase when he raised his McCabe, ployees, Worker and and the Act crutch, remaining swung his on the lost motion, apply. did The WCJ denied the crutch, injured kicked out with his foot for finding that Turner was “in the same shoes” balance, unprotected struck his toes on the corporate aas executive and therefore would bookcase, degrees, pivoted 180 and fell. He employee. support as an be treated per- Dr. was taken Lovelace and Felter decision, the WCJ cited NMSA surgery. additional formed 52-1-7(E) (2003). subsequently told Turner Worker {72} Hearing Formal that he was with his from dissatisfied care doctor, suggested Turner another Lovelace. hearing, After the formal the WCJ White, suggested Legant. Dr. who Dr. Tur- decision, proposed filed a notice of all Legant. to meet with Dr. ner drove Worker parties proposed findings filed and conclu- meeting, After the had a compensa- Worker second sions. The WCJ then entered a order, which, pertinent part, tion surgery April and continued to receive found as AGW, employed by follows. Worker was August medical care from Lovelace until trust, business and not Turner individual- point again 1999. At that called Dr. Worker ly. employee Turner was an of the business. Legant, who referred Worker to Dr. Gehlert. injury Worker’s first out arose of and time, At that there was concern that inju- employment. course of his The second healing. pro- fracture was not Dr. Gehlert home, ry, the fall at was incidental to the treatment, including vided additional medical daily living normal activities of and did not graft. Ultimately, a bone found WCJ independent intervening constitute an cause. $58,000 incurred over in medical Dr. Gehlert was an authorized health care roughly and was unable to work for bills provider initially because Worker directed year. The also found that WCJ care, suggested Legant, Dr. medical Turner improvement maximum reached medical Legant and Dr. referred Worker to Dr. Geh- (MMI) injury for the June TTD lert. Worker was entitled to benefits Worker filed his claim on October roughly year. one Worker reached MMI yet 1999. At that time he had not been June and thereafter had a scheduled sought He released return to work. Tem- injury twenty percent with a loss use. (TTD) benefits, porary Disability Total Per- addition, pay the WCJ ordered AGW to (PPD) benefits, Disability Partial at- manent necessary Worker’s reasonable and medical fees, torney disfigurement compensation, and expenses. payment complaint of his medical bills. The procedural factual We discuss the employer/respondent indicated was background relevant to the award of AGW. concerning fees when we address the issues that award. Proceedings Pretrial DISCUSSION things happened during pretrial Two Entitlement to Benefits proceedings that bear on the issues raised on Determining Did Not Err In WCJ First, once it became clear that Employees That Had Three trust, AGW was business Worker moved to complaint by adding Turner, amend his Turner as an AGW contends that as the Employer/Insurer, ground trust, on the that Tur- not an sole trustee of the business AGW, party in employee relying arguments. ner was the real interest. The WCJ on two First, granted the to amend. relies on authorities from other motion AGW 754 784;

jurisdictions concerning Loving, F.Supp. the nature of a busi- his work.” 80 see Griswold, Second, 124 (explaining also F.2d at 601 AGW maintains that ness trust. subject employees supervision are depends person employee is an whether a pursuant Security and control to the Social subject person to the control whether Act). However, a New Mexico uses different argues, Consequently, AGW be- of another. standard to determine whether an individual that Turner’s deci- cause there is no evidence meaning is a “worker” within the of the Act. or controlled in supervised sions were himself, way by anyone find- but WCJ’s By statute, provisions of the Act {82} employee of AGW is ing that Turner was apply employers of three or more workers. supported by evidence. not substantial 52-l-6(A). parties Section do not dis- pute separate entity is a AGW ap novo review de We meaning employer that it was an within the plication City facts. Hise v. of the law the of the Act. The Act defines a “worker” as 2003-NMCA-015, 8, Albuquerque, 133 of N.M. “any person who has entered into the em- 133, apply 61 P.3d 842. whole We ployment of or works under contract of ser- record to the factual determination of review apprenticeship employer.... vice or with an Hosp., v. Miners’ 111 the WCJ. Herman ‘employee’ The term ‘worker’ shall include (1991). 550, 552, 734, In N.M. 807 P.2d 736 singular plural and shall include the review, applying whole record this Court re 52-l-16(A) 1978, § both sexes.” NMSA evi views both favorable and unfavorable (1989). whether there is evidence dence determine determining whether a accept that a reasonable mind could as ade worker, given individual is a the label that quate'to support the conclusions reached parties have attached to them relation the fact finder. Levario v. Ysidro Villareal Heald, ship controlling. is not Yerbich v. 89 734, 737, Agency, Labor 120 N.M. 906 P.2d 67, 69, 72, (Ct.App.1976). 547 P.2d 74 (Ct.App.1995). 269 Instead, question the critical is whether the Case, Hayes’ relies on In re 348 individual has a contract of hire with the (1965), 204 N.E.2d Mass. 278-79 employer wages something or of value managing of a where the trustee business wages. Riggs, that is like See Trembath v. compensation trust filed a claim for workers’ (Ct. 615, 619, 673 P.2d injured job. after he was on the benefits App.1983), grounds by overruled on other Supreme The Massachusetts Judicial Court Co., Dupper Liberty Mut. Ins. held that a trustee of a business trust was (1987). Joyce v. Pecos Cf. employee not an of the trust and therefore 764, 766, Monastery, Benedictine bring compensation pro- not entitled (Ct.App.1995) (stating ceedings before the Industrial Accident religious employee, largely a novice is not an Board. Id. at 280. under Massa- exchange because the novice her does law, legally chusetts a business trust is not a wages); service for Jelso v. World Balloon separate entity from Id. In this its trustees. Corp., 97 N.M. case, parties have assumed that AGW is (Ct.App.1981) (explaining unpaid that an vol entity. separate and distinct employee). unteer is not a worker addition, phrase “contract for hire” has AGW also relies on federal cases require mutuality been construed to holding that the trustees of business trust exchange assent as as an well of labor for employees meaning are not within the of that wages something Joyce, similar. Security Act. term as used the Social N.M. at 895 P.2d at 289. Griswold, (1st United States v. F.2d 599 Cir.1941); States, Loving v. United case, In this that the WCJ found (D.Mass.1948). F.Supp. 781 Under federal business trust was created a contract important law factor wife, “the most has been Regina. between Turner and his Un- else, documents, existence of a some one supporting [sic] der the contract and entity, either an individual or a collective Trustees are Turner is the sole trustee. performance paid for their employee control the reasonable ser-

755 provides that specifically The contract that the tube with water and Worker did vices. note, specific those directions.

“Trustee(s) follow We employees ... like and not are however, required that the WCJ was not dealing liable when with the Trust personally testimony believe Turner’s on this issue. See signed a properties or matters.” Turner ¶ Miller, 1999-NMCA-080, 16, Powers v. 127 accepting appointment his as trus- document (explaining N.M. that the short, In there is substantial evidence tee. any required trier of fact is not to believe finding supporting in the record the WCJ’s witness). particular point, toMore the even employee that Turner is an of AGW under if Worker did not follow Turner’s instruc- statutory definition of “worker” as inter- tions, not, itself, by that does establish that The fact that preted cases of this Court. longer scope he was no in the course and of subject control of anoth- Turner is not to the employment injury. of his the time making concerning is er decisions AGW Instead, question is whether the devia- irrelevant. great longer tion was so that was no doing anything employer’s to further his Accident of and Worker’s Arose out Was Lines, Younger business. Frederick v. Van Employment in the Course of 325-27, 393 P.2d 441-43 remaining All issues con (1964); see also Arthur Larson The Law of cerning entitlement to benefits are (2003). Worker’s Compensation Workmen’s 19.50 It challenges sufficiency of the evidence. injured undisputed is that Worker was dur- sufficiency reviewing ing place In. a claim for work at a hours Worker was evidence, expected attempting up to be while to set we review the record as a whole. equipment necessary temp- to take the well City Albuquerque, Lucero v. 2002-NMCA- Thus, erature measurements. substantial 034, 14, 43 P.3d 352. “In supports finding that evidence the WCJ’s review, applying whole record this Court re injury Worker’s arose out of and was in the views both favorable and unfavorable evi employment. course of dence to determine whether there is evidence accept a could reasonable mind ade Indepen- Fall Not an Second Was quate support the conclusions reached Intervening dent Cause Levarlo, the fact finder.” 120 N.M. at AGW contends Worker’s at 269. 906 P.2d fall at home while on crutches was an inde challenges the AGW WCJ’s and, therefore, intervening pendent cause finding that the first accident arose out of AGW was not liable for of the conse employ and was in the course of Worker’s recognizes quences of the second fall. AGW injury employ An ment. is the course of previously that this has held that “an Court employee if it is incurred when the is at ment injury resulting of a from the concurrence place may reasonably a where he be and is preexisting injury move normal engaged doing something everyday incidental to ful and natural ments of life is ‘direct injury.” Aragon v. original result’ of the filling employment. Edens duties his 176, 181, Dep’t, 113 N.M. State Corr. Dep’t, v. N.M. Health & Social Servs. (internal (Ct.App.1991) citation (1976). 60, 63, Similar omitted). essence, AGW contends that ly, injury employment if it arises out of is the second fall was not the result of the subjected in a risk “to which the worker is everyday life. Com normal movements Corcoran, employment.” Losinski v. moving around one’s mon sense tells us that P.A., Stagnone, & Barkoff activity daily life. In home is normal (Ct.App.1981). deed, against stationary banging one’s foot support argument of its Consequently, object woefully common. scope Worker was not the course supports substantial evidence WCJ’s employment, points to Turner’s his compensable. finding that fall was testimony given specific Moreover, Aragon’s that he had whether defini we doubt independent intervening cause would concerning how where to fill tion of directions any Dr. apply at time before the worker has does not make Gehlert’s treatment unau- injury. thorized. reached MMI for the accidental Necessity Reasonableness and of Medi- an Health

Dr. Gehlert Was Authorized cal Bills Provider Care argues AGW also that the WCJ challenges AGW also the find ordering pay erred in it to Worker’s medical ing that Dr. an Gehlert was authorized health finding bills. AGW contends that of provider. acknowledges that Tur care AGW necessity sup reasonableness and is not aware that ner was Worker was dissatisfied However, ported by substantial evidence. Tur with his treatment at Lovelace and that did not ask the to find that the AGW WCJ suggested to that Dr. ner Worker he consult expenses medical bills or were not reasonable White. Dr. White informed Worker that he necessary. findings incorporated AGW’s injuries ’not did treat ankle and referred by only findings Turner’s refei*ence. The Legant. Dr. Worker to Turner drove Work were, Turner asked for on this issue in es appointment Legant. er to Worker’s with Dr. sence, findings questioned that Worker Later, Legant accept Dr. declined to Worker Thus, accuracy of the bills. AGW cannot patient as a Dr. referred Worker to challenge sufficiency to evidence sup Gehlert. This is substantial evidence support finding. Pennington the WCJ’s v. porting finding. the WCJ’s Mines, 676, 678, Chino 109 N.M. 789 P.2d may arguing It be AGW is (Ct.App.1990) (stating that “[t]he Dr. was not Gehlert authorized because party timely request failure of a to file a for provide failed to AGW with notice findings ... precludes evidentiary of fact change provider required of health care as review”). 52-1-49(0 (1990). by § NMSA We Twenty

question employer Percent whether an who refuses to Loss of Use pay for medical treatment at the time of the Although challenge not Worker does injury is nevertheless entitled to formal writ- the WCJ’s determination that the scheduled change ten notice of a worker’s decision to injury applicable, section of the Act is he provider. his health care acknowl- AGW argues finding twenty WCJ’s edges that Worker made the initial selection percent leg loss of use of his left between the provider of health care and that AGW never supported ankle and the knee is not sub- sought change paid his selection. AGW points stantial evidence. Worker out that to Lovelace for initial Worker’s care gave $2000 Dr. Dr. Gehlert and Diskant both pay any permanent partial impairment and thereafter refused to for of Worker a rat- forty-five ing percent leg medical for care. AGW was well the left below the knee. based his de- aware of WCJ Worker’s dissatisfaction with Love- termination on loss of use rather than on the encouraged lace and Dr. see Le- impairment rating. gant. AGW did not come forward with supported medical evidence that would have In Lucero v. Smith’s Food & that Dr. determination Gehlert’s treatment Inc., Centers, Drug unnecessary. was either unreasonable or (Ct.App.1994), this Court held that it circumstances, these Under Worker’s failure necessary prove impairment, is not notify changing AGW he was his 52-l-24(A) (1990), defined NMSA provider health care is so minor that it does injury in order to obtain scheduled benefits justify potentially drastic conse- (2003). 1978, § under NMSA 52-1-43 Work quences that seeks. v. See Fuentes recognizes holding, er our but contends that Sch., 814, 816-17, Santa Fe Pub. concept impairment rating is essential (discuss- (Ct.App.1995) 496-97 determining partial disability. permanent minimis). Thus, ing doctrine of de disagree. injuries for We Benefits scheduled notify would governed by we hold that Worker’s failure to apply are not the rules that change provider permanent partial disability. AGW of his of health care for benefits 52-1-54(1) Co., pursuant to Section Drywall 2002- awarded Complete Baca litiga- processing claims bad faith AGW’s NMCA-002, P.3d 181. Therefore, not consider tion conduct. we do Thus, issue as well. affirm on this we would potential argument on Pinnell Comm’rs, 1999-NMCA-074, Attorney County Concerning v. Bd. Fees Issues ¶ 14, (explaining Liability Correctly Split The WCJ affirm on appellate court will not Attorney Fees for Worker’s grounds presented not to the trial court During pretrial proceedings, the WCJ {94} appel- would be unfair to the when to do so at- pay to Worker’s ordered AGW to lant). $2000 torney The order found as a sanction. analysis to an of wheth- We turn now {98} initially stipulated on the record AGW had a A er the was a fee or sanction. WCJ $2000 Act employees three and the it had by statute to “enter noncriminal is authorized argued had later its applied, and that AGW pursuant sanctions for misconduct” to NMSA or in error. The stipulation was incorrect 52-5-6CB) (2001). 1978, § Carrillo v. Com- in the form of an awarded “a sanction order 2002-NMCA-099, Inc., 11, 132 N.M. pusys, payable to Worker’s attorney fee of $2000” 52-5-6(B) specifi- 551. Section of hours attorneys, representing “the number cally gives power to WCJs includ- of work devoted to address this issue during preserve and enforce order hear- sepa- at two ing expended time on this issue oaths; subpoenas ings; administer issue hearings rate before the Administration.” testimony compel attendance and of witnesses, books, production papers, of Later, during proceeding, {95} tak- and other evidence or the documents allow- awarded the maximum WCJ Worker in- ing depositions designated before a $12,500, attorney fee of and Worker able oaths; competent dividual administer previously requested finding a that the $2000 witnesses; noncriminal examine enter that should not be awarded was a sanction misconduct; and do all sanctions for against fee award. credited may things conformable to law which be that, pursuant to Section 52- countered AGW discharge the necessary to enable him to 54(J), pay half required it be could 1— effectively. of his office duties $12,500 tax, $6,613.28, that the plus and awarding the refers to the The order $2000 against the total should be credited $2000 may reasonably and it award as a “sanction” $4,613.28. owed, leaving owing it amount it imposing the sanction due be read as Instead, against the WCJ credited the $2000 applica- waffling on the misconduct AGW’s $12,500, AGW to the total fee of and ordered bility the Act. $10,500. pay half of addition, given fact that the simply was contends the AGW $2000 it split, did not order this be $2000 WCJ Worker, part the total fee awarded to a the award to appears that the WCJ deemed 52-l-54(J), pay “the pursuant to Section If the was awarded as be a sanction. $2000 deter a claimant’s ment of 52-5- sanction under Section noncriminal shared under this section shall be mined 6(B), awarded as an then it was not employer.” equally by the worker and the 52-1-54, of the and none fee under Section or a sanction is the award was Whether apply to the provisions of that section $2000. construction, statutory which is an issue of issue. affirm on this We would therefore Morgan Kee novo on reviewed de Candelaria, 1998- gan Mortgage Co. v. Bad Faith ¶ 5,

NMCA-008, attor- requested additional awarded 1066. We conclude the $2000 pursuant ney fees in the amount $2500 under not awarded as a fee the WCJ was 52-1-54(1), provides: which Section 52-1-54, as a sanction. Section but judge may ex- The workers’ [of maximum amount first note that did ceed the We if ... he in this subsection stated fees] or on that the argue $2000 below claimant, litigation finds that a an insurer or an excess was due to the conduct of employer regard acted in bad faith with to Turner rather than AGW. Worker claims injured equally guilty handling the worker’s claim and AGW was of Turner’s bad injured employer faith conduct because it concurred in Tur- worker or has suf- pleadings. ner’s fered economic loss as result. this additional amount no case shall persuaded. We are not The record exceed two thousand five hundred dollars motions, fifty shows that Turner filed subsection, ($2,500). in this As used “bad any pleadings indicating did not file its faith” ... that amounts to means conduct concurrence of those motions. It is fraud, malice, willful, oppression or wanton adopted incorporated by true that AGW disregard of the reckless reference Turner’s list of witnesses and ex- employer.

worker or requested findings hibits and Turner’s of fact However, conclusions of findings law. we cannot requested AGW also that Worker say it was unreasonable for the WCJ to in faith. acted bad Because the WCJ made adoption conclude that AGW’s of a small regarding findings no at all the bad faith of pleadings number of Turner’s did not consti- party, either we remanded the ease and “fraud, malice, willful, oppression tute findings asked the and conclu- WCJ enter disregard rights wanton or reckless of the of sions on the issue. 52-1-54(1). pur- the worker.” The Section that, The WCJ found while some of {101} pose statutory provision of the bad faith is to filings Turner’s were without a sound basis punish and to deter others from the commis- fact, law or Turner was not Worker’s em- sion of like offenses. v. Sanchez Wohl Shoe and, therefore, ployer Turner’s bad faith was Co., 276, 278, 108 N.M. 986 employer, irrelevant. AGW (Ct.App.1989). purpose The statute’s would and WCJ found that AGW “did not file punished be if ill-served AGW were for the excessive, frivolous, or bad faith matters.” filed, pleadings appropriate it which were Consequently, íhe concluded that WCJ AGW defenses, and which raised colorable or for engage “did not bad faith or unfair claims concurring in relatively three of Turner’s processing.” pleadings. innocuous This Court has treated bad faith {102} findings regard- The WCJ made no finding subject this context as a of fact ing Worker’s bad faith or lack of bad faith. Murphy substantial evidence review. v. Although appealed has not the WCJ’s Pizza, Inc., 346, 349, City Duke 118 N.M. 881 determination Worker did not act bad (Ct.App.1994); Trujillo City P.2d 709 v. faith, it supplemental filed a brief after re- 640, 646, Albuquerque, 116 N.M. of 368, arguing mand the WCJ should have However, (Ct.App.1993). since found that Worker acted in bad faith. decided, concerning those cases were law late; argument AGW’s comes too we do not questions mixed of law and fact has been consider contentions made for the first time See, e.g., extended to civil cases. Ponder v. reply in a supplemental brief or a brief. Co., State Farm Mut. Auto. Ins. 2000- Millington, Yount v. ¶¶ NMSC-033, 6-7, P.3d (Ct.App.1993). 960; Heating Souter v. Ancae & Air Condi- 2002-NMCA-078, ¶19, tioning, Constitutionality Cap on Fees Therefore, 52 P.3d 980. “bad faith” is a argues that the limitation on question mixed of law and fact. 52-1-54(1) fees set forth Section general argument asserts a pro- rights equal violates his constitutional of repetitive filings that the “voluminous and tection, process, due and access to the courts. pleadings,” “repetitious and irrelevant 52-1-54(1) question The of whether Section witnesses, examination” of and the “unrea- equal protection violates a worker’s every sonable contestation of claim set forth and due has not been addressed by Worker” establish AGW’s bad faith. appellate New Mexico court since our Su- admits, preme heightened as Worker most of this Court established rational Trujillo City Albuquer- analysis in basis ¶32, 1998-NMSC-031, que, question of whether Sec-

965 P.2d 305. 52-1-54(1) violates worker’s

tion matter of first courts is a

access to the “significant are Because these

impression. the constitution

question[s] of law under and “is- or the United States”

New Mexico interest,” public Section of substantial

sue[s]

34-5-14(C)(l), (2), certify we them to

Supreme Court.

CONCLUSION reasons, would foregoing we For all compensation order on

affirm the WCJ’s except involving the constitution-

issues 52-1-54(1), certify which we

ality of Section Supreme Court. IT IS SO ORDERED. A. ALARID and JOSEPH

WE CONCUR: CASTILLO, Judges. FOY

CELIA

2005-NMCA-081 Mexico, of New

STATE

Plaintiff-Appellee, SANCHEZ, Defendant-Appellant.

Mario 24,666.

No. Appeals of New Mexico.

Court of

May 2005. Denied, 29,250,

Certiorari No.

June

Case Details

Case Name: Wagner v. AGW CONSULTANTS

Court Name: New Mexico Supreme Court

Date Published: Jun 29, 2005

Citation: 114 P.3d 1050

Docket Number: 28,348

Court Abbreviation: N.M.