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Sanchez v. Zanio's Foods10/20/2005
ered, it is not enough to conclude the rejection was reasonable based on a determination that Worker was unable to perform a duty required unless this determination is accompanied by a finding indicating the reason why Worker was unable to perform or an actual restriction by his doctor from performing a duty required.
III. DENIAL OF MOTION TO EXCLUDE DOCTORS' TESTIMONY
Based on its arguments on lack of support for causation, Employer argues that the WCJ abused his discretion in rejecting Employer's motion to exclude the causation testimony of Drs. Reeve and Burg. Our ruling remanding the causation issue for further consideration removes this as an issue at this time. Further, it appears to us that a decision on the issue of causation will make this point moot.
IV. ATTORNEY FEES
Employer asks us to reverse the WCJ's award of attorney fees if we reverse and the effect of the reversal is to deny Worker compensation. Employer further asserts that the WCJ erred in awarding attorney fees to Worker. The primary ground underlying Employer's attack is what Employer considers malfeasance on Worker's part in various ways described in Employer's brief. Worker answers Employer's claims.
We must assume that the WCJ was fully aware of the actions and failures to act on Worker's counsel's part as alleged by Employer. The WCJ could and presumably did evaluate that conduct in rejecting Employer's argument that attorney fees should not be awarded. After a review of the record and the arguments, we cannot say that given the WCJ's determinations in favor of Worker, the WCJ abused his discretion in awarding Worker's attorney fees. See Pesch v. Boddington Lumber Co., 1998-NMCA-026, 7, 124 N.M. 666, 954 P.2d 98 (holding the award of attorney fees to be within the discretion of the WCJ, not to be overturned absent abuse of discretion).
Nevertheless, whether attorney fees should be awarded depends upon the success of Worker's claim. See Montoya v. Anaconda Mining Co., 97 N.M. 1, 7, 635 P.2d 1323, 1329 (Ct. App. 1981); Bateman v. Springer Bldg. Materials Corp., 108 N.M. 655, 657, 777 P.2d 383, 385 (Ct. App. 1989). In light of our remand on other issues, we remand the attorney fee issue for further consideration. Whether the WCJ's award remains the same or changes will depend upon the WCJ's findings and conclusions following remand of the causation and rejection of job offer issues and any reevaluation of attorney fees that may be necessitated by the WCJ's ultimate determinations.
CONCLUSION
We remand the causation issue as well as the job rejection issue for further consideration by the WCJ consistent with this opinion. After such further consideration, the WCJ should make the necessary reevaluation as to the award of attorney fees. The WCJ shall enter any further findings of fact, conclusions of law, and order within thirty days of the date this Opinion is filed. The parties shall supplement the record in this appeal with whatever the WCJ enters, and any other pertinent matters, and shall do so within ten days of entry of any further findings of fact, conclusions, and/or order.
IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
CYNTHIA A. FRY, Judge
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