Vasconselles v. University of New Mexico ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39542
ERIC VASCONSELLES,
Worker-Appellant,
v.
UNIVERSITY OF NEW MEXICO and
NEW MEXICO RISK MANAGEMENT,
Employer/Insurer-Appellees.
APPEAL FROM WORKERS’ COMPENSATION ADMINISTRATION
Rachel A. Bayless, Workers’ Compensation Judge
Dorato & Weems LLC
Derek Weems
Albuquerque, NM
for Appellant
Garcia Law Group, LLC
Teague Williams
Bryan C. Garcia
Albuquerque, NM
for Appellees
MEMORANDUM OPINION
ATTREP, Chief Judge.
{1} Eric Vasconselles (Worker) appeals an order from the Workers’ Compensation
Administration denying his request that his former employer, University of New Mexico,
and its insurer, New Mexico Risk Management, (collectively, Employer) pay one
hundred percent of his attorney fees, pursuant to the fee shifting provision in NMSA
1978, Section 52-1-54(F)(4) (2013). Worker contends the workers’ compensation judge
(WCJ) erred by concluding he failed to demonstrate entitlement to fee shifting. We
affirm.
BACKGROUND
{2} Worker filed a complaint seeking benefits under the Workers’ Compensation Act
(the Act) for injuries he received while working for Employer. Employer denied the
compensability of some of Worker’s injuries and rejected Worker’s three offers of
judgment. The second and third offers of judgment—in exchange for Employer’s
payment of Worker’s outstanding medical bills and temporary total disability or
temporary partial disability benefits until Worker reached maximum medical
improvement (MMI)—would have provided Employer with $50 and $30 credits,
respectively, toward its next temporary total disability payment to Worker. 1 In both
offers, Worker reserved, among other things, his right to all continuing and future
medical benefits under the Act.
{3} Ultimately, the parties reached a lump sum settlement agreement under NMSA
1978, Section 52-5-12(D) (2009). Under the terms of the settlement, Employer agreed
to pay Worker’s outstanding medical bills through the date of the settlement’s approval,
three days after Worker reached MMI. Additionally, Employer agreed to pay a lump sum
of $33,000 to Worker, with $18,500 allocated to indemnity benefits and $14,500
allocated to future medical benefits. In exchange, Worker waived all of his rights under
the Act related to his claim against Employer, including any right to future medical
benefits that he had sought in his offers of judgment.
{4} After the settlement agreement was approved by the WCJ and memorialized in a
compensation order, Worker filed an application requesting that Employer pay one
hundred percent of his awarded attorney fees, pursuant to the fee shifting provision of
Section 52-1-54(F)(4), on the ground that he received more in the compensation order
than he offered in his offers of judgment. The WCJ denied Worker’s request, and
ordered Worker and Employer each to pay fifty percent of Worker’s awarded attorney
fees. See § 52-1-54(J) (providing that, unless a fee shifting provision applies, the
worker’s attorney fees shall be shared equally by the worker and the employer). In the
order, the WCJ found she could not determine whether Worker received more under the
compensation order than he offered in his second and third offers of judgment, and
thus, Worker failed to demonstrate he was entitled to fee shifting.2 Worker appeals from
this denial.
1Because Worker did not raise the first offer of judgment in his fee shifting application, only Worker’s
second and third offers of judgment are relevant to the resolution of this appeal.
2Worker contends the WCJ erred by limiting the fee shifting inquiry to his third offer of judgment and not
considering his second offer of judgment. Although the WCJ stated, at one point in the order denying
Worker’s fee shifting application, that Worker’s third offer of judgment “effectively replaced” Worker’s
second offer of judgment, the WCJ otherwise applied, in relevant part, the reasons for rejecting Worker’s
fee shifting application equally to both the second and third offers of judgment. We therefore do not
address Worker’s contention that the WCJ erred by only considering the third offer of judgment.
DISCUSSION
{5} The sole issue on appeal is whether the WCJ erred in ruling the fee shifting
provision of Section 52-1-54(F)(4) does not apply. “Three requirements must be met for
a worker’s offer of judgment to trigger the fee-shifting provision.” Baker v. Endeavor
Servs., Inc., 2018-NMSC-035, ¶ 18, 428 P.3d 265. “[A]n offer of judgment must be (1) a
valid offer under Section 52-1-54(F) . . . , (2) for an amount less than the award at trial,
and (3) an offer which the employer rejected.”3 Baker, 2018-NMSC-035, ¶ 18. The
parties, both before the WCJ and on appeal, dispute only whether Worker satisfied the
second requirement—i.e., that the offers of judgment were for an amount less than that
awarded in the compensation order.4 We “review for abuse of discretion the factual
findings underlying the judge’s . . . order that determined whether to impose statutory
fee-shifting.” Baker, 2018-NMSC-035, ¶ 30. We review the application of law, and any
interpretation of workers’ compensation statutes, de novo. Romero v. Laidlaw Transit
Servs., Inc., 2015-NMCA-107, ¶ 8, 357 P.3d 463. For the reasons that follow, Worker
has not persuaded us that the WCJ erred. See Villanueva v. Sunday Sch. Bd. of S.
Baptist Convention, 1995-NMCA-135, ¶ 26, 121 N.M. 98, 908 P.2d 791 (providing that a
worker “must clearly point out error” to justify reversal on appeal).
{6} The WCJ ruled Worker did not demonstrate that he received more in the
compensation order than in his offers of judgment and therefore denied Worker’s fee
shifting application. As best we can tell, the WCJ articulated two primary bases for this
decision: (1) the value of Worker’s future medical benefits, reserved in the offers of
judgment, were speculative and thus could not be compared with the compensation
order, which earmarked $14,500 for such benefits; and (2) the offers of judgment
3The WCJ concluded, as a policy matter, that applying fee shifting to lump sum settlements under
Section 52-5-12(D) would discourage such settlements. Worker contends it was error for the WCJ to rely
on this as a basis for denying his fee shifting application. It is not clear that the WCJ in fact relied on this
policy rationale to deny Worker’s fee shifting application. But regardless, because it is not dispositive, we
assume for purposes of our analysis that the WCJ erred in this regard. See Sanders v. Est. of Sanders,
1996-NMCA-102, ¶¶ 1, 11, 122 N.M. 468, 927 P.2d 23 (assuming without deciding a legal issue because
it is not outcome-determinative). That is, we assume the fee shifting analysis under Section 52-1-54(F)(4)
applies irrespective of whether the compensation order resulted from the parties entering into a
settlement under Section 52-5-12(D), as is the case here, or after a trial on the merits.
4As for the third requirement, it is undisputed that Employer did not accept Worker’s offers of judgment
and therefore they were rejected. As for the first requirement, Employer did not dispute below and does
not dispute on appeal that Worker’s offers of judgment were valid. See Baker, 2018-NMSC-035, ¶ 21
(providing that for an offer to be valid and thus trigger fee shifting under Section 52-1-54(F)(4), the offer
must “address the critical issues raised in the complaint,” “provide a frame of reference regarding the
opposing party’s liability,” and “must also allow the workers’ compensation judge to ascertain whether the
offeror received a more or less favorable outcome in the final compensation order compared to what was
offered in the offer of judgment” (alteration, internal quotation marks, and citation omitted)). Even though
some of the WCJ’s findings, as well as the parties’ arguments, appear to pertain more directly to whether
the offers of judgment were valid, we analyze the issue on appeal as presented by the parties. See
Trujillo v. Presbyterian Healthcare Servs., Inc., ___-NMCA-___, ¶ 22, ___ P.3d ___ (A-1-CA-39697, Aug.
17, 2023) (analyzing the lower court’s order based on the parties’ arguments made below and on appeal,
and not necessarily based on the correct legal framework); see also Haden v. Eaves, 1950-NMSC-050, ¶
12, 55 N.M. 40, 226 P.2d 457 (“We have held many times that cases will be reviewed here on the theory
they were presented and decided below.”). We thus assume without deciding that Worker’s offers were
valid and only evaluate the second fee shifting requirement.
covered Worker’s cervical and parascapular injuries whereas the compensation order
closed out Worker’s benefits for such injuries, which had been denied by Employer.
Worker challenges both of these bases on appeal. Because we agree with the WCJ’s
first rationale and the additional rationale challenged by Worker, even if error, would not
change the result on appeal, we limit our analysis accordingly. See Normand ex rel.
Normand v. Ray, 1990-NMSC-006, ¶ 35, 109 N.M. 403, 785 P.2d 743 (“Even where
specific findings adopted by the trial court are shown to be erroneous, if they are
unnecessary to support the judgment of the court and other valid material findings
uphold the trial court’s decision, the trial court’s decision will not be overturned.”); Wright
v. Brem, 1970-NMCA-030, ¶ 7, 81 N.M. 410, 467 P.2d 736 (providing that this Court’s
“function is to correct an erroneous result, and not to correct errors which, even if
corrected, will not change the result”).
{7} Worker contends he received more through the compensation order than he
would have received had Employer accepted his second or third offers of judgment. In
advancing this contention, Worker does not challenge the WCJ’s finding that the value
of Worker’s future medical benefits in the offers of judgment were too speculative to
provide a point of comparison to the compensation order. Instead, Worker maintains
that future benefits are not to be considered in the fee shifting analysis. According to
Worker, “The benefits paid, and owed, prior to the date of maximum medical
improvement are the point of reference applicable to the Section 52-1-54(F) fee shifting
analysis.”5 We are not persuaded. As support, Worker relies primarily on Baker, a
published case from our Supreme Court. Baker, however, addressed only whether the
worker’s offer, which lacked a definite MMI date and permanent partial disability benefit
amount, was too ambiguous to be valid, and whether fee shifting is mandatory when
Section 52-1-54(F)(4)’s requirements are met. See 2018-NMSC-035, ¶¶ 10, 13, 24-26,
29-32. Baker did not address whether the scope of comparison between an offer of
judgment and a compensation order should include a worker’s reservation of future
benefits. See id. ¶¶ 18-32; cf. id. ¶ 31 (concluding, without any discussion of future
benefits, that the record demonstrated the worker received more than he offered). Baker
thus offers no support to narrow the scope of the fee shifting analysis, as Worker
proposes. Worker having cited no supportive legal authority,6 we assume no such legal
authority exists and decline Worker’s request to limit our analysis. See State v. Casares,
2014-NMCA-024, ¶ 18, 318 P.3d 200 (“We will not consider an issue if no authority is
5Based on this contention, Worker claims the offers of judgment and the compensation order would have
paid him the same medical benefits but the offers would have given Employer a $30 to $50 credit toward
the indemnity benefits—thereby meeting the second fee shifting requirement.
6Worker additionally cites Abeyta v. Bumper To Bumper Auto Salvage, 2005-NMCA-087, 137 N.M. 800,
115 P.3d 816, and Leonard v. Payday Pro., 2007-NMCA-128, 142 N.M. 605, 168 P.3d 177, as well as
numerous unpublished opinions from this Court. These authorities also are unavailing. Similar to Baker,
these cases do not address whether the scope of comparison between an offer of judgment and a
compensation order includes future benefits. See Abeyta, 2005-NMCA-087, ¶¶ 8-20 (addressing issues
unrelated to how a worker’s reservation of future benefits in an offer of judgment is assessed in our fee
shifting analysis); Leonard, 2007-NMCA-128, ¶¶ 21-27 (concluding, without discussing future benefits,
that the WCJ did not err in their ruling on attorney fees); see also, e.g., Benavidez v. Red Sky Plating,
A-1-CA-35977, mem. op. ¶¶ 10-18 (N.M. Ct. App. Feb. 14, 2019) (nonprecedential) (determining, without
discussing the issue of future benefits, that the worker received more in the compensation order than he
offered in his valid offer of judgment).
cited in support of the issue, because absent cited authority to support an argument, we
assume no such authority exists.”).
{8} Having rejected Worker’s legal contention, we turn back to the WCJ’s rationale
for denying Worker’s fee shifting application. The WCJ found that “[t]he value of
Worker’s future medical benefits [sought in his offers of judgment] . . . is speculative at
best.” As noted, Worker does not challenge this finding, and, as a result, we are bound
by it. See Baker, 2018-NMSC-035, ¶ 2 (“Unchallenged findings of fact are binding on
[an appellate court].”). In view of this, we perceive no error in the WCJ’s ruling that she
could not affirmatively answer the “straightforward comparison” required of the fee
shifting analysis—i.e., whether “the worker ultimately [got] more than [they] asked for.”
Meyers v. W. Auto, 2002-NMCA-089, ¶ 26, 132 N.M. 675, 54 P.3d 79. In Worker’s case,
this analysis would have required the WCJ to compare the speculative value of future
medical benefits that Worker reserved in his offers of judgment to the $14,500 he
received in exchange for waiving his right to future medical benefits under the Act. See
Baber v. Desert Sun Motors, 2007-NMCA-098, ¶ 17, 142 N.M. 319, 164 P.3d 1018(providing that compensation orders are compared to offers of judgment “to determine
whether attorney fees should be shifted”). Worker acknowledges the difficulty, if not the
impossibility, of making such a comparison, stating, “It is impossible for an offer of
judgment, or a WCJ’s [c]ompensation [o]rder, to predict future eventualities,” and,
“While [Worker] may get more benefits in the future, he also could hypothetically receive
zero value in future benefits.” These points bolster the WCJ’s ruling that she could not
determine whether Worker received more than he offered—a prerequisite to shifting
fees. See Baker, 2018-NMSC-035, ¶¶ 18, 21.
{9} Based on the arguments advanced by Worker and the record before us, we
cannot say the WCJ abused her discretion or otherwise erred by ruling that Worker
failed to establish his offers of judgment were for amounts less than the compensation
order’s award. See Cordova v. Taos Ski Valley, Inc., 1996-NMCA-009, ¶ 15, 121 N.M.
258, 910 P.2d 334 (“An appellate court will overturn a fee award only when there has
been an abuse of discretion or when the court has acted beyond reason.”); see also
Villanueva, 1995-NMCA-135, ¶ 26.
CONCLUSION
{10} For the foregoing reasons, we affirm.
{11} IT IS SO ORDERED.
JENNIFER L. ATTREP, Chief Judge
WE CONCUR:
J. MILES HANISEE, Judge
JACQUELINE R. MEDINA, Judge