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In the 2025 legislative session, we will probably have a bill to increase the cap on attorney fees in workers’ compensation cases. It probably will pass.

This is mixed news, a little good, a little bad. Our workers’ comp system is unusual in having a cap on attorney fees at all. The cap was established as part of the 1990 reform of the workers’ comp law. 

If the fee cap is increased, more cases will be litigated and costs will increase. Those costs will be passed to employers as premium increases and then to the rest of us as higher prices. 

The vast majority of workers’ comp cases — roughly 95%, says the state Workers’ Compensation Administration — are handled with no litigation. Theoretically, the system works the way it’s supposed to. The claim is paid, the worker gets necessary medical care and is then able to go on with his or her life.

The attorney fee issue affects only the small percentage of cases where litigation is necessary. But it’s important to the system because those tend to be serious and complicated cases.

The fee to the injured worker’s attorney has to be approved by a judge. The fee is normally supposed to be paid half by the worker and half by the employer-insurer.

The current fee cap is $22,500 per case. A task force set up last year to study the issue agreed, reluctantly by some participants, to raise the cap to $30,000. The study found, not surprisingly, that the great majority of cases do not reach the cap because the case is resolved before the lawyers have to do that much work. But a few cases go on for years without resolution, and lawyers work without compensation.

It’s also possible that the fee cap could be eliminated entirely by a court decision. A case is pending on that subject.  

Increasing the cap would no doubt mean more lawyers will become willing to handle workers’ comp cases. That is either good or bad, depending on facts that are not known because they have not been researched, though they should have been — via research studies that the Legislature should have authorized. The unanswered question is whether most workers are doing okay under the current system or whether many injured workers who needed a lawyer were not able to get one.

Here is the larger concern.

The workers’ compensation system is supposed to be for the benefit of injured workers and employers. But the only legislation we’re going to see is about lawyers.

Nobody is advocating legislation to improve the system for the mutual benefit of workers and employers. Well, except me. 

The Advisory Council on Workers’ Compensation, the governor-appointed group that is supposed to be the consensus builder for the system, has done, bluntly, almost nothing for years. 

It has been more than 20 years since the last task forces were convened to study ways to make the system better. That effort resulted in a few reasonable increases for injured workers. Since then, the only legislation helpful to workers has been advanced by specialized groups with their own advocacy structure, such as firefighters.

I contend that the best thing the system could do for New Mexico’s injured workers, which would also benefit their employers, would be to improve access to prompt and excellent medical care. 

Beyond the statewide shortage of doctors, access to health care is worse in workers’ comp. The system contains regulatory burdens that doctors don’t like; therefore most doctors avoid workers’ compensation cases. 

Some of those regulations can be fixed. Let’s hope the next task force is about that. 

Contact Merilee Dannemann through www.triplespacedagain.com.