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Buckingham v. Health South Rehabilitation Hospital11/18/1997
n Worker's briefs. They contend that the language in that subsection was not intended to forbid an award of attorney's fees, but rather the legislature was simply restricting the WCJs from considering the value of future medical benefits in making the award. I find that contention unpersuasive.
{20} The history of the present provision is instructive. When Section 52-1-54(H) was first enacted in 1986, the language was essentially the same as it is now:
In awarding reasonable attorneys' fees, the hearing officer shall consider only those benefits to the workman that the attorney is responsible for securing. The value of future medical benefits awarded shall not be considered in determining attorneys' fees.
NMSA Section 52-1-54(B) (Cum. Supp. 1986). At that time, however, Section 52-1-54(A) set forth a sliding scale for attorney's fees: no more than twenty percent of the first $5000 of benefits secured, fifteen percent of the next $5000 of benefits secured, and ten percent of the remaining benefits secured. Hence, if the only benefits obtained were future medical benefits, and the value of those benefits could not be considered, then the maximum attorney's fee would have been twenty percent of $0, which is $0.
{21} More recent versions of the Workers' Compensation Act have eliminated the sliding scale. Rather than tying the attorney's fee award directly to the monetary value of the benefits awarded, successor statutes have required simply the award of a reasonable attorney's fee, subject to a $12,500 statutory cap. See ยง 52-1-54(I). This provides flexibility to the WCJ, who can award a higher percentage of the benefits as an attorney's fee, depending on such circumstances as the difficulty of the case and the quality of the attorney's efforts. But nothing suggests that this flexibility, which had existed before enactment of the Interim Act in 1986, was suddenly to encompass permitting an award for obtaining a valueless benefit.
{22} On the contrary, even though the sliding-scale fee schedule has been eliminated, the statute still requires the receipt of a valuable benefit for attorney's fees to be awarded. Under Section 52-1-54(E) the WCJ awarding a fee is to consider (1) the employer's settlement offers, (2) "the present value of the award made in the worker's favor," and (3) the good faith of the parties in the conduct of informal claim resolution. The statute reflects the longstanding rule that attorneys representing workers in workers' compensation cases are paid to win. If they don't win, they are paid nothing. Success is the sine qua non of an attorney's fee award, and the extent of that success is a determining factor in fixing the award. See ; see also Farrar v. Hobby, 506 U.S. 103, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992)(attorney not entitled to fee award when plaintiff obtained only nominal judgment of $1); see generally Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986).
{23} The majority suggests that the legislature intended to permit an attorney's fee award for obtaining future medical benefits but eliminated consideration of the value of future medical benefits in an effort "to save money." I am unconvinced, for several reasons. To begin with, the suggestion is contrary to what has apparently always been the practice in this state--not awarding attorney's fees for obtaining future medical benefits. In that context, one would expect at least a hint from the legislature that it intended to change the law. It is worth noting that the language requiring the tribunal setting the attorney's fee to consider the "present value of the award made in the [worker's] favor"
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