(specially concurring.)
(37) I concur in the result and join in the portion of the majority opinion affirming the decision below as to each of the issues raised in Appellants’ appeal. I write separately to explain my reasons for rejecting the constitutional challenge to the fee restriction.
(38) First, because Claimant contends that it is the rights of workers (not attorneys) that are violated by the limitation on attorney’s fees, it is worth devoting a moment to put this limitation in the context of other limitations placed on workers by the Workers’ Compensation Act. The Act creates an insurance system for workers injured in the course and scope of their employment. As is typical with privately acquired insurance, the benefits are not unlimited. The reason for the limit on benefits is the same as the reason why most people do not obtain the maximum amount of insurance coverage possible — insurance costs money. Although the employer, rather than the worker, pays the premiums for workers’ compensation insurance, higher premiums can also affect workers — by reducing the money available for salaries and other employee benefits. In response to concerns about the premiums for workers’ compensation insurance, leaders of labor and business have agreed to various modifications of New Mexico law. On the assumption that premiums would drop if costs were lowered, the legislature has tried to reduce costs while maintaining acceptable benefit levels.
(39) Some cost reductions are achieved by placing limits upon the benefits workers can receive. No matter how high the worker’s salary, compensation benefits cannot exceed 85% of the average weekly wage in the state. See NMSA 1978, § 52-1-41 (Cum. Supp.1995). If the disability results from a primary mental impairment, see NMSA 1978, § 52~1-24(B) (Repl.Pamp.1991) (definition of “primary mental impairment”), the worker can receive compensation benefits for no more than 100 weeks. Section 52-Hl(B). The total duration of benefits for other disability cannot exceed 700 weeks, NMSA 1978, § 52-1-47 (Repl.Pamp.1991), except for total disability, id.; § 52-l-41(A), which includes only “the permanent and total loss or loss of use of both hands or both arms or both feet or both legs or both eyes or any two of them.” NMSA 1978, § 52-l-25(A) (Repl.Pamp.1991). Workers receive no additional benefits for pain and suffering. In short, the worker may receive far less than would be recoverable in a tort action.
(40) The Act attempts to achieve additional cost savings by reducing the transactional costs in assessing what benefits are due a worker. Some provisions, such as the requirement of informal conferences to resolve disputes, see NMSA 1978, § 52-5-5 (Cum.Supp.1995), should have no effect on the amount of recovery obtained by the worker. Others, however, could affect the ability to recover benefits. For example, partial disability is determined by a formula that uses objective criteria: the worker’s impairment (based on American Medical Association guidelines, § 52-l-24(A)), modified by points deriving from the worker’s age, education, and physical capacity. See NMSA 1978, § 52-1-26(0 (Repl.Pamp.1991). There will certainly be cases in which this computation significantly understates the reduction in the worker’s capacity to work — the former measure of disability used to set benefits, see § 52-1-26 (effective until Jan. 1, 1991). Of perhaps greater practical effect, workers are restricted in their use of potentially favorable expert witnesses. Under NMSA 1978, Section 52-l-51(C) (Repl.Pamp.1991) the only health care providers who may testify concerning the injury are (1) those who have been authorized under the Act to treat the worker or (2) one selected by the workers’ compensation judge from an official list of health care providers authorized to conduct independent medical examinations, see § 52-1-51(B). (It is not apparent to me how either of the expert witnesses in this case satisfied the statutory requirement, but, as explained in the majority opinion, that issue was not preserved for review on appeal.)
(41) Further savings derive from limitations on what can be paid to those who assist injured workers. No payments whatsoever are permitted any longer for vocational rehabilitation services. See NMSA 1978, § 52-1-50 (Repl.Pamp.1991) (effective until Jan. 1, 1991). Maximum fees are set for health care providers, NMSA 1978, § 52-4-5 (Cum.Supp. 1995), expert witnesses, NMSA 1978, § 52-5-4(C) (Repl.Pamp.1991), and attorneys, NMSA 1978, § 52-1-54(1) (Cum.Supp.1995). (Ordinarily, the worker and employer each pay one half of the worker’s attorney’s fee. Section 52-l-54(J).)
(42) One could speculate regarding which statutory limitations cause the most harm to workers as a practical matter. Given the choice, would workers prefer an increase in benefits, the opportunity to receive care from higher-paid doctors, or the opportunity to pay more for their attorneys? If the limitation on attorney’s fees is unconstitutional, then all the other limitations are constitutionally suspect, unless (1) the service of an attorney is, at least to some extent, constitutionally special and (2) restricting the earnings of attorneys harms that special service. In my view, the first condition is met, but not the second one. To the extent that the assistance of an attorney is necessary for the worker to obtain access to the courts, such assistance is entitled to special constitutional protection. But there is no evidence before us that the limitation on attorney’s fees in the Workers’ Compensation Act deprives any workers of access to the courts. Because Claimant bases her challenge to the Act on an alleged denial of equal protection, I develop my analysis in that context.
(43) The equal protection clauses of the United States and New Mexico Constitutions require us to determine whether a statute improperly divides persons into two classes, treating one class more favorably than the other. Typically, the two classes are identified in the statute in question. For example, in Corn v. New Mexico Educators Federal Credit Union, 119 N.M. 199, 889 P.2d 234 (Ct.App.1994), cert. denied, 119 N.M. 168, 889 P.2d 203 (1995), we held that the Workers’ Compensation Act improperly discriminated between workers and employers with respect to what could be paid in attorney’s fees. The two classes — workers and employers — are, of course, distinguished throughout the Act.
(44) In the present case, however, the statutory provision on attorney’s fees does not explicitly name any classes that are to be distinguished. All workers and employers are subject to the same limitation of $12,500 for attorney’s fees. See § 52-1-54(1). Nevertheless, Claimant contends that there is an implicit classification. The classification is based upon whether or not the worker is injured by the statutory limit on attorney’s fees. In other words, the two classes are (1) those injured by the statutory limit and (2) those not injured by the limit. Or, to be more precise, the classes are (1) those injured in a specific way by the statutory limit and (2) those not so injured by the limit.
(45) To clarify the issue before us, it is important first to identify the specific type of injury at issue. One must distinguish between (1) the worker’s interest in obtaining the best possible legal representation with respect to a worker’s compensation claim and (2) the worker’s interest in obtaining adequate legal representation. I begin by discussing the first interest.
(46) Cost aside, any litigant would, of course, want to obtain the best possible attorney and have that attorney devote every bit of time and resources that could possibly assist the litigant in achieving the most favorable result. Undoubtedly, a cap on attorney’s fees injures that interest. Gerry Spence is unlikely to take a ease if the maximum fee is $12,500. Even the skilled attorneys, such as Claimant’s attorney, who take these cases are unlikely to devote many hours to computer legal research.
(47) But the interest in having the best possible legal representation is entitled to very little, if any, constitutional protection. The constitution no more protects a worker’s interest in the best possible legal representation than it protects the worker’s interest in the best possible medical care or expert witnesses. Even those accused of capital offenses are not constitutionally entitled to the best possible representation. Otherwise, we would need to justify not providing every such defendant with the O. J. Simpson Dream Team. Recognition of a right to the best possible representation would require raising the pay of public defenders to that of senior partners in major law firms and slashing their caseloads at the same time. It would require paying contract attorneys, when the public defender has a conflict, at much higher rates than at present. Likewise, fees for guardians ad litem would need to be increased. See NMRA 1996, 10-113(E). The interest in obtaining the best possible legal counsel is a sufficiently uncompelling one that it can be overcome by the simple public interest in reducing costs. Thus, equal-protection objections to limitations on attorney’s fees have met with little success; all that has been required is that the limitation be rational. See Roa v. Lodi Medical Group, 37 Cal.3d 920, 211 Cal.Rptr. 77, 83-86, 695 P.2d 164, 170-72 (percentage limitations on contingency fees in medical malpractice cases), appeal dismissed, 474 U.S. 990, 106 S.Ct. 421, 88 L.Ed.2d 352 (1985); Khoury v. Carvel Homes South, 403 So.2d 1043 (Fla.Dist.Ct.App.1981) (percentage limitations on contingency fees in worker’s compensation eases), review denied, 412 So.2d 467 (Fla.1982); Rhodes v. Industrial Comm’n, 125 Idaho 139, 868 P.2d 467, 470-71 (1993) (same); Bernier v. Burris, 113 Ill.2d 219, 100 Ill.Dec. 585, 599-601, 497 N.E.2d 763, 777-79 (1986) (percentage limitations on contingency fees in medical malpractice cases); Johnson v. St. Vincent Hosp., 273 Ind. 374, 404 N.E.2d 585, 602-03 (1980) (same); Crosby v. State Workers’ Compensation Bd., 85 A.D.2d 810, 445 N.Y.S.2d 634 (1981) (restrictions on attorney’s fees in workers’ compensation cases), aff'd, 57 N.Y.2d 305, 456 N.Y.S.2d 680, 442 N.E.2d 1191 (1982); Newton v. Cox, 878 S.W.2d 105, 109-10 (Tenn.) (percentage limitations on contingency fees in medical malpractice cases), cert. denied, 513 U.S. 869, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994); Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 533 (Tex.1995) (percentage limitation on contingency fees in workers’ compensation cases); cf. United States Dep’t of Labor v. Triplett, 494 U.S. 715, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990) (regulation of attorney’s fees in black lung cases does not violate due process); Coleman v. United Eng’rs & Constructors, 118 N.M. 47, 51, 878 P.2d 996, 1000 (1994) (equal-protection challenge to procedural limitation on recovery is reviewed under rational-basis test); Miller v. IBM, 659 A.2d 1126 (Vt.1995) (upholding cap of $35 per hour for attorney’s fees in workers’ compensation cases); Del.Code Ann. tit. 19, § 2127 (Repl.1995) ($2250 cap on attorney’s fees in workers’ compensation cases); Ky.Rev.Stat.Ann. § 342.320 (Baldwin 1994) ($15,000 cap on attorney’s fees in workers’ compensation cases); Minn.Stat.Ann. § 176.081 (West pocket part 1996) ($13,000 cap on attorney’s fees in workers’ compensation cases); Utah Admin.R. 568-1-7 (1995) ($2500 cap on attorney’s fees in workers’ compensation eases). But cf. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 838-39 (1980).
(48) The interest in adequate representation is a more significant interest. A statute that deprives someone of the ability to obtain adequate representation in litigation could, in a very real sense, deprive the person of a right of access to the courts. See Walters v. National Assoc. of Radiation Survivors, 473 U.S. 305, 334-35, 105 S.Ct. 3180, 3196-97, 87 L.Ed.2d 220 (1985); Triplett, 494 U.S. at 721-26, 110 S.Ct. at 1432-35. Consequently, if a statute operates to deny adequate representation to a particular class of persons, that class may well have been subjected to a discrimination that violates equal protection.
(49) What Claimant fads to do, however, is to identify a class of workers who are denied adequate representation because of the statutory cap on attorney’s fees. Her brief on appeal contends that the statutory cap “treats workers with complex and contested claims differently from workers whose claims are relatively simple or whose claims can be settled.” Yet, she presents no evidence that workers with complex, contested claims (or even a subclass of such workers) are unable to obtain adequate representation, nor does she make a persuasive argument why that should be so. The question is whether as a result of the statutory cap there are workers’ compensation cases which no qualified attorney will take. In this regard, it is important to recognize that the cap would cause an attorney to refuse a case only if the attorney could tell at the outset that it would likely require more work than could be adequately compensated under the cap. Once an attorney agrees to represent a client, knowing that the statute sets a cap on the fee that can be charged, the attorney owes the client diligent efforts and cannot withdraw from the representation on the ground that the work required turned out to exceed what was anticipated. Claimant has not shown that there exist cases that at the outset are clearly so complex as to cause all qualified attorneys to reject them.
(50) To be sure, there are cases for which the efforts of the worker’s attorney, compensated at normal hourly rates, would justify a fee greater than the statutory cap. The workers’ compensation judge found this to be such a case (although it is likely that much of the time of Claimant’s attorney related to testimony by expert witnesses who apparently were not authorized to testify under the Workers’ Compensation Act, see § 52-1-51(C)). But we know of such cases only in hindsight. According to statistics relied upon by this Court in Corn, a reasonable attorney’s fee exceeds the statutory cap in only one out of 500 cases. See Corn, 119 N.M. at 208, 889 P.2d at 248. Given that attorneys representing workers take the risk that they will receive, no fee whatsoever if they do not obtain increased benefits for the worker, it would not be surprising if those same attorneys are willing to accept the risk that the statutory cap will result in their time on a case being compensated at less than their ordinary rates. At the least, there is no reason for us to presume that there is a class of workers’ compensation cases for which workers cannot obtain adequate representation. In the absence of such a class, Claimant’s equal-protection argument must fail. Of course, if the existence of such a class of cases could be demonstrated at an evidentiary hearing, the equal-protection claim would need to be reexamined.
(51) The above discussion relates to the representation of the worker for the ease as a whole. One could argue, however, that the cap has a particular impact on representation on appeal. It may appear that a worker will receive inadequate representation on appeal if the attorney has already been awarded the statutory maximum fee for work before the Workers’ Compensation Administration.
(52) But this concern is valid only if the attorney violates the ethical obligation to provide the client with adequate representation on appeal. As already stated, an attorney takes a workers’ compensation case with notice that there is a statutory cap on the fee and accepts the risk that compensation could be below the attorney’s customary hourly rate if substantial additional work is required either at the trial level or on appeal. The possibility of appellate duties is merely one of several contingencies that an attorney must take into consideration in deciding whether to represent a worker. Moreover, often the attorney has a financial self-interest in the appeal. If the worker is the appellee, an unsuccessful defense of the award to the worker could result in reduction of the attorney’s fee on remand. If the appeal is on behalf of the worker, the worker’s attorney may obtain a larger fee as a result of the appeal. Thus, again, there is no reason to presume, and there is no evidence to establish, that the statutory cap prevents any class of workers from obtaining adequate representation for their claims, either at the level of the Workers’ Compensation Administration or on appeal.
(53) Finally, I add a few words to emphasize a proposition that too many may overlook. To affirm the constitutionality of a statute is not to approve it on policy grounds. Unfortunately, or fortunately, judges are not ex officio members of the legislature. We should refrain from imposing our views of policy under the banner of constitutional principles.