Baker v. Endeavor Services

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CASEY R. BAKER,
3 Worker-Appellee,
4 v. NOS. 36,142 and 36,272 (consolidated)
5 ENDEAVOR SERVICES, INC., and
6 GREAT WEST CASUALTY CO.,
7 Employer/Insurer-Appellants,
8 Consolidated with
9 CASEY R. BAKER,
10 Worker-Appellant,
11 v.
12 ENDEAVOR SERVICES, INC., and
13 GREAT WEST CASUALTY CO.,
14 Employer/Insurer-Appellees.
15 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
16 Terry S. Kramer, Workers’ Compensation Judge
17 Gerald A. Hanrahan
18 Albuquerque, NM
1 for Appellee
2 Kelly A. Genova
3 Albuquerque, NM
4 for Appellants
5 MEMORANDUM OPINION
6 GARCIA, Judge.
7 {1} Employer/Insurer Endeavor Services, Inc. and Great West Casualty Co.
8 (Employer) appeal from the Workers’ Compensation Administration’s (WCA)
9 compensation order awarding Worker Casey R. Baker (Worker) benefits based on a
10 maximum medical improvement (MMI) date of December 7, 2016. [Case #1 DS 2;
11 RP 190]1 Worker appeals from the WCA’s order awarding him attorney fees and
12 requiring the award to be paid fifty percent by Worker and fifty percent by Employer.
13 [Case #2 DS 1; RP 234] This Court issued a notice consolidating the appeals and
14 proposing to affirm. Employer has not filed a memorandum in opposition to our
15 proposed summary affirmance. We therefore affirm the WCA’s compensation order
16 determining the date Worker reached MMI. See Griffin v. Thomas, 1997-NMCA-009,
1
18 All citations to Employer’s docketing statement in Ct. App. No. 36,142 are
19 cited to as “Case #1 DS.” All citations to Worker’s docketing statement in Ct. App.
20 No. 36,272 are cited as “Case #2 DS.” All citations to the record proper refer to the
21 record proper originally numbered Ct. App. No. 36,272, Case #2.
2
1 ¶ 7, 122 N.M. 826, 932 P.2d 516 (“[A]n issue is deemed abandoned where a party
2 fails to respond to the calendar notice’s proposed disposition of the issue[.]”). Worker
3 filed a memorandum in opposition, which we have duly considered. Remaining
4 unpersuaded, we affirm the award and apportionment of his attorney fees.
5 {2} Worker asserts the WCA erred in denying his application to require Employer
6 to pay one hundred percent of Worker’s attorney fees pursuant to NMSA 1978,
7 Section 52-1-54(F) (2013), because the compensation order awarded Worker a larger
8 recovery for temporary total disability (TTD) than Worker proposed to Employer in
9 his offer of judgment. [Case # 2 DS 11-12] As we pointed out in our notice, Worker’s
10 offer addressed only TTD benefits and appeared to have failed to address any
11 contemplated permanent partial disability (PPD) benefits, medical benefits, or any
12 other benefits, aside from attorney fees, that were contested issues and which Worker
13 was ultimately awarded. [MIO 3; RP 162, 193-194] Worker points out in his
14 memorandum in opposition that his offer included payment by Employer for
15 continued medical treatment. [MIO 7] In support of the argument his offer sufficiently
16 addressed the critical issues and was not required to include PPD benefits, Worker
17 cites Abeyta v. Bumper to Bumper Auto Salvage, 2005-NMCA-087, ¶¶ 11, 15, 137
18 N.M. 800, 115 P.3d 816, in which this Court held the worker’s offer of judgment
19 regarding TTD benefits was unambiguous and was lower than the compensation
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1 award the worker received. Worker cites Abeyta to argue his offer, which only
2 addressed TTD benefits was unambiguous and supports application of the fee-shifting
3 statute. [MIO 6]
4 {3} While it is true the offers both in the present case and in Abeyta appeared to
5 specifically address only TTD benefits, unlike in Abeyta, where PPD benefits did not
6 appear to be at issue, PPD benefits were a contested issue in the present case and, thus,
7 a critical issue unaddressed by Worker’s offer. [RP 162] See Abeyta, 2005-NMCA-
8 087, ¶¶ 2-3. Insofar as Worker’s offer of settlement did not address the critical
9 contested issue of PPD by “reserv[ing] all . . . rights not specifically addressed herein,
10 including all rights, claims and defenses relating to [PPD] benefits following MMI[,]”
11 [MIO 7] we conclude the WCA properly concluded the offer did not supply an
12 appropriate basis for application of the fee-shifting provision. See Leonard v. Payday
13 Prof’l, 2007-NMCA-128, ¶ 26, 142 N.M. 605, 168 P.3d 177 (observing although an
14 offer of judgment may fail to address details, where critical issues are unresolved, the
15 offer does not supply an appropriate basis for fee shifting).
16 {4} Worker goes on to argue he was prevented from making a timely offer of
17 judgment that included PPD benefits because the completion of a second impairment
18 assessment was delayed by Employer’s refusal to pay for it. [MIO 8-9] While the
19 second impairment assessment resulted in a greater impairment rating, [MIO 9]
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1 Worker was not prevented from making a complete offer of judgment that addressed
2 PPD benefits based on the information and impairment rating that was available to
3 him at the time. As a consequence, Worker’s argument his incomplete offer of
4 judgment provides a basis for fee-shifting is unavailing.
5 {5} Therefore, based on the reasons stated above and in this Court’s notice of
6 proposed disposition, we affirm.
7 {6} IT IS SO ORDERED.
8 ________________________________
9 TIMOTHY L. GARCIA, Judge
10 WE CONCUR:
11 _______________________________
12 MICHAEL E. VIGIL, Judge
13 _______________________________
14 J. MILES HANISEE, Judge
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