In 2009, the West Virginia Supreme Court of Appeals created a formal Access to Justice program for the State of West Virginia.  The Access to Justice program was established to determine the needs of citizens accessing the justice system in the state.  One of the issues identified by the Access to Justice Commission was the lack of ability for claimants to obtain counsel in the litigation of denied medical treatment issues in workers’ compensation claims.  Accordingly, Supreme Court Justice Brent Benjamin formed a committee to address this issue.

This committee is composed of attorneys from the claimant and employer bars, as well as attorneys from workers’ compensation administrative bodies, such as the West Virginia Insurance Commission, the Chief Administrative Law Judge of the West Virginia Insurance Commission Office of Judges, and the West Virginia Insurance Commission Board of Review.  This Committee drafted an amended West Virginia Code §23-5-16, providing that attorney’s fees may be awarded for successful recovery of denied medical benefits in certain workers’ compensation cases and providing fee limits in those cases.

W. Va. Code § 23-5-16 provides guidelines for the fees that may be charged by an attorney for a claimant in workers’ compensation claims.  The former enactment of this code section only provided that no attorney’s fee in excess of 20% of any award granted shall be charged or received by an attorney for a claimant and in no case shall the fee received by the attorney for such claimant or dependent be in excess of 20% of the benefits to be paid during a period of 208 weeks.  Essentially, the upshot of the former statute was that attorneys representing claimants were entitled to a portion of the claimant’s monetary awards granted in worker’s compensation claims, usually including the award of temporary total disability benefits, permanent partial disability benefits, permanent total disability benefits, and/or temporary partial disability benefits.

The issue identified by the Committee was that the claimants who only needed medical issues to be litigated were having a difficult time finding attorneys to represent them because there was no mechanism in place to obtain attorney’s fees as medical treatment issues did not result in monetary awards, and instead, would result in the treatment being authorized or denied.  Accordingly, the Committee drafted legislation which was passed on April 13, 2013, and signed into law by Governor Tomblin on May 1, 2013, which provides that attorney’s fees may be awarded for successful recovery of denied medical benefits.  These attorney’s fees are to be paid by the private carrier or self-insured employer for a claimant when that claimant’s attorney is successful in litigating the denied medical treatment issue.  The statute specifically provides that, if a claimant successfully prevails in a proceeding relating to a denial of medical benefits, the reasonable costs and reasonable hourly attorney’s fees of the claimant shall be charged against the private carriers or self-insured employers, whichever is applicable.

Following the successful resolution of the denial of treatment in favor of the claimant, the claimant’s attorney shall submit a fee petition to the Insurance Commissioner, arbitrator, mediator, Office of Judges, Board of Review, or Court, whichever enters the final decision on the issue.  The claimant’s attorney must submit such a claim for attorney’s fees and costs within thirty (30) days following a decision in which the claimant prevails and the order becomes final.  Thereafter, the Insurance Commissioner, arbitrator, mediator, Office of Judges, Board of Review, or Court shall enter an order within thirty (30) days awarding reasonable attorney’s fees, not to exceed $125.00/hour and reasonable costs of the claimant to be paid by the private carriers or self-insured employers as directed.  The statute provides that in no event may an award for claimant’s attorney’s fees exceed $500.00 per litigated medical issue and $2,500.00 in a claim.  In determining the reasonableness of the attorney’s fees, the Insurance Commission, etc., shall consider the experience of the attorney, the complexity of the issue, the hours expended, and the contingent nature of the fee.

Alyssa Sloan focuses her practice in the defense of litigating claims involving workplace injuries and illnesses and related employment matters. She has represented employers in more than one thousand (1,000) protests before the Workers' Compensation Office of Judges and has extensive experience in the appellate practice of worker's compensation claims before both the West Virginia Workers' Compensation Board of Review and the West Virginia Supreme Court of Appeals.
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