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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 CAROL CHAVEZ,

 3          Worker-Appellant,

 4 v.                                                                                     No. 35,104

 5 LOVELACE WOMEN’S HOSPITAL
 6 and CCMSI,

 7          Employer/Insurer-Appellees.

 8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
 9 Terry S. Kramer, District Judge

10 Rod Dunn
11 Rio Rancho, NM

12   for Appellant
13   Camp Law, LLC
14   Minerva Camp
15   Albuquerque, NM

16 for Appellees

17                                 MEMORANDUM OPINION

18 SUTIN, Judge.
 1   {1}   Worker has appealed from an award of attorney fees. We previously issued a

 2 notice of proposed summary disposition in which we proposed to uphold the WCJ’s

 3 determination. Worker has filed a memorandum in opposition. After due

 4 consideration, we remain unpersuaded. We therefore affirm.

 5   {2}   The only issue on appeal concerns the application of the statutory fee-shifting

 6 provision. [DS 6; MIO 1-8] See NMSA 1978, § 52-1-54(F)(4) (2013) (providing that

 7 the worker may serve upon the employer an offer, and “if the worker’s offer was less

 8 than the amount awarded by the compensation order, the employer shall pay one

 9 hundred percent of the attorney fees to be paid the worker’s attorney”).

10   {3}   We do not understand there to be any dispute as to the operative facts and

11 principles of law, as previously set forth in the notice of proposed summary

12 disposition. We will avoid unnecessary reiteration here and focus instead on the

13 content of the memorandum in opposition.

14   {4}   Worker contends that her initial offer of judgment, dated February 16, 2012, is

15 lower than the award actually rendered on July 27, 2015. [MIO 1-2, 5-6] Strictly

16 speaking, this may be accurate. However, this is an apples-to-oranges comparison.

17 The initial offer addressed only PPD benefits, relating to pre-surgical conditions. The

18 offer wholly failed to address (and certainly did not disclaim) the surgical treatment

19 and post-operative benefits that later became issues. Worker does not dispute that the


                                              2
 1 additional scheduled injury benefits that she ultimately received, above and beyond

 2 the PPD benefits that were the subject of the initial offer, correlate with post-surgical

 3 conditions upon which the initial offer was silent. [DS 3; MIO 4-5] Insofar as the

 4 initial offer of settlement did not address critical issues relating to ensuing

 5 developments, the WCJ properly concluded that it did not supply an appropriate basis

 6 for application of the fee-shifting provision. See Leonard v. Payday Prof’l, 2007-

 7 NMCA-128, ¶ 26, 142 N.M. 605, 168 P.3d 177 (observing that although an offer of

 8 judgment may fail to address details, where critical issues are unresolved, the offer

 9 does not supply an appropriate basis for fee shifting).

10   {5}   In her memorandum in opposition, Worker contends that the foregoing analysis

11 places an impossible burden upon her, effectively requiring her “to look into the

12 future, divine subsequent material events . . ., and somehow incorporate those future

13 events into the offer of judgment.” [MIO 3-4] We do not suggest such a result, and the

14 history of this very case illustrates otherwise. When significant developments arise in

15 the course of the proceedings, altering the scope of the issues, offers of judgment may

16 be modified or new offers may be made that address those developments. Under such

17 circumstances, the last offer of judgment, which (presumably) reflects most accurately

18 the actual state of affairs at the time the matter proceeds to a resolution on the merits,

19 would supply the appropriate point of reference for purposes of applying the statutory


                                               3
 1 fee-shifting provision. In this case, however, Worker appears to concede that her last

 2 offer of judgment did not satisfy the statutory requisites. As a consequence, her claim

 3 of entitlement to fee shifting is unavailing.

 4   {6}   Worker urges this Court to approach the situation, analytically, by asking,

 5 “what would have happened if Employer/Insurer had accepted Worker’s [February 16,

 6 2012,] offer of judgment.” [MIO 6] Worker contends that she would have received $1

 7 less in PPD benefits than she was entitled to, she would have received the same

 8 medical care that was ultimately provided and the dispute between the parties would

 9 have been resolved. [MIO 6-7] However, this is not only speculative but inconsistent

10 with the known course of ensuing events, which as previously mentioned entailed

11 additional surgical intervention and pursuit of scheduled injury benefits. Given the

12 actual history of the case, we are unpersuaded by Worker’s suggestion that she “would

13 have resolved her case in early 2012 for the payment of less benefits” had

14 Employer/Insurer accepted her offer at that juncture. [MIO 7]

15   {7}   Finally, we understand Worker to contend that Employer/Insurer’s failure to

16 accept the original offer should be regarded as unreasonable and to contend that

17 insofar as Employer/Insurer “forced Worker to engage in another three years plus of

18 litigation” for the purpose of obtaining a less favorable ruling, “a financial sanction

19 should be levied” in the form of attorney fees. [MIO 8] Once again, however, this


                                              4
 1 argument fails to account for the narrow scope of the initial offer that would have left

 2 unaddressed the questions surrounding Worker’s entitlement to additional, post-

 3 operative scheduled injury benefits. We decline to speculate that Worker would have

 4 elected not to pursue her claim for scheduled injury benefits had Employer/Insurer

 5 accepted the initial offer, and it is not at all apparent that the ultimate ruling is less

 6 favorable to Employer/Insurer when the ultimate scope of the issues is considered.

 7 We therefore remain unpersuaded.

 8   {8}   Accordingly, for the reasons stated in our notice of proposed summary

 9 disposition and in this Opinion, we affirm.

10   {9}   IT IS SO ORDERED.



11                                          __________________________________
12                                          JONATHAN B. SUTIN, Judge


13 WE CONCUR:


14 _______________________________
15 J. MILES HANISEE, Judge


16 _______________________________
17 STEPHEN G. FRENCH, Judge




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