THEIR VIEW: Old Workers' Comp rule for attorney's fees wasn't adequate


Containing Workers’ Compensation claim costs have always been a matter of concern for the chemical industry in West Virginia.

The current medical claims management rule, which has been instrumental in containing medical costs, has come under increasing pressure with complaints of unfairness to claimants who are unable to hire attorneys for representation because of limitations in the Workers’ Compensation statute.

In an effort to correct this asserted inequity, legislation was passed in the recently completed 2013 Regular Session of the West Virginia Legislature, changing the West Virginia Workers’ Compensation statute regarding the payment of attorney's fees to a claimant’s attorney when medical treatment is involved. Legislative action was completed on House Bill 3069 on April 13, and it was signed by the Governor on May 1. The new law goes into effect on July 12.

Under H.B. 3069, when a claimant successfully prevails on an issue involving the denial of medical benefits, the claimant’s attorney may be entitled to reasonable costs and a reasonable hourly based fee for representation of the claimant. By the terms of the new law, the reasonable attorney's fee cannot exceed $125 per hour and the total amount of attorney's fees cannot exceed $500 for each litigated medical issue. There is also a cap of $2500 in each claim for the fees that can be paid for all medical issues over the life of the claim.

At the conclusion of litigation and if the claimant has successfully prevailed on the medical treatment issue, the claimant’s attorney has 30 days to file an appropriate fee petition with the employer or insurance carrier, subject to the hourly rate and total claim cost limitations.

Under the law prior to the passage of H.B. 3069, the attorney’s fee paid to lawyers who represented claimants in Workers’ Compensation matters was limited to 20 percent of an award of benefits granted, up to a maximum of 208 weeks of such benefits. Any contracts for fees over that 20 percent limitation were unenforceable and were considered to be contrary to the public policy of West Virginia.

There was no provision in the old law that allowed attorney fees to be paid where only medical treatment was involved in the Workers’ Compensation claim.

With the continued increase in litigated claims where only medical treatment issues are involved, the old law was not adequate to allow the claimant’s attorney to be compensated for their efforts.

At the urging of the claimant’s bar and with the blessing of the West Virginia Supreme Court of Appeals, through its access to justice initiative, H.B. 3069 was written, introduced and ultimately passed by the West Virginia Legislature. Considering that a number of surrounding states already have similar provisions for the payment of such fees, West Virginia’s adoption of its own provisions, is not surprising.

Timothy Huffman is an attorney in the Charleston office of Jackson Kelly. He is the leader of its Administrative Practice Group.

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