Vinyard v. Palo Alto, Inc.
| Decision Date | 21 February 2019 |
| Docket Number | No. A-1-CA-35270,A-1-CA-35270 |
| Parties | JODY VINYARD, Worker-Appellant, v. PALO ALTO, INC. d/b/a PIZZA HUT, and MANUFACTURER'S ALLIANCE INSURANCE COMPANY, Employer/Insurer-Appellees. |
| Court | Court of Appeals of New Mexico |
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.
APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION
Reginald C. Woodard, Workers' Compensation Judge
Law Office of Alvin R. Garcia, LLC
Alvin R. Garcia
Albuquerque, NM
for Appellant
Maestas & Suggett, P.C.
Paul Maestas
Albuquerque, NM
for Appellees
{1} Jody Vinyard (Worker) appeals from two orders issued by the workers' compensation judge (WCJ) denying Worker's request for fee-shifting under the Workers' Compensation Act (the Act), for additional attorney fees over and above the Act's fee cap, and for additional interest, based on the alleged bad faith conduct of Palo Alto, Inc. d/b/a Pizza Hut and Manufacturers Alliance Insurance Company (collectively, Employer). Worker also requests additional attorney fees on appeal pursuant to Rule 12-403(B)(3) NMRA. We affirm the WCJ's orders and deny Worker's request for attorney fees on appeal.
{2} This case has an extensive history in the Workers' Compensation Administration (WCA) and is now on its fourth appeal in this Court. For purposes of this opinion, we set forth the following procedural background. On December 6, 2009, Worker was in a vehicular accident while in the course and scope of his employment and subsequently filed a complaint with the WCA. The major issue in dispute before the WCJ was the proper calculation of Worker's average weekly wage under NMSA 1978, Section 52-1-20(B) (1990), when Worker held two concurrent jobs, one for nine weeks and one for fourteen weeks. Prior to any formal hearing before the WCJ, Worker and Employer attended a mandatory mediation after which the mediator filed a recommended resolution. The mediator calculated Worker's average weekly wage at $945.68. Worker accepted therecommended resolution on April 19, 2010, but Employer subsequently rejected it on May 6, 2010. Worker would eventually prevail at a hearing before the WCA and on several appeals to this Court.
{3} On November 2, 2012, this Court issued a formal opinion on the first appeal in Vinyard v. Palo Alto, Inc. (Vinyard I), 2013-NMCA-001, 293 P.3d 191. In Vinyard I, we held that the WCJ had incorrectly calculated Worker's average weekly wage and remanded the case back to the WCJ. Id. ¶¶ 19, 23. We also affirmed the WCJ's award of $15,000 in attorney fees to be split equally between the parties. Id. ¶¶ 20, 23. On remand following Vinyard I, Worker filed an application on January 11, 2013, with the WCA for additional attorney fees incurred in connection with the appeal in Vinyard I. Worker did not raise any argument regarding fee-shifting in this January 11, 2013 application.
{4} Following the remand of Vinyard I, the WCJ incorrectly calculated Worker's average weekly wage two more times, requiring an appeal by Worker in both instances. We reversed the WCJ's calculation of average weekly wages in unpublished opinions in both Vinyard II and Vinyard III, and again remanded to the WCJ with guidance on the correct method of calculation.
{5} After Vinyard III was decided, Worker asked for additional attorney fees from this Court under Rule 12-403. We issued an order on November 25, 2014, noting that, "it seems reasonably clear that a substantial award of attorney feeswould be appropriate in this case." However, we ultimately concluded that, "given the nature of the inquiry, we remain of the opinion that the [WCJ] is in a better position to render an appropriate award."
{6} Ultimately, after Vinyard III, the WCJ correctly calculated the average weekly wage as $971.37. Worker filed another application for attorney fees with the WCA on August 17, 2015. This application included an argument for fee-shifting that had not been included in the January 11, 2013 application.
{7} On August 31, 2015, Employer moved the WCJ for an order authorizing an independent medical examination (IME) of Worker based on his use of narcotic pain medications. Shortly thereafter, Worker filed a response to the IME request as well as a motion to strike the request, alleging bad faith. Worker also asked for additional attorney fees. The WCJ denied both motions.
{8} In disposing of Worker's applications, the WCJ awarded an additional $7,500 in attorney fees, representing the maximum available under the Act's attorney fee cap, which is currently set at $22,500. Consistent with the earlier $15,000 attorney fee award, payment of the additional amount was to be split equally between Worker and Employer. The WCJ also awarded interest on half of the earlier fee award, calculated at 8.75 percent. The WCJ concluded that there was no showing of bad faith and no basis to award attorney fees above the cap. The WCJ denied Worker's request that responsibility for payment of the additional$7,500 fee be shifted entirely to Employer; although not mentioned in the order, a review of the record indicates that the WCJ concluded that Worker had waived his fee-shifting argument by failing to make the argument in his original January 11, 2013 application, and by previously accepting payment from Employer related to the original $15,000 attorney fee award. Worker now appeals from the WCJ's order denying his request for an additional attorney fees based on Employer's alleged bad faith request for an IME and the WCJ's order denying his fee-shifting request as to the entire $22,500 award.
{9} Worker makes several arguments pertaining to the WCJ's rulings on the award of attorney fees and interest. First, Worker argues that the responsibility for the entire fee award should be shifted to Employer pursuant to NMSA 1978, Section 52-1-54(E), (F) (2013) of the Act. Worker also argues that Employer's request for the IME was in bad faith, thus warranting additional attorney fees above the cap pursuant to Section 52-1-54(I) and Rule 1-011 NMRA, as well as additional interest at 15 percent pursuant to NMSA 1978, Section 56-8-4(A)(2) (2004). As a final matter, Worker seeks additional attorney fees based on Rule 12-403.
{10} This Court reviews the orders of a WCJ using the whole record standard of review. Leonard v. Payday Prof'l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168P.3d 177. "Whole record review requires us to consider all the evidence properly admitted by the WCJ to determine whether there is substantial support for the judgment." Sanchez v. Zanio's Foods, Inc., 2005-NMCA-134, ¶ 9, 138 N.M. 555, 123 P.3d 788. Whole record review is deferential to the WCJ. Id. ¶ 11.
{11} Normally, we review the WCJ's award of attorney fees for abuse of discretion. Leonard, 2007-NMCA-128, ¶ 21. However, we review the WCJ's interpretation of the Act and the application of the law to the facts of this case de novo. See Vialpando v. Ben's Auto. Servs., 2014-NMCA-084, ¶ 5, 331 P.3d 975. "In interpreting statutes, we seek to give effect to the Legislature's intent, and in determining intent we look to the language used and consider the statute's history and background." Valenzuela v. Snyder, 2014-NMCA-061, ¶ 16, 326 P.3d 1120 (internal quotation marks and citation omitted). "In addition, we should read the entire statute as a whole so that each provision may be considered in relation to every other part." Id. (internal quotation marks and citation omitted).
{12} Worker's main argument on appeal is that the entire attorney fees award of $22,500, representing the maximum amount allowed under Section 52-1-54(I) ofthe Act, should be shifted to Employer. 1 This contention is based on two alternative grounds: (1) that Worker ultimately prevailed in each of his three prior appeals following the Employer's failure to accept the mediator's recommended resolution in 2010, and (2) that the WCJ should have construed Worker's acceptance of the recommended resolution as an offer of settlement and as an offer of judgment.
{13} Section 52-1-54 governs attorney fee awards in connection with worker's compensation proceedings. Section 52-1-54(A) prohibits payment of any fee except as provided in Section 52-1-54. Section 52-1-54(I) generally prohibits an award of attorney fees in excess of $22,500 to either the worker or the employer. Section 52-1-54(J) provides that payment of the worker's attorney fees are split equally between the worker and the employer except as provided in paragraphs (3) and (4) of Subsection (F).
{14} Section 52-1-54(F) provides that "[a]fter a recommended resolution has been issued and rejected . . . the employer or claimant may serve upon the opposing party an offer to allow a compensation order to be taken against the employer or claimant for the money or property or to the effect specified in the offer[.]" Section52-1-54(F)(3) provides that "if the employer's offer was greater than the amount awarded by the compensation order, the employer shall not be liable for the employer's fifty percent share of the attorney fees to be paid the worker's attorney and the worker shall pay one hundred percent of the attorney fees due to the worker's attorney[.]" Section 52-1-54(F)(4) then provides "if the worker's offer was less than the amount awarded by the compensation order, the employer shall pay one hundred percent of the attorney fees to be paid the worker's attorney, and the worker shall be relieved from any responsibility for paying any portion of the worker's attorney fees."
{15} Section 52-1-54(F) constitutes a fee-shifting provision. See Abeyta v. Bumper...
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