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Buckingham v. Health South Rehabilitation Hospital11/18/1997
, as is true of so much of the Workers' Compensation Act, the language of Section 52-1-54 could benefit from a second look by the legislature.)
{27} But that is not the approach of the majority. Given their decision, I would add one caution. At oral argument, representatives of the WCA stated that WCA ombudsmen are available to assist workers with concerns such as those of Worker in this case. If so, such availability is a relevant factor in determining whether, and to what extent, the efforts of Worker's attorney were reasonable. The Workers' Compensation Act does not contemplate attorney involvement in disputes concerning future medical care. If attorney involvement is not essential--because of the ready availability of an effective administrative mechanism--what is reasonable may be no more than a quite limited role for an attorney. On the other hand, the WCJ should not presume that an attorney was unnecessary because of the theoretical availability of an ombudsman. The ombudsman program may be seriously flawed, as alleged by Worker's attorney at oral argument. The best way for the WCA to reduce the need for attorney's fees in these cases is to make attorneys unnecessary, by maintaining an effective, readily accessible ombudsman program.
III. CONCLUSION
{28} For the above reasons, we set aside the WCJ's award of attorney's fees and remand for further proceedings. The WCJ should also consider the appropriateness of an award of attorney's fees for efforts by Worker's attorney on this appeal.
{29} IT IS SO ORDERED.
HARRIS L. HARTZ, Chief Judge
CONCURRING IN PART:
RICHARD C. BOSSON, Judge
JAMES J. WECHSLER, Judge
BOSSON, Judge. (specially Concurring)
{30} We concur in the opinion of Chief Judge Hartz with respect to the Discussion and holding of issue II(A) "Past-Due Disability Benefits." We do not agree with the Discussion thereafter regarding issue II(B) "Medical Benefits." The following represents the opinion of the Court, and shall hereafter be cited as such, concerning an award of attorneys' fees for securing future medical benefits pursuant to NMSA 1978, Section 52-1-54(H) (1993).
{31} The workers' compensation Judge (WCJ) awarded attorneys' fees of $4000 plus tax and costs. In explaining the award, the WCJ indicated the number of hours Worker's attorney had "reasonably and necessarily expended" (23.9) and the attorney's regular hourly billing rate ($140 per hour). The WCJ indicated that the issues were contested to an average degree; they were of average complexity and novelty; and the WCJ further noted the attorney's excellent reputation and the relative degree of success in this case. An award based solely upon the hours expended at the attorney's normal billing rate would equal approximately $3360. Yet the WCJ awarded a fee of $4000, approximately $640 more. Apparently, the WCJ justified this differential by calculating the present value of the future medical benefits Worker had been awarded ($25,000). Employer claims that any award of attorneys' fees to secure future medical benefits is in error. To the extent the WCJ based his award in this case upon the present value of future medical benefits, we agree. However, a WCJ may base an attorneys' fee award on other factors as discussed hereinafter, and, if so, an award for securing future medical benefits is not provided by the Act. Because the record is unclear, we reverse and remand on this issue for further consideration of an appropriate attorney's fee award.
{32} NMSA 1978, Section 52-1-54(H) (1993) governs attorneys' fees for recovery of future medical benefits stating:
In det
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