Martinez v. Ralph Johnson Rig, Inc.

I dissent.

I construe the issue to be whether a decrease in the percentage of partial disability of a workman in a workmen’s compensation case mandates an allowance of attorney fees to the workman. To grant such an award is to turn § 59-10-23(E), N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1) topsy-turvy down. The pertinent portions of § 59-10-23(E) read:

[T]he court shall determine and fix a reasonable fee for the services of claimant’s attorney only if the claimant is successful in establishing that his disability has increased or if the employer is unsuccessful in establishing the claimant’s…