Panel backs bill to raise workers’ compensation attorney fee cap and discovery advance

The House Labor, Veterans and Military Affairs Committee voted 7-4 to give a “do pass” recommendation to House Bill 66 after more than two hours of testimony on proposals to raise the workers’ compensation attorney fee cap and to increase the amount employers must advance for discovery costs.

Ben Sherman, a workers’ compensation attorney and member of the task force that studied the issue, told the committee the bill would raise the attorney fee cap from $22,500 (the cap set in 2013) to $30,000 and increase the discovery-advance cap from $3,000 to $6,000. Sherman said the task force performed a data call of more than 99,000 cases and focused analysis on roughly 5,000 cases that reached fee caps; the $30,000 figure was “the compromise between all members of the task force.”

Sherman said the increases are intended to address a shortage of attorneys and medical providers willing to handle workers’ compensation matters in New Mexico, particularly in rural areas. Sherman explained that doctors often require higher payment for deposition preparation and testimony and that, “most doctors won’t sit down and begin looking at records or agree to be deposed until they’re paid,” making a larger discovery advance helpful to litigants who lack funds.

Opponents, including Jazelle Westfall, executive vice president for policy and programs at the Greater Albuquerque Chamber of Commerce, urged the committee to reject the bill. Westfall told the panel: “We respectfully ask that you vote against it,” citing the bill file’s own fiscal analysis and task force concerns that larger attorney fees could shift a greater portion of awards to legal fees rather than medical care or lost-wage compensation, and that higher insurer costs could raise employer premiums.

Several insurance and employer representatives, including Randy Aiken of Builders Trust and Grace Phillips of the New Mexico County Insurance Authority, told the committee the bipartisan task force had recommended smaller changes. Aiken and Phillips said the task force recommendation was for a $30,000 fee cap but only a $3,500 advance for discovery, and both opposed automatic indexing of the fee cap.

Supporters included Stephanie Welch of the New Mexico Center on Law and Poverty, who said the bill would “help more workers receive the support they need” by increasing attorneys’ incentives to take workers’ compensation cases. Injured workers and attorneys who represent claimants described cases in which long-term representation and unpaid medical bills make access to counsel a key issue; attorney Pete White urged the panel to approve the $30,000 cap and a larger discovery advance to preserve access to medical testimony.

After questions from committee members on the task force process, data underlying the discovery advance, and who would ultimately pay the increases, the committee adopted a motion for a do-pass recommendation. The roll call was: Yes — Representatives Anaya, Garcia, Johnson, Ortiz, Torres Velasquez, Chavez (vice chair), and (listed as) Reval Calabrio; No — Representatives Hall, Mejia, Reeb and Torres Vasquez. The committee announced the due-pass recommendation 7-4.

Why it matters: Supporters say the changes are intended to improve access to counsel and medical evidence for injured workers, especially outside Albuquerque and Santa Fe. Opponents say the same changes could increase costs for employers and public entities that fund workers’ compensation, and several witnesses urged following the narrower task force recommendations or returning the issue to further study.