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Buckingham v. Health South Rehabilitation Hospital11/18/1997
was also in the workers' compensation statute when our Supreme Court ruled in , that future medical expenses should not be considered in awarding attorney's fees. Moreover, the statutory language forbidding consideration of the value of future medical benefits has been essentially unchanged since it was enacted by the Interim Act in 1986, see 1986 N.M. Laws, ch. 22, § 18, when, because of the sliding scale for attorney's fees, it was undisputable that no fee could be earned for obtaining future medical benefits. If the legislature were specifically interested in permitting fee awards for obtaining future medical benefits, one would expect a change in the statutory language specifically addressing fee awards for such benefits.
{24} In addition, even if one were to assume that the legislature had decided to permit fee awards for obtaining future medical benefits, nothing in the statute suggests that the legislature thought that it could keep attorney's fees down by forbidding consideration of the value of such benefits in awarding the fee. Such a thought would be an ill-founded one. The prospect of enormous fees is precluded by the statutory fee cap of $12,500 per injury claim. See § 52-1-54(I). The problem of excessive legal fees is most likely to arise instead from overworking minor claims. Yet that is precisely what the majority's decision will encourage. If the extent of the worker's success (the value of the benefit) cannot be considered in fixing the award, then fifty hours of legal work to obtain treatment of a hangnail should be compensated the same as fifty hours of legal work to obtain treatment of an aneurysm--perhaps more, because of the novelty of the issue and the difficulty of the task of persuasion. The majority's decision provides perverse incentives to litigate future medical care. Attorneys can expect compensation at a prime hourly rate (Worker's attorney was awarded more than $167 per hour) without concern about whether the effort would be worthwhile in the real world, in which attorneys generally do not work on a case if their efforts are not expected to be cost effective. (How often do lawyers represent people claiming $3000 in damages from medical malpractice?) More of the premium dollar for workers' compensation insurance will be devoted to attorney's fees, and less to benefits for workers.
{25} To sum up, the clear import of Section 52-1-54(H) is that future medical benefits are to be considered valueless, so that no attorney's fee can be awarded for obtaining such a benefit. I can conceive of no reason for the legislature to permit an award of attorney's fees for recovering benefits of all types under the Workers' Compensation Act but to forbid consideration of the value of the benefit only when the benefit is future medical care. As indicated before, surely it would make a difference whether the future medical benefit was open heart surgery or treatment of an infected finger.
{26} Having said the above, I should add that I have concerns about the denial of an attorney's fee for the efforts to obtain future medical benefits for Worker. From what was said at oral argument, it appears that Worker's attorney performed a useful service. Nevertheless, concern for compensating her does not justify distorting statutory language, particularly when the distortion is likely to cause serious systemic problems that can only hurt workers as a group in the long run. The proper approach is to construe the statute as written and then determine (when the issue is properly raised) whether the limitation on attorney's fees violates constitutional protections by restricting the ability of workers to obtain needed legal advice. See ) (Hartz, J., specially Concurring). (Alternatively
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