Alcala v. St. Francis Gardens, 13849

• Decision Date: 27 October 1993
• Docket Number: No. 13849,13849
• Citation: 116 N.M. 510,864 P.2d 326,1993 NMCA 134
• Parties: Socorro ALCALA, Claimant-Appellee, v. ST. FRANCIS GARDENS, Employer, and Hospital Services Corporation, Third-Party Administrator, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 326

864 P.2d 326

116 N.M. 510

Socorro ALCALA, Claimant-Appellee, v. ST. FRANCIS GARDENS, Employer, and Hospital Services

Corporation, Third-Party Administrator,

Respondents-Appellants.

No. 13849.

Court of Appeals of New Mexico.

Oct. 27, 1993.

James G. Chakeres, Albuquerque, for claimant-appellee.

Richard J. Shane, Deborah S. Dungan, Padilla, Riley & Shane, P.A., Albuquerque, for respondents-appellants.

OPINION

CHAVEZ, Judge.

Respondents appeal the Workers' Compensation Judge's order awarding Worker attorney fees in connection with a change of health care provider proceeding. Respondents contend that the Workers' Compensation Judge (Judge) erred in awarding attorney fees for legal services rendered in a proceeding to change her health care provider. We conclude that the order awarding attorney fees is not final and appealable, and therefore dismiss Respondents' appeal for lack of jurisdiction. However, in the course of our reasoning, we specifically hold that the attorney fee award shall be considered only tentative and need not be immediately paid.

Facts

Worker was employed by Respondents as a dietary aide. On July 29, 1991, while in the course and scope of her employment, Worker allegedly slipped and fell injuring her lower back. Respondents provided medical care through Albuquerque Industrial Medicine Specialists, P.C. where Worker was treated by Dr. Harry C. Zaenger.

On January 17, 1992, Respondents received Worker's Notice of Change of Health Care Provider designating Dr. M.L. Rounseville as her new physician. See NMSA 1978, Sec. 52-1-49 (Repl.Pamp.1991) (effective January 1, 1991); City of Albuquerque v. Sanchez, 113 N.M. 721, 726-27, 832 P.2d 412, 417-18 (Ct.App.1992) (worker has "unfettered discretion" to choose physician after initial sixty-day period, and employer bears burden of proving worker's choice of physician is unreasonable). Respondents objected to Worker's selection of Dr. Rounseville. After a hearing, the Judge determined that the proposed care by Dr. Rounseville was unreasonable and should not proceed. The parties subsequently agreed on another physician to provide Worker's care. Worker filed a claim for compensation benefits on February 4, 1992, seeking disability benefits, medical expenses, and attorney fees. Respondents have denied the claim.

Worker moved for attorney fees incurred in the change of health care provider proceeding. Respondents objected on three grounds. First, Worker had not prevailed in the change of health care provider proceeding, and was therefore not entitled to fees. Second, an award of fees was not justified under the factors of Fryar v. Johnsen, 93 N.M. 485, 601 P.2d 718 (1979). Third, an award of fees was premature since fees may not be paid until the compensation claim has been "settled or adjudged." See NMSA 1978, Sec. 52-1-54(M) (Repl.Pamp.1991) (effective January 1, 1991). The Judge awarded fees in the amount of $1,600.

On appeal, Respondents argue that: (1) the order awarding fees is premature since the compensation claim remains pending; and (2) the Judge erred in awarding fees where Worker was not successful in the change of health care provider proceeding. In our calendar notice reassigning this case to the general calendar, we asked the parties to brief the question of the finality of the order awarding attorney fees.

Finality of Order

Our jurisdiction is limited to appeals from final judgments, interlocutory orders that practically dispose of the merits of an action, and final orders after entry of judgment that affect substantial rights. Thornton v. Gamble, 101 N.M. 764, 766, 688 P.2d 1268, 1270 (Ct.App.1984). As a general proposition, an order or judgment is final when all issues of law and of fact necessary to be determined have been determined, and the case has been completely disposed of to the extent the court has power to dispose of it. In re Estate of Newalla, 114 N.M. 290, 292, 837 P.2d 1373, 1375 (Ct.App.1992). In making this determination, we give the order a practical, rather than technical, construction. Id. "Where a judgment declares the rights and liabilities of the parties to the underlying controversy, a question remaining to be decided thereafter will not prevent the judgment from being final if resolution of that question will not alter the judgment or moot or revise decisions embodied therein." Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 238, 824 P.2d 1033, 1040 (1992); see also Trujillo v. Hilton of Santa Fe, 115 N.M. 397, 398, 851 P.2d 1064, 1065 (1993).

In City of Albuquerque, we held that an order denying the employer's request to change health care providers was final and appealable where no claim for compensation was pending. City of Albuquerque, 113 N.M. at 724-25, 832 P.2d at 415-16. We specifically reserved the question of finality where a compensation claim is pending. Id. at 725, 832 P.2d at 416. In this case, Worker's compensation claim was pending at the time the attorney fees order was entered.

We believe that developments in the compensation case may alter or revise the attorney fees order in the change of health care provider proceeding. An award of attorney fees in a workers' compensation case must be predicated upon a successful recovery by the worker. Montoya v. Anaconda Mining Co., 97 N.M. 1, 7, 635 P.2d 1323, 1329 (Ct.App.1981). Respondents have denied Worker's entitlement to disability benefits, medical expenses, and attorney fees. Thus, if Worker does not obtain any of these benefits, the attorney fees award in the health care provider proceeding would be placed in jeopardy. See id.; NMSA 1978, Sec. 52-1-54(E) (Repl.Pamp.1991) (effective January 1, 1991); see also Sanchez v. Siemens Transmission Sys., 112 N.M. 236, 243-44, 814 P.2d 104, 111-12 (Ct.App.) (attorney fees award based in part on improper award of vocational rehabilitation benefits may be reduced), rev'd on other grounds, 112 N.M. 533, 817 P.2d 726 (1991). For instance, Worker's failure to prove causation would preclude an award of medical benefits, an issue intimately bound with the change of health care provider proceeding. See Douglass v. State, Regulation & Licensing Dep't, 112 N.M. 183, 189, 812 P.2d 1331, 1337 (Ct.App.), cert. denied, 112 N.M. 77, 811 P.2d 575 (1991)....