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Wagner v. AGW Consultants5/24/2005
emand arguing that the WCJ should have found that Worker acted in bad faith. AGW's argument comes too late; we do not consider contentions made for the first time in a reply brief or a supplemental brief. Yount v. Millington, 117 N.M. 95, 100, 869 P.2d 283, 288 (Ct. App. 1993).
Constitutionality of the Cap on Fees
{106} Worker argues that the limitation on attorney fees set forth in Section 52-1-54(I) violates his constitutional rights of equal protection, due process, and access to the courts. The question of whether Section 52-1-54(I) violates a worker's rights of equal protection and due process has not been addressed by a New Mexico appellate court since our Supreme Court established heightened rational basis analysis in Trujillo v. City of Albuquerque, 1998-NMSC-031, 32, 125 N.M. 721, 965 P.2d 305. The question of whether Section 52-1-54(I) violates a worker's right of access to the courts is a matter of first impression. Because these are "significant question of law under the constitution of New Mexico or the United States" and "issue of substantial public interest," Section 34-5-14(C)(1), (2), we certify them to the Supreme Court.
CONCLUSION
{107} For the foregoing reasons, we would affirm the WCJ's compensation order on all issues except that involving the constitutionality of Section 52-1-54(I), which we certify to the Supreme Court.
{108} IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
A. JOSEPH ALARID, Judge
CELIA FOY CASTILLO, Judge
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