H. B. 3069
(By Delegates Miley, Manchin, Hunt, Poore,
Sponaugle, Skinner, Ellem and Lane)
(By Request of the Supreme Court of Appeals)
[Introduced March 22, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §23-5-16 of the Code of West Virginia, 1931, as amended, relating to access to justice; providing that attorney fees may be awarded in workers’ compensation medical treatment cases; and providing fee limits.
Be it enacted by the Legislature of West Virginia:
That §23-5-16 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5. REVIEW.
§23-5-16. Fees of attorney for claimant; unlawful charging or receiving of attorney fees.
(a) No An attorney's fee in excess of twenty percent of any award granted shall may not be charged or received by an attorney for a claimant or dependent. In no case shall may the fee received by the attorney of such the claimant or dependent be in excess of twenty percent of the benefits to be paid during a period of two hundred eight weeks. The interest on disability or dependent benefits as provided for in this chapter shall may not be considered as part of the award in determining any such the attorney's fee. However, any contract entered into in excess of twenty percent of the benefits to be paid during a period of two hundred eight weeks, as herein provided, shall be is unlawful and unenforceable as contrary to the public policy of this state and any fee charged or received by an attorney in violation thereof shall be deemed is an unlawful practice and render renders the attorney subject to disciplinary action.
(b) On a final settlement an attorney may charge a fee not to exceed twenty percent of the total value of the medical and indemnity benefits: Provided, That this attorney’s fee, when combined with any fees previously charged or received by the attorney for permanent partial disability or permanent total disability benefits may not exceed twenty percent of an award of benefits to be paid during a period of two hundred eight weeks.
(c) Except attorney's fees and costs recoverable pursuant to subsection (c), section twenty-one, article two-c of this chapter, an attorney's fee for successful recovery of denied medical benefits may be charged or received by an attorney for a claimant or dependent under this section. In no event may attorney's fees and costs be awarded pursuant to both this section and subsection (c), section twenty-one, article two-c of this chapter.
(1) If a claimant successfully prevails in a proceeding relating to a denial of medical benefits brought before the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, as a result of utilization review, arbitration, mediation or other proceedings, or a combination thereof, relating to denial of medical benefits before the Office of Judges, Board of Review or court, there shall additionally be charged against the commission, successor to the commission, other private carriers or self-insured employers, whichever is applicable, the reasonable costs and reasonable hourly attorney fees of the claimant. Following the successful resolution of the denial in favor of the claimant, a fee petition shall be submitted by the claimant's attorney to the Insurance Commissioner or his or her successors, arbitrators, mediator, the Office of Judges, the Board of Review, or court, whichever enters a final decision on the issue. An attorney representing a claimant must submit a claim for attorney fees and costs within thirty days following a decision in which the claimant prevails and the order becomes final.
(2) The Insurance Commissioner or his or her successors, arbitrators, mediator, the Office of Judges, the Board of Review, or court shall enter an order within thirty days awarding reasonable attorney fees not to exceed $125 per hour and reasonable costs of the claimant to be paid by the commission, successor to the commission, other private carriers or self-insured employers, whichever is applicable, which shall be paid as directed. In no event may an award of the claimant's attorney's fees under this subsection exceed $500 per litigated medical issue, not to exceed $2,500 in a claim.
(3) In determining the reasonableness of the attorney fees to be awarded, the Insurance Commission, arbitrator, mediator, Office of Judges, Board of Review, or court shall consider the experience of the attorney, the complexity of the issue, the hours expended, and the contingent nature of the fee.
NOTE: The purpose of this bill is to provide that attorney fees may be awarded in certain workers’ compensation medical treatment claims. The bill provides that an attorney may be awarded $125 per hour up to $500 per medical issue. This is recommended by passage by the Access to Justice Commission of the West Virginia Supreme Court of Appeals.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.