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Wagner v. AGW Consultants5/24/2005
(Marshall, J., concurring) (distinguishing the complexities and adversarial nature of the regulatory system for obtaining benefits under the Black Lung Benefits Act from the more informal Veterans Administration system at issue in Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305 (1985), such that the due process challenge in Triplett would have been successful had claimants shown the fee limitation deprived claimants of legal representation in proceedings under the Act); Corn, 119 N.M. at 207-08, 889 P.2d at 242-43.
{16} In arguing that intermediate scrutiny applies, it is not enough to simply point to an important constitutional right; the challenger must show that the legislation in fact impacts the exercise of this right. See Mieras,1996-NMCA-095, 48-52 (Hartz, J., concurring). To support their argument that the fee limitation makes it difficult for those with complex or highly contested cases to obtain representation, and that such a "chilling effect" effectively deprives these workers of their appellate rights, Worker and amicus NMTLA rely on testimony presented at trial about the impact of the fee limitation on representation. Worker's expert, a workers compensation attorney, opined that the number of New Mexico attorneys who exclusively represent claimants in workers' compensation proceedings have decreased to about two or three since the benefits scheme was restructured in 1991, and that in light of this reduction in available benefits, the fee limitation can be unfair to workers' attorneys in some circumstances, may discourage claimants' attorneys from pursuing complex or time-consuming cases, and should be relaxed in particularly time-consuming cases.
{17} The record in this case is not meaningfully different from that in Mieras, where the Court of Appeals was unpersuaded that the fee limitation infringed on the right to access the courts by preventing a class of workers from obtaining adequate representation. See Mieras, 1996-NMCA-095, 27, 34; see also id. 49-52 (Hartz, J., specially concurring) (noting that claimant failed to show the cap actually prevented workers with complex cases from obtaining adequate representation). In Mieras, the claimant demonstrated that the limitation on attorney fees prevented her attorney from being compensated for the time he reasonably expended on behalf of his client. Id. 17-19. The claimant failed, however, to illustrate how the fee limitation resulted in workers being denied adequate representation, either in theory or fact. Id. 49-52 (Hartz, J., specially concurring). The court therefore applied rational basis review. Id. 27.
{18} As in Mieras, the record here fails to demonstrate that some claimants are unable to obtain representation in workers' compensation proceedings, either initially or on appeal, or that a decrease in available attorneys renders access to our appellate courts any less meaningful. Worker's expert did not directly attribute a decline in available lawyers to the attorney fee limitation, nor did Worker offer any direct evidence in support of this testimony. Rather, Worker's expert seemed to emphasize that the decline in lawyers representing workers was due to the overall reduction in benefits to injured workers. While the WCJ found a "chilling effect of miserly attorney fees on representation," the record fails to show that this chilling effect has impacted claimants' ability to access the courts sufficiently to trigger intermediate scrutiny of Section 52-1-54(I). See Triplett, 494 U.S. at 724 (holding the affidavits of three lawyers, which stated anecdotally that there were fewer qualified lawyers available to take black lung cases due to the attorney fee limitation, were "blatantly insuffi
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