Murphy v. Duke City Pizza, Inc.

881 P.2d 706, 118 N.M. 346
CourtNew Mexico Court of Appeals
DecidedJune 27, 1994
Docket14431
StatusPublished
Cited by3 cases

This text of 881 P.2d 706 (Murphy v. Duke City Pizza, Inc.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murphy v. Duke City Pizza, Inc., 881 P.2d 706, 118 N.M. 346 (N.M. Ct. App. 1994).

Opinion

OPINION

MINZNER, Chief Judge.

Worker appeals several aspects of the workers’ compensation judge’s (judge’s) award of attorney fees, including (1) whether the $12,500 attorney fee cap is constitutional, (2) whether the judge erred in denying Worker’s claim for additional bad faith attorney fees, and (3) whether Worker should be required to pay 25% of her attorney fees. Employer cross-appealed, raising four issues: (1) whether the judge erred in denying Employer’s claim for a credit for overpayment of benefits, (2) whether the judge erred in awarding Worker scheduled injury benefits for her arm instead of her hand, (3) whether the judge erred in her award of vocational rehabilitation benefits, and (4) whether the judge erred in awarding Worker her fee for her vocational rehabilitation expert witness. We affirm in part and reverse in part on Employer’s cross-appeal. We affirm the judge’s denial of bad faith attorney fees to Worker. Because we partially reverse the judge’s award of benefits, we do not address Worker’s constitutional challenge to the attorney fee cap. Because we do not address the constitutional challenge, we do not rule on Worker’s motion to file a brief in excess of the page limitation imposed by SCRA 1986, 12-213(F) (Repl.1992). However, we note that except in extraordinary circumstances, this Court is reluctant to permit briefs substantially in excess of the page limitation.

FACTS

Worker was a pizza delivery driver for Employer, a Domino’s Pizza franchise. During the scope and course of her employment, Worker was involved in a roll-over accident and suffered severe injuries to her left hand. The parties stipulated that Worker reached maximum medical improvement as of December 26, 1991. Worker contended that she was temporarily totally disabled as a result of the injuries to her left hand prior to the date of maximum medical improvement. Employer contended that except for short periods of temporary total disability when Worker was recovering from post-accident surgical procedures, Worker was only partially disabled prior to maximum medical improvement.

The injuries that Worker suffered were to her left, non-dexterous, hand. Worker was assessed with a 48% impairment to her left hand and a 43% impairment to her left upper extremity. Worker’s treating physician was questioned regarding why he believed Worker had an injury to her left upper extremity when only Worker’s left hand was injured in the accident. The doctor testified that it was his belief that “an injury to the hand is the same as an injury to the upper extremity. An arm without a hand is a paperweight and that’s all.”

Worker presented expert testimony from a vocational rehabilitation expert indicating that Worker was totally incapacitated from employment because she lacked transferrable skills that would have enabled her to obtain employment prior to reaching maximum medical improvement. In contrast, Employer’s vocational rehabilitation expert testified that Worker had many transferrable skills that would have allowed her to obtain suitable employment. Worker herself testified that the loss of function in her hand would have prevented her from performing her former job. She further testified that the pain she felt from the injuries to her hand was so intense that she was unable to work. Worker did acknowledge that she was able to attend college and obtain a bachelor’s degree in mathematics despite her injury. She also indicated that after receiving her bachelor’s degree in May of 1991 she obtained a graduate assistant position at the University of New Mexico. Ultimately, the judge ruled that Worker was temporarily totally disabled until the date of maximum medical improvement.

Worker also sought and obtained vocational rehabilitation benefits. Worker presented testimony from a vocational expert who would have recommended an academic pursuit such as Worker’s bachelor’s degree as an appropriate vocational rehabilitation plan. Employer introduced conflicting testimony from its vocational expert indicating that Worker was able to return to modified work with her Employer, modified work with other employers in the same industry, and work in unrelated industries based on Worker’s skills, education, and experience. Employer’s vocational expert was of the opinion that, with the exception of some short-term, on-the-job training to learn specific skills necessary to perform specific job tasks, Worker needed no further formal vocational rehabilitation to return her to suitable employment. The judge awarded Worker vocational rehabilitation benefits in the form of reimbursement for college expenses that Worker incurred while recovering from her injury until she received her bachelor’s degree in May of 1991.

Worker also requested an award of attorney fees. The judge found that a reasonable attorney fee for Worker’s attorney would have been $48,750. However, in light of the attorney fee cap found in NMSA 1978, Section 52-1-54(G) (Repl.Pamp.1991) (effective until January 1, 1991), the judge limited the award of attorney fees for Worker to $12,500.

Worker sought to have the judge exceed the $12,500 attorney fee cap by asserting a claim of bad faith against Employer. Worker contended that Employer stonewalled Worker’s claim without reasonable basis by not giving Worker all the treatment she needed to recover, by unreasonably contesting whether Worker worked full-time and would have received tips and commissions, by not informing Worker of her right to vocational rehabilitation benefits, by making a claim for reimbursement for overpayment of benefits in retaliation for Worker’s bad faith claim, and by engaging in a general pattern of behavior calculated to force Worker to settle her claim for less than what she was entitled to receive. After a hearing on the matter of attorney fees, the judge rejected Worker’s bad faith claim by granting Employer’s motion for directed verdict on the issue. Further facts will be set forth below as relevant to the issues discussed in this opinion.

I. WORKER’S DIRECT APPEAL

A. Constitutionality of Cap

Worker contends that the attorney fee cap found in Section 52-1-54(G) is unconstitutional. Because we are reversing the judge’s award of scheduled injury benefits and vocational rehabilitation benefits, the judge will need to recalculate attorney fees to reflect the change in benefits recovered by Worker’s attorney. Accordingly, we will not address Worker’s constitutional challenge to the attorney fee cap at this time. See Feese v. U.S. West Serv. Link, Inc., 113 N.M. 92, 96, 823 P.2d 334, 338 (Ct.App.1991) (constitutionality of cap will not be addressed until issue is ripe for review). In the event the judge recalculates Worker’s reasonable attorney fees to still be in excess of the $12,500 cap, Worker may challenge the constitutionality of the cap at that time.

B. Bad Faith

Worker argues that the judge erred in refusing to find bad faith on Employer’s part and award additional attorney fees as provided by Section 52-1-54(G). In essence, Worker contends that there was not substantial evidence to support the judge’s finding of no bad faith.

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Bluebook (online)
881 P.2d 706, 118 N.M. 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-duke-city-pizza-inc-nmctapp-1994.