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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.

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 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. 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. 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. 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. 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. 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 was held on October 19, 2015, in San Antonio, Texas, with (hearing officer) presiding as hearing officer. The hearing officer determined that an attorney’s fee in the amount of $637.50, is reasonable and necessary for services rendered from June 22 through August 25, 2015.

The appellant (claimant) appealed the hearing officer’s attorney fee determination contending that the hearing officer’s determination is against the great weight and preponderance of the evidence. The appeal file does not contain a response from respondent 1 (attorney) or respondent 2 (carrier).

DECISION

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

The Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees, Sequence No. 1 dated August 28, 2015, approved 8.55 hours of attorney’s fees at $150.00 an hour for a total attorney fee request of $1,282.50.  The standard for review in an attorney’s fees case is abuse of discretion.  Appeals Panel Decision 061189, decided July 24, 2006.

The hearing officer made a finding of fact, conclusion of law, and decision that an attorney’s fee in the amount of $637.50 (4.25 hours at $150.00 an hour of the requested $1,282.50 in attorney fees), is reasonable and necessary for services rendered from June 22 through August 25, 2015. This determination is supported by sufficient evidence and is affirmable.

The hearing officer made a finding of fact and decision that an attorney’s fee in the amount of $645.00 (4.30 hours at $150.00 an hour of the requested $1,282.50 in attorney fees), is excessive and will not be paid to the attorney. However, we note that the hearing officer failed to make a conclusion of law that an attorney’s fee in the amount of $645.00 is excessive and will not be paid to the attorney. 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 and determination that an attorney’s fee in the amount of $645.00 is excessive and will not be paid to the attorney.

Also, we note that the hearing officer 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 hearing officer’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

Veronica L. Ruberto
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 March 25, 2014, in [City 1], 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 $8,687.50 is reasonable and necessary for services rendered in Sequence Nos. 30, 31, 32, and 34 (four attorney’s fee orders dated February 3, 2014), and Sequence No. 35 (one attorney’s fee order dated February 4, 2014).

The appellant (carrier) appealed the hearing officer’s determination. The carrier points out that the hearing officer specifically found that the carrier failed to timely dispute the attorney’s fees ordered in Sequence Nos. 30, 31, 32, 34, and 35. The carrier contends that it did timely dispute those attorney’s fee orders, and also that the attorney’s fees in the amount of $8,687.50 were not reasonable and necessary. Respondent 1 (attorney) responded on behalf of respondent 2 (claimant), urging affirmance of the hearing officer’s determination.

DECISION

Affirmed as reformed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a-1).  Section 410.204(a) provides, in part, that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1).  Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case: (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but do not affect the outcome of the hearing.  This case is a situation that requires correction but does not affect the outcome of the hearing.

TIMELINESS OF CARRIER’S REQUEST FOR CCH FOR ORDER FOR ATTORNEY’S FEES ISSUED FEBRUARY 3, 2014

The hearing officer in Finding of Fact No. 15 found that the carrier failed to timely dispute the attorney’s fees ordered in Sequence Nos. 30, 31, 32, 34, and 35.

The hearing officer stated the following in the Discussion portion of the decision:

The evidence indicates that attorney fee orders in [Sequence Nos.] 30, 31, 32, and 34 were dated February 3, 2013. . . . [The] [c]arrier has 15 days to dispute the attorney fee orders. Case law indicates that the date the attorney fee awards are approved is the date the [c]arrier received the notice in [City 2] central. [The] [c]arrier disputed the attorney fee awards in question on February 20, 2014. Their dispute was untimely and the fees became final. . . .

The Texas Department of Insurance, Division of Workers’ Compensation (Division) issued four attorney’s fee orders on February 3, 2014. 28 TEX. ADMIN. CODE § 152.3(d) (Rule 152.3(d)) provides 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.  Rule 152.3(e) provides that an attorney, claimant, or carrier who contests the fee ordered by a hearing officer after a CCH shall request review by the Appeals Panel pursuant to the provisions of Rule 143.3. It is undisputed that all of the attorney’s fees contested by the carrier in this case are fees fixed and approved by the Division rather than fees ordered by a hearing officer after a CCH. As such, Rule 152.3(d) applies in this case rather than Rule 152.3(e).

The attorney’s fee orders issued by the Division on February 3, 2014, reflect that a copy was sent to the carrier. In the usual course of business, a Division order for attorney’s fees is printed out by computer and a copy is placed in the box of the carrier’s [City 2] representative on the same day the order is printed. Under Rule 156.1(a) each carrier is required to designate an [City 2] representative to act as agent for receiving notice from the Division, and under Rule 156.1(c), notice to the carrier’s [City 2] representative is notice to the carrier. We note that the carrier’s [City 2] representative, as shown on the cover letter for the hearing officer’s decision in this case, is the same law firm which is representing the carrier on this appeal. Four attorney’s fee orders were issued on February 3, 2014, and in the regular course of business, copies of those attorney’s fee orders would be placed in the carrier’s [City 2] representative’s box on February 3, 2014.

The carrier contends that it received the attorney’s fee orders on February 5, 2014, via facsimile transmission, and that it had 15 days excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Government Code from that date to request a CCH to dispute the attorney’s fee orders.

Rule 102.5(d) provides in part that, unless the great weight of the evidence indicates otherwise, the carrier is deemed to have received the hearing officer’s decision the first working day after the decision was placed in the carrier’s [City 2] representative’s box. Therefore, the carrier is deemed to have received the four attorney’s fee orders issued February 3, 2014, on February 4, 2014. The carrier’s mere assertion that it received the attorney’s fee orders on February 5, 2014, is insufficient to extend the time period to file a CCH to dispute the attorney’s fee orders.

In Appeals Panel Decision (APD) 050351, decided March 29, 2005, the Appeals Panel noted that Rule 102.3(b) provides that use of the term “day” rather than “working day” shall mean a calendar day; Rule 152.3(d) states that “no later than the 15th day after receipt of the [Division’s] 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 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). See APD 050351, supra.[1] The carrier’s assertion that it had 15 days excluding Saturdays and Sundays and holidays listed in Section 662.003 to timely request a CCH is without merit.

Pursuant to Rule 102.5(d) as discussed above, the carrier is deemed to have received the attorney’s fee orders issued February 3, 2014, on February 4, 2014. Pursuant to Rules 102.3(b), 152.3(d), and APD 050351, supra, the carrier had 15 days to file a request for a CCH to dispute those orders. The 15th day after February 4, 2014, is February 19, 2014. The carrier’s request for a CCH dated February 20, 2014, to dispute the attorney’s fee orders issued February 3, 2014, is untimely. Accordingly, that portion of the hearing officer’s Finding of Fact No. 15 that the carrier failed to timely dispute the attorney’s fees ordered in Sequence Nos. 30, 31, 32, and 34 is supported by the evidence and is affirmed.

TIMELINESS OF CARRIER’S REQUEST FOR CCH FOR ATTORNEY’S FEE ORDER ISSUED FEBRUARY 4, 2014

The order approving attorney’s fees in the amount of $627.50 for Sequence No. 35 was issued February 4, 2014. As explained above, a copy of the attorney’s fee order issued February 4, 2014, was placed in the box of the carrier’s [City 2] representative on that same date. Pursuant to Rule 102.5(d), the carrier is deemed to have received the attorney’s fee order on February 5, 2014. The 15th day after February 5, 2014, is February 20, 2014. The carrier’s request for a CCH dated February 20, 2014, to dispute the attorney’s fees approved in the order issued February 4, 2014, is timely. That portion of the hearing officer’s Finding of Fact No. 15 that the carrier failed to timely dispute the attorney’s fees ordered in Sequence No. 35 is legally incorrect. Accordingly, we reform by striking that portion of the hearing officer’s Finding of Fact No. 15 that the carrier failed to timely dispute the attorney’s fees ordered in Sequence No. 35.

REASONABLE AND NECESSARY

It was undisputed by the parties that the carrier disputed second quarter supplemental income benefits (SIBs) on October 25, 2013. It was also undisputed by the parties that attorney’s fees in the amount of $2,365.00 were approved by the Division for work performed prior to the date the carrier disputed second quarter SIBs. The carrier contends that these fees are not reasonable and necessary because they were billed for services performed prior to the date it disputed second quarter SIBs.

In the Discussion portion of the decision, the hearing officer stated the following:

[The] [c]arrier disputed the attorney fee awards in question on February 20, 2014. Their dispute was untimely and the fees became final, even the fees for work done prior to the dispute for the second quarter of [SIBs]. This fee totaled $2,365.00. Thus if it is determined that the [c]arrier timely disputed the attorney fee orders at issue, the $2,365.00 in attorney’s fees addressed above would not be reasonable.

*****

All of the rest of the attorney’s fees were for legal services that were reasonable, necessary and performed.

The hearing officer found in Finding of Fact No. 16 that attorney’s fees totaling $8,687.50 (which includes the $2,365.00 attorney’s fees mentioned above) were reasonable and necessary, and therefore determined that an attorney’s fee in the amount of $8,687.50 is reasonable and necessary for services rendered in Sequence Nos. 30, 31, 32, 34, and 35.

The evidence established that the $2,365.00 in attorney’s fees for work done prior to the carrier’s dispute of second quarter SIBs were approved in one of the attorney’s fee orders issued February 3, 2014. As discussed above, the carrier did not timely file a request for a CCH to dispute the attorney’s fees approved in any of the orders issued February 3, 2014. The hearing officer’s determination that an attorney’s fee in the amount of $8,687.50 is reasonable and necessary for services rendered in Sequence Nos. 30, 31, 32, 34, and 35 is supported by the evidence and is affirmed.

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that APD 050351 cites an older version of Rule 143.3; however, both versions of Rule 143.3 retain the same language excluding Saturdays and Sundays and holidays listed in Section 662.003.

    ↑

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 June 25, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the attorney fee awards in Sequence Nos. 1 through 8 (attorney fee orders dated January 19, 2011 (two orders), February 3, 2011, February 18, 2011, March 3, 2011, March 21, 2011, April 5, 2011, and April 13, 2011) were not excessive, and were not timely appealed by the appellant (claimant).

The claimant appealed, disputing the hearing officer’s determination. The claimant contends that the amount of time requested by respondent 1 (attorney) was not reasonable and necessary and that he timely disputed the attorney fees awarded. The attorney responded, urging affirmance of the disputed determination. The appeal file does not contain a response from respondent 2 (self-insured).

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH.  The appeal file in this case contains one compact disc (CD). The CD contains two tracks which are identical. During the recorded track, preliminary matters are discussed and the claimant gives his opening argument. The hearing officer agrees to take a break at the request of the attorney and no further recording is included on the CD. The CD does not contain any testimony given at the CCH. A full review of the record could not be completed. The file indicates that there was no court reporter and the file does not contain a transcript or tape recording of the CCH proceeding.  Consequently, we reverse and remand this case to the hearing officer for reconstruction of the CCH record.  See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

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 Department of Insurance, Division of Workers’ Compensation, 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 APD 060721, decided June 12, 2006. 

The true corporate name of the insurance carrier is (a certified self-insured) 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.

.

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 telephonically on June 8, 2009. Texas Department of Insurance, Division of Workers’ Compensation (Division) issued an Order for Attorney’s Fees on February 12, 2009, for dates of service from September 15, 2008, through January 26, 2009, approving 5.50 of the 5.50 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 $825.00.

The appellant (claimant) appealed the hearing officer’s determination contending that it did not reflect the agreement of the parties. The appeal file does not contain a response from either respondent 1 (claimant’s attorney) or respondent 2 (carrier).[1]

DECISION

Reversed and rendered.

The record reflects that the parties agreed that the claimant’s attorney filed a request for .35 hours at the rate of $150.00 per hour for services performed on September 15, 2008, that was not part of the Attorney’s Fee Order dated February 12, 2009. The parties agreed on the record that the .35 hours requested for legal services performed on September 15, 2008 (for a total of $52.50) and 1.05 hours for legal services performed on dates of service from December 29, 2008, through January 26, 2009 (for a total of $157.50) would not be included in the attorney’s fees ordered to be paid to the claimant’s attorney for legal services performed from December 29, 2008, through January 26, 2009 (for a complete total of $210.00). The record reflects that the parties agreed that the reasonable and necessary amount of attorney’s fees for the claimant’s attorney for legal services performed from September 15, 2008, through January 26, 2009, is $615.00.

The hearing officer’s decision and order does not reflect the agreement made by the parties on the record during the CCH held on June 8, 2009. 28 TEX. ADMIN. CODE § 147.4(c) (Rule 147.4(c)) provides that an oral agreement reached during a CCH and preserved in the record is effective and binding on the date made. The claimant does not contend in his appeal that the agreement should be set aside but rather argues that the hearing officer’s decision and order does not reflect the agreement made by the parties. We agree. A review of the record reflects that the parties agreed that attorney’s fees in the amount of $615.00 to the claimant’s attorney for legal services performed from September 15, 2008, through January 26, 2009, are reasonable and necessary. We reverse the hearing officer’s decision that the attorney’s fees in the amount of $825.00 to the claimant’s attorney for legal services performed from September 15, 2008, through January 26, 2009, are reasonable and necessary and that the carrier is ordered to pay to the claimant’s attorney, fees and costs in the total amount of $825.00 and render a new decision that attorney’s fees in the amount of $615.00 to the claimant’s attorney for legal services performed from September 15, 2008, through January 26, 2009, are reasonable and necessary. If the claimant’s attorney has been paid the attorney fees awarded, above the amount of $615.00 by the Attorney’s Fee Order dated February 12, 2009, or the claim for .35 hours of legal services provided on behalf of the claimant on September 15, 2008, the claimant’s attorney is ordered to reimburse the claimant.  See Rule 152.3(g)(h).

The true corporate name of the insurance carrier is THE TRAVELERS INDEMNITY COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

D/B/A CSC – LAWYERS INCORPORATING SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

  1. Upon receipt of the notice of the CCH concerning the claimant’s dispute over attorney’s fees, the carrier contacted the Division by letter, stating it did not take any position on the disputed issue and would not be presenting any evidence on the issue and therefore its presence was not necessary to the litigation of the issue.

    ↑

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.

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 APD 060721, decided June 12, 2006.

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

  1. 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 March 1, 2006, with the record closing on July 25, 2006. There were nine disputed issues including three quarters of supplemental income benefits (SIBs), which the hearing officer determined in respondent’s 1 (claimant) favor. In Appeals Panel Decision (APD) 061787, decided October 30, 2006, the Appeals Panel reversed the hearing officer’s determination that the claimant’s impairment rating (IR) is 15% and since the IR is still in dispute the Appeals Panel reversed the hearing officer’s determinations on the three quarters of SIBs and a contribution issue. The Appeals Panel remanded the case for a determination of an IR that is not contrary to the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) and is supported by the evidence. The hearing officer is then to make a new determination on the SIBs issues and the contribution issue.

The appellant (carrier) appeals a Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees (Order), (Docket No. 1) (Sequence No. 25) dated August 25, 2006, approving 69.20 hours of the 70.50 hours of requested attorney fees at $250.00 an hour for an approved attorney fee of $17,300.00. The Order for Sequence No. 25 was ordered by the hearing officer who heard the case in APD 061787, supra. The carrier also purports to appeal (Docket No. 2) (Sequence No. 26) and (Docket No. 3) (Sequence No. 27), both dated August 22, 2006, and ordered by an individual other than a hearing officer. Sequence No. 26 approves 23 hours of requested attorney fees at $200.00 an hour and 1.75 hours of requested legal assistant fees at $50.00 an hour for an approved fee of $4,687.50. Sequence No. 27 approves 28.50 hours of attorney fees at $200.00 an hour and approves 1.75 hours of requested legal assistant fees at $50.00 an hour for a total approved fee of $5,787.50. The carrier recites that it appeals “‘reasonable and necessary’ attorney’s fees (Orders were issued in three amounts: $17,300.00; $4687.50; $5787.50).” The carrier argues that the hearing officer “failed to apportion those fees unrelated to the SIBs issues” and that the carrier was denied due process. The claimant’s attorney responds that the carrier’s appeal of Sequence Nos. 26 and 27 was not timely and otherwise urges affirmance.

DECISION

Reversed and remanded.

First, regarding the timeliness of carrier’s appeal of Sequence Nos. 26 and 27, we hold that the appeal was filed within 15 days after the orders were received from the Division. See Section 410.202(a). However, the Orders for Sequence Nos. 26 and 27 were ordered by someone other than a hearing officer. The proper method to appeal an Order for Attorney’s Fees ordered by someone other than a hearing officer after a benefit CCH is to request a benefit CCH. See 28 TEX. ADMIN. CODE § 152.3(d) and (e) (Rule 152.3(d) and (e)). See also APD 052736, decided January 11, 2006. Because the Orders for Sequence Nos. 26 and 27 were not ordered by a hearing officer after a benefit CCH, appeal of those orders is not properly before us and the Appeals Panel does not have jurisdiction to determine the appeal of those orders.

The Order for Sequence No. 25 approves 69.20 hours of attorney fees at $250.00 an hour for an approved total of $17,300.00 for services rendered from December 1, 2005, through July 24, 2006. We note that the Order for Sequence No. 26 covers services rendered from January 11, 2006, through August 15, 2006, and the Order for Sequence No. 27 covers services rendered from June 27, 2005, through January 11, 2006, therefore it appears there may be some overlapping time periods involved.

Section 408.147(c) and 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, including 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 and for all other matters to include the IR, contribution, extent of injury, carrier waiver and finality that are applicable to this case the provisions in Rule 152.1(c) and guidelines in Rule 152.4 apply. In considering the approval of attorney fees the hearing officer should consider the criteria listed in Section 408.221(d). We further note that the burden of proving that the time billed was reasonable and necessary is on the attorney claiming the fees. APD 951731, decided November 16, 1995; APD 980036, decided February 17, 1998.

The fees ordered to be paid in the Order for Sequence No. 25 recites the fees are to be paid pursuant to Section 408.147(c) and Rule 152.1(f). That is true for only the fees pertaining to SIBs in which the claimant prevails. Since this case was reversed and remanded in APD 061787, supra, there has been no final Division decision on entitlement to SIBs for the first, second and third quarters. Therefore, no decision and order on these attorney fees should be issued until there has been a determination on the IR and the SIBs for the first, second and third quarters. We agree with the carrier that the application for attorney fees should segregate the fees which are for SIBs from the fees which are for work performed on the other issues.

The Order for Sequence No. 25 is reversed and remanded to the hearing officer to await the determination on the IR, the three quarters of SIBs and contribution issues. Then the application for attorney fees is to apportion the fees for services rendered for SIBs 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.

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.

The true corporate name of the insurance carrier is CLARENDON NATIONAL INSURANCE 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.

Thomas A. Knapp
Appeals Judge

CONCUR:

Veronica L. Ruberto
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 November 22, 2005. The hearing officer resolved the disputed issue by deciding that respondent 2 (claimant) is entitled to supplemental income benefits (SIBs) for the first quarter. Records of the Texas Department of Insurance, Division of Workers’ Compensation (Division) reflect that the hearing officer’s decision was appealed but that the hearing officer’s decision became final on March 3, 2006. In an Order for Attorney’s Fees (Order) dated May 3, 2006, the hearing officer approved $1,829.71 of the requested $2,377.75 attorney’s fees requested by the appellant (attorney). The attorney had represented the claimant at the CCH on the disputed issue of entitlement to first quarter SIBs. The Order reflects that the fees are to be paid pursuant to Section 408.147(c) and 28 TEX. ADMIN. CODE § 152.1(f) (Rule 152.1(f)). The attorney appeals the Order, contending that the hearing officer abused his discretion by reducing the hourly requested rate from $200.00 to the $150.00 per hour rate “required under Section 408.221(f) and by reducing the mileage reimbursement amount.” No response was received from Respondent 1 (carrier) or from the claimant.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The attorney requested 10.70 hours for attorney services at the rate of $200.00 per hour, 3.30 hours for legal assistant services at the rate of $50.00 an hour and $72.75 mileage reimbursement for a total requested fee of $2,377.75. The hearing officer approved 10.70 hours for attorney services at the rate of $150.00 per hour, 3.30 for legal assistant services at $50.00 per hour and $59.71 expenses for a total of $1,829.71 for services rendered from November 3 through November 22, 2005. The attorney contends that the hearing officer abused his discretion in failing to approve attorney’s fees at $200.00 per hour as requested by the attorney.

The standard of review in an attorney’s fees case is abuse of discretion. Appeals Panel Decision (APD) 022337, decided October 30, 2002. Since this case involves a claimant’s attorney’s fees in a SIBs dispute in which the claimant prevailed, Section 408.147(c) and Rule 152.1(f) apply. Both of these provisions speak in terms of reasonable and necessary attorney’s fees and provide for payment of the attorney’s fees by the carrier. Rule 152.4(d) provides for a maximum hourly rate for legal services by an attorney of $150.00; however, pursuant to Rule 152.1(f), Rule 152.4 regarding guidelines for legal services does not apply to a claimant’s attorney’s fees where the claimant prevails in a SIBS dispute. APD 970805, decided June 18, 1997.

The Division’s Attorney Fee Processing System (AFPS) reflects that the attorney provided a justification text for the fees requested stating:

I WAS HIRED IN THIS MATTER IMMEDIATELY AFTER THE BRC. AS A RESULT A GREAT DEAL OF TIME WAS NECESSARY DURING A SHOR[T] PERIOD TO GET UP TO SPEED OF THE CLAIM BEFORE THE EXPEDITED CCH. ON THE 3RD & 7TH OF NOV/05 I PERFORMED LEGAL RESEARCH INTO SEVERAL SIBS RELATED ISSUES INCLUDING PARTIAL DARS PARTICIPATION EFFECT OF LIMITED EDUCATION FAST FOOD ONLY TYPES OF JOB SEARCHES[,] DEPRESSION AND PARTIAL VOCATIONAL REHAB. ON 11/22/05 I TRAVELED 2.4 HRS ROUND TRIP TO [City 1] & SPENT .9 IN CONF WITH MY CLIENT BOTH BEFORE & AFTER THE CCH. FOR SUPPORT OF THE 200 HRLY FEE SEE APPEALS DECISION 030301, DECISION 002523 & DECISION 030293.

The hearing officer’s log text states:

I READ THE APPEALS PANEL DECISIONS CITED BY CL ATTY. HOWEVER, CL ATTY FAILS, IN HIS JUSTIFICATION TEXT, TO SUPPORT THE HOURLY FEE HE REQUESTS. THE QUESTIONS PRESENTED WERE NOT PARTICULARLY NOVEL, HE DOES NOT INDICATE THAT HE HAS ANY PARTICULAR CERTIFICATIONS, HE DOES NOT PRESENT ANY INFORMATION IN REGARD TO NORMAL FEES IN AREA OR FOR THIS WORK ABOVE THE $150 PER HOUR RATE. THERE WAS NOTHING UNUSUAL ABOUT THE FACTS OF THIS CASE OR THE EFFORT NEEDED TO PREPARE, OTHER THAN A SHORT TIME PERIOD. CL’S ATTY HAS PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT HIGHER THAN CUSTOMARY FEE FOR HIS WORK, DESPITE THAT IT IS SIBS CASE.

Included with the attorney’s appeal is what appears to be a copy of the original Application for Attorney’s Fees (DWC Form-152) and attached thereto is a much more detailed justification text (“affidavit”) than shown on the AFPS. The justification text attached to the DWC Form-152 states that attorney is Board Certified in Workers’ Compensation Law, that he is familiar with attorney’s fees that are reasonable and necessary, that he is familiar with the hourly fee reasonable and necessary for legal work performed in the area and that the $200.00 per hour fee is reasonable and necessary. The justification text in the AFPS is either incomplete or a greatly abbreviated version of the full justification text. We agree with the attorney that “it is not apparent if the hearing officer considered such justification or not” in that the hearing officer’s log text states that the attorney “does not indicate that he has any particular certifications” and that the attorney “does not present any information in regard to normal fees in area” which is clearly not the case in the full justification.

The attorney requested mileage expense for 150 miles in the amount of $72.75. The hearing officer reduced the claimed amount to $59.71 with the only notation being “Exceeded Guidelines.” Rule 152.4(c)(8) Guidelines for Legal Services provides for “actual costs that are reasonable and necessary” for travel. Rule 152.5(b)(1) provides that the Division shall allow expenses necessary including “(1) travel expenses at the rate set for state employees” to attend a “hearing more than 25 miles from the attorney’s office nearest to the location of the . . . hearing.” The requested attorney fees were for legal services from November 3 to November 22, 2005. Travel reimbursement for mileage for the period of October 1 to December 31, 2005, was 48.5 cents per mile. Calculating the claimed 150 miles times 48.5 cents is $72.75, the amount claimed by the attorney. We hold the hearing officer abused his discretion in improperly reducing claimed $72.75 mileage reimbursement request to $59.71 on the basis that it “Exceeded Guidelines.” We reverse the portion of the Order on the mileage reimbursement and enter a new Order that the attorney is entitled to the requested $72.75 mileage travel expense.

We reverse the Order and remand the attorney’s fees matter to the hearing officer for the hearing officer to consider the attorney’s full justification text and the factors set forth in Section 408.221(d) in determining whether the $200.00 hourly rate should be approved.

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 APD 92642, decided January 20, 1993.

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

CT CORPORATION SYSTEMS
350 NORTH ST. PAUL, SUITE 2900
DALLAS, TEXAS 75201.

Thomas A. Knapp
Appeals Judge

CONCUR:

Veronica L. Ruberto
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, 2006. The hearing officer resolved the disputed issue by deciding that the appellant (attorney) is entitled to $4,685.00 in additional fees for sequence 14 and ordered respondent 1 (carrier) to pay attorney the total of requested fees of $7,460.00 after deducting the sum of $2,775.00 which the carrier paid pursuant to the Commission Order for Attorney’s Fees (Order) dated November 4, 2005. The hearing officer found that the Order is superceded by the determination of the CCH. The attorney appealed, arguing that there is no evidence which supported the hearing officer’s conclusion that the carrier had previously paid $2,775.00. The appeal file does not contain a response from either respondent 2 (claimant) or the carrier.

DECISION

Reversed and rendered.

On July 12, 2005, a CCH was held to determine the claimant’s entitlement to supplemental income benefits (SIBs) for the fourth and fifth quarters. The hearing officer at that CCH determined that the claimant was entitled to SIBs for the fourth and fifth quarters. The carrier appealed that determination but the hearing officer’s decision became final. The attorney requested 37.30 hours for work performed at a rate of $200.00/hour. In the Order 18.50 hours were approved at a rate of $150.00/hour. All of the requested travel time was denied stating “Ex Guideline/Unreasonabl.” The attorney noted in his justification for the requested fees that the fee guidelines listed in 28 TEX. ADMIN. CODE § 152.4 (Rule 152.4) do not apply to SIBs cases. The attorney requested a benefit review conference (BRC) and a CCH regarding the disputed attorney’s fees was held on January 5, 2006. At the CCH, the attorney represented that the travel time requested was the actual travel time taken for representation of the claimant at both the BRC and the CCH. Further, the attorney presented evidence regarding the reasonableness of his hourly requested rate of $200.00/hour. The hearing officer found that a reasonable hourly rate for attorney fees in this case is $200.00/hour and that under sequence 14, the attorney “reasonably utilized 37.3 hours of attorney work.” There is sufficient evidence in the record to support these findings. However, the hearing officer additionally found that the carrier has paid the attorney $2,775.00 under sequence 14. The hearing officer correctly noted that the attorney only requested $4,685.00. However, the record reflects that the attorney requested $4,685.00 because that was the difference between the amount requested and the amount previously approved. The attorney argues in his appeal that he never received a check from the carrier in this amount. There is no evidence in the record to support the hearing officer’s determination that the attorney has already been paid the sum of $2,775.00. We reverse that part of the hearing officer’s decision that entitled the carrier to deduct the sum of $2,775.00, which it paid pursuant to the prior superceded attorney fee order and render a new determination that the attorney is entitled to $7,460.00 for sequence 14 and that the carrier is entitled to deduct the amount previously paid to attorney for sequence 14, if any.

The true corporate name of the insurance carrier is AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA and the name and address of its registered agent for service of process is

CT CORPORATION

350 NORTH ST. PAUL

DALLAS, TEXAS 75201.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
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 19, 2006. The hearing officer resolved the disputed issue by deciding that the attorney fee award in Sequence No. 02 was not reasonable and necessary and was not earned. Attorney (appellant) appealed, arguing that the hearing officer based her decision on an issue outside the scope of the stated issue for the CCH and that the hearing officer did not have authority to act as a signature expert by striking down the validity of a duly completed power of representation. The attorney additionally argued that the hearing officer removed from the records in evidence a properly admitted evidentiary document and replaced it with a document that was not admitted into evidence. Respondent 1 (claimant) responded, urging affirmance of the hearing officer’s determination.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. See Appeals Panel Decision (APD) 91017, decided September 25, 1991. The hearing officer’s decision and order reflects that the CCH on the contested issue of attorney’s fees was held by telephone. In her response, the claimant discusses testimony given at the CCH. However, no audio cassette recording, audio compact disc recording, or transcript was included in the appeals record. Consequently, we reverse and remand this case for reconstruction of the record. See APD 960968, decided July 3, 1996.

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 Texas Workers' Compensation Commission Appeal No. 92642, decided January 20, 1993.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
Appeals Judge

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