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Buckingham v. Health South Rehabilitation Hospital11/18/1997
responsible behavior by the employer.
{9} On the other hand, Section 52-1-54(C) authorizes the award of an attorney's fee when the jurisdiction of the WCA "is invoked to approve a settlement of a compensation claim." At oral argument in this case, Worker's attorney indicated that in situations such as what occurred here with respect to disability benefits, the attorney for the worker simply files a claim for attorney's fees with the WCA, presumably pursuant to Section 52-1-54(C). She argues for affirmance of the fee award on this alternative ground. But this alternative was not raised in the briefs on appeal, and we cannot determine from the record before us whether she complied with WCA rules and procedures in requesting a fee on this ground or whether this ground was relied upon by the WCJ. In this circumstance, the matter is best left to the WCJ in the first instance. We therefore reverse the award of attorney's fees for efforts in obtaining disability benefits and remand for the WCJ to decide whether an attorney's fee award is appropriate under Section 52-1-54(C) and, if so, the size of the award.
B. Medical Benefits.
{10} Section 52-1-54(H) governs attorney's fees for recovery of future medical benefits. It states:
In determining reasonable attorneys' fees for a claimant, the workers' compensation Judge shall consider only those benefits to the worker that the attorney is responsible for securing. The value of future medical benefits shall not be considered in determining attorneys' fees.
Worker's attorney obtained Appellants' agreement to pay for surgery to be performed in the future. This benefit is a "future medical benefit." The WCJ clearly considered the value of the future surgery in awarding an attorney's fee. Therefore, that component of the fee award must also be set aside.
{11} Thus far, this opinion represents the unanimous view of the panel. The panel is divided, however, on what may be done on remand with respect to a fee award for the attorney's efforts to obtain future medical benefits. The remainder of this section of the opinion states only the views of the author. Judge Bosson's opinion, joined by Judge Wechsler, represents the opinion of the Court regarding the law governing the award of attorney's fees for efforts in recovering future medical benefits.
{12} To begin with, I address at greater length Worker's contention that the knee surgery is not a future medical benefit. In ordinary discourse there would be no doubt that the benefit to be received by Worker fits within the meaning of "future medical benefits." Courts adopt the natural, common meaning of language in a statute unless a statutory definition controls or the context suggests a special or technical meaning. See . Nothing suggests a meaning that would aid Worker here. On the contrary, in the context of litigation the term "future" medical expenses or benefits refers to expenses or benefits to be incurred or received after trial. When the New Mexico Medical Malpractice Act refers to "future" medical benefits, it is undoubtedly referring to benefits that the patient will need after trial. See NMSA 1978, § 41-5-7(A) (Repl. Pamp. 1996). In a typical workers' compensation case the worker proves the medical expenses that have been incurred up to the time of the hearing before the WCA. If the worker prevails, the WCJ orders the employer to pay for those benefits. No award is made for medical expenses that may be incurred in the future, see , in part because the Workers' Compensation Act itself requires the employer to furnish continuing medical care as needed, id. ; NMSA 1978, § 52-1-49 (Repl. Pamp. 1991).
{13} I am not persuaded by
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