This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 KILLIAN MACAISLIN,
3 Worker-Appellant,
4 v. No. 35,103
5 NOAH’S ARK CHILDREN’S CENTER and
6 NEW MEXICO MUTUAL CASUALTY CO.,
7 Defendant-Appellees.
8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
9 Terry S. Kramer, Workers’ Compensation Judge
10 Rodney Ralph O’Dunn
11 Rio Rancho, NM
12 for Appellant
13 Camp Law, LLC
14 Minerva Camp
15 Albuquerque, NM
16 for Appellees
17 MEMORANDUM OPINION
18 SUTIN, Judge.
1 {1} Worker appeals the denial of her application seeking attorney fees pursuant to
2 NMSA 1978, Section 52-1-54 (2013). In our notice of proposed summary disposition,
3 we proposed to reverse. [CN 4] Employer has filed a memorandum in opposition to
4 that proposed disposition. Having duly considered Employer’s arguments, we are
5 unpersuaded and now reverse.
6 {2} The sole issue in this appeal is whether Worker’s pretrial offer of judgment was
7 “less than the amount awarded by the compensation order,” thereby entitling her to
8 have all of her attorney fees paid by Employer. Section 52-1-54(F)(4). Employer
9 specifically contests our conclusion that the final compensation order in this case
10 exceeded two aspects of Worker’s offer involving payment of outstanding medical
11 bills and authorization for ongoing treatment.
12 {3} With regard to outstanding bills, Worker’s offer sought:
13 payment by Employer/Insurer pursuant to the Workers[’] Compensation
14 Act and the rules and regulations promulgated by the Workers[’]
15 Compensation Administration of Dr. Whalen’s outstanding medical bills
16 for medical treatment provided to Worker for Worker’s work-related
17 right knee injury and secondary right knee pain from the date Dr.
18 Whalen first saw Worker up to the present, including all prescriptions
19 written by Dr. Whalen, less one dollar[.]
20 [RP 331]
21 {4} In arguing that this offer was not less than the amount awarded by the
22 compensation order, Employer recites a list of treatment options recommended or
2
1 otherwise mentioned in her medical history that were not authorized in the final
2 compensation order. [MIO 2-4] With regard to most of these treatment options,
3 Employer notably fails to assert that Worker actually received the treatment discussed
4 or had any outstanding bills for such treatment. [Id.] And, more importantly for
5 present purposes, Employer fails to explain how any of the listed items fall within the
6 scope of Worker’s offer of judgment, which sought only the payment of outstanding
7 bills for care related to her “work-related right knee injury and secondary right knee
8 pain.” [RP 331] Instead, Employer merely asserts that Worker submitted claims for
9 some treatment not falling within that description and sought an award covering some
10 bills for that treatment at trial. [See MIO 3, asserting that Worker submitted claims
11 related to cellulitis and that a dispute over such bills was included in the pretrial order;
12 see also id., ambiguously suggesting that “[t]horacic and lumbar MRI[s] were
13 requested medical benefits.”]
14 {5} Section 52-1-54(F)(4), however, does not require a worker to permanently
15 abandon all claims not sought in an offer of judgment. Such a requirement would
16 defeat the purpose of the statute, which exists to encourage settlement. See Rivera v.
17 Flint Energy, 2011-NMCA-119, ¶ 12, 268 P.3d 525 (noting that the statute’s purpose
18 is “to promote and encourage settlement”). Thus, in order to determine whether
19 Worker is entitled to an award of attorney fees under the statute, we must compare the
3
1 final compensation order to Worker’s written offer of judgment, and not to any prior
2 or subsequent demands, offers, or claims. Instead of making that comparison,
3 however, Employer’s memorandum in opposition merely points out that before and
4 after making her offer of judgment, Worker sought compensation not addressed in the
5 offer of judgment and not included in the compensation order.
6 {6} Similarly, in regard to authorization for ongoing treatment, Worker’s offer
7 sought: “provision of ongoing pain management medical care for the work-related
8 right knee hyperextension injury with patella fracture and secondary chronic right
9 knee pain through Dr. Whalen[.]” [RP 331] In its memorandum in opposition,
10 Employer again describes Worker’s efforts seeking treatment outside the scope of her
11 right knee injury. [MIO 4-6] In doing so, Employer asserts that by seeking care for
12 “secondary chronic [right knee] pain,” Worker was actually demanding treatment for
13 reflex sympathetic dystrophy and complex regional pain syndrome. [MIO 4-5]
14 Notwithstanding Employer’s bare assertion that Worker was demanding such care, we
15 note that the judgment Worker offered to accept explicitly sought treatment only for
16 her knee injury and accompanying secondary chronic pain.1 [RP 331]
1
17 We note that Employer’s memorandum in opposition places various
18 characterizations of Worker’s offer within quotation marks despite the fact that those
19 descriptions of the offer do not involve direct quotations. [MIO 4, 6] We caution
20 Employer’s counsel that such use of quotation marks is misleading, and should be
21 avoided in the future. See Rule 16-303(A)(1) NMRA; id. comm. cmt. 2.
4
1 {7} The compensation order ultimately entered in this case explicitly found that
2 Worker’s work-related injuries consisted of her “right knee hyperextension with
3 patella fracture and chronic right knee pain secondary to the original injury” [RP 314
4 (¶ 10)] before holding that “Worker is entitled to ongoing reasonable and necessary
5 treatment as prescribed by Dr. Whalen for her chronic right knee pain.” [RP 316 (¶ 4)]
6 It thus appears that the ongoing treatment sought in Worker’s offer of judgment is
7 exactly the ongoing treatment awarded in the compensation order.
8 {8} We therefore note that—with regard to both outstanding bills and ongoing
9 treatment—rather than establishing that Worker sought unawarded benefits in her
10 offer of judgment, Employer is merely arguing that Worker sought such benefits at
11 other times during the history of this case. That issue, however, has no bearing upon
12 the question before this Court, which is simply whether Worker’s offer of judgment
13 was less than what was awarded in the compensation order. See § 52-1-54(F)(4). As
14 a result, Employer has not met its burden “to clearly point out errors in fact or law”
15 in our proposed disposition. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M.
16 754, 955 P.2d 683. Based on our calendar notice and the foregoing analyses,
17 Employer’s arguments do not persuade us that the district court’s broad conclusion
18 and denial of attorney fees was supported in the evidence. We conclude that Worker’s
19 offer of judgment was less than the compensation order entered and Worker is entitled
5
1 to the attorney fees award at issue in this appeal, pursuant to Section 52-1-54(F)(4).
2 The order of the workers’ compensation judge denying Worker’s request for 100%
3 of her attorney fees is reversed, and the case is remanded for the entry of an
4 appropriate order.
5 {9} IT IS SO ORDERED.
6 __________________________________
7 JONATHAN B. SUTIN, Judge
8 WE CONCUR:
9 _______________________________
10 MICHAEL E. VIGIL, Chief Judge
11 _______________________________
12 J. MILES HANISEE, Judge
6