Fee Amount Ordered Paid Archives

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 January 22, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that an attorney’s fee in the amount of $100.00 was reasonable and necessary for services rendered from August 26 through September 11, 2017, and an attorney’s fee in the amount of $1,149.50 was not reasonable and necessary for services rendered from August 26 through September 11, 2017. The appellant (attorney) appealed the ALJ’s determination that an attorney’s fee in the amount of $1,149.50 was not reasonable and necessary for services rendered from August 26 through September 11, 2017. The attorney argues, in part, that it was error for the ALJ to fail to address the issue of whether respondent 1 (claimant) timely disputed the Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees (Order). The appeal file does not contain a response from either the claimant or respondent 2 (carrier). That portion of the ALJ’s determination that an attorney’s fee in the amount of $100.00 was reasonable and necessary for services rendered from August 26 through September 11, 2017, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered as reformed.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury). In evidence is an Order approving attorney’s fees in the amount of $1,249.50 for services performed from August 26 through September 11, 2017. At the CCH, the attorney argued in both opening and closing arguments that the claimant failed to timely dispute the Order. Documentary evidence was admitted regarding the date of receipt of the Order by the claimant as well as the date the claimant disputed the Order. The attorney argues that the ALJ erred in failing to make findings regarding whether the claimant timely disputed the Order. We agree. A review of the record reflects that the parties actually litigated whether the claimant timely disputed the Order. The 1989 Act gives the Division the responsibility for approving attorney’s fees and that in implementing a system to carry out that responsibility, the Division has set deadlines for filing a contest of an attorney’s fee order. Appeals Panel Decision (APD) 990533, decided April 16, 1999, and APD 971769, decided October 14, 1997.

Prior to January 30, 2017, 28 TEX. ADMIN. CODE § 152.3(d) (Rule 152.3(d)) provided, in part, that except as provided in subsection (e), an attorney, claimant, or carrier who contests the fee fixed and approved by the Division shall request a CCH no later than the 15th day after receipt of the Division’s order.

Rule 152.3(d) was amended effective January 30, 2017, to provide, in part, that to contest a Division order approving an application for attorney fees, an attorney, claimant, or insurance carrier must request a CCH no later than the 20th day after receipt of the Division's order.

Rule 102.5(d) provides, in pertinent part, that unless the great weight of the evidence indicates otherwise, the Division shall deem the received date of its written communications, including the attorney fee orders at issue, to be five days after the date mailed via United States Postal Service regular mail.

The Order approving the disputed attorney’s fees is dated September 14, 2017. The ALJ failed to make any findings of fact regarding the date the claimant received the Order. Pursuant to Rule 102.5(d) the claimant was deemed to have received the Order five days after the date it was mailed. The evidence reflects that the Order was mailed on September 14, 2017, and therefore was deemed to have been received on Tuesday, September 19, 2017. The claimant contends that an envelope in evidence reflects that the Order was not mailed until October 19, 2017. However, the evidence reflects that the claimant requested an expedited CCH disputing attorney’s fees awarded in the amount of $1,249.50 on October 10, 2017, which is prior to the date the claimant is alleging the order was mailed to him. Accordingly, the great weight of the evidence does not indicate a date other than the deemed date of receipt pursuant to Rule 102.5(d), September 19, 2017. We note that Rule 102.3(b) provides that use of the term “day” rather than “working day” shall mean a calendar day; that Rule 152.3(d) states that the request for CCH must be submitted no later than the 20th day after receipt of the Division Order; and that the provisions of Rule 143.3(d) regarding not including Saturdays and Sundays and holidays listed in Section 662.003 of the Government Code applies to the computation of the time in which to file a request for appeal with the Appeals Panel, and not to a request for a CCH under Rule 152.3(d). The evidence reflects that the claimant requested an expedited CCH to dispute the attorney’s fees awarded in the Order in the amount of $1,249.50 on October 10, 2017. The 20th day after September 19, 2017, the deemed date of receipt, was Monday, October 9, 2017; thus, the request for an expedited CCH to dispute attorney’s fees in the Order was filed late. Accordingly, we reverse that portion of the ALJ’s decision that an attorney’s fee in the amount of $1,149.50 was not reasonable and necessary for services rendered from August 26 through September 11, 2017, and render a new decision that the Order was not timely disputed by the claimant and became final.

We note that the ALJ failed to include in the decision a separate paragraph stating the true corporate name of the insurance carrier and the name and address of its registered agent for service of process. See Section 410.164(c). Section 410.204(d) provides that each final decision of the Appeals Panel shall conclude with a separate paragraph stating the true corporate name of the insurance carrier and the name and address of its registered agent for service of process. We reform the ALJ’s decision to include the true corporate name of the insurance carrier and the name and address of its registered agent for service of process in accordance with the applicable statute.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

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 September 25, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ determined that, pursuant to agreement of the parties at the CCH, the attorney’s fee ordered in Sequence No. 1 dated June 21, 2016, in the amount of $427.50 is to be paid to the appellant (claimant). The ALJ further determined that the attorney fee orders for the following sequence numbers and dates of service and in the listed amounts have become final by operation of law. The ALJ additionally found that attorney’s fees so ordered were reasonable and necessary for services provided by the attorney in prosecution of the claimant’s case and are not excessive:

Seq. No.	Dates of Service	Amount Approved	Date of Order
2	06/01/16 – 06/29/16	$815.00	July 14, 2016
3	07/06/16– 07/26/16	$1,035.00	February 23, 2017
4	08/08/16 – 08/30/16	$607.50	February 23, 2017
5	09/01/16 – 09/26/16	$700.00	February 23, 2017
6	10/10/16 – 10/28/16	$662.50	February 23, 2017
7	11/08/16 – 11/30/16	$630.00	February 23, 2017
8	12/02/16 – 12/29/16	$1,157.50	February 23, 2017
9	01/03/17 – 01/04/17	$412.50	February 23, 2017
10	01/03/17 – 01/31/17	$1,980.00	February 23, 2017
11	02/03/17 – 02/21/17	$777.50	February 23, 2017

The claimant appealed the ALJ’s attorney fee determination contending that he did not receive any benefit from the attorney’s services. The claimant also argues that he did not receive copies of the fee orders issued by the Texas Department of Insurance, Division of Workers’ Compensation (Division). Respondent 1 (attorney) responded, urging affirmance. The appeal file contains no response from respondent 2 (carrier).

The ALJ’s determination that the attorney’s fee in the amount of $427.50 ordered by the Division in Sequence No. 1 dated June 21, 2016, is to be paid to the claimant as agreed to by the parties was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

We note the ALJ incorrectly referenced the attorney’s law firm as Spencer Spencer, PLLC rather than Spencer, Anderson, PLLC. We reform the references in the decision to reflect the attorney’s correct law firm: Spencer, Anderson, PLLC.

We further note that in the Evidence Presented section of the Decision and Order, the ALJ incorrectly stated that (injured employee) testified for the claimant when, in fact, the witness was (injured employee), the claimant. The ALJ further listed the witness for the attorney as Spencer Spencer when, in fact, the witness was Jason C. Spencer, the attorney.

The Division Order for Attorney’s Fees, Sequence No. 2 dated July 14, 2016, approved 4.35 hours of attorney’s fees at $150.00 an hour and 3.25 hours of legal assistant’s fees at $50.00 an hour for a total attorney fee order of $815.00.

The Division Order for Attorney’s Fees, Sequence No. 3 dated February 23, 2017, approved 6.20 hours of attorney’s fees at $150.00 an hour and 2.10 hours of legal assistant’s fees at $50.00 an hour for a total attorney fee order of $1,035.00.

The Division Order for Attorney’s Fees, Sequence No. 4 dated February 23, 2017, approved 3.60 hours of attorney’s fees at $150.00 an hour and 1.35 hours of legal assistant’s fees at $50.00 an hour for a total attorney fee order of $607.50.

The Division Order for Attorney’s Fees, Sequence No. 5 dated February 23, 2017, approved 3.50 hours of attorney’s fees at $150.00 an hour and 3.50 hours of legal assistant’s fees at $50.00 an hour for a total attorney fee order of $700.00.

The Division Order for Attorney’s Fees, Sequence No. 6 dated February 23, 2017, approved 3.75 hours of attorney’s fees at $150.00 an hour and 2.00 hours of legal assistant’s fees at $50.00 an hour for a total attorney fee order of $662.50.

The Division Order for Attorney’s Fees, Sequence No. 7 dated February 23, 2017, approved 3.75 hours of attorney’s fees at $150.00 an hour and 1.35 hours of legal assistant’s fees at $50.00 an hour for a total attorney fee order of $630.00.

The Division Order for Attorney’s Fees, Sequence No. 8 dated February 23, 2017, approved 6.70 hours of attorney’s fees at $150.00 an hour and 3.05 hours of legal assistant’s fees at $50.00 an hour for a total attorney fee order of $1,157.50.

The Division Order for Attorney’s Fees, Sequence No. 9 dated February 23, 2017, approved 2.75 hours of attorney’s fees at $150.00 an hour for a total attorney fee order of $412.50.

The Division Order for Attorney’s Fees, Sequence No. 10 dated February 23, 2017, approved 12.45 hours of attorney’s fees at $150.00 an hour and 2.25 hours of legal assistant’s fees at $50.00 an hour for a total attorney fee order of $1,980.00.

The Division Order for Attorney’s Fees, Sequence No. 11 dated February 23, 2017, approved 4.85 hours of attorney’s fees at $150.00 an hour and 1.00 hour of legal assistant’s fees at $50.00 an hour for a total attorney fee order of $777.50.

We note that all of the fees requested and approved in Sequence Nos. 2 through 9 were for services performed from June 1, 2016, to January 4, 2017, prior to the effective date of the amended 28 TEX. ADMIN. CODE § 152.4(d) (Rule 152.4(d)) which established an increase in the maximum hourly rate for legal services for workers’ compensation disputes in Texas to $200.00 for attorneys and $65.00 for legal assistants. We note further that of the fees requested and approved in Sequence No. 10 for services performed from January 3, 2017, to January 31, 2017, only .25 hours of legal assistant time was for services rendered subsequent to the effective date of the amended Rule 152.4(d). All of the fees requested and approved in Sequence No. 11 were for services performed from February 3, 2017, to February 21, 2017, subsequent to the effective date of the amended Rule 152.4(d). The ALJ made findings of fact that a reasonable hourly rate is $150.00 for the attorney in this matter and $50.00 for legal assistant time and also that a reasonable hourly rate is $200.00 for the attorney in this matter and $65.00 for legal assistant time. We note, however, that in each sequence at issue, attorney’s fees were requested and ordered at the hourly rate of $150.00 and legal assistant time was requested and ordered at the hourly rate of $50.00.

FINDING OF FACT NO. 11

In Finding of Fact No. 11, the ALJ found that by order dated February 23, 2017, in Sequence No. 4, the Division approved an attorney’s fee in the amount of $607.50, which fee included 3.50 hours of attorney time and 3.50 hours of legal assistant time. We note, however, that the fee ordered in Sequence No. 4 actually included 3.60 hours of attorney time and 1.35 hours of legal assistant time. We reform Finding of Fact No. 11 as follows:

11.By order dated February 23, 2017, in Sequence No. 4, the Division approved an attorney’s fee in the amount of $607.50, which fee included 3.60 hours of attorney time and 1.35 hours of legal assistant time.

FINDING OF FACT NO. 12

In Finding of Fact No. 12, the ALJ found that by order dated February 23, 2017, in Sequence No. 5, the Division approved an attorney’s fee in the amount of $700.00, which fee included 4.85 hours of attorney time and 1.10 hours of legal assistant time. We note, however, that the fee ordered in Sequence No. 5 actually included 3.50 hours of attorney time and 3.50 hours of legal assistant time. We reform Finding of Fact No. 12 as follows:

12.By order dated February 23, 2017, in Sequence No. 5, the Division approved an attorney’s fee in the amount of $700.00, which fee included 3.50 hours of attorney time and 3.50 hours of legal assistant time.

TIMELINESS OF CLAIMANT’S REQUEST FOR CCH

The ALJ made findings of fact that the claimant was deemed to have received the Division Order for Attorney’s Fees in Sequence No. 2 dated July 14, 2016, by July 19, 2016, and that the Division Order in Sequence No. 2 was not timely disputed within 15 days following receipt of such order pursuant to Rule 152.3(d) effective prior to January 30, 2017.

The ALJ made additional findings of fact that the claimant was deemed to have received the Division Orders for Attorney’s Fees in Sequence Nos. 3 through 11 dated February 23, 2017, by February 28, 2017, and that the Division Orders in Sequence Nos. 3 through 11 were not timely disputed within 20 days following receipt of such orders pursuant to the amended Rule 152.3(d) adopted to be effective January 30, 2017.

Although the ALJ made no finding of fact determining the date the claimant requested a hearing to contest the Division’s attorney fee Orders in Sequence Nos. 2 through 11, we note that page 3 of the ALJ’s Exhibit 1 admitted into evidence is a letter from the Office of Injured Employee Counsel on behalf of the claimant dated and filed with the Division on March 30, 2017, requesting an expedited CCH in order to dispute attorney fees, including those awarded in Sequence Nos. 2 through 11. Because the claimant contested the Division’s attorney fee Order in Sequence No. 2 more than 15 days following its deemed receipt on July 19, 2016, and because the claimant contested the Division’s attorney fee Orders in Sequence Nos. 3 through 11 more than 20 days following their deemed receipt on February 28, 2017, we find the ALJ’s Conclusion of Law No. 5 and determination that such attorney fee orders became final by operation of law to be supported by the evidence and are affirmed.

We note, however, that in the Decision and Order section of his decision, the ALJ stated: “In addition, [the][c]laimant failed to contest the attorney fees awarded by the Division in Sequence Nos. 2, 3[,] 4, 5, 6, 7, 8, 9, 10, and 11 within fifteen (15) days as provided by Division Rules.” Because this portion of the ALJ’s Decision and Order does not accurately reflect the provisions of the amended Rule 152.3(d) effective January 30, 2017, we reform the quoted portion of the Decision and Order to read as follows: “In addition, the claimant failed to contest the attorney’s fee awarded by the Division in Sequence No. 2 within fifteen (15) days following receipt of such order and the claimant further failed to contest the attorney’s fees awarded by the Division in Sequence Nos. 3, 4, 5, 6, 7, 8, 9, 10, and 11 within twenty (20) days as provided by Division Rules.”

We agree that the fee orders at issue became final by operation of law because the claimant did not timely request a CCH to contest such fee orders and that the Division is without jurisdiction under the facts of this case to reconsider the issue of attorney’s fees for services rendered from June 1, 2016, through February 21, 2017. We accordingly strike that portion of the ALJ’s decision that the attorney fee awards were not excessive and that the attorney fee orders in Sequence Nos. 2 through 11 are affirmed.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 September 19, 2017, with the record closing on September 26, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that in Sequence No. 3, attorney’s fees in the amount of $704.00 are reasonable and necessary for services rendered beginning January 4 through January 31, 2017, and the appellant (claimant) had good cause for failing to appear at the CCH on June 12, 2017.

In a Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees Sequence No. 3 dated April 7, 2017 (Order), a Division employee approved 4.80 hours of attorney’s fees out of 4.80 attorney’s fees requested at $200.00 per hour, and .90 hours of legal assistant’s fees out of .90 hours of legal assistant’s fees requested at $65.00 per hour for a total attorney fee award of $1,018.50. The claimant appealed, arguing that his attorney did nothing to advance his claim. The appeal file does not contain a response from either respondent 1 (carrier) or respondent 2 (attorney).

The ALJ’s determination that the claimant had good cause for failing to appear at the CCH on June 12, 2017, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The standard for review in an attorney’s fees case is abuse of discretion. Appeals Panel Decision 061189, decided July 24, 2006. 28 TEX. ADMIN. CODE § 152.4(d) (Rule 152.4(d)) effective January 30, 2017, increased the maximum hourly rates that may be charged by attorneys and legal assistants in the workers’ compensation system. Effective January 30, 2017, the maximum hourly rates increased from $150.00 an hour to $200.00 for attorneys, and from $50.00 an hour to $65.00 an hour for legal assistants.

The attorney requested fees for 4.80 hours of attorney’s time in the Order dated April 7, 2017, as follows:

.70 hours on January 15, 2017, for the receipt and review of documents;

.20 hours on January 15, 2017, for a telephone conference;

.35 hours on January 9, 2017, for receipt and review of documents;

.50 hours on January 9, 2017, for review of file;

.60 hours on January 10, 2017, for drafting a letter;

.60 hours on January 10, 2017, for receipt and review of documents;

.50 hours on January 13, 2017, for drafting a letter;

1.00 hour on January 15, 2017, for performing legal research; and

.35 hours on January 31, 2017, for drafting a letter.

The attorney requested fees for .90 hours for legal assistant’s time in the Order dated April 7, 2017, as follows:

.20 hours on January 4, 2017, for a telephone conference;

.20 hours on January 9, 2017, for a telephone conference;

.10 hours on January 9, 2017, for a telephone conference;

.20 hours on January 10, 2017, for a telephone conference;

.10 hours on January 20, 2017, for a telephone conference; and

.10 hours on January 31, 2017, for a telephone conference.

The ALJ found in Finding of Fact No. 4 that a reasonable hourly rate for the attorney’s fees in this matter for dates before January 31, 2017, is $150.00 and $50.00 for legal assistant time and in Finding of Fact No. 5 that a reasonable hourly rate for the attorney in this matter for dates on or after January 31, 2017, is $200.00 and $65.00 for legal assistant time. However, the rule became effective on January 30, 2017, not January 31, 2017. We note that the ALJ mistakenly included two Findings of Fact that are numbered 5 in her Decision.

The ALJ found that by Order dated April 7, 2017, in Sequence No. 3 an attorney’s fee was approved in the amount of $1,018.50, which fee included 4.00 hours of attorney time and 1.70 hours of legal assistant time. However, a review of the record reflects that the fee included 4.80 hours of attorney time and .90 hours of legal assistant time.

In her discussion of the evidence, the ALJ stated that there was no persuasive justification for the attorney or her legal assistant to receive more than the fee allowed by law. The ALJ then noted that the attorney performed 3.65 hours before January 31, 2017. However, the record reflects that the attorney performed 4.45 hours of service before January 30, 2017. The maximum hourly rate for legal services performed by an attorney at that time was $150.00 per hour, which would be $667.50. The attorney additionally requested fees for .35 hours for services performed on January 31, 2017, for which the maximum hourly rate would be $200.00. In multiplying $200.00 by .35, the amount of $70.00 for attorney time is calculated for the January 31, 2017, date of service.

In her discussion of the evidence the ALJ noted that the legal assistant performed 1.60 hours of service at the rate of $50.00 per hour prior to January 31, 2017 (1.60 hours multiplied by $50.00 equals $80.00). The ALJ indicated later that .10 hours for service by the legal assistant on January 31, 2017, would be $6.50. The record reflects that the legal assistant performed .80 hours of service prior to the effective date of the rule, January 30, 2017 (for a total of $40.00) and performed .10 hours of service on January 31, 2017 (for a total of $6.50).

Adding the totals for services performed by the attorney prior to January 30, 2017 ($667.50); the services performed by the legal assistant prior to January 30, 2017 ($40.00); the total for attorney time on January 31, 2017 ($70.00); and the total for legal assistant time on January 31, 2017 ($6.50) equals $784.00 rather than $704.00 as determined by the ALJ. Accordingly, we reverse the ALJ’s determination that in Sequence No. 3, attorney’s fees in the amount of $704.00 are reasonable and necessary for services rendered beginning January 4 through January 31, 2017, and render a new decision that in Sequence No. 3, attorney’s fees in the amount of $784.00 are reasonable and necessary for services rendered beginning January 4 through January 31, 2017.

The true corporate name of the insurance carrier is CHARTER OAK FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 5, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer determined that an attorney’s fee in the amount of $765.00 is reasonable and necessary for services performed on November 30, 2016. Additionally, the hearing officer determined that an attorney’s fee in the amount of $1,060.00 is reasonable and necessary for services performed from December 1 through December 27, 2016.

The appellant (claimant) appealed the hearing officer’s attorney fee determination contending that he did not receive any benefit from the attorney’s services. The claimant also argues that the decision and order is incomplete because it lacks conclusions of law. The appeal file does not contain a response from respondent 1 (attorney) or respondent 2 (carrier).

DECISION

Affirmed in part as reformed and reversed and rendered in part.

We note the hearing officer incorrectly referenced the carrier as Charter Oak Insurance Company rather than Charter Oak Fire Insurance Company. We reform all references in the decision to reflect the correct carrier: Charter Oak Fire Insurance Company.

The Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees, Sequence No. 1 dated December 15, 2016, approved 5.10 hours of attorney’s fees at $150.00 an hour for a total attorney fee request of $765.00. The Division Order for Attorney’s Fees, Sequence No. 2 dated January 24, 2017, approved 6.70 hours of attorney’s fees at $150.00 an hour and 1.10 hours of legal assistant’s fees at $50.00 an hour for a total attorney fee request of $1,060.00. We note that all of the fees requested were for services performed from November 30 to December 27, 2016, prior to the effective date of the new 28 TEX. ADMIN. CODE § 152.4(d) (Rule 152.4(d)) establishing an increase in the maximum hourly rate reasonable for workers’ compensation disputes in Texas of $200.00 for attorneys and $65.00 for legal assistants. The standard for review in an attorney’s fee case is abuse of discretion. Appeals Panel Decision 061189, decided July 24, 2006.

The hearing officer made a finding of fact that a reasonable hourly rate for attorneys is $150.00 and for legal assistants is $50.00 and that on November 30, 2016, the attorney devoted 5.10 hours to the prosecution of this case and such services were reasonable and necessary. Those findings are supported by sufficient evidence and are affirmed.

The hearing officer in Finding of Fact No. 7 found that from December 1 through December 27, 2016, the attorney devoted 6.10 hours and the legal assistant devoted 1.10 hours to the prosecution of this case and such services were reasonable and necessary. However, in Finding of Fact No. 4 the hearing officer found by order dated January 24, 2017, in Sequence No. 2, attorney fees were approved in the amount of $1,060.00, which included 6.70 hours of attorney time and 1.10 hours of legal assistant time. The evidence reflects that the request for attorney’s fees was approved in the amount of $1,060.00 which included 6.70 hours of attorney time. Accordingly, we reform Finding of Fact No. 7 to reflect 6.70 hours of attorney time rather than 6.10 hours of attorney time to conform to the evidence. The hearing officer’s Finding of Fact No. 7 as reformed is supported by sufficient evidence and is affirmed.

The claimant correctly noted in his appeal that the hearing officer failed to make a conclusion of law regarding attorney’s fees. Section 410.168 provides that a hearing officer’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides, in part, that a hearing officer’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due. That portion of the hearing officer’s attorney fee determination is incomplete. Accordingly, we reverse that portion of the hearing officer’s decision as being incomplete, and we render a new decision to conform to the evidence and the hearing officer’s finding of fact that the attorney’s fee award in Sequence No. 1 in the amount of $765.00 is reasonable and necessary for services performed on November 30, 2016, and that the attorney’s fee award in Sequence No. 2 in the amount of $1,060.00 is reasonable and necessary for services performed from December 1 through December 27, 2016.

The true corporate name of the insurance carrier is CHARTER OAK FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

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 April 25, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that an attorney’s fee in the amount of $2,741.25 is reasonable and necessary for services rendered from September 25, 2016, through January 31, 2017, in Sequence Nos. 6 (dated October 5, 2016), 9 (dated November 3, 2016), 10 (dated December 5, 2016), 13 (dated January 30, 2017), and 14 (dated February 7, 2017). The hearing officer further determined that the attorney fee awards in Sequence Nos. 6, 9, 10, 13, and 14 were not timely disputed and were affirmed.

The appellant (claimant) appealed the hearing officer’s determination, arguing that he notified the Office of Injured Employee Counsel (OIEC) on February 9, 2017, that respondent 1 (attorney) should reimburse attorney’s fees received; that February 9, 2017, was less than 15 days following the issuance of the attorney fee order in Sequence No. 14 and that such contact with OIEC should be sufficient to document his wish to dispute the award of attorney fees. The claimant further indicated that he relied on his attorneys to take care of his claim and, for such reason, he did not read the attorney fee orders and was unaware of his right to dispute attorney fees awarded by the Texas Department of Insurance, Division of Workers’ Compensation (Division) until he learned on February 8, 2017, of his attorney’s withdrawal from representation in his claim. The appeal file does not contain a response from the attorney to the claimant’s appeal. Respondent 2 (carrier) was excused from attending the CCH. The appeal file does not contain a response from the carrier to the claimant’s appeal.

DECISION

Reversed and rendered.

Rule 102.5(d) provides in pertinent part that, unless the great weight of the evidence indicates otherwise, the Division shall deem the received date of its written communications, including the attorney fee orders at issue, to be 5 days after the date mailed via United States Postal Service regular mail.

TIMELINESS OF CLAIMANT’S REQUEST FOR CCH FOR ORDERS FOR ATTORNEY’S FEES IN SEQUENCE NOS. 6, 9, AND 10

It is undisputed that:

1.The attorney fee order in Sequence No. 6 was issued on October 5, 2016, and was deemed to have been received by the claimant on October 10, 2016.
2.The attorney fee order in Sequence No. 9 was issued on November 3, 2016, and was deemed to have been received by the claimant on November 8, 2016.
3.The attorney fee order in Sequence No. 10 was issued on December 5, 2016, and, the 5th day after December 5, 2016, falling on a Saturday, was deemed to have been received by the claimant on December 12, 2016.

Pursuant to Rule 152.3(d), the claimant’s request for a CCH to dispute the attorney fee order in Sequence No. 6 must have been filed no later than October 25, 2016. His request for a CCH to dispute the attorney fee order in Sequence No. 9 must have been filed no later than November 23, 2016; and his request for a CCH to dispute the attorney fee order in Sequence No. 10 must have been filed no later than December 27, 2016.

The claimant’s request for a CCH disputing the attorney fee orders in Sequence Nos. 6, 9, and 10 was dated and filed with the Division on March 16, 2017, a date more than 15 days following the claimant’s deemed receipt of such orders. For such reason, the Division’s attorney fee orders, Sequence Nos. 6, 9, and 10 became final by operation of law.

TIMELINESS OF CLAIMANT’S REQUEST FOR CCH FOR ORDERS FOR ATTORNEY’S FEES IN SEQUENCE NOS. 13 AND 14

It is undisputed that:

1.The attorney fee order in Sequence No. 13 was issued on January 30, 2017, and the 5th day after January 30, 2017, falling on a Saturday, was deemed to have been received by the claimant on February 6, 2017.
2.The attorney fee order in Sequence No. 14 was issued on February 7, 2017, and, the 5th day after February 7, 2017, falling on a Sunday, was deemed to have been received by the claimant on February 13, 2017.

In his Finding of Fact No. 12, the hearing officer found the following:

12. Sequence No. 13 was approved on January 30, 2017, by the Division. Based on Rule 102.5(d), the order is deemed received on February 4, 2017, a Saturday. The next business day was February 6, 2017. Fifteen days after that date is February 21, 2017.

In his Finding of Fact No. 13, the hearing officer found the following:

13.Sequence No. 14 was approved on February 7, 2017, by the Division. Based on Rule 102.5(d), the order is deemed received on February 12, 2017, a Sunday. The next business day was February 13, 2017. Fifteen days after that date is February 28, 2017.

In calculating the 15th day following the date the attorney fee orders in Sequence Nos. 13 and 14 were deemed received, the hearing officer failed to consider and apply the amended Rule 152.3(d) which became effective January 30, 2017, to calculate the deadline for the claimant to request a CCH in order to dispute the Division’s attorney fee orders in Sequence Nos. 13 and 14. As mentioned above, the amended Rule 152.3(d) provides that the request for CCH must be filed no later than the 20th day following receipt of the Division's order. We accordingly note that the 20th day after February 6, 2017, the deemed receipt date of the Division’s order in Sequence No. 13, fell on Sunday, February 26, 2017. Pursuant to Rule 102.3(a)(3), the deadline for the claimant to request a CCH was February 27, 2017. We further note that the 20th day after February 13, 2017, the deemed receipt date of the Division’s order in Sequence No. 14, fell on Sunday, March 5, 2017. Pursuant to Rule 102.3(a)(3), the deadline for the claimant to request a CCH was March 6, 2017.

The claimant’s request for a CCH disputing the attorney fee orders in Sequence Nos. 13 and 14 was dated and filed with the Division on March 16, 2017, a date more than 20 days following the claimant’s deemed receipt of such orders. For such reason, the Division’s attorney fee orders, Sequence Nos. 13 and 14 became final by operation of law.

In the Discussion section of his Decision and Order, the hearing officer stated:

[The] [c]laimant did not dispute any of the disputed attorney fee orders until March 16, 2017. Because he did not dispute the orders until March 16, 2017, he did not timely dispute the orders and the Division does not have jurisdiction to hear the dispute. The orders for Sequence Nos. 6, 9, 10, 13, and 14 became final by operation of law.

We agree that the fee orders at issue became final by operation of law and that the Division is without jurisdiction under the facts of this case to reconsider the issue of attorney’s fees for services rendered from September 25, 2016, through January 31, 2017. Accordingly, we reverse the hearing officer’s decision that the attorney fee orders are affirmed and render a new decision that the attorney fee orders in Sequence Nos. 6, 9, 10, 13, and 14 have become final by operation of law because the claimant did not timely request a CCH pursuant to Rule 152.3(d) to contest the fee orders issued by the Division and that the Division is therefore without jurisdiction to consider the claimant’s appeal of such orders.

The true corporate name of the insurance carrier is MIDWEST EMPLOYERS CASUALTY COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 April 12, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) attorney and legal assistant fees in the amount of $1,266.25 are reasonable and necessary for services rendered from February 1 through February 27, 2017, in Sequence No. 1; (2) attorney and legal assistant fees in the amount of $525.00 are reasonable and necessary for services rendered from January 25 through January 30, 2017, in Sequence No. 2; and (3) attorney fees in the amount of $100.00 and legal assistant fees in the amount of $22.50 are not reasonable and necessary for services rendered from January 25 through January 30, 2017, in Sequence No. 2.

The appellant (claimant) appealed, arguing that some of the services listed in the requested fee application were not performed, and that the amount awarded was not a reasonable and necessary attorney fee. The claimant also contends that the hearing officer misstated his testimony at the CCH in her decision. Respondent 1 (attorney) responded, requesting affirmance of the hearing officer’s determination. Respondent 2 (carrier) was “excused” from the CCH. The appeal file does not contain a response from the carrier to the claimant’s appeal.

That portion of the hearing officer’s determination that attorney fees in the amount of $100.00 and legal assistant fees in the amount of $22.50 are not reasonable and necessary for services rendered from January 25 through January 30, 2017, in Sequence No. 2 was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The Order for Attorney’s Fees (Order) for Sequence No. 1 approves 6.25 hours of attorney fees at $200.00 an hour for an approved total of $1,250.00 for services rendered by the attorney from February 1 through February 27, 2017. The Order for Sequence No. 1 additionally approves .25 hours of fees for services provided by a legal assistant at $65.00 an hour for an approved total of $16.25.

The Division Order for Sequence No. 2 approves 2.75 hours of attorney fees at $200.00 an hour for an approved total of $550.00 for services rendered by an attorney from January 25 through January 30, 2017. The Order for Sequence No. 2 additionally approves .25 hours for services provided by a legal assistant at $65.00 an hour for an approved total of $16.25. As previously discussed that portion of the hearing officer’s determination that attorney and legal assistant fees in the amount of $122.50 was not reasonable and necessary for services rendered during January 25 through January 30, 2017, has become final.

The hearing officer correctly noted in the discussion that the Texas Department of Insurance, Division of Workers’ Compensation (Division) amended 28 TEX. ADMIN. CODE § 152.4 (Rule 152.4) to increase the maximum hourly rate of attorney fees to $200.00 per hour, and legal assistant fees to $65.00 per hour effective January 30, 2017. The hearing officer also correctly noted that some of the services listed in the Order for Sequence No. 2 included services that were provided prior to January 30, 2017, and therefore reduced attorney fees in the amount of $100.00 and legal assistant fees in the amount of $22.50.

The claimant contends on appeal that the hearing officer incorrectly stated his testimony at the CCH in her decision. At the CCH the claimant testified, among other things, that 95% of the time or more the attorney did not return his calls. However, the hearing officer noted in the Discussion that the claimant “testified that [the attorney] only returned 95% of his calls. . . .”

The hearing officer has incorrectly summarized the claimant’s testimony regarding the percentage of time the attorney did not return his calls, which we view as a misstatement of material fact. While the hearing officer can accept or reject in whole or in part the evidence and testimony in this case, we must reverse the hearing officer’s determinations that attorney and legal assistant fees in the amount of $1,266.25 are reasonable and necessary for services rendered from February 1 through February 27, 2017, in Sequence No. 1, and that attorney and legal assistant fees in the amount of $525.00 are reasonable and necessary for services rendered from January 25 through January 30, 2017, in Sequence No. 2, and we remand the issue of attorney and legal assistant fees in the amount of $1,266.25 for services rendered from February 1 through February 27, 2017, in Sequence No. 1, and attorney and legal assistant fees in the amount of $525.00 for services rendered from January 25 through January 30, 2017, in Sequence No. 2. On remand the hearing officer is to correct her misstatement of material fact regarding the claimant’s testimony about the percentage of time the attorney did not return his calls. The hearing officer shall consider all of the evidence and make a determination of attorney and legal assistant fees in the amount of $1,266.25 for services rendered from February 1 through February 27, 2017, in Sequence No. 1, and attorney and legal assistant fees in the amount of $525.00 for services rendered from January 25 through January 30, 2017, in Sequence No. 2.

We note that the decision contains clerical errors. A review of the record reflects that the claimant appeared and was assisted at the CCH by Anthony Walker, an ombudsman. However, the decision incorrectly states that the claimant was assisted by Damone Edgerton. Additionally, Attorney’s Exhibits 1 through 6 were admitted at the CCH. However, the decision incorrectly states that Attorney’s Exhibits 1 through 5 were admitted. On remand the hearing officer is to correct the above-stated clerical errors.

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 Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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 January 5, 2016,^[1] in Houston, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that attorney fees in the amount of $975.00 are reasonable and necessary for services rendered from June 2 through June 26, 2015, in Sequence No. 22 and attorney fees in the amount of $12.50 are to be deducted from fees awarded in Sequence No. 22 for date of service on June 26, 2015.

The appellant (claimant) appealed, arguing that some of the services listed in the requested fee application were not performed. The claimant additionally argues that some of the claimed fees were for supplemental income benefits (SIBs) quarters which have not been resolved and that the amount of $975.00 was not a reasonable and necessary attorney fee. Respondent 1 (attorney) responded, requesting affirmance of the hearing officer’s determination. The attorney argues that the claimant has failed to demonstrate the services for which fees were requested were not actually performed. Respondent 2 (self-insured) was “excused” from the CCH. The appeal file does not contain a response from the self-insured to the claimant’s appeal.

That portion of the hearing officer’s decision that attorney fees in the amount of $12.50 are to be deducted from fees awarded in Sequence No. 22, for the date of service June 26, 2015, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees (Order) for Sequence No. 22 approves 6.00 hours of attorney fees at $150.00 an hour for an approved total of $900.00 for services rendered by an attorney from June 2 through June 26, 2015. The Order for Sequence No. 22 additionally approves 1.75 hours of fees for services provided by a legal assistant at $50.00 an hour for an approved total of $87.50. We note that as previously discussed the amount of $12.50 was deducted from fees awarded in Sequence No. 22 at the CCH and the portion of that decision has become final.

In the Decision and Order portion of her decision the hearing officer orders the self-insured to pay attorney, attorney fees in the amount of $975.00. The order in evidence states that the attorney fees are to be paid only from the claimant’s benefits. It is clear from the evidence that at least a portion of the fees requested represented services provided which were incurred in connection with either one or both of the first and second quarters of SIBs.

Section 408.147(c) and 28 TEX. ADMIN. CODE § 152.1(f) (Rule 152.1(f)) provide that an attorney for an employee who prevails when a carrier contests a Division determination of eligibility for SIBs shall be eligible to receive a reasonable and necessary attorney’s fee, included expenses, which is payable by the carrier, not out of the employees benefits and the fee shall not be limited to a maximum of 25% of the employee’s recovery. The provisions of Rule 152.1(f) only apply to SIBs cases. See Appeals Panel Decision (APD) 061962, decided November 20, 2006. The Appeals Panel has held that where an adjudication of a SIBs dispute has resulted in a determination of entitlement to some quarters and non-entitlement to other quarters, the hearing officer entering the order on attorney’s fees must allocate the fees amongst the different quarters in that the carrier is only liable for the portion of the fees attributable to the SIBs quarters to which it disputed the claimant’s entitlement and on which the claimant later prevailed. See APD 052419 decided December 21, 2005, and APD 071433, decided November 26, 2007. No evidence was presented at the CCH regarding the status of the claimant’s entitlement to the first and second SIBs quarters. No decision and order on attorney fees pertaining to SIBs should be issued until there has been a determination on SIBs for the first and second quarters.

The hearing officer’s determination that attorney fees in the amount of $975.00 are reasonable and necessary for services rendered from June 2 through June 26, 2015, in Sequence No. 22 is reversed and remanded to the hearing officer to await the determination on the first and second quarters of SIBs. The application for attorney fees should designate the fees for services rendered for SIBs by specific quarter and the services rendered for the other issues which are subject to the provisions of Rule 152.1(c) and the guidelines in Rule 152.4. The hearing officer should then make a determination of attorney’s fees in accordance with the applicable statute and rules set forth in this decision.

Additionally, this case is remanded for the purpose of compliance with Section 410.164. See APD 050825, decided May 23, 2005. In this case, the carrier’s information form providing the true corporate name of the insurance carrier and the name and address of the carrier’s registered agent for service of process was in the hearing file but was not admitted as a hearing officer exhibit and the hearing officer failed to include this information in her decision and order. This case is remanded for the hearing officer to include the carrier information in her decision and order on remand.

The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

For service in person the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR

AUSTIN, TEXAS 78701.

For service by mail the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

We note the hearing officer mistakenly references the date of the CCH as January 5, 2015.

↑

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 December 3, 2008. Texas Department of Insurance, Division of Workers’ Compensation (Division) issued an Order for Attorney’s Fees on September 29, 2008, for dates of service from September 11 through September 18, 2008, approving 3.90 of the 3.90 hours requested for the attorney’s services at a rate of $150.00 per hour and approving 1.10 of the 1.10 hours requested for services of the legal assistant at a rate of $50.00, for a total amount of $640.00.

At issue was whether the Division Order for Attorney’s Fees dated September 29, 2008, was excessive. The hearing officer decided that the Division Order for Attorney’s Fees dated September 29, 2008, was excessive and that attorney’s fees in the amount of $0.00 are reasonable and necessary. The appellant (attorney) appealed the hearing officer’s determination on the issue of attorney’s fees. Also, the attorney contends that the hearing officer incorrectly placed the burden of proof on the attorney in determining the issue in dispute. The appeal file does not contain a response from either respondent 1 (claimant) or respondent 2 (self-insured).

DECISION

Reversed and remanded.

FACTUAL SUMMARY

It was undisputed that the claimant sustained an injury at work on ___________. The claimant testified that he was receiving temporary income benefits (TIBs) and medical benefits for his left leg injury, but that the self-insured was denying medical treatment for his hip and back. The claimant testified that he hired the attorney on September 11, 2008, to assist him in obtaining medical benefits for his hip and back. Documentation dated September 11, 2008, from the attorney’s office summarizes the initial interview with the claimant and states in part that: (1) on ___________, the claimant fell off the back of a truck at work and injured his “left knee/leg/hip/ankle and back”; (2) the self-insured “is denying the back”; (3) the claimant is receiving “$400/wk” in TIBs; and (4) “25% will be coming out of his 400/wk so we will get 100/wk and [the claimant] will get 300/wk.”^[1] A Contract of Employment and Fee Agreement dated September 11, 2008, shows the claimant’s initials at the bottom of the agreement and the agreement notes that the claimant’s injury is to the “left knee/leg/ankle/hip, back & depression.”

The claimant testified that he was notified by his treating doctor’s office that the self-insured had approved medical treatment for his hip and that the treatment would help his back injury. The claimant testified that he contacted his attorney’s office on September 19, 2008, and on that same date discharged his attorney because he received notification that medical treatment for his hip was approved by the self-insured. The claimant testified that the treating doctor’s office secured his medical benefit, not the attorney. In evidence is a Notice of Representation or Withdrawal of Representation (DWC-150) dated and filed on September 30, 2008.

It is undisputed that the attorney requested attorney’s fees for dates of service from September 11 through September 18, 2008. The attorney provided written evidence to support that services were provided to the claimant from September 11 through September 18, 2008. An affidavit from the attorney’s legal assistant dated December 1, 2008, states that “[o]ne of the main reasons [the claimant] retained the firm was for assistance in getting medical treatment for his lumbar spine, which had been disputed by the [self-insured]” and that “[o]n September 19, 2008 [the claimant] called the office to inform me of the approval for his physical therapy regarding his back.”

ATTORNEY’S FEES

The standard employed by the Appeals Panel in the review of an attorney’s fees order by the Division is the abuse-of-discretion standard. Appeals Panel Decision (APD) 961387, decided August 26, 1996; APD 93640, decided September 10, 1993. The Appeals Panel has previously noted that where a claimant is disputing his attorney’s fees, there is a split burden of proof. The attorney has a threshold burden of proving up the fees and the services rendered. If the attorney meets that burden, then the claimant has the burden to prove that the challenged fees were not reasonable and necessary. See APD 021626, decided August 6, 2002, citing APD 992121, decided November 12, 1999, and APD 982969, decided February 2, 1999.

Section 408.221(b) provides, in part, that an attorney’s fee under this section is based on the attorney’s time and expenses according to written evidence presented to the division or court. Except as provided by Subsection (c) or Section 408.147(c), the attorney’s fee shall be paid from the claimant’s recovery. See also Section 408.221(d). Rule 152.2(b) provides, in part, that for purposes of computing the maximum amount of a fee that may be fixed and approved for a claimant’s attorney, “claimant’s recovery” shall not include:

(1)the amount of benefits paid to the claimant prior to hiring the attorney;

(2)benefits initiated or offered by an insurance carrier when the initiation or offer is based upon documentation in a claimant’s file, and has not been the subject of a dispute with the carrier;

* * * *

(4)the value of medical and hospital benefits provided to the claimant.

Section 401.011(5) defines “[b]enefit” as a medical benefit, income benefit, a death benefit, or a burial benefit based on a compensable injury.

In the Background Information section of the decision, the hearing officer refers to Rule 152.2(b) and states that “[a]s of the date of this [CCH], there has been no dispute with the [self-insured] over income benefits” and that “[b]ecause it was not established that the attorney’s efforts that are the subject of this order were made in connection with disputed income benefits or otherwise resulted in the payment of income benefits, the attorney is not entitled to the fees ordered.” The hearing officer found that the attorney and paralegal services from September 11 through September 18, 2008, were not reasonable and necessary, and he concluded that an attorney’s fee in the amount of $0.00 is reasonable and necessary for services rendered from September 11 through September 18, 2008.

In APD 950418, decided April 28, 1995 (a case similar to the instant case) the hearing officer determined that “the original order awarding attorney’s fees was improper because there was insufficient evidence to show that the attorney ‘secured any benefits for the claimant or resolved any disputes in connection with the claimant obtaining benefits’ and ordered the attorney to be paid no fees.” The attorney appealed, arguing that she was hired in connection with securing benefits and resolving a certain dispute, “but was dismissed by the claimant before these efforts could come to fruition.” The Appeals Panel stated that according to the claimant’s own testimony as well as that of the attorney, the claimant hired the attorney for purposes of assisting her in obtaining spinal surgery, a medical benefit under the statute. Also, a primary reason why this medical benefit was not achieved or any dispute about it resolved while the attorney was still acting on behalf of the claimant, was that the claimant discharged the attorney. The Appeals Panel stated that “[a]lthough medical benefits do not generate money from which to pay fees (see Rule 152.2), we believe the securing of medical benefits by virtue of the legal representation satisfies the statutory provision quoted above [Section 408.221] for awarding fees and that fees can be awarded for securing medical benefits if there are other income benefits being paid from which the attorney’s fees could be collected.” Further, the Appeals Panel held that “the hearing officer erred in disapproving all attorney’s fees solely because the attorney failed to secure a benefit for the claimant when the great weight and preponderance of the evidence established that this failure was caused by the discharge of the attorney before the entitlement to the benefit could be established.” The Appeals Panel reversed and remanded the case to the hearing officer to identify the services performed by the attorney in connection with the attorney’s attempt to secure spinal surgery for the claimant and to approve fees for those services which are reasonable in light of the factors contained in Section 408.221. See also Rule 152.1(e) which provides that a client who discharges an attorney does not, by this action, defeat the attorney’s right to claim a fee.

The evidence in this case establishes that: (1) the claimant was receiving benefits ($400 TIBs/week) prior and subsequent to hiring the attorney on September 11, 2008; (2) the claimant hired the attorney to assist him in obtaining a medical benefit for his back injury; (3) the back injury was in dispute with the self-insured; (4) the claimant received a medical benefit (physical therapy for his hip); and (5) the attorney was discharged on September 19, 2008. Further, the hearing officer found that a reasonable hourly rate for the attorney in this matter is $150.00, and a reasonable hourly rate for the paralegal is $50.00, and that from September 11 through September 18, 2008, the attorney devoted 3.90 hours, and the paralegal devoted 1.10 hours to this case.

The hearing officer erred in determining that an attorney’s fee in the amount of $0.00 is reasonable and necessary for services rendered from September 11 through September 18, 2008. Accordingly, we reverse the hearing officer’s determination that the Division Order for Attorney’s Fees dated September 29, 2008, was excessive, and that the attorney’s fees in the amount of $0.00 are reasonable and necessary. We remand to the hearing officer to identify the services performed by the attorney in connection with the attorney’s attempt to secure benefits for the claimant and to approve fees for those services which are reasonable and necessary pursuant to Section 408.221.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

SUPERINTENDENT

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

28 TEX. ADMIN. CODE § 152.1(c) (Rule 152.1(c)) provides, in part, that the fee approved by the Division shall be limited to 25% of each weekly income benefit payment to the employee, up to 25% of the total income benefits allowed and shall also be based on the attorney’s time and expenses, subject to the guidelines and standards set forth in the Act and Division rules.

↑

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 September 27, 2005. Respondent 1 (claimant) had apparently requested the CCH to determine whether any portion of an awarded $662.50 attorney fee was excessive. There was apparently no appearance by any of the parties at the CCH. The hearing officer sent a 10-day notice letter and after receiving no response entered a decision and order that none of the attorney or paralegal time was reasonable and necessary, that “Carrier is ordered to pay [appellant], [claimant’s attorney] attorney, $0.00 in fees” and that if the attorney has been paid any fees those fees were to be reimbursed to the claimant.

The attorney appealed contending, among other things, that she had been given permission to attend the September 27, 2005, CCH by phone; that someone in the Texas Department of Insurance, Division of Workers’ Compensation (Division) Field Office had called her on September 27, 2005, and had advised her that the claimant, who had requested the CCH, had not appeared; and that the attorney had not received either the hearing officer’s decision nor the 10-day notice letter. The attorney’s Request for Review was received by the Division on January 13, 2006, but does not indicate service on either the claimant or the carrier. The Division sent a copy of the attorney’s appeal to the claimant and a copy to the carrier under a cover letter dated February 13, 2006. The claimant filed a response, contending that he had received notice of the CCH and “chose not to appear because he was working.” The claimant’s response does not indicate whether he received the 10-day notice letter. The claimant (with the assistance of an ombudsman) also disputes the attorney’s representations regarding purported discussions with another ombudsman and asserts the attorney has not proven her case so he should prevail.

DECISION

Reversed and remanded.

There is scant evidence in the file to determine what has occurred. Attached to the hearing officer’s 10-day notice letter dated September 28, 2005, is a “Commission [Division] Order For Attorney’s Fees” dated August 12, 2005, Seq. #6 approving $662.50 attorney and legal assistant fees for services rendered between May 23 and August 8, 2005. Based on the attorney’s representations we are uncertain whether the fees were in regard to services for extent of injury, disability or an impairment rating. In any event, it does not appear to be a supplemental income benefits case. The claimant, apparently at some time in August 2005, disputed the attorney’s fees ordered in Seq. #6. Although the attorney alleges that she never received notice of a September 27, 2005, scheduled CCH, the attorney also asserts that a Division representative gave her permission to attend “the [September 27, 2005] Hearing by phone” on August 31, 2005. The attorney also contends that she had conversations with an ombudsman assisting the claimant on September 22 and 27, 2005. The attorney represents that the ombudsman called on September 27, 2005, advising the attorney that the claimant had not made an appearance and “to please call. . . in the event that the Claimant showed up at the last minute.” The claimant, in his response, disputes the attorney’s contact with the ombudsman and asserts that all attorney fee cases are heard by telephone hearings and that the attorney failed to prove her case. Apparently no one appeared at the CCH and the hearing officer apparently did not call the claimant’s attorney or inquire of the ombudsman why the parties had not appeared. The hearing officer sent out a 10-day notice letter on September 28, 2005.

The 10-day notice letter is addressed to the claimant, with a copy to the ombudsman, but does not indicate a copy was sent to the carrier. While the letter is addressed to the claimant, it is addressed to an address different than the one listed in the Division records. The 10-day notice letter does have the attorney’s name and address at the top of the letter, but not where one customarily puts the addressee. A yellow sticky note attached to the notice letter states “10-day letter to clmt & attorney” with what appears to be the hearing officer’s initial. The hearing officer’s decision lists as the parties, the claimant and the carrier. There is no indication that a copy of the hearing officer’s decision was sent to the attorney. It indicates an information copy was sent to an ombudsman.

In the file submitted is a Dispute Resolution Information System (DRIS) note dated December 16, 2005, indicating the claimant had called, that the claimant wanted a change of doctor form and that the claimant:

“asked about D & O and ck. States he has not rcvd and atty is supposed to pay back what he rcvd from that order. Will contact IC [carrier] to find out amount paid to atty from Seq#6, and go from there.”

The attorney, in her appeal, asserts “I am quite positive that [neither] the Claimant nor I ever received notice of the hearing, the 10-day letter, nor the D & O. It wasn’t until December that he called the [Division] regarding all of this.” The claimant in his response asserts that he did receive notice of the CCH and chose not to attend. A DRIS note dated December 19, 2005, indicates contact by the Division Field Office with the attorney’s office but the attorney was out and the person in the office appeared unfamiliar with the case. The attorney alleges that it was not until December 21, 2005, that the attorney “received a [facsimile transmission (fax)] from . . . the commission [Division] that had 3 pages attached containing the Decision and Order.” The fax from the Division Field Office indicates that it was sent at 18:06 (6:06 p.m.) on December 21, 2005. A DRIS note dated January 2, 2006, indicates contact with the attorney, the attorney’s representation that she never received a copy of “the D & O until the DRO sent her a copy” and assurances that the attorney “has the 15 days from time rcvd” to appeal. The attorney expressed concern regarding how she is “going to prove that she did not get the D & O.” We note that the attorney was not an addressee of the hearing officer’s decision.

28 TEX. ADMIN. CODE § 142.6(c) (Rule 142.6(c)) provides that:

Notice of hearing. After setting a hearing, the [Division] shall furnish to the parties, by first class mail or personal delivery, written notice of the date, time, duration, and location of the hearing.

Rule 142.16(d) provides that:

No later than seven days after filing the decision, the division shall furnish to the parties, by first class mail or personal delivery:

(1)a file-stamped copy of the decision; and
(2)a statement specifying the place, manner, and time period within which an appeal must be filed.

We hold that there is reason to inquire as to whether sufficient notice of the CCH was given to the attorney and whether notice of the Decision and Order which complied with the requirements of Rule 142.16(d) was given to the attorney. We reverse the hearing officer’s determination that attorney fees in the amount of $0.00 are reasonable and necessary and remand the case to determine if the parties had good cause for failing to appear at the September 27, 2005, CCH. If good cause is determined to exist, the claimant’s attorney should be provided the opportunity to submit evidence of the reasonableness of the attorney’s fees awarded in Seq. # 6. All the parties, including the carrier, are to be given an opportunity to appear.

The true corporate name of the insurance carrier is AMERISURE MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

CINDY GHALIBAF

5221 NORTH O’CONNOR BOULEVARD, SUITE 400

IRVING, TEXAS 75039-3711.

Thomas A. Knapp

CONCUR:

Robert W. Potts
Appeals Judge

Margaret L. Turner
Appeals Judge

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 July 14, 2005. At issue were appellant’s (attorney) attorney’s fees in a supplemental income benefits (SIBs) case where the claimant prevailed. (See Section 408.147(c)).

Several Texas Department of Insurance, Division of Workers’ Compensation (Division) orders for attorney’s fees (sequence Nos. 2 through 6) had been approved on May 25 and May 26, 2005. The carrier disputed three billings which it contended were excessive or duplications. The hearing officer determined that attorney fees in the amount of $390.00, $940.00, $600.00 and $430.00 (sequence Nos. 2 through 5) were not excessive and that attorney fees in the amount of $345.00 (sequence No. 6) “was excessive and should be $205.00.” The hearing officer’s Decision read that if the claimant’s attorney “has been paid more than the total of $2385.00 fees approved by this Decision and Order,” the claimant’s attorney is ordered to reimburse the carrier for the excess amount.

The claimant’s attorney appealed findings of fact regarding the carrier’s name, registered agent address and that the carrier had delivered to the claimant (claimant’s attorney) a single document (Insurance Carrier Information Sheet) “which is admitted into evidence as Hearing officer’s Exhibit 2.” The claimant’s attorney also requested that the hearing officer’s order (Decision portion) be reformed or modified to order the claimant’s attorney to reimburse the carrier $140.00 of attorney’s fees found to be excessive. The file does not contain a response from either the carrier or the claimant.

DECISION

The hearing officer’s Decision is reversed and a new decision rendered.

Regarding the appeal of specific findings that the Carrier Information sheet had not been delivered to the claimant as found by the hearing officer, our review of the record indicates that at the CCH the claimant’s attorney appeared by telephone, that the carrier and hearing officer were present in the hearing room, that the carrier tendered an Insurance Carrier Information sheet which was marked and admitted as “H.O. Ex 1” and that the hearing officer stated to the claimant’s attorney “we’ll get you a copy.” This apparently was not done. The Carrier Information sheet was sent to the claimant’s attorney by fax on September 21, 2005, and is included in this decision.

Regarding the $140.00 of attorney fees found by the hearing officer to be excessive in sequence No. 6, the claimant’s attorney’s appeal specifically states that the appeal “does not attempt to argue that the findings was incorrect . . . . [but that] the totals that are then ordered to be paid back do not equal what is actually supposed to be paid back.” We agree. The attorney fees found not to be excessive were $390.00, $940.00, $600.00, and $430.00 (sequence No. 2 through 5) and the reduced amount of $205.00 for sequence No. 6. This amount totals $2565.00, however the hearing officer’s Decision states that amounts over “$2385.00 fees approved by this Decision and Order” are to be reimbursed to the carrier. We reverse the Hearing Officer’s Decision that amounts paid over $2385.00 are to be reimbursed to the carrier and render a new Decision that if the claimant’s attorney has been paid more than a total of $2565.00 (the $140.00 found to be excessive in sequence No. 6), the claimant’s attorney is ordered to reimburse by mailing or personally delivering a check to the Carrier for the excess amount within 15 days of receiving this decision.

The true corporate name of the insurance carrier is LIBERTY MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION

350 NORTH ST. PAUL, SUITE 2900

DALLAS, TEXAS 75201.

Thomas A. Knapp

CONCUR:

Robert W. Potts
Appeals Judge

Margaret L. Turner
Appeals Judge