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 October 19, 2004 (hearing officer 1). The CCH involved a dispute over the extent of the compensable injury. The appellant (claimant) was represented at the CCH by respondent 1 (attorney). Following the CCH, hearing officer 1 issued a Texas Workers’ Compensation Commission (Commission) Order For Attorney’s Fees dated October 27, 2004, approving attorney’s fees for the claimant’s attorney in the amount of $1,087.50. The claimant filed an appeal of the attorney’s fee order asserting that he thinks he was overcharged. No response was received from the attorney or from respondent 2 (carrier).
DECISION
Affirmed.
The claimant states in his appeal that he received the attorney’s fee order on November 3, 2004. According to a Dispute Resolution Information System (DRIS) note, the claimant contacted the Commission on November 19, 2004, to dispute the attorney’s fee order. The DRIS note indicates that a benefit review conference would be set. Another DRIS note reflects that a CCH was set for December 14, 2004, regarding claimant’s dispute of the attorney’s fee order. A DRIS note from an ombudsman dated December 14, 2004, states that (hearing officer 2) informed the ombudsman that hearing officer 2 had no jurisdiction to hear the case because the attorney’s fees were approved by hearing officer 1 and that the claimant needs to request a review by the Appeals Panel. Another DRIS note reflects that the CCH on the attorney’s fee order was cancelled. The claimant’s written appeal to the Appeals Panel, the first page of which is dated January 5, 2005, was received by the Commission’s Chief Clerk of Proceedings on January 5, 2005. The second page of the appeal, which is on a form document entitled “Claimant’s Request for Review,” is not dated.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 152.3 (Rule 152.3) provides in subsections (d) and (e) as follows:
(d)Except as provided in subsection (e) of this section, an attorney, claimant, or carrier who contests the fee fixed and approved by the Commission shall request a benefit contested case hearing. The request shall be made by personal delivery or first class mail and be filed with the Commission field office handling the claim or the central office of the Commission no later than the 15th day after receipt of the Commission’s order. A claimant may request a hearing by contacting the Commission in any manner no later than the 15th day after receipt of the Commission’s order. The contesting party other than a claimant shall send a copy of the request by personal delivery or first class mail to the carrier and the other parties, including the claimant and attorney.
(e)An attorney, claimant, or carrier who contests the fee ordered by a hearing officer after a benefit contested case hearing shall request review by the appeals panel pursuant to the provisions of § 143.3 of this title (relating to Requesting the Appeals Panel to review the Decision of the hearing officer).
According to prior Appeals Panel decisions, since the attorney’s fee order was issued by a hearing officer following a CCH (the CCH held on October 19, 2004, regarding the extent of the compensable injury), the proper way to appeal that order was to appeal the attorney’s fee order to the Appeals Panel under Rule 152.3(e). See Texas Workers’ Compensation Commission Appeal No. 952120, decided January 29, 1996.
Arguably, the claimant’s January 5, 2005, appeal to the Appeals Panel of the attorney’s fee order is untimely because the 15th day after the claimant’s receipt of the attorney’s fee order on November 3, 2004, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was November 29, 2004. See Section 410.202 and Rule 143.3(a). However, in this case we are dealing with a claimant who was unrepresented in his attempt to dispute the attorney’s fee order when he contacted the Commission on November 19, 2004, to dispute the attorney’s fees. Instead of directing the claimant to file an appeal with the Appeals Panel since the attorney’s fee order was issued by a hearing officer following a CCH, the unrepresented claimant was set on the path of a CCH to resolve his attorney’s fee’s dispute and then he was later informed, apparently on December 14, 2004, the date the CCH was set for, that the CCH was cancelled and that he had to appeal the attorney’s fee order to the Appeals Panel.
At the top of each page of the claimant’s appeal is a fax date notation of “11/08/2014” (the year is unexplainably 2014). We are uncertain as to what that fax date notation represents.
There is no indication in the claimant’s appeal that a copy was sent to the attorney. A fax cover letter reflects that the Commission faxed a copy of the appeal to the attorney on January 20, 2005. See Rule 143.3(b). The appeal file does not reflect that the Commission received a response from the attorney.
As amended May 9, 2004, Rule 143.3(a) provides that a party to a benefit CCH who is dissatisfied with the decision of the hearing officer may request the Appeals Panel to review that decision and that the request shall:
(1)be in writing;
(2)clearly and concisely rebut each issue in the hearing officer’s decision that the appellant wants reviewed, and state the relief the appellant wants granted;
(3)be filed with the Chief Clerk of Proceedings in the commission’s central office in Austin not later than the 15th day after receipt of the hearing officer’s decision. Requests that are timely submitted to a commission location other than the Chief Clerk of Proceedings, such as a local field office of the commission, will be considered timely filed and forwarded to the commission’s appeals panel for consideration, but this may result in delay in the processing of the request. Untimely requests, regardless of whether they are filed with the Chief Clerk of Proceedings in the commission’s central office or in a different commission office, do not invoke the jurisdiction of the appeals panel and will not be reviewed by the appeals panel.
(4)be served on the other party on the same day filed with the commission; and
(5)contain a statement certifying . . . .
In the instant case, it is unclear what, if anything, the claimant may have filed in a local field office of the Commission prior to the expiration of the 15-day period for filing an appeal. As noted, there is a mysterious fax date notation on each page of the appeal. The November 8, “2014” date was probably November 8, 2004. Given the uncertainty of what written appeal was filed and when and where and the DRIS notations, we are hesitant to simply hold the claimant’s appeal of the attorney’s fee order to be untimely, and will, under the unusual circumstances presented, consider the appeal of the attorney’s fee order. However, by doing so we do not want this decision to be read as creating any exception to the statutory and rule requirements for a timely filed appeal.
In reviewing the attorney’s fee order itself, it is clear that hearing officer 1 approved 7.25 hours of the attorney’s time, most of which was for preparation for and attendance at the October 19, 2004, CCH. All of the approved time appears to be within the attorney fee guidelines set forth in Rule 152.4. We conclude that the claimant has not shown that hearing officer 1 abused his discretion in approving the attorney’s fees.
The attorney’s fee order of October 27, 2004, is affirmed.
The true corporate name of the insurance carrier is CONTINENTAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Robert W. Potts
CONCUR:
Veronica L. Ruberto – Appeals Judge
Margaret L. Turner – Appeals Judge