CHARLESTON – The West Virginia Supreme Court of Appeals issued a decision in which it ruled that attorney’s fees were properly denied in a protest of a denial of medical benefits.
Larry Dennis was denied an award of attorney’s fees following the successful protest of a denial of medical benefits, according to the Nov. 22 memorandum decision.
“We are asked to determine if the request for attorney’s fees was properly denied,” the decision states. “After review, we find the denial was proper.”
Dennis successfully protested the claims administrator’s Feb. 24, 2016, denial of medical benefits. As the protest was successful, Dennis filed a petition for attorney’s fees in the amount of $437.50.
On Sept. 7, 2016, the Office of Judges denied Dennis’ petition for attorney’s fees because the record showed that the statutory maximum of $2,500 in attorney’s fees had been awarded between Feb. 27, 2013, and April 9, 2015. The order was affirmed by the Board of Review on Jan. 18, 2017.
Dennis asserts the West Virginia code that limits the award of attorney’s fees for the successful protest of denied medical benefits to $500 per protest and $2,500 per claim is an unconstitutional denial of due process of law for claimants and their counsel, as it fails to guarantee access to the judicial system.
“The arbitrarily set statutory maximum award makes it difficult for claimants to find representation due to a lack of financial incentive on the part of attorneys,” Dennis argued, according to the decision.
Murray American Energy argued the statute is constitutional and does not interfere with a claimant’s ability to retain counsel.
“We find that Mr. Dennis had reached the statutory maximum for payment of attorney’s fees in relation to successful protests of the denial of medical treatment,” the decision states. “Therefore the denial of the attorney’s fee was proper. West Virginia Code §23-5-16(c) does not deprive claimants of due process or the ability to retain counsel as exhibited by Mr. Dennis himself, who has maintained representation by counsel since at least 2010.”
While Dennis couches his argument as a constitutional one, the court says it is actually one of public policy.
“We recognize Mr. Dennis’s frustration with the statutory maximum attorney’s fees contained in West Virginia Code §23-5-16(c); however, as we noted in Kasserman and Bowman v. Cline, 223 W.Va. 414, 675 S.E.2d 890 (2009), public policy arguments ‘are more appropriately directed to the Legislature,’” the decision states.
The Supreme Court found that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. The court affirmed the decision of the Board of Review.
W.Va. Supreme Court of Appeals case number: 17-0118