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Buckingham v. Health South Rehabilitation Hospital11/18/1997
ted based on the Fryar I factors subject to the cap. In 1987 that cap was changed to a flat fee ($12,500). See 1987 N.M. Laws, ch. 235, § 24. As in the prior Act, the Judge was still to consider "the present value of the award made in the worker's favor" in determining a reasonable fee, and that "present value" was not to include the "value of future medical benefits." Id. This remains the law today. See § 52-1-54(D)(2), -54(A), -54 (H).
{39} In sum, the WCJ is to use both the language of the Act and the various Fryar I factors in calculating a reasonable attorneys' fee, no different from how Judges have determined fees for the past twenty years since Fryar I, except of course for the cap. One factor among several is a rule of proportionality based on a percentage of total recovery, somewhere between ten percent and twenty percent. See ; ; . Total recovery for that proportionality computation does not include the value of future medical benefits, just as it never has. The WCJ is not precluded from calculating a fee based upon the mosaic of considerations that make up the Fryar I factors. We see nothing in the Act or in its history to suggest a different result.
{40} We note that any award of attorneys' fees is always subject to a determination of reasonableness by the WCJ, and we are confident this will prevent any overreaching at the expense of employers. In the great majority of cases, an award of future medical benefits follows as a matter of course, and there should be no need for a separate award of attorneys' fees for time spent solely on this matter. In the rare exception, such as the case before us, the WCJ may exercise his discretion according to permissible criteria and determine a fair award without violating Section 52-1-54(H). Accordingly, we remand to the WCJ for a reconsideration of the attorney's fees question, along with appropriate findings, which would include a fair and reasonable fee for services expended by Worker's attorney on appeal.
RICHARD C. BOSSON, Judge
I CONCUR:
JAMES J. WECHSLER, Judge
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