CASEY R. BAKER, Worker-Appellee,
ENDEAVOR SERVICES, INC., and GREAT WEST CASUALTY CO., Employer/Insurer-Appellants, CASEY R. BAKER, Worker-Appellant,
ENDEAVOR SERVICES, INC., and GREAT WEST CASUALTY CO., Employer/Insurer-Appellees.
FROM THE WORKERS' COMPENSATION ADMINISTRATION Terry S.
Kramer, Workers' Compensation Judge
A. Hanrahan Albuquerque, NM for Appellee
A. Genova Albuquerque, NM for Appellants
TIMOTHY L. GARCIA, JUDGE
Employer/Insurer Endeavor Services, Inc. and Great West
Casualty Co. (Employer) appeal from the Workers'
Compensation Administration's (WCA) compensation order
awarding Worker Casey R. Baker (Worker) benefits based on a
maximum medical improvement (MMI) date of December 7, 2016.
[Case #1 DS 2; RP 190] Worker appeals from the WCA's
order awarding him attorney fees and requiring the award to
be paid fifty percent by Worker and fifty percent by
Employer. [Case #2 DS 1; RP 234] This Court issued a
notice consolidating the appeals and proposing to affirm.
Employer has not filed a memorandum in opposition to our
proposed summary affirmance. We therefore affirm the
WCA's compensation order determining the date Worker
reached MMI. See Griffin v. Thomas, 1997-NMCA-009,
¶ 7, 122 N.M. 826, 932 P.2d 516 ("[A]n issue is
deemed abandoned where a party fails to respond to the
calendar notice's proposed disposition of the
issue[.]"). Worker filed a memorandum in opposition,
which we have duly considered. Remaining unpersuaded, we
affirm the award and apportionment of his attorney fees.
Worker asserts the WCA erred in denying his application to
require Employer to pay one hundred percent of Worker's
attorney fees pursuant to NMSA 1978, Section 52-1-54(F)
(2013), because the compensation order awarded Worker a
larger recovery for temporary total disability (TTD) than
Worker proposed to Employer in his offer of judgment.
[Case # 2 DS 11-12] As we pointed out in our notice,
Worker's offer addressed only TTD benefits and appeared
to have failed to address any contemplated permanent partial
disability (PPD) benefits, medical benefits, or any other
benefits, aside from attorney fees, that were contested
issues and which Worker was ultimately awarded. [MIO 3; RP
162, 193-194] Worker points out in his memorandum in
opposition that his offer included payment by Employer for
continued medical treatment. [MIO 7] In support of the
argument his offer sufficiently addressed the critical issues
and was not required to include PPD benefits, Worker cites
Abeyta v. Bumper to Bumper Auto Salvage,
2005-NMCA-087, ¶¶ 11, 15, 137 N.M. 800, 115 P.3d
816, in which this Court held the worker's offer of
judgment regarding TTD benefits was unambiguous and was lower
than the compensation award the worker received. Worker cites
Abeyta to argue his offer, which only addressed TTD
benefits was unambiguous and supports application of the
fee-shifting statute. [MIO 6]
While it is true the offers both in the present case and in
Abeyta appeared to specifically address only TTD
benefits, unlike in Abeyta, where PPD benefits did
not appear to be at issue, PPD benefits were a contested
issue in the present case and, thus, a critical issue
unaddressed by Worker's offer. [RP 162] See
Abeyta, 2005-NMCA-087, ¶¶ 2-3. Insofar as
Worker's offer of settlement did not address the critical
contested issue of PPD by "reserv[ing] all . . . rights
not specifically addressed herein, including all rights,
claims and defenses relating to [PPD] benefits following
MMI[, ]" [MIO 7] we conclude the WCA properly concluded
the offer did not supply an appropriate basis for application
of the fee-shifting provision. See Leonard v. Payday
Prof'l, 2007-NMCA-128, ¶ 26, 142 N.M. 605, 168
P.3d 177 (observing although an offer of judgment may fail to
address details, where critical issues are unresolved, the
offer does not supply an appropriate basis for fee shifting).
Worker goes on to argue he was prevented from making a timely
offer of judgment that included PPD benefits because the
completion of a second impairment assessment was delayed by
Employer's refusal to pay for it. [MIO 8-9] While the
second impairment assessment resulted in a greater impairment
rating, [MIO 9] Worker was not prevented from making a
complete offer of judgment that addressed PPD benefits based
on the information and impairment rating that was available
to him at the time. As a consequence, Worker's argument
his incomplete offer of judgment provides a basis for
fee-shifting is unavailing.
Therefore, based on the reasons stated above and in this
Court's notice of proposed disposition, we affirm.
IT IS SO ORDERED.
CONCUR: MICHAEL E. VIGIL, Judge J. MILES HANISEE, Judge
All citations to Employer's
docketing statement in Ct. App. No. 36, 142 are cited to as
"Case #1 DS." All citations to
Worker's docketing statement in Ct. App. No. 36, 272 are
cited as "Case #2 DS." All citations to
the record proper refer to the record proper ...