H. B. 3296
(By Delegate Manchin)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §23-5-16 of the Code of West Virginia,
1931, as amended, relating to workers' compensation claimant
attorney fees.
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.
No attorney's fee in excess of twenty percent of any award
granted shall be charged or received by an attorney for a claimant
or dependent. In no case shall the fee received by the attorney of
such 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 not be considered as part of the award in
determining any such 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
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 an unlawful practice and render the
attorney subject to disciplinary action.
(a) No attorney's fee for benefits secured on behalf of a
claimant in excess of twenty percent of the first $50,000 of the
amount of the benefits secured, fifteen percent of the next $50,000
of the amount of the benefits secured, and ten percent of the
remaining amount of the benefits secured, shall be charged or
received by an attorney for a claimant or dependent. In the event
of a lump-sum settlement, including settlement of indemnity and/or
medical benefits, no attorney's fee shall be in excess of the
amount permitted by this section.
(b) If a claimant successfully prevails in any proceedings
relating to a denial of medical benefits brought before the
Insurance Commission as a result of utilization review,
arbitration, or mediation, and/or proceedings relating to denial of
medical benefits before the Office of Judges, Board of Review, or
court, there shall additionally be taxed against the commission,
successor to the commission, other private carrier or self-insured employer, 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 Commission, arbitrator, mediator, the Office of Judges,
the Board of Review, or court, whichever enters a final decision on
the issue, which shall enter an order within thirty days awarding
reasonable attorney fees and reasonable costs of the claimant to be
paid by the commission, successor to the commission, other private
carrier or self-insured employer which shall be paid as directed.
In determining the reasonableness of the attorney fees, 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.
(c) In cases in which the claimant is responsible for the
payment of his or her own attorney's fees, these fees are a lien
upon compensation payable to the claimant, notwithstanding the
provisions of section eighteen, article four of this chapter.
NOTE: The purpose of this bill is to change the way fees are
awarded to attorney's in workers' compensation claims.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.