CASEY R. BAKER, Worker-Petitioner,
ENDEAVOR SERVICES, INC. and GREAT WEST CASUALTY COMPANY, Employer/Insurer-Respondents.
ORIGINAL PROCEEDING ON CERTIORARI Terry S. Kramer,
Workers' Compensation Judge
A. Hanrahan Albuquerque, NM for Petitioner.
A. Genova, P.C. Kelly A. Genova Albuquerque, NM for
L. CLINGMAN, JUSTICE
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.
DEFICIENCIES IN THE RECORD PROPER
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.
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.
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%.
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.
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.
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.
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:
. . . Worker's weekly payment rate shall be $629.11 .
. . .
 Worker's work-related injuries and conditions have
not reached [MMI].
 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.
 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.
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.
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
 Worker reached [MMI] on December 7, 2016.
 Worker has a combined thirty-seven percent (37%)
impairment as a result of his work injuries. . . . .
 The [second] motor vehicle accident was as a result of
the work accident and is part of the compensable claim. . . .
 Worker's compensation rate is $629.11.
 Worker is entitled to [TTD] benefits from date of
accident to December 7, 2016.
 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. . . . .
 Employer is responsible for the $3, 219.48 charge from
Dr. Reeve for preparation of his final report.
 Worker's attorney is entitled to a reasonable fee to
be set forth under separate order.
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."
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. ¶ 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 ...