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Meyers v. Western Auto6/6/2002
In this workers' compensation case, we address the consequences of bad faith handling of a worker's claim and the award of attorney fees. John L. Meyers (Worker) appeals from orders awarding him medical benefits and attorney fees, and imposing bad faith sanctions against Employer/Insurer Western Auto and CNA Insurance Companies (hereinafter collectively referred to as CNA). On appeal, Worker claims that: (1) the Workers' Compensation Judge (WCJ) should have included future medical benefits and attorney fees in calculating the bad faith sanction; (2) the statute imposing the sanction should not be the exclusive remedy available to a claimant; (3) the WCJ should have awarded additional sanctions for conduct that took place in proceedings before the Workers' Compensation Administration (WCA); (4) CNA should be responsible for payment of all of Worker's attorney fees; (5) Worker's present claim for the reinstatement of medical benefits should not have been treated as a part of his original claim for purposes of calculating the amount of attorney fees; and (6) the cap on attorney fees is unconstitutional. We affirm on all issues except the fourth issue, payment of attorney fees. Because Worker's total award was more than his settlement offer before the hearing, we hold that NMSA 1978, ยง 52-1-54(F)(4) (1993) requires CNA to pay all of Worker's attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
Worker suffered a back injury in November 1991 while employed with Western Auto in Hobbs, New Mexico. After Worker underwent surgery in December 1991, he relocated to Las Vegas, Nevada, where he was treated by Edson O. Parker, M.D. Dr. Parker reported that Worker reached maximum medical improvement in December 1992. Worker thereafter filed a complaint for benefits under the Workers' Compensation Act (Act). A compensation order filed in September 1994 resolved Worker's claim by awarding him permanent partial disability benefits and attorney fees in the amount of $5800. Worker continued to receive medical treatment pursuant to the Act.
On September 11, 1998, Worker suffered injuries to his neck and right shoulder while performing maintenance for a Las Vegas property management company. Although these injuries were serious enough to require surgery, they did not affect Worker's pre-existing back injury . Worker was notified that he needed additional back surgery just five days after he suffered the injuries to his neck and shoulder. CNA initially denied authorization for back surgery, advising Worker that he would first have to attend an independent medical exam (IME) with a panel of specialists in Albuquerque. The IME was scheduled for November 20, 1998. However, on November 17, 1998, an orthopedic specialist evaluated Worker's September 11 injuries and diagnosed them as a cervical strain and right shoulder impairment. The orthopedic specialist ordered a magnetic resonance imaging (MRI) scan and instructed Worker not to travel to Albuquerque until he stabilized. On November 17 or 18 Worker's wife informed CNA that Worker would be unable to travel to Albuquerque for the IME. In a letter dated December 3, 1998, a new CNA claims adjuster, Greg Ramirez, informed Worker that he was placing a hold on medical benefits because it appeared that Worker had suffered a separate injury, and worker had failed to submit to an IME as mandated by the Act. Worker's wife contacted Ramirez after receipt of the letter, and the IME was reset for December 18, 1998.
On December 9, 1998, the MRI scan of Worker's back revealed cervical disc extrusion at the C3-4 level. Worker was referred to an orthopedic surgeon and restricted from flying to Albuquerque for at least six weeks. Worker underwent back
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