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 scheduled for September 18, 2001, but an agreement was reached that the claimant was entitled to supplemental income benefits (SIBs) for the fifth quarter. Two Commission Orders for Attorney’s Fees, (Order 1) and (Order 2), were issued on October 11, 2001. Order 1 was issued by the hearing officer and approved 11.40 hours out of the 18.90 hours requested by the appellant/cross-respondent (attorney), at a rate of $200.00 per hour, instead of the requested $250.00 per hour. The total fee approved was $2,280.00 out of $4,725.00 requested. Order 2 was issued on behalf of the Texas Workers’ Compensation Commission (Commission) by DR (not by the hearing officer), and approved all of the hours claimed (28.20) for the attorney, who is appealing, at a rate of $200.00 per hour, instead of the requested $250.00 per hour. Additional attorney time by an associate (1.80 hours at a rate of $150.00 per hour) was approved in full. Order 2 also approved $157.60 for expenses, out of $238.95 requested. The total fee approved was $6,067.60 out of $7,558.95 requested. The attorney appeals, urging that all of the time submitted in the Application for Attorney’s Fees (TWCC-152), which resulted in Order 1, was justified, and urging that his requested hourly rate of $250.00 is justified. The attorney also appeals Order 2 on the basis that his requested hourly rate of $250.00 is justified. Not specifically noted as appealed is the denial of an $81.35 lodging expense. The respondent/cross-appellant (carrier) replied, agreeing with reductions made, but disputing the approved amount of the attorney’s fees. The carrier requests that the case be remanded to have a CCH on the attorney’s fees issue, and further requests that both Order 1 and Order 2 be joined in one CCH.
DECISION
Order 1: Affirmed in part, reversed and rendered in part. Order 2: Appeal dismissed; matter to proceed to a CCH.
As Order 1 relates to a contest over a fee ordered by a hearing officer after a CCH, under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 152.3(e) (Rule 152.3(e)), a proper request for review by the Appeals Panel has been submitted. We review attorney’s fees cases under an abuse of discretion standard. Texas Workers’ Compensation Commission Appeal No. 951196, decided August 28, 1995. The attorney includes with his appeal a copy of his TWCC-152, including his justification text. The documentation in the case file includes printouts from the Attorney Fee Processing System (AFPS) with the justification text set forth, as well as the hearing officer’s rationale for disapproving the requested hourly rate (log text). With regard to the hourly rate issue as it pertains to Order 1, the hearing officer had the attorney’s stated rationale for his requested hourly rate, which included his representation that his fee related to the skill required to perform the legal services properly; the fees customarily charged in the locality for similar services; and the experience and ability of the attorney performing the services. Section 409.221(c). The hearing officer provided her rationale as follows for denying the requested hourly amount: “$250.00 HOURLY RATE EXCESSIVE FOR REPRESENTATION IN THIS CASE: SKILLS NECESSARY FOR PROPER RENDITION OF LEGAL SERVICES DO NOT JUSTIFY $250 HOURLY, $250 PER HOUR IS FAR OUT OF LINE WITH THE FEES CUSTOMARILY CHARGED IN THIS LOCALITY FOR SERVICES SIMILAR OR EQUAL TO THOSE ACTUALLY PERFORMED. ALTHOUGH THE EXPERIENCE AND ABILITY OF THE [ATTORNEY] PERFORMING THE SERVICES IN THIS CASE ARE ADMIRABLE, THE FEES CHARGED FOR THE SERVICES ACTUALLY PERFORMED WERE NOT REASONABLE.” In view of this stated rationale, we cannot agree that the hearing officer acted without reference to guiding rules and principles; therefore, we find no merit in the attorney’s implicit assertion that the hearing officer abused her discretion in awarding fees based on a $200.00 hourly rate rather than a $250.00 hourly rate. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).
There was no justification at all set out in the log text for disapproving 2.50 hours of time which was claimed for “Draft & File Pleadings/Doc.” We note that Order 1 contains the notation “Ex Guideline/Unreasonabl” as the reason for disapproving the time, but, as the attorney has pointed out, the guidelines do not apply in this case. Rule 152.1(f). Pursuant to Section 408.147(c), the carrier is liable for reasonable and necessary attorney’s fees incurred by the employee as a result of the carrier’s dispute of SIBs. Attorney’s fees awarded are not subject to Section 408.221(b), (e), and (h). Since the guidelines do not apply, the hearing officer abused her discretion in reducing the time by 2.50 hours without setting forth a valid reason for doing so. In the absence of a determination that the 2.50 hours was not reasonable and necessary, it was error to disallow that time. We reverse the hearing officer’s decision and render a new decision that the attorney is entitled to be paid for the additional 2.50 hours.
As to the reduction of travel time from 10.00 hours to 5.00 hours, the AFPS log text does contain a rationale that “FEES OF $2500 AS REQUESTED FOR TRAVEL WERE UNREASONABLE. FEE FOR TRAVEL TIME WAS REDUCED TO A REASONABLE FEE FOR TRAVEL TO ATTEND A [BENEFIT REVIEW CONFERENCE] ON ISSUE OF 5TH QUARTER OF SIBS.” This rationale is faulty, in that it purports to relate the travel fee to an overall amount rather than to the time that was necessarily involved in the travel. The attorney claimed a reasonable amount of time for round trip travel from the city where his office is located to the city where the CCH was held. We discern no reason that the attorney should be paid less for travel time than for other time spent on a case. It was an abuse of discretion by the hearing officer to reduce the time from 10.00 hours to 5.00 hours. We reverse that decision and render a new decision that the attorney is entitled to be paid for the additional 5.00 hours.
To summarize regarding Order 1, the hourly rate of $200.00 is affirmed. A new decision is rendered that the number of hours payable under Order 1 is a total of 18.90 hours. A new decision is rendered that the total amount due the attorney under Order 1 is $3780.00.
The proper method to contest the fee award set forth in Order 2 is to request a CCH, as Order 2 is an attorney fee fixed and approved by the Commission. We understand that there was some confusion about whether the Commission or a hearing officer approved the fees in question and, believing that a hearing officer approved the fees, a Commission employee advised the attorney that appeal to the Appeals Panel was the correct procedure. Records of the Commission indicate that the attorney had made a timely request for a CCH, but canceled the request when given the erroneous advice. As stated, the proper appeal regarding Order 2 is to a CCH, not an appeal to the Appeals Panel. Under the circumstances, the parties should proceed with this dispute based on the attorney’s request for a CCH. The Appeals Panel has no jurisdiction to consider this dispute. The portion of the appeal pertaining to Order 2 is dismissed.
The true corporate name of the insurance carrier is THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS, SUITE 750, COMMODORE 1
AUSTIN, TEXAS 78701.
Michael B. McShane – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Robert E. Lang
Appeals Panel
Manager/Judge