Lead Opinion
{1} Worker prevailed in a heavily litigated worker’s compensation claim and was awarded $58,599 in medical expenses, plus $26,761 in past and future weekly benefits. At the hearing on attorney fees, the worker’s attorney sought $61,125 in attorney fees, of which the worker would have been liable for $30,562. See NMSA § 52-l-54(J) (2003) (providing worker and employer shall share payment of attorney fees equally except as otherwise provided by the statute). Worker argued the $12,500 limitation on attorney fees in NMSA 1978, Section 52-1-54(1) (1993, prior to 2003 amendment) should not apply because such a limitation violated constitutional guarantees of equal protection and due process.
{2} The employer appealed the worker’s award to the Court of Appeals and the worker cross-appealed the attorney fee award. The Court of Appeals certified the issue of the constitutionality of the limitation on attorney fees and otherwise proposed affirming the compensation award. We accepted certification to decide whether the limitation on attorney fees in Section 52-1-54(1) of the Workers’ Compensation Act violates Worker’s state constitutional rights to equal protection and due process.
{3} We review the attorney fee limitation provision under rational basis scrutiny, as the record in this ease fails to demonstrate that the limitation has a sufficient impact on important rights to trigger a higher level of scrutiny. We hold that the fee limitation is rationally related to legitimate government purposes, particularly those of maximizing the limited benefits workers may currently obtain through the workers’ compensation system. On these facts, were we to declare the fee limitation unconstitutional, the worker’s benefits of $26,761 would be insufficient to pay his share of the $61,125 in requested attorney fees. The $12,500 attorney fee limitation, which in this case limits the worker’s share of attorney fees to $6,250, still allows the worker to take home $20,511 in benefits. Therefore, while we do not decide whether other provisions of Section 52-1-54 would pass constitutional muster, we uphold the fee limitation itself. We adopt and append the Court of Appeals’ analysis to all other issues raised in this appeal and cross-appeal. See Wagner v. AGW Consultants, No. 22,370 (N.M.Ct.App. Oct. 24, 2003) (certification order).
BACKGROUND
{4} David Wagner (Worker) filed a claim for workers’ compensation benefits against AGW Consultants, d/b/a Turner Environmental Consultants (AGW), a ground-water hydrology consulting firm where he was injured while employed as a geologist. After realizing that AGW was a business trust, Worker amended his complaint to add as a defendant William Turner, AGW’s sole trustee, in the event that Turner was the real party in interest. Turner appeared pro se to challenge Worker’s claim, while separate counsel represented AGW.
{5} Several issues were heavily litigated at trial, including the applicability of the Workers’ Compensation Act (WCA) to AGW, whether Turner was a real party in interest, the extent of Worker’s injury, and the constitutionality of the attorney fee limitation. Turner himself filed a significant number of the roughly 2,500 pages of pleadings, independent of post-judgment motions and this appeal. The Workers’ Compensation Judge (“WCJ”) noted that although the issues were
{6} At the subsequent hearing on attorney fees, Worker’s attorney claimed to have worked more than 400 hours, at $150 per hour, on the pre-trial and trial work. Worker’s attorney argued the $12,500 statutory limitation on attorney fees was unreasonable in this case given the extraordinary amount of time involved, and that the limitation was unconstitutional due to its chilling effect on workers’ ability to obtain adequate representation. Worker presented expert testimony that the fee limitation can be unfair and can make it uneconomical for attorneys to pursue certain time-consuming cases. AGW and Turner challenged the jurisdiction of the WCJ to declare Section 52-1-54 unconstitutional and did not present evidence in support of the fee limitation.
{7} The WCJ awarded Worker $12,500 in attorney fees and made the following findings: (1) Worker’s attorney reasonably expended over 200 hours at an hourly rate of $175 per hour,
I. Worker Has Standing to Challenge Fee Limitation
{8} AGW claims Worker lacks standing to challenge the constitutionality of the fee limitation under Mieras v. Dyncorp,
{9} To have standing, Worker must either show, or the WCJ must explicitly find, that but for the fee limitation, reasonable attorney fees would have exceeded the awarded amount. See Meyers v. Western Auto & CNA Ins. Cos.,
{10} We note that the fact Worker is represented by counsel, who continues to honor her ethical duty to represent him, does not preclude standing in this case. See Rule 16 — 116(B)(5) NMRA 2005 (declining or terminating representation). In Corn v. New Mexico Educators Fed. Credit Union, the Court of Appeals held the claimant had standing to challenge the constitutionality of the unilateral limitation on workers’ attorney fees although claimant continued to be represented by counsel.
{11} Thus, despite the fact that Worker is represented by counsel, he has shown that he is at risk of significant injury because of his inability to compensate a lawyer on appeal. Section 52-1-54 prohibits Worker from paying his counsel more than $12,500, either before the WCA or on appeal. See § 52-1-54(A), (I), (N) (making it unlawful to accept fees except as provided in the Act, punishable as a misdemeanor offense). The ethical rules allow Worker’s lawyer to withdraw if the case poses an “unreasonable financial burden,” and Worker would be unable to offer a new attorney any compensation on appeal. See id.; Rule 16 — 116(B)(5). This evidence certainly does not detract from Worker’s having standing; if anything, it strengthens his argument. We hold Worker has standing to challenge the constitutionality of the fee limitation.
II. Rational Basis is the Appropriate Level of Scrutiny
{12} Before turning to the merits of the equal protection and due process challenges, we must identify the appropriate level of scrutiny for reviewing the challenged law. What level of scrutiny we use depends on the nature and importance of the individual interests asserted and the classifications created by the statute. See Mieras, 1996— NMCA-095, 1124,
{13} Worker and amicus New Mexico Trial Lawyers Association (NMTLA) urge us to review the attorney fee limitation under intermediate or strict scrutiny, arguing that the fee limitation impacts important or fundamental rights. They contend that certain claimants cannot obtain adequate representation because the fee limitation discourages lawyers from taking their cases, and that this lack of adequate representation threatens the meaningful exercise of two separate rights: (1) meaningful access to the courts as implied in the due process clause of the state constitution, see N.M. Const, art. II, § 18; Richardson,
Worker Fails to Demonstrate the Impact on Important Constitutional Rights Is Sufficient to Trigger Intermediate Scrutiny
{14} New Mexico appellate courts have previously recognized that the right to access the courts and the right to an appeal are important, although not fundamental, rights for purposes of constitutional analysis. See Trujillo III,
{15} Worker argues that the fee cap impacts workers’ appellate rights because it discourages lawyers from taking complex or time-consuming cases, depriving those claimants of meaningfully exercising their appellate rights. Meaningful access to our appellate courts depends in part on an individual’s ability to obtain adequate representation. See Herndon,
{16} In arguing that intermediate scrutiny applies, it is not enough to simply point to an important constitutional right; the challenger must show that the legislation in fact impacts the exercise of this right. See Mieras,
{17} The record in this case is not meaningfully different from that in Mieras, where the Court of Appeals was unpersuaded that the fee limitation infringed on the right to access the courts by preventing a class of workers from obtaining adequate representation. See Mieras,
{18} As in Mieras, the record here fails to demonstrate that some claimants are unable to obtain representation in workers’ compensation proceedings, either initially or on appeal, or that a decrease in available attorneys renders access to our appellate courts any less meaningful. Worker’s expert did not directly attribute a decline in available lawyers to the attorney fee limitation, nor did Worker offer any direct evidence in support of this testimony. Rather, Worker’s expert seemed to emphasize that the decline in lawyers representing workers was due to the overall reduction in benefits to injured workers. While the WCJ found a “chilling effect of miserly attorney fees on representation,” the record fails to show that this chilling effect has impacted claimants’ ability to access the courts sufficiently to trigger intermediate scrutiny of Section 52-1-54(1). See Triplett,
{19} Before finding that the fee limitation meaningfully impacts claimants’ appellate rights, therefore, we would require more evidence in the record, such as testimony or data showing that workers with complex cases are unable to obtain representation due to the fee limitation. See Triplett,
{20} In seeking to elevate our review to intermediate scrutiny under the facts of this case, the dissent suggests a more “charitable” approach, even to the extent of selectively considering anecdotal information not of record. Dissent, ¶¶ 51-52. However, the facts and record of this case simply do not demonstrate how the fee limitation impacts the right to access the courts and the right to an appeal. Worker was free to appeal her case from the workers’ compensation proceedings and did so. She continues to be represented by her counsel, whom we commend for her skilled and committed advocacy on behalf of her client, particularly in light of the volume of “frivolous and excessive” pleadings filed by the pro se litigant at the administrative level. Because this case fails to demonstrate that the fee limitation impacts important rights or sensitive classes, rational basis is the proper standard of review for reviewing the equal protection and due process challenges.
III. Equal Protection Challenge to Fee Limitation
{21} The New Mexico Constitution provides that no person shall be denied equal protection of the laws. N.M. Const, art. II, § 18. Like its federal equivalent, this is essentially a mandate that similarly situated individuals be treated alike, absent a sufficient reason to justify the disparate treatment. See City of Cleburne v. Cleburne Living Ctr., Inc.,
{22} In Com, we evaluated an equal protection challenge to the WCA fee limitation and declared the fee limitation unconstitutional because it applied only to the worker’s attorney. Corn,
{23} As applied, Section 52-1-54(1) creates two classes of workers compensation litigants: those who do and do not reach the limitation at the administrative stage, and consequently those who can and cannot lawfully pay an attorney a reasonable fee on appeal.
{24} While our rational basis test is neither “toothless” nor a “rubber stamp” for challenged legislation, it nonetheless requires us to defer to the validity of the statute, with the challenger carrying the burden of persuasion. See id. ¶¶ 14, 30. To successfully challenge the statute under this standard of review, Worker must demonstrate that the classification created by the legislation is not supported by a “firm legal rationale” or evidence in the record. See Com,
Section 52-1-54(1) is Rationally Related to a Legitimate Government Purpose
{25} The WCA was enacted as an exclusive remedy for employees to subject employers to liability without fault for work-related injuries. Mieras,
{26} Worker does not challenge these government purposes for the attorney fee limitation, but rather argues that the fee limitation is not rationally related to these purposes. Contrary to Worker’s argument, we find there to be a firm legal rationale, supported by the record of this case, to justify the $12,500 attorney fee limitation as a rational means to achieving the Legislature’s goals. As we recognized in Corn, it is certainly rational for the State to minimize the role of attorneys in seeking to maximize claimants’ awards, quickly and efficiently.
{27} In this case, Worker’s $12,500 attorney fee award represented just under fifteen percent of Worker’s total award, not including future medical benefits. This is well within the parameters that this Court has identified as generally appropriate for attorney fees in workers’ compensation cases. Woodson v. Phillips Petroleum,
{28} Worker points to no legal authority or evidence in the record to show the $12,500 fee cap is an arbitrary and irrational means to achieve the State’s objectives. For instance, there is no evidence in the record to suggest either what percentage of claimants approach or reach the fee limitation at the administrative level, or the typical amount of time expended by attorneys either at the administrative level or on appeal in such cases, to somehow demonstrate that $12,500 is an irrational figure.
{29} We find nothing in Worker’s argument to undermine the rationale that by limiting attorney fees at $12,500, Section 52-1-54(1) helps to maximize workers’ take-home awards, minimize costs to employers and increase the efficiency of the system for the reasons discussed above.
IY. Due Process Challenge to Fee Limitation
{30} The due process clause in the New Mexico Constitution reads: “No person shall be deprived of life, liberty or property without due process of law ... ”. N.M. Const, art. II, § 18. Substantive due process cases inquire whether a statute or government action “‘shocks the conscience’ or interferes with rights ‘implicit in the concept of ordered liberty.’ ” See State v. Rotherham,
{31} For the reasons stated above, Worker and amicus NMTLA fail to show that Section 52-1-54(1) is not rationally related to the legitimate government purposes. See Triplett,
CONCLUSION
{32} We hold that under the record in this case, the WCA attorney fee limitation satisfies state guarantees of equal protection and due process. Section 52-1-54(1) is rationally related to legitimate government purposes, particularly the important goal of maximizing workers’ recovery. Assuming the Legislature limits workers’ recovery in a constitutional manner, the fee limitation is a rational means to advance this goal. We adopt the Court of Appeals’ analysis and conclusions regarding the remaining issues that were raised on appeal. We affirm.
{33} IT IS SO ORDERED.
Notes
. At the time of this case, Section 52-1-54(1) of the WCA limited attorney fees to $12,500. Section 52-1-54(1) was amended in 2003 to raise the attorney fee limitation to $16,500. NMSA 1978, § 52-1-54(1) (2003). Because this case was already pending at the time the statute was amended, this Opinion considers only the constitutionality of the pre-2003 fee limitation.
. Apparently the judge mistook Worker’s attorney’s fees for $175 an hour instead of the $150 hourly rate she requested.
. We emphasize that this standard requires either an important right or a sensitive class, contrary to what we may have suggested in dicta in Trujillo III,
. The dissent maintains that representation is particularly important at the appellate level, Dissent, ¶¶ 48-49, and cautions that we "should not encourage parties to attempt the rigors of the appellate process unaided by counsel.” Dissent, ¶ 62. In doing so, the dissent seems to minimize the significance of administrative hearings in workers compensation cases. In fact, it is at the workers compensation level that skilled counsel is most crucial to ultimately preserving benefits awarded to an injured worker. The better the quality of the record below, the greater the likelihood of prevailing on the merits on appeal, particularly given the Court of Appeals' efficient summary calendar process, supported by a skilled and dedicated Prehearing Division.
. Amicus Workers' Compensation Administration alleges that in fact there was an increase in attorneys who represented workers before the WCA. Again, because this information is not in the record and was not subject to cross-examination to test its accuracy, we cannot rely on it. See State v. Martin,
. In addition, as discussed above, by subjecting workers, but not employers, to judicial approval of reasonable attorney fees, Section 52-1-54 creates an additional classification of those who can and cannot lawfully contract to pay an attorney of their choice reasonable fees on appeal. Again, however, the facts and record of this case do not squarely present such an issue, nor was this particular classification discussed by the parties below. See Richardson,
. In this case, the WCJ may have been able to minimize the time expended by the attorneys by using appropriate sanctions to control the courtroom. See NMSA 1978, § 52-5-6(B) (2001). However, whether the WCJ was correct in his use of sanctions is not before us.
. According to amicus WCA, reasonable attorney fees would have exceeded the $12,500 limitation in only 1.5% of workers' compensation cases prior to 2003. Again, this information was not in the record, so it is of little use to us here.
. The WCA also argues that the fee limitation minimizes insurance costs, which keeps down insurance premiums, increases economic development and employment, and encourages employers to continue to support and follow the mandatory system. However, there is no evidence to support this in the record and we decline to find this to be a firm legal rationale.
. This limited holding in no way suggests our belief that by requiring judicial approval for workers', but not employers’, attorney fees, Section 52-l-54(C) rationally furthers the goals of minimizing costs to employers or maximizing workers' take-home awards.
Concurrence Opinion
(concurring in part and dissenting in part)
{34} I concur in part and dissent in part. Under the facts of this case, I reluctantly agree that the attorney fee limitation in NMSA 1978, Section 52-1-54(1) (1993) of the Workers’ Compensation Act (the Act) passes the rational basis test, and is therefore constitutional, for proceedings before the Workers’ Compensation Administration (the Administration). I write separately to express my concerns regarding the effect of the attorney fee limitation on a worker’s right to appeal.
{35} In my mind, the absence of any provision for attorney fees at the appellate level impermissibly burdens the constitutional rights of those workers with complex or time-consuming cases. I believe the Legislature’s failure to allow additional fees in the limited number of cases that reach our courts after exhausting the cap is contributing to an intolerable decline in adequate representation in the field of workers’ compensation law. While I am not yet convinced that this decline impacts workers’ access to the courts to the point of violating due process and equal protection rights in administrative proceedings, I would reach a different result when analyzing the impact of the fee limitation on the right to appeal.
{36} In part, I disagree with the majority because I would apply intermediate scrutiny to the important right to have access to the judiciary for the purpose of an appeal. Under intermediate scrutiny analysis, I would find the cap unconstitutional. I also dissent because I am troubled with the way the majority presents the rational basis test. I think our courts, attorneys, and litigants in New Mexico would benefit from further elaboration.
Rational Basis Test
{37} To begin, I respectfully disagree with the rational basis test presented by the majority. Ever since we overruled the fourth tier of judicial scrutiny defined as heightened rational basis in Trujillo v. City of Albuquerque, we have avoided explaining what we meant by our so-called “modern articulation” of the rational basis test.
{38} The majority professes that our rational basis test is one test, simultaneously deferential to the validity of the statute but not a “rubber stamp” or “toothless.” Maj. Op. ¶ 24. The majority then explains the requirements of our rational basis test by using language from City of Cleburne v. Cleburne Living Ctr.,
{39} I believe the language from Cleburne in fact creates a different test than the type of minimal scrutiny we usually associate with the rational basis test. See City of Cleburne,
{40} I do not object to giving our rational basis test more teeth in some situations, if we clearly identify what triggers heightened scrutiny, just as the Court of Appeals did in Alvarez,
{41} On the other hand, if this Court feels constrained by the traditional rational basis test, I would prefer not to follow the lead of the United States Supreme Court. See, e.g., Lawrence v. Texas,
Level of Scrutiny
{42} Equal protection challenges to legislative classifications that infringe on important, but not fundamental rights, or involve sensitive, but not suspect classes, must be analyzed under intermediate scrutiny. See Alvarez,
{43} This Court has recognized that the right of access to the courts is an implicit fundamental right. See Richardson v. Carnegie Library Rest., Inc.,
{44} Of course, an individual’s ability to have access to the judiciary to resolve legal claims is not endless. See Jiron,
{45} I believe that a worker’s right to retain an attorney is one aspect of the right of access to the courts. See Corn,
{47} The majority acknowledges that “[m]eaningful access to our appellate courts depends in part on an individual’s ability to obtain adequate representation.” Maj. Op. ¶ 15 (citing Herndon v. Albuq. Pub. Sch.,
{48} Unlike the majority, I would make a distinction between the administrative proceedings and appeals before our courts. In administrative proceedings before a workers’ compensation judge, I am willing to agree that the attorney fee cap survives rational basis scrutiny. As the majority observes, whether representation is “adequate,” “depends on the circumstances, including the nature of proceedings and the ability of the other side to secure representation.” Maj. Op. ¶ 15. Given the nature of the workers’ compensation system, which the Legislature designed as an administrative alternative for dispute resolution, it may be a rational legislative choice to limit attorney fees in order to discourage litigation, reduce costs, and ensure the quick delivery of benefits. See Corn,
{49} In my opinion, however, this analysis changes for appeals before our courts. Unlike the United States Constitution, our State Constitution guarantees the absolute right to an appeal. See N.M. Const, art. VI, § 2. Thus, once a worker’s case moves from the administrative setting to our courts, “the nature of the proceedings and the ability of the other side to secure representation” requires a more searching inquiry into whether representation is adequate. Maj. Op. ¶ 15. The cap prohibits workers, who have already received the statutory maximum for attorney fees, but are compelled to defend their benefit awards on appeal, from paying for necessary legal services, even out of their own pocket.
{50} The majority declines to address the impact of the attorney fee limitation on appeals because it contends there is simply not enough evidence in the record to indicate that Worker was deprived from exercising his right to appeal. The majority relies on United States Dep’t of Labor v. Triplett,
{51} The majority seems to require an enormous evidentiary burden before it is willing to apply intermediate scrutiny — either that a class of workers are completely unable to obtain representation or that an attorney actually withdraw from representation because of an unreasonable financial burden. I would be more charitable and recognize a class of workers exists whose right to appeal is burdened by the attorney fee cap.
{52} I believe the record and decisions of our courts have sufficiently indicated that the attorney fee limitation deters legal counsel from taking cases like this one. In Triplett, the Supreme Court applied a “heavy presumption of constitutionality” to an attorney fee regime enacted by Congress.
{53} While it is true that Worker appears to have been fortunate enough to obtain legal representation before the Administration and our courts, he still represents a class of workers who face a burden not shared by other claimants or employers who seek to exercise their right to an appeal. For that reason, intermediate scrutiny is appropriate.
Intermediate Scrutiny Applied
{54} Under intermediate scrutiny, the burden is on the party maintaining the statute’s validity “to prove that the classification is substantially related to an important government
{55} I have no problem accepting that the attorney fee cap is aimed at advancing important government interests. However, upon examining the impact of the cap on those workers who must participate in an appeal to preserve their hard-won benefits, I do not believe that the employer and the Administration have carried their burden of proving that the attorney fee cap is substantially related to the interests it was designed to address.
{56} Under intermediate scrutiny, a less restrictive means analysis is appropriate. See Corn,
{57} The majority argues that by discouraging litigation, the attorney fee cap advances one of the purposes of the Act, which is to assure quick and efficient delivery of benefits to workers at a reasonable cost to employers. See Maj. Op. ¶ 26. In this case, I fail to see how the cap has prevented the employer from prolonging litigation through its own appeal. Worker was brought involuntarily to the judiciary, and had no choice but to defend his benefits. While I do not mean to suggest that an employer should not have a constitutional right to appeal a deeision of a workers’ compensation judge, I do think that in some situations the employer has nothing to lose by appealing a decision. If the worker’s counsel is already bled dry by the attorney fee cap, then even if the employer loses on appeal, the employer will not have to pay any more of the worker’s attorney fees.
{58} Meanwhile, the fee cap might not have the same effect on employers’ attorneys. Paid if they win or lose, and not subject to judicial approval of fees, employers’ counsel may be in a.better position to prolong litigation through an appeal. If retained by an insurance company, employers’ counsel may be able to offset losses incurred in one case due to the fee cap with gains from future cases. Usually, workers’ attorneys are not similarly situated. In its practical effect, the fee cap provides employers with an unfair tactical advantage on appeal.
{59} In addition, the cap puts workers in a vulnerable position. Workers who can no longer pay their attorney on appeal might lose benefits won at the administrative level. Thus, at the appellate level, the attorney fee cap is not substantially related to legislative goals of reducing litigation and providing quick and efficient delivery of benefits.
{60} Reducing costs is another important purpose behind the attorney fee limitation. However, in my view, the evidence that only a few eases will exceed the cap, coupled with the fact that not all of those cases will go through an appeal, argues against the necessity of the cap in its present inflexible form.
{61} The majority also finds that the statutory cap promotes the Legislature’s interest in protecting workers’ limited benefits. See Maj. Op. ¶ 27. In its present form, the Act holds the worker responsible for paying half of any fee awarded to his attorney. If the fee cap is overturned, then fewer net benefits will be available to the worker. I acknowledge the force of this argument. Protecting workers’ benefits is an important government interest. However, I do not believe a prohibition on paying appellate attorney fees is substantially related to protecting workers in this situation. Rather, it threatens them with severe harm. Forced to defend their benefits on appeal, workers need adequate representation. Unlike any other appellate party I know of, those workers who have exceeded the cap must either rely on an attorney who is working for free, or proceed alone.
{62} We should not encourage parties to attempt the rigors of the appellate process unaided by counsel. As is evident from the conclusion of the workers’ compensation judge that miserly attorney fees cause a chilling effect on representation, the cap discourages counsel from representing workers when there is no money available on appeal. In the extreme, attorneys may withdraw when continued representation will result in unreasonable financial burden. See Rule 16-116(B)(5) NMRA 2005; Com,
Some legislatures, in their zeal to save claimants from diminution of their net benefits th[r]ough legal fees, carry restrictions on fees to the point where they may well injure claimants as a class both by hindering the growth of an able compensation bar and by making it economically impossible for claimants’ lawyers to give the necessary time to the preparation of each case.
8 Arthur Larson & Lex K. Larson, Workers’ Compensation Law § 133.07, at 133-44 (2003). As we have previously said,
[w]e must avoid a policy or a practice which would discourage representation or the taking of appeals where counsel feels that an injured work[er] has been aggrieved at the trial court level. We must also preserve the right of an injured work[er] to have representation where the employer has appealed.
Herndon,
{63} While I recognize the legislative power to draw lines, there are better ways to accomplish the important government goals at stake than drawing the line at zero. The Legislature is free to set a reasonable limit on fees as long as it makes a reasonable provision for the possibility of fees incurred during appellate review. I also am confident that workers’ compensation judges can determine reasonable supplemental awards that would compensate attorneys without unduly impairing workers’ benefits.
APPENDIX
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Oct. 24, 2003.
Appeal from the Workers’ Compensation Administration
Gregory D. Griego, Workers Compensation Judge
{64} AGW Consultants, d/b/a Turner Environmental Consultants, (AGW) appeals and David Wagner (Worker) cross-appeals from the compensation order and order concerning attorney fees from the Workers’ Compensation Judge (WCJ). AGW raises six issues on appeal and Worker raises three issues in his cross-appeal. The issues raised in both appeals fall into two broad categories: those concerning Worker’s entitlement to benefits, and those concerning the award of attorney fees to Worker.
{65} As to Worker’s entitlement to benefits, AGW argues: (1) that AGW does not have the requisite three employees contemplated by NMSA 1978, § 52-l-6(A) (1990) of the Workers’ Compensation Act (the Act) and therefore is not subject to the Act; (2) that the WCJ erred in determining that the accident arose out of and in the course of Worker’s employment; (3) that the WCJ erred in determining that Worker’s second fall was not an independent, intervening cause; (4) that the WCJ’s finding that Dr. Gehlert was an authorized health care provider is not supported by substantial evidence; and (5) that the WCJ’s finding that AGW is responsible for Worker’s medical bills is not supported by substantial evidence. Worker argues in his cross-appeal (6) that the WCJ’s determination of twenty percent loss of use for Worker’s scheduled injury is not supported by substantial evidence.
{66} With respect to the issues concerning attorney fees, AGW argues that (1) the WCJ erred in the determination of the fee amount to be paid fifty-fifty. Worker argues that (2) the WCJ erred in rejecting Worker’s request to find that AGW and Turner acted in bad faith, a finding that would have permitted an additional award of attorney fees pursuant to NMSA 1978, § 52-1-54(1) (2003). In addition, Worker argues (3) the $12,500 limit (cap) on attorney fees violates equal protection or due process or Worker’s right of access to the courts.
{67} We certify the issue concerning the constitutionality of the attorney fee cap to the New Mexico Supreme Court. However, because the certification statute, NMSA 1978, § 34-5-14(0) (1972), and Rule 12-606 NMRA 2003 refer to the certification of “a matter” to the Supreme Court, we conclude that we must certify the entire case even if we wish only to certify one issue. See Collins v. Tabet,
BACKGROUND
The Accident and Subsequent Medical Care
{68} AGW, a ground-water hydrology consulting firm, is a common-law business trust. William Turner is AGW’s sole trustee. It is undisputed that at the time of the accident, AGW had two part-time employees, Worker and Todd McCabe. Whether Turner was a worker or employee of AGW is a disputed issue.
{69} On April 7, 1999, Worker and McCabe were sent to a particular water well, the S-10, to set up the equipment necessary for temperature readings to be taken of the well. Worker was climbing a ladder on the side of a water tank located near S-10, in order to fill a plastic tube with water so that the tube could be inserted in the S-10. The ladder came loose and Worker fell, breaking his left leg just above the ankle. His first treating physician, Dr. Felter, testified that Worker had “what we considered a compound fracture. That means part of the bone was sticking through the skin, and it was a highly comminuted fracture, which means in many pieces, and it involved the ankle joint itself.”
{70} McCabe took Worker to Lovelace Medical Center, where Dr. Felter performed surgery. Worker was released two days later. His leg was in a cast at the time and he was instructed to use crutches, to avoid putting
{71} Three days after his release from the hospital, Worker was at home, on crutches. He was reaching for a checkbook that was on top of a bookcase when he raised his arm, lost his crutch, swung on the remaining crutch, kicked out with his injured foot for balance, struck his unprotected toes on the bookcase, pivoted 180 degrees, and fell. He was taken to Lovelace and Dr. Felter performed additional surgery.
{72} Worker subsequently told Turner that he was dissatisfied with his care from Lovelace. Turner suggested another doctor, Dr. White, who suggested Dr. Legant. Turner drove Worker to meet with Dr. Legant. After the meeting, Worker had a second surgery in April and continued to receive medical care from Lovelace until August 1999. At that point Worker again called Dr. Legant, who referred Worker to Dr. Gehlert. At that time, there was concern that the fracture was not healing. Dr. Gehlert provided additional medical treatment, including a bone graft. Ultimately, the WCJ found that Worker incurred over $58,000 in medical bills and was unable to work for roughly a year. The WCJ also found that Worker reached maximum medical improvement (MMI) for the injury on June 5, 2000.
{73} Worker filed his claim on October 12, 1999. At that time he had not yet been released to return to work. He sought Temporary Total Disability (TTD) benefits, Permanent Partial Disability (PPD) benefits, attorney fees, disfigurement compensation, and payment of his medical bills. The complaint indicated the employer/respondent was AGW.
Pretrial Proceedings
{74} Two things happened during pretrial proceedings that bear on the issues raised on appeal. First, once it became clear that AGW was a business trust, Worker moved to amend his complaint by adding Turner as an Employer/Insurer, on the ground that Turner was the real party in interest. The WCJ granted the motion to amend.
{75} Second, AGW filed a motion to dismiss, based on the contention that Turner, as sole trustee of the business trust, was not within the definition of a “worker” and therefore could not be counted as an employee. Thus, AGW argued, AGW had only two employees, Worker and McCabe, and the Act did not apply. The WCJ denied the motion, finding that Turner was “in the same shoes” as a corporate executive and therefore would be treated as an employee. In support of this decision, the WCJ cited NMSA 1978, § 52-1-7(E) (2003).
Formal Hearing
{76} After the formal hearing, the WCJ filed a notice of proposed decision, and all parties filed proposed findings and conclusions. The WCJ then entered a compensation order, which, in pertinent part, found as follows. Worker was employed by AGW, a business trust, and not by Turner individually. Turner was an employee of the business. Worker’s first injury arose out of and in the course of his employment. The second injury, the fall at home, was incidental to the normal activities of daily living and did not constitute an independent intervening cause. Dr. Gehlert was an authorized health care provider because Worker initially directed medical care, Turner suggested Dr. Legant, and Dr. Legant referred Worker to Dr. Gehlert. Worker was entitled to TTD benefits for roughly one year. Worker reached MMI June 5, 2000, and thereafter had a scheduled injury with a twenty percent loss of use. In addition, the WCJ ordered AGW to pay Worker’s reasonable and necessary medical expenses.
{77} We discuss the factual and procedural background relevant to the award of attorney fees when we address the issues concerning that award.
DISCUSSION
Worker’s Entitlement to Benefits
The WCJ Did Not Err In Determining That AGW Had Three Employees
{78} AGW contends that Turner, as the sole trustee of the business trust, was not an employee of AGW, relying on two arguments. First, AGW relies on authorities from other
{79} We review de novo the application of the law to the facts. Hise v. City of Albuquerque,
{80} AGW relies on In re Hayes’ Case,
{81} AGW also relies on federal cases holding that the trustees of a business trust are not employees within the meaning of that term as used in the Social Security Act. United States v. Griswold,
{82} By statute, the provisions of the Act apply to employers of three or more workers. Section 52-l-6(A). The parties do not dispute that AGW is a separate legal entity and that it was an employer within the meaning of the Act. The Act defines a “worker” as “any person who has entered into the employment of or works under contract of service or apprenticeship with an employer.... The term ‘worker’ shall include ‘employee’ and shall include the singular and plural of both sexes.” NMSA 1978, § 52-l-16(A) (1989).
{83} In determining whether a given individual is a worker, the label that the parties have attached to them relationship is not controlling. Yerbich v. Heald,
{84} In this case, the WCJ found that the business trust was created by a contract between Turner and his wife, Regina. Under the contract and supporting documents, Turner is the sole trustee. Trustees are paid reasonable compensation for their services.
Worker’s Accident Arose out of and Was in the Course of Employment
{85} All the remaining issues concerning Worker’s entitlement to benefits are challenges to the sufficiency of the evidence. In. reviewing a claim for sufficiency of the evidence, we review the record as a whole. Lucero v. City of Albuquerque,
{86} AGW challenges the WCJ’s finding that the first accident arose out of and was in the course of Worker’s employment. An injury is in the course of employment if it is incurred when the employee is at a place where he may reasonably be and is engaged in doing something incidental to fulfilling the duties of his employment. Edens v. N.M. Health & Social Servs. Dep’t,
{87} In support of its argument that Worker was not in the course and scope of his employment, AGW points to Turner’s testimony that he had given Worker specific directions concerning how and where to fill the tube with water and that Worker did not follow those specific directions. We note, however, that the WCJ was not required to believe Turner’s testimony on this issue. See Powers v. Miller,
The Second Fall Was Not an Independent Intervening Cause
{88} AGW contends that Worker’s fall at home while on crutches was an independent intervening cause and, therefore, AGW was not liable for any of the consequences of the second fall. AGW recognizes that this Court has previously held that “an injury resulting from the concurrence of a preexisting injury and the normal movements of everyday life is a ‘direct and natural result’ of the original injury.” Aragon v. State Corr. Dep’t,
Dr. Gehlert Was an Authorized Health Care Provider
{89} AGW also challenges the finding that Dr. Gehlert was an authorized health care provider. AGW acknowledges that Turner was aware that Worker was dissatisfied with his treatment at Lovelace and that Turner suggested to Worker that he consult Dr. White. Dr. White informed Worker that he did ’not treat ankle injuries and referred Worker to Dr. Legant. Turner drove Worker to Worker’s appointment with Dr. Legant. Later, Dr. Legant declined to accept Worker as a patient and referred Worker to Dr. Gehlert. This is substantial evidence supporting the WCJ’s finding.
{90} It may be that AGW is arguing that Dr. Gehlert was not authorized because Worker failed to provide AGW with a notice of change of health care provider as required by NMSA 1978, § 52-1-49(0 (1990). We question whether an employer who refuses to pay for medical treatment at the time of the injury is nevertheless entitled to formal written notice of a worker’s decision to change his health care provider. AGW acknowledges that Worker made the initial selection of health care provider and that AGW never sought to change his selection. AGW paid $2000 to Lovelace for Worker’s initial care and thereafter refused to pay for any of Worker’s medical care. AGW was well aware of Worker’s dissatisfaction with Lovelace and encouraged Worker to see Dr. Legant. AGW did not come forward with any medical evidence that would have supported a determination that Dr. Gehlert’s treatment was either unreasonable or unnecessary. Under these circumstances, Worker’s failure to notify AGW that he was changing his health care provider is so minor that it does not justify the potentially drastic consequences that AGW seeks. See Fuentes v. Santa Fe Pub. Sch.,
Reasonableness and Necessity of Medical Bills
{91} AGW also argues that the WCJ erred in ordering it to pay Worker’s medical bills. AGW contends that the finding of reasonableness and necessity is not supported by substantial evidence. However, AGW did not ask the WCJ to find that the medical bills or expenses were not reasonable and necessary. AGW’s findings incorporated Turner’s by refei*ence. The only findings Turner asked for on this issue were, in essence, findings that Worker questioned the accuracy of the bills. Thus, AGW cannot challenge the sufficiency of the evidence to support the WCJ’s finding. Pennington v. Chino Mines,
Twenty Percent Loss of Use
{92} Although Worker does not challenge the WCJ’s determination that the scheduled injury section of the Act is applicable, he argues that the WCJ’s finding of twenty percent loss of use of his left leg between the ankle and the knee is not supported by substantial evidence. Worker points out that Dr. Gehlert and Dr. Diskant both gave Worker a permanent partial impairment rating of forty-five percent for the left leg below the knee. However, the WCJ based his determination on loss of use rather than on the impairment rating.
{93} In Lucero v. Smith’s Food & Drug Centers, Inc.,
Issues Concerning Attorney Fees
The WCJ Correctly Split the Liability for Worker’s Attorney Fees
{94} During pretrial proceedings, the WCJ ordered AGW to pay $2000 to Worker’s attorney as a sanction. The order found that AGW had initially stipulated on the record that it had three employees and the Act applied, and that AGW had later argued its stipulation was incorrect or in error. The order awarded “a sanction in the form of an attorney fee of $2000” payable to Worker’s attorneys, representing “the number of hours of work devoted to address this issue including time expended on this issue at two separate hearings before the Administration.”
{95} Later, during the fee proceeding, the WCJ awarded Worker the maximum allowable attorney fee of $12,500, and Worker requested a finding that the $2000 previously awarded was a sanction that should not be credited against the attorney fee award. AGW countered that, pursuant to Section 52-1 — 54(J), it could only be required to pay half of $12,500 plus tax, or $6,613.28, and that the $2000 should be credited against the total amount it owed, leaving it owing $4,613.28. Instead, the WCJ credited the $2000 against the total fee of $12,500, and ordered AGW to pay half of $10,500.
{96} AGW contends the $2000 was simply a part of the total fee awarded to Worker, and pursuant to Section 52-l-54(J), “the payment of a claimant’s attorney fees determined under this section shall be shared equally by the worker and the employer.” Whether the award was a fee or a sanction is an issue of statutory construction, which is reviewed de novo on appeal. Morgan Keegan Mortgage Co. v. Candelaria,
{97} We first note that Worker did not argue below or on appeal that the $2000 was awarded pursuant to Section 52-1-54(1) for AGW’s bad faith claims processing or litigation conduct. Therefore, we do not consider this potential argument on appeal. Pinnell v. Bd. of County Comm’rs,
{98} We turn now to an analysis of whether the $2000 was a fee or a sanction. A WCJ is authorized by statute to “enter noncriminal sanctions for misconduct” pursuant to NMSA 1978, § 52-5-6CB) (2001). Carrillo v. Compusys, Inc.,
preserve and enforce order during hearings; administer oaths; issue subpoenas to compel the attendance and testimony of witnesses, the production of books, papers, documents and other evidence or the taking of depositions before a designated individual competent to administer oaths; examine witnesses; enter noncriminal sanctions for misconduct; and do all things conformable to law which may be necessary to enable him to discharge the duties of his office effectively.
The order awarding the $2000 refers to the award as a “sanction” and it may reasonably be read as imposing the sanction due to AGW’s misconduct in waffling on the applicability of the Act.
{99} In addition, given the fact that the WCJ did not order this $2000 to be split, it appears that the WCJ deemed the award to be a sanction. If the $2000 was awarded as a noncriminal sanction under Section 52-5-6(B), then it was not awarded as an attorney fee under Section 52-1-54, and none of the provisions of that section apply to the $2000. We would therefore affirm on this issue.
Bad Faith
{100} Worker requested additional attorney fees in the amount of $2500 pursuant to Section 52-1-54(1), which provides:
The workers’ compensation judge may exceed the maximum amount [of attorney fees] stated in this subsection ... if hefinds that a claimant, an insurer or an employer acted in bad faith with regard to handling the injured worker’s claim and the injured worker or employer has suffered economic loss as a result. However, in no case shall this additional amount exceed two thousand five hundred dollars ($2,500). As used in this subsection, “bad faith” means conduct ... that amounts to fraud, malice, oppression or willful, wanton or reckless disregard of the rights of the worker or employer.
AGW also requested findings that Worker acted in bad faith. Because the WCJ made no findings at all regarding the bad faith of either party, we remanded the ease and asked the WCJ to enter findings and conclusions on the issue.
{101} The WCJ found that, while some of Turner’s filings were without a sound basis in law or fact, Turner was not Worker’s employer and, therefore, Turner’s bad faith was irrelevant. AGW was Worker’s employer, and the WCJ found that AGW “did not file excessive, frivolous, or bad faith matters.” Consequently, íhe WCJ concluded that AGW “did not engage in bad faith or unfair claims processing.”
{102} This Court has treated bad faith in this context as a finding of fact subject to substantial evidence review. Murphy v. Duke City Pizza, Inc.,
{103} Worker asserts a general argument that the “voluminous and repetitive filings of pleadings,” the “repetitious and irrelevant examination” of witnesses, and the “unreasonable contestation of every claim set forth by Worker” establish AGW’s bad faith. However, as Worker admits, most of this litigation excess was due to the conduct of Turner rather than AGW. Worker claims that AGW was equally guilty of Turner’s bad faith conduct because it concurred in Turner’s pleadings.
{104} We are not persuaded. The record shows that Turner filed fifty motions, and AGW did not file any pleadings indicating its concurrence in any of those motions. It is true that AGW adopted and incorporated by reference Turner’s list of witnesses and exhibits and Turner’s requested findings of fact and conclusions of law. However, we cannot say it was unreasonable for the WCJ to conclude that AGW’s adoption of a small number of Turner’s pleadings did not constitute “fraud, malice, oppression or willful, wanton or reckless disregard of the rights of the worker.” Section 52-1-54(1). The purpose of the bad faith statutory provision is to punish and to deter others from the commission of like offenses. Sanchez v. Wohl Shoe Co.,
{105} The WCJ made no findings regarding Worker’s bad faith or lack of bad faith. Although AGW has not appealed the WCJ’s determination that Worker did not act in bad faith, it filed a supplemental brief after remand arguing that the WCJ should have found that Worker acted in bad faith. AGW’s argument comes too late; we do not consider contentions made for the first time in a reply brief or a supplemental brief. Yount v. Millington,
Constitutionality of the Cap on Fees
{106} Worker argues that the limitation on attorney fees set forth in Section 52-1-54(1) violates his constitutional rights of equal protection, due process, and access to the courts. The question of whether Section 52-1-54(1) violates a worker’s rights of equal protection and due process has not been addressed by a New Mexico appellate court since our Supreme Court established heightened rational
CONCLUSION
{107} For the foregoing reasons, we would affirm the WCJ’s compensation order on all issues except that involving the constitutionality of Section 52-1-54(1), which we certify to the Supreme Court.
{108} IT IS SO ORDERED.
. Section 52-1-54(1) "applies as a cumulative limitation on compensation for all legal services rendered in all proceedings,” including representation before the courts on appeal. The Act makes it unlawful to accept fees except as provided; any person violating the attorney fee cap may be convicted of a misdemeanor, fined up to $500, and imprisoned for up to 90 days. Section § 52-l-54(A) & (N) (2003). As one state court noted in invalidating an attorney fee cap, most states with statutory limits on workers' compensation attorney fees allow fees to be increased when necessary, or do not make acceptance of additional compensation a crime. See Irwin v. Surdyk’s Liquor,
. Worker raises his claim under the New Mexico Constitution. Federal cases do not control when interpreting our State Constitution, but are used only to the extent they are persuasive. See Alvarez,
. The Administration states in its amicus brief that "less than 1.5 percent of all attorney fees for workers even potentially penetrated the cap” in 2001 and 2002.
. See, e.g., Alaska Stat. § 23.30.145(c) (Michie 2000); Ark.Code Ann. § 11 — 9—715(b)(1) (Michie Repl.2002); Colo.Rev.Stat. § 8-43-403(1) (2003); Or.Rev.Stat. § 656.382(2) (2001); S.D. Codified Laws Ann. § 62-7-36 (Michie 1993 rev.); Vt. Stat. Ann. tit. 21 § 678 (2003); Wash. Rev.Code Ann. § 51.52.130 (West 2002).