 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Buckingham v. Health South Rehabilitation Hospital11/18/1997
HARTZ, Chief Judge.
{1} Appellants Health South Rehabilitation Hospital (Employer) and CIGNA Insurance Company (Insurer) appeal a decision of the Workers' Compensation Judge (WCJ) awarding attorney's fees to Worker. They contend that the Workers' Compensation Act bars the award even if the efforts of Worker's attorney benefitted Worker. Because we agree that the WCJ based the award on improper considerations, we reverse the award. An attorney's fee award may, however, be appropriate. Therefore, we remand for further proceedings. With respect to the attorney's efforts to obtain medical benefits, the panel is divided on the standard for awarding a fee. On that matter this opinion represents a Dissenting view.
I. BACKGROUND
{2} Worker suffered an occupational injury to her knee on September 9, 1992. She became unable to perform her job duties on December 12, 1994, following two surgeries on her knee. By the time she filed her complaint with the Workers' Compensation Administration (WCA) on June 14, 1995, her knee had been operated on four times. Her complaint contended that she needed a total knee replacement but that Appellants had refused to pay for reasonable and necessary surgery. According to the complaint, such surgery was "one of two alternatives at this point in time, and the alternative of choice for myself."
{3} Appellants' response to the claim, filed on July 21, 1995, stated:
[1.]
The Employer has provided adequate medical care.
[2.] There would appear to be a pending issue of what constitutes reasonable and necessary care.
[3.] Employer / Insurer have not been contacted by the authorized treating physicians for the purpose of securing authorization for the surgical procedure which Worker desires.
[4.] There is a dispute between Worker and her authorized treating physician and his referrals regarding the type of surgical procedure which should be performed and it is likely that the physicians should be allowed to address this in detail through depositions. The physicians believe that a knee arthrodesis (fusion) should be performed. Worker wants a knee arthroplasty (replacement joint).
[5.] A psychological profile has determined that worker is not a good surgical candidate.
[6.] Worker has had a difficult time recovering from surgery previously performed in the course of treatment of the injured knee and this may impact future surgeries.
{4} After a mediation conference on July 27 the mediator recommended:
Dr. [Samuel] Tabet shall be contacted jointly by the parties to discuss the feasibility of knee replacement for Worker. If Dr. Tabet agrees that the knee replacement is reasonable and necessary under the circumstances, and agrees to perform the surgery, Employer/Insurer shall pay for the surgery[.]
Dr. Tabet was deposed by the parties on August 29. Early in his deposition he announced that, contrary to his previous position, total knee replacement for Worker would be appropriate. He explained that he changed his mind after deciding that her knee was not infected and conferring with his colleagues. Both parties accepted the recommended resolution and on December 1 the clerk of the WCA filed a Notice of Completion, stating that the issues had been resolved by the parties.
{5} On February 5, 1996 Worker's attorney petitioned the WCA for an attorney's fee. The petition requested a fee of $4000, plus tax and costs. The affidavit in support of the petition contained a statement listing services for 23.9 hours. The affidavit stated that the attorney's work related to two matters. One was the knee surg
Page 1 2 3 4 5 6 7 8 9 10 11 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|