This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 1, 2000. The issues at the CCH were whether the claimant is entitled to supplemental income benefits (SIBs) for the seventh and eighth quarters. The hearing officer determined that the claimant is not entitled to SIBs for the seventh quarter and is entitled to SIBs for the eighth quarter.
On October 16, 2000, the hearing officer issued a Commission Order for Attorney’s Fees (Order), covering services for the period from June 2, 2000, through August 19, 2000, approving 9.90 hours, as requested, for a total approved fee, as requested, of $1,225.00. The Order provides that the fee is to be paid pursuant to Section 408.147(c) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 152.1(f) (Rule 152.1(f)). The appellant (carrier) appeals the Order, contending that the Order should be so prorated that the carrier is responsible only for those fees attributable to the quarter on which the claimant prevailed. The appeal file contains no response from the respondent (attorney) or the claimant.
DECISION
Reversed and remanded.
The Attorney Fee Processing System indicates that no justification text or log text was submitted in connection with the Order. Section 408.147(c) and Rule 152.1(f) provide essentially that a carrier is liable for reasonable and necessary attorney’s fees incurred by the employee as a result of a carrier’s dispute of SIBs entitlement when the employee prevails. Those fees are to be paid by the carrier only when it disputes SIBs and loses. Texas Workers’ Compensation Commission Appeal No. 970879, decided June 25, 1997, and cases cited in that case. The attorney submitted and the hearing officer approved 1.70 hours for attending the CCH. The CCH was scheduled to begin at 9:00 a.m. and the transcript indicates that it ended at 10:40 a.m. A review of the transcript indicates that, while much of the CCH testimony dealt with the eighth quarter, on which the claimant prevailed, at least some of it dealt with the seventh quarter, on which the claimant did not prevail. As to the items under communications, there is no information from which the Appeals Panel can determine the quarter with which each item dealt.
In Texas Workers’ Compensation Commission Order No. 97020, issued June 16, 1997, the Appeals Panel stated:
when the adjudication of the disputed [SIBs] quarters . . . results in entitlement to one or more quarters previously disputed by the carrier and nonentitlement to one or more quarters, the hearing officer entering the order for attorney’s fees must allocate the fees amongst the different quarters.
See also Appeal No. 970879, supra.
We therefore reverse the Order and remand for a CCH at which the parties may present evidence as to which fees are allocable to each quarter so that the hearing officer may approve the fees allocable to the eighth quarter.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Kenneth A. Huchton – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Judy L. Stephens – Appeals Judge