This appeal arises under the Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). At a contested case hearing held on January 13, 1993, in (city), Texas, the hearing officer, , found that the 10.89 hours of legal services stated in the attorney’s fees application of respondent (attorney), who had represented appellant (claimant) in the matter of his workers’ compensation claim against the carrier, were within the guidelines of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 152.3 (Rule 152.3) (sic). The hearing officer concluded that the preponderance of the evidence established that the October 30, 1992 order of the Texas Workers’ Compensation Commission (Commission) for the payment to attorney of $1533.50 in attorney’s fees was correct. Claimant has requested our review asserting, first, that he feels he was not properly directed in how to present his case at this hearing and has subsequently talked to an ombudsman from the Commission and, secondly, that the attorney’s fees ordered to be paid are excessive. No response was filed by the attorney.
DECISION
Finding no abuse of discretion by the hearing officer, we affirm the hearing officer’s decision approving the attorney’s fees.
Though not mentioned in the hearing officer’s decision, the parties stipulated that the attorney represented claimant from January 15, 1992, to November 10, 1992, in his worker’s compensation claim for his injury of July 16, 1991. At the outset of the hearing claimant expressed his concern with the timing of the attorney’s application for fees, testified he understood from the attorney that he would not have to pay attorney’s fees until after he had returned to work, and said that he was unaware of the claim for attorney’s fees until he received a copy of the Application and Order for Attorney’s Fees (TWCC-152) from the Commission. The attorney, testifying as a witness, said she was not sure she had ever made the fee arrangement claimant described. Claimant also said he discussed it with the attorney’s paralegal, PJ, who also testified at the hearing. The hearing officer explained briefly to claimant the basic difference in the attorney’s fees payment arrangements under the 1989 Act as contrasted with that existing under the predecessor statute.
The hearing officer obtained from claimant’s file and introduced as a hearing officer exhibit a copy of the attorney’s letter to the Commission, dated January 29, 1992, advising of her representation and enclosing a copy of her contract with claimant for representation. According to the contract, the text of which was apparently drafted before the 1989 Act became effective, claimant agreed to pay the attorney a fee only if he recovered income benefits, and that such fee was to be paid from income benefits and was not to exceed 25% of such benefits. That provision was consistent with Article 8308-4.09(b) which essentially limits the fees for a claimant’s attorney to a maximum of 25% of the claimant’s recovery and which further provides that such fees are to be paid from the claimant’s recovery. And see Rule 152.2. No specific finding was made by the hearing officer nor is there an appealed issue concerning the timing of the attorney’s application for fees under Article 8308-4.09 and the applicable Commission Rules.
The attorney’s application, signed on October 19, 1992, requested payment for 9.89 hours of attorney time at $150.00 per hour and for one hour of paralegal time at $50.00 per hour. The Commission’s Order of October 30, 1992, approved all of the time requested in the total amount of $1533.50 and ordered it paid only from claimant’s benefits in an amount not to exceed 25% of each of claimant’s income benefit payments. The attorney introduced a two-page “activity sheet” which contained handwritten notes of her activities on behalf of claimant during the January 15 through August 2, 1992 period, and notes of Mr. J paralegal activities in the August through October 1992 period.
Claimant said at the hearing that he had reviewed the attorney’s application for fees and indicated he had made a list of the matters he questioned. No such list was offered at the hearing but claimant has attached such a list to his request for review. To the extent such list constitutes evidence not cumulative of evidence already produced at the hearing, however, we do not consider it since it would not probably have produced a different result had it been introduced at the hearing. See Texas Workers’ Compensation Commission Appeal No. 91132, decided February 14, 1992, and Texas Workers’ Compensation Commission Appeal No. 92444, decided October 5, 1992.
Claimant testified that he challenged the one hour entry for his initial conference with the attorney asserting not only that the attorney was 30 minutes late for his appointment but also that she interrupted some of the remaining one-half hour with interviews of housekeepers. He also complained about the many months it took the attorney to get him an exercise bicycle notwithstanding he had a doctor’s prescription and later obtained a letter of necessity. Both the attorney and Mr. J testified to the problems encountered in getting the exercise bike, apparently centered on the adjustor’s difficulty in understanding claimant’s requirement for an exercise bicycle for a wrist injury. Claimant also questioned the attorney about a “3-6-92” entry on her application referring to his being released to return to work, indicating he had not returned to work. The attorney read a corresponding entry from her “activity sheet” and explained the matter to claimant. She also told claimant she spent approximately one hour with him on that occasion but billed only for one-quarter of an hour. The claimant also queried the attorney about her advice concerning unemployment benefits and she denied advising him he could collect unemployment benefits while collecting workers’ compensation benefits. The attorney told claimant she was entitled to bill not only for time spent in conversations with him but also for time spent reviewing his medical reports. Claimant stated he “guessed” he was unaware the attorney would charge for their conversations.
Mr. J testified to the three items for which his time was billed as a paralegal and stated he had had several conversations with both claimant and the adjustor which he did not document and did not bill to claimant.
The hearing officer advised claimant not only of the order of procedure for the hearing but also of his burden of proof, and she queried him as to which other of the attorney’s time and service entries he was challenging. He appeared to indicate he challenged all of them. The attorney also asked claimant which other of her billed items he was challenging and offered to go through each item separately. Both parties accepted the hearing officer’s suggestion that they consult with one another in recess so that claimant might reach a better understanding of all the items billed by the attorney. When the hearing resumed, neither party had any further evidence to offer and both waived closing statements.
Apparently, whatever disputes claimant had with the carrier, for which he was represented by the attorney, were informally resolved. Claimant did not invite the attention of the hearing officer to any particular attorney service or time entry which exceeded the Rule 152.4 guidelines for maximum hours for specific services, nor does our review of the application reveal any time in excess of the guidelines. Claimant indicated both at the hearing and in his request for review that he regards the attorney’s charges as generally “excessive.” He also complains, specifically, that he should not be charged for time spent searching for files, for time used in providing him with erroneous information concerning unemployment benefits, for interruptions during his first conference with the attorney, for time spent in checking on the status of his the exercise bicycle, and for time which follows the last day he talked to the attorney (September 10, 1992).
The hearing officer could consider not only the content of the application for attorney’s fees, which contains the attorney’s affidavit that it is true and correct, but also the attorney’s testimony and that of Mr. J. Claimant’s testimony obviously did not persuade the hearing officer that any of the time spent by the attorney and Mr. J performing the services listed on the attorney’s fee application was inaccurate or excessive. The hearing officer is the sole judge not only of the materiality and relevance of the evidence but also of its weight and credibility. Article 8308-6.34(e). We are satisfied the hearing officer did not abuse her discretion in approving the attorney’s fees in this case. See Texas Workers’ Compensation Commission Appeal No. 91010, decided September 4, 1991, and Texas Workers’ Compensation Commission Appeal No. 92284, decided August 13, 1992.
We find no merit in claimant’s assertion that he was not properly directed on how to present his case at this hearing. While he was not assisted by a Commission ombudsman, the hearing officer not only explained to claimant the order of proceedings and the nature of his burden of proof, but also encouraged him to specify the nature of his challenges to the services billed for by the attorney. The hearing officer even recessed the hearing to provide an opportunity for claimant and the attorney to go through the services listed in her application and discuss them. Indeed, most of claimant’s specific complaints on appeal about the attorney’s billings were brought up at the hearing.
Finding no abuse of discretion by the hearing officer, we affirm the decision of the hearing officer.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Lynda H. Nesenholtz – Appeals Judge