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Baker v. Endeavor Services, Inc.

Supreme Court of New Mexico

September 6, 2018

CASEY R. BAKER, Worker-Petitioner,

          ORIGINAL PROCEEDING ON CERTIORARI Terry S. Kramer, Workers' Compensation Judge

          Gerald A. Hanrahan Albuquerque, NM for Petitioner.

          Kelly A. Genova, P.C. Kelly A. Genova Albuquerque, NM for Respondents.



         {¶1} Casey R. Baker (Worker) appeals the decision by the Workers' Compensation Administration denying his request that Endeavor Services, Inc. and Great West Casualty Company (Employer) pay 100% of Worker's attorney fees pursuant to the fee-shifting provision set forth in NMSA 1978, Section 52-1-54(F)(4) (2003, amended 2013). At issue is whether Worker made an offer of judgment that was sufficient to trigger the fee-shifting provision. Worker's offer of judgment put Employer on notice that Worker was proposing an unambiguous partial settlement and that Worker intended to invoke the fee-shifting statute. We conclude that Worker made a valid offer under Section 52-1-54(F) (2003) and hold that the workers' compensation judge erred as a matter of law by declining to apply the mandatory fee-shifting provision. We therefore reverse and remand.


         {¶2} It is the duty of this Court to decide the cases before it if the factual record is sufficient to do so. The record proper before this Court is lacking in a number of ways. However, requiring a perfect record would mean this Court would rarely decide any cases. The parties in this case do not dispute the factual findings of the workers' compensation judge, but rather the parties dispute the judge's application of the law to the facts. Unchallenged findings of fact are binding on this Court. State ex rel. State Highway Comm'n v. Sherman, 1971-NMSC-009, ¶¶ 2-3, 82 N.M. 316, 481 P.2d 104; State ex rel. Thornton v. Hesselden Construction Co., 1969-NMSC-036 ¶ 4, 80 N.M. 121, 452 P.2d 190 ("[F]ailing to challenge any one of the trial court's findings . . ., [a party] is bound by the findings."); Gallegos v. Kennedy, 1968-NMSC-170, ¶ 6, 79 N.M. 590, 446 P.2d 642 ("Unchallenged findings are the facts upon which the case rests on appeal and are binding on this court."). "Unless findings are directly attacked, they are the facts in this court, and a party claiming error on the part of the trial court must be able to point clearly to the alleged error." Sherman, 1971-NMSC-009, ¶¶ 2-3 (citing Morris v. Merchant, 1967-NMSC-026, ¶ 21, 77 N.M. 411, 423 P.2d 606). Nowhere in the brief in chief, answer brief, or reply brief do the parties challenge the legitimacy of the facts presented. Instead, the parties dispute the analysis by the workers' compensation judge of the offer of judgment and the judge's application of Section 52-1-54(F)(4) (2003) to the offer. We conclude that sufficient factual certainty exists in the record before us to decide this case.


         {¶3} Worker suffered injuries as a result of a compensable motor vehicle accident on October 14, 2011. On January 9, 2012, Worker filed his first workers' compensation complaint, seeking medical benefits, temporary total disability (TTD) benefits, and attorney fees. The parties participated in a mediation conference on February 17, 2012, and both parties accepted the mediator's recommended resolution of Worker's first complaint. However, a number of issues remained unresolved, including the total amount of Worker's medical expenses, Worker's pre-injury weekly wage, and the compensation rate to which Worker was entitled. These issues remained unresolved until December 21, 2016, following a trial on the merits.

         {¶4} On July 22, 2013, Dr. Balkman assessed Worker to determine whether he had reached his maximum medical improvement (MMI). See NMSA 1978, § 52-1-24.1 (1990) ("As used in the Workers' Compensation Act, 'date of maximum medical improvement' means the date after which further recovery from or lasting improvement to an injury can no longer be reasonably anticipated based upon reasonable medical probability as determined by a health care provider."). Once a medical care provider, like Dr. Balkman, finds a worker to be at MMI, the healing process is deemed complete, see id., and the worker's permanent physical impairment can be assessed. See NMSA 1978, § 52-1-26 (1990, amended 2017); Smith v. Cutler Repaving, 1999-NMCA-030, ¶ 10, 126 N.M. 725, 974 P.2d 1182 ("Key to determining MMI is 'expert medical testimony' regarding whether the injured worker 'is more likely than not' to recover further." (citation omitted)). A medical care provider quantifies the worker's permanent impairment into a percentage and, from that percentage, the worker's permanent partial disability (PPD) is calculated. See NMSA 1978, § 52-1-26.1 (1990); NMSA 1978, § 52-1-26.4(D) (2003). Dr. Balkman found Worker to be at MMI with an associated whole person impairment (WPI) rating of only 5%.

         {¶5} Employer accepted these findings and immediately began paying benefits in accordance with the July 22, 2013, MMI date and the 5% WPI rating. Dr. Balkman's findings had the effect of limiting Worker's available compensation, paid via PPD, to significantly less than what Worker believed he was entitled to. Worker contested Dr. Balkman's findings, arguing that he had not reached MMI and was entitled to continued payment of TTD benefits, rather than PPD benefits. Ultimately Worker argued that he had not reached MMI on July 22, 2013, counter to Dr. Balkman's findings, and in the future when he did reach MMI, he would be entitled to a WPI rating of 37%. Dr. Balkman later amended her findings on May 19, 2014, and determined Worker to have a WPI of 13% but did not change the date of MMI nor agree with Worker's assertion that his injuries warranted a 37% WPI rating.

         {¶6} On June 24, 2014, Worker was involved in a second motor vehicle accident, a rear end collision, when he was driving from his home to Dr. Balkman's office to be treated for the injuries stemming from his October 14, 2011, accident. Following the second accident, Worker filed a second workers' compensation complaint concerning many of the issues that remained unresolved from the first complaint. A second mediation occurred on September 4, 2014. Employer rejected the mediator's recommendations. The parties continued to litigate the implications of the second accident, the date of MMI, Worker's WPI, and the compensation to which Worker was entitled.

         {¶7} On June 18, 2015, Employer changed Worker's treating physician to Dr. Reeve. Employer did not authorize Dr. Reeve to provide a second impairment assessment, reasoning that Dr. Balkman's assessment was sufficient.

         {¶8} On November 11, 2015, Worker served Employer with an offer of judgment. In the offer of judgment, Worker included four relevant terms to settle the case:[1]

[1]. . . Worker's weekly payment rate shall be $629.11 . . . .
[2] Worker's work-related injuries and conditions have not reached [MMI].
[3] Pursuant to [NMSA 1978, ] § 52-1-25.1 [(2005), amended 2017)], Worker is entitled to [TTD] benefits from October 14, 2011, and continuing until MMI is reached in the future for all work-related injuries and conditions.
[4] Employer . . . shall forthwith issue payment of arrears to bring Worker's TTD benefits current at the rate of $629.11 per week, less $100.00. [Employer is] entitled to a credit for all indemnity payments made to date to Worker, plus $100.00.

         Additionally, Worker offered to split his attorney fees equally with Employer. Thereafter, the workers' compensation judge scheduled a settlement conference for February 1, 2016. Employer rejected Worker's offer of judgment.

         {¶9} The parties failed to reach a settlement and proceeded to trial on December 14, 2016. About a week before trial, Worker's attorney paid the $3, 219.48 cost of a second impairment assessment by Dr. Reeve. Contrary to Dr. Balkman's findings, Dr. Reeve found that Worker reached MMI on December 7, 2016, and had a WPI rating of 37%. Also prior to trial the parties stipulated that Worker's TTD compensation rate was $629.11 per week. At the end of the trial, the workers' compensation judge issued a compensation order that included the following findings and conclusions:

[1] Worker reached [MMI] on December 7, 2016.
[2] Worker has a combined thirty-seven percent (37%) impairment as a result of his work injuries. . . . .
[3] The [second] motor vehicle accident was as a result of the work accident and is part of the compensable claim. . . . .
[4] Worker's compensation rate is $629.11.
[5] Worker is entitled to [TTD] benefits from date of accident to December 7, 2016.
[6] Worker is entitled to [PPD] benefits at eighty-five percent (85%) commencing December 8, 2016 and continuing until conclusion of the benefit period unless otherwise ordered. . . . .
[7] Employer is responsible for the $3, 219.48 charge from Dr. Reeve for preparation of his final report.
[8] Worker's attorney is entitled to a reasonable fee to be set forth under separate order.

         {¶10} Following trial, Worker filed an application for attorney fees and asked the workers' compensation judge to order Employer to pay 100% of Worker's attorney fees under Section 52-1-54(F)(4) (2003). The workers' compensation judge awarded Worker $42, 925 in attorney fees and ordered each party to pay 50% of those fees. The workers' compensation judge declined to order Employer to pay 100% of Worker's attorney fees because "Worker's Offer of Judgment failed to address material facts and issues in dispute and determined at trial."

         {¶11} Both parties appealed to the Court of Appeals. Employer contended that the workers' compensation judge erred by awarding benefits based on an MMI date of December 7, 2016. See Baker v. Endeavor Servs., Inc., A-1-CA-36142 and A-1-CA-36272, mem. op. ¶ 1 (Aug. 8, 2017) (nonprecedential). Worker filed a cross-appeal, arguing that the workers' compensation judge erred by failing to order Employer to pay 100% of Worker's attorney fees. Id. ¶¶ 1-2. The Court of Appeals affirmed the compensation order, including the finding that Worker reached MMI on December 7, 2016. Id. ΒΆ 1. The Court of Appeals also affirmed the order requiring each party to pay 50% of Worker's attorney fees, concluding that Worker's offer of judgment left unaddressed PPD benefits, medical benefits, "or any other benefits, aside from attorney fees, that were contested ...

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