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Buckingham v. Health South Rehabilitation Hospital11/18/1997
ery. The other was Appellants' failure to pay disability benefits in the amount of $3963.04 until the attorney made four demands. Worker never filed a complaint with the WCA regarding nonpayment of disability benefits, and there had been no proceedings before the WCA with respect to that matter.
{6} The WCJ awarded attorney's fees of $4000 plus tax and costs, with Worker to pay half the fee and Appellants the other half. The WCJ's findings noted that Appellants had made no offer of settlement more than four days before the mediation conference and:
6. The fundamental dispute was whether Worker should receive a knee arthroplasty as a reasonable and necessary medical procedure.
7. The present value of Counsel's recovery in the Worker's favor is $28,963.00. This is calculated based on the following figures:
Medicals for the arthroplasty $25,000.00
Past weekly benefits $3,963.04
8. Judicial notice is taken of the chilling effect of miserly attorney fees on representation.
9. Worker's Counsel reasonably and necessarily expended 23.9 hours of effort in this case.
10. Worker's Counsel's regular hourly billing rate is $140.00 per hour.
11. The issues in this cause were contested to an average degree.
12. The issues in this cause were of average complexity.
13. The issues in this cause were of average novelty.
14. Worker's Counsel has been in practice in New Mexico for 15 years.
15. Counsel's ability, skill[,] experience, and reputation are excellent.
16. Worker was relatively successful in this cause.
Although the WCJ made no finding on the point, it is undisputed that the knee replacement surgery had not been performed prior to the date of the court's order.
II. THE ATTORNEY'S FEE AWARD IN THIS CASE.
A. Past-Due Disability Benefits.
{7} We now turn to the award of attorney's fees in this case. First, we consider the propriety of awarding attorney's fees for obtaining past-due disability benefits for Worker.
{8} NMSA 1978, Section 52-1-54(E) (Repl. Pamp. 1991) (effective Jan. 1, 1991), states:
In all cases where compensation to which any person is entitled under the provisions of the Workers' Compensation Act is refused and the claimant thereafter collects compensation through proceedings before the workers' compensation administration or courts in an amount in excess of the amount offered in writing by an employer five business days or more prior to the informal hearing before the administration, then the compensation to be paid the attorney for the claimant shall be fixed by the workers' compensation Judge hearing the claim[.]
(Emphasis added.) An award under this subsection is authorized only when the worker obtains benefits through proceedings before the WCA or a court. Moreover, even when a claim is filed with the WCA, no attorney's fee is authorized if the employer makes an offer more than four business days prior to the informal hearing and the offer equals or exceeds the amount ultimately obtained by the worker through WCA proceedings. A fortiori, the subsection does not authorize an attorney's fee award if the employer meets the worker's demand before a claim is even filed with the WCA. Thus, if the worker's attorney does an outstanding job of putting together a factual and legal argument that persuades the employer to satisfy the worker, the attorney receives no fee. Although this result may seem obtuse, it is the clear import of the statutory language; and the provision may be justified on the ground that it encourages
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