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Wagner v. AGW Consultants5/24/2005
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The WCJ Correctly Split the Liability for Worker 's Attorney Fees
{94} During pretrial proceedings, the WCJ ordered AGW to pay $2000 to Worker 's attorney as a sanction. The order found that AGW had initially stipulated on the record that it had three employees and the Act applied, and that AGW had later argued its stipulation was incorrect or in error. The order awarded "a sanction in the form of an attorney fee of $2000" payable to Worker's attorneys, representing "the number of hours of work devoted to address this issue including time expended on this issue at two separate hearings before the Administration."
{95} Later, during the fee proceeding, the WCJ awarded Worker the maximum allowable attorney fee of $12,500, and Worker requested a finding that the $2000 previously awarded was a sanction that should not be credited against the attorney fee award. AGW countered that, pursuant to Section 52-1-54(J), it could only be required to pay half of $12,500 plus tax, or $6,613.28, and that the $2000 should be credited against the total amount it owed, leaving it owing $4,613.28. Instead, the WCJ credited the $2000 against the total fee of $12,500, and ordered AGW to pay half of $10,500.
{96} AGW contends the $2000 was simply a part of the total fee awarded to Worker , and pursuant to Section 52-1-54(J), "the payment of a claimant's attorney fees determined under this section shall be shared equally by the worker and the employer." Whether the award was a fee or a sanction is an issue of statutory construction, which is reviewed de novo on appeal. Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, 5, 124 N.M. 405, 951 P.2d 1066. We conclude the $2000 awarded by the WCJ was not awarded as a fee under Section 52-1-54, but as a sanction.
{97} We first note that Worker did not argue below or on appeal that the $2000 was awarded pursuant to Section 52-1-54(I) for AGW's bad faith claims processing or litigation conduct. Therefore, we do not consider this potential argument on appeal. Pinnell v. Bd. of County Comm'rs, 1999-NMCA-074, 14, 127 N.M. 452, 982 P.2d 503 (explaining that appellate court will not affirm on grounds not presented to the trial court when to do so would be unfair to the appellant).
{98} We turn now to an analysis of whether the $2000 was a fee or a sanction. A WCJ is authorized by statute to "enter non-criminal sanctions for misconduct" pursuant to NMSA 1978, ยง 52-5-6(B) (2001). Carrillo v. Compusys, Inc., 2002-NMCA-099, 11, 132 N.M. 710, 54 P.3d 551. Section 52-5-6(B) specifically gives WCJs the power to preserve and enforce order during hearings; administer oaths; issue subpoenas to compel the attendance and testimony of witnesses, the production of books, papers, documents and other evidence or the taking of depositions before a designated individual competent to administer oaths; examine witnesses; enter non-criminal sanctions for misconduct; and do all things conformable to law which may be necessary to enable him to discharge the duties of his office effectively.
The order awarding the $2000 refers to the award as a "sanction" and it may reasonably be read as imposing the sanction due to AGW's misconduct in waffling on the applicability of the Act.
{99} In addition, given the fact that the WCJ did not order this $2000 to be split, it appears that the WCJ deemed the award to be a sanction. If the $2000 was awarded as a non-criminal sanction under Section 52-5-6(B), then it was not awarded as an attorney fee under Section 52-1-54, and none of the provisions of that section apply to the $2000. We would therefore affirm on this issue.
Bad Faith
{100} Worker requested ad
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