Triple Spaced Again
Merilee Dannemann is a longtime New Mexico journalist. She has written freelance for many local newsrooms and served as the Taos correspondent for the Albuquerque Journal. Find her online at triplespacedagain.com
It has been quite a while since New Mexico has done anything substantive to make life better for injured workers covered by the workers’ compensation system.
Instead, we’re making it easier for them to hire lawyers.
Three different actions, a law and two court decisions, have made inroads into the only barrier reducing lawyers’ incentive to represent injured workers in court: money.
About 90% of workers compensation claims are resolved without litigation. Either the treatment of the worker was reasonable, so litigation was not needed, or the worker needed a lawyer but couldn’t hire one. We don’t know, because the legislature has been refusing to fund any studies on these issues for more than 20 years.
The legislature did authorize a small study of workers’ comp attorney fees (House Memorial 83) last year. If you think that suggests whom legislators listen to, feel free to speculate.
The 1991 workers’ comp reform required attorney fees in litigated cases to be set by a workers’ comp judge. The employer/insurer pays its own fees, and the injured worker’s fees are usually paid half by the injured worker and half by the employer/insurer. In 1991, attorney fees were limited to $12,500, applied to the entirety of every case, including appeals. That cap has been raised twice and was $22,500 until this year’s legislation.
The new law, House Bill 66 substitute, changed the cap substantially. It is now $30,000. In 2027 it increases to $32,000 and increases again to $34,000 in 2029.
The attorney fee is based on several factors including the complexity of the case. The new legislation does not address how the judges calculate the fees, and most litigated cases do not reach the cap. So workers’ comp judges could continue to set most fees below the new cap.
Meanwhile, the state Supreme Court has issued two separate rulings increasing attorney fees in different ways.
In the Pena/Trujillo case, the court considered whether the fee cap itself is constitutional under the separation of powers. It concluded that the workers’comp court is an administrative law court under the executive branch and therefore the fee cap applies, but when cases are appealed, they come under the judicial branch and are outside the fee cap. The decision did not specify how the fee for appellate work will be set.
The Hanrahan case involved a worker who suffered an injury and then suffered a second injury that was a complication of the first one. Both cases were litigated. The Court of Appeals ruled that there was only one injury and so a single fee cap applied. The Supreme Court overruled that and said the fee cap applies to each case separately.
So there are new incentives for attorneys to take workers’ comp cases. More cases will be filed, and the cases will be more expensive. Employers’ workers’ comp premiums will go up, probably just a little, and that cost will be passed on to consumers.
If we had a clearer idea of what goes wrong so that injured workers feel the need to litigate, legislators might be able to amend the law to fix those problems.
We know one thing: Injured workers need medical care. Many doctors avoid workers’ comp cases because they don’t like the extra administrative expenses, and access to doctors is further limited by New Mexico’s worsening shortage of doctors, caused in part by our infamous malpractice law.
Injured workers will recover sooner if they have adequate access to medical care. That’s better not only for the injured workers but also for employers and the cost of the system overall.
There are two ways to help get this done. One is to reduce the regulatory burden on medical care in workers’ comp. The other is to fix New Mexico’s malpractice law so the doctors stop leaving.
Merilee Dannemann’s columns are posted at www.triplespacedagain.com. Comments are invited through the web site.
