Your FREE and easy resource for all things Texas workers' compensation
Cases & Decisions
Statutes & Rules
Resources & Tools
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, 2023, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding: (1) respondent 1, (attorney) was eligible for attorney fees paid in Sequences 7, 8, and 9 in a supplemental income benefits (SIBs) dispute pursuant to Section 408.147(c) and 28 Tex. Admin. Code § 152.1(f) (Rule 152.1(f)). We note that the Conclusions of Law portion of the decision does not reflect this determination, but rather states “[the] [a]ttorney fees in Sequences 7, 8, and 9 are to be paid by the [appellant (self-insured)].” We further note the Statement of the Case portion of the decision does not specify the full citation to Section 408.147(c). The appellant (self-insured) appealed the ALJ’s determination. The appeal file does not contain a response from the attorney or respondent 2 (claimant) to the self-insured’s appeal.
Reversed and rendered.
In evidence are three Texas Department of Insurance, Division of Workers’ Compensation (Division) Orders for Attorney’s Fees (Order) approving attorney’s fees in Sequences 7, 8, and 9. The Order in Sequence 7 was issued on October 10, 2022, in the amount of $1,521.25 for services performed from May 6, 2022, through May 27, 2022. The Order in Sequence 8 was issued on October 6, 2022, in the amount of $1,502.50 for services performed from June 1, 2022, through June 24, 2022. The Order in Sequence 9 was issued on October 6, 2022, in the amount of $280.00 for services performed from July 6, 2022, through July 19, 2022. The orders were sent to the claimant and the attorney, at their correct addresses of record, and placed in the self-insured’s (city) representative’s box, on October 10, 2022, and October 6, 2022.
Prior to January 30, 2017, 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 evidence indicates otherwise, the Division will deem the received date of its written communications, including the attorney fee orders at issue, to be the first working day after the date placed in the self-insured’s (city) representative’s box.
The Orders approving the disputed attorney’s fees are dated October 10, 2022, and October 6, 2022. The ALJ failed to make any findings of fact regarding the date the self-insured received the Orders. Pursuant to Rule 102.5(d) the self-insured was deemed to have received the Orders on the first working day after the orders were placed in the self-insured’s (city) representative’s box. The evidence reflects that the Orders were placed in the self-insured’s (city) representative’s box on October 10, 2022, and October 6, 2022. The day after October 10, 2022, was Tuesday, October 11, 2022. The day after October 6, 2022, was Friday, October 7, 2022. 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 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 apply 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 self-insured requested an expedited CCH on November 10, 2022, to dispute the October 10, 2022, Order in the amount of $1,521.25, and the October 6, 2022, Orders in the amount of $1,502.50 and $280.00. The 20th day after October 11, 2022, the deemed date of receipt of the October 10, 2022, Order, was Monday, October 31, 2022. The 20th day after October 7, 2022, was Thursday, October 27, 2022. The self-insured did not timely dispute the October 10, 2022, and October 6, 2022, Orders. Accordingly, we reverse the ALJ’s determination that the attorney was eligible for attorney fees paid in Sequences 7, 8, and 9 in a SIBs dispute pursuant to Section 408.147(c) and Rule 152.1(f), and render a new decision that the October 10, 2022, and October 6, 2022, Orders were not timely disputed by the self-insured and became final.
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
(NAME)
(ADDRESS)
(CITY), TEXAS (ZIP CODE).
Carisa Space-Beam
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Margaret L. Turner
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 August 29, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ determined that for Sequence No. 3, an attorney’s fee in the amount of $487.50 is reasonable and necessary for services rendered from May 3, 2022, through May 12, 2022. Additionally, the ALJ determined that for Sequence No. 3 an attorney’s fee in the amount of $100.00 is not reasonable and necessary for services rendered from May 3, 2022, through May 12, 2022.
The appellant (claimant) appealed the ALJ’s attorney fee determination contending that she did not receive any benefit from the attorney’s services. The appeal file does not contain a response from respondent 1 (attorney) or respondent 2 (carrier).
Affirmed in part and reversed and rendered in part.
The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.—Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees, Sequence No. 3, dated June 16, 2022, approved 2.50 hours of attorney’s fees at $200.00 an hour and 1.50 hours of legal assistant’s fees at $65.00 an hour for a total attorney fee request of $597.50. We note that the fees requested were for services performed from May 3, 2022, through May 12, 2022. The standard for review in an attorney’s fee case is abuse of discretion. Appeals Panel Decision 061189, decided July 24, 2006.
The ALJ found that 2.00 hours of attorney time and 1.50 hours of legal assistant time were reasonable and necessary for the claimant’s case. He additionally found that .50 hours of attorney time for receiving and reviewing documents on May 5, 2022, was not reasonable or necessary. Those findings are supported by sufficient evidence and are affirmed. Additionally, the ALJ determined that for Sequence No. 3 an attorney’s fee in the amount of $100.00 is not reasonable and necessary for services rendered from May 3, 2022, through May 12, 2022. That determination is supported by sufficient evidence and is affirmed.
However, the ALJ then mistakenly concluded that 2.00 hours of attorney time at $200.00 an hour and 1.50 hours of legal assistant’s fees at $65.00 an hour resulted in a total attorney fee of $487.50 instead of $497.50. Therefore, we reverse the ALJ’s determination that for Sequence No. 3, an attorney’s fee in the amount of $487.50 is reasonable and necessary for services rendered from May 3, 2022, through May 12, 2022, and we render a new decision that for Sequence No. 3, an attorney’s fee in the amount of $497.50 is reasonable and necessary for services rendered from May 3, 2022, through May 12, 2022.
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
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.
Cristina Beceiro
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 January 19, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding: (1) attorney’s fees in the amount of $2,050.00 were reasonable and necessary for services rendered from June 1, 2021, through July 12, 2021; (2) the attorney’s fees should be paid pursuant to 28 Tex. Admin. Code § 152.1(f) (Rule 152.1(f)); and (3) the appellant/cross-respondent 2 (claimant) is entitled to reimbursement of travel expenses from March 9, 2021, through November 1, 2021, for treatment at the direction of (Dr. S) in the amount of $5,322.24. Appellant/cross-respondent 1 (attorney) appealed the ALJ’s determination that attorney’s fees in the amount of $2,050.00 were reasonable and necessary for services rendered from June 1, 2021, through July 12, 2021. The attorney argues, in part, that it was error for the ALJ to fail to address the issue of whether the respondent/cross-appellant (self-insured) 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 the self-insured to the attorney’s appeal. The self-insured cross-appealed, disputing the ALJ’s determinations regarding travel reimbursement and that attorney’s fees should be paid pursuant to Rule 152.1(f). The attorney responded, urging affirmance of the issues disputed by the self-insured.
Affirmed in part and reversed and rendered in part.
The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.—Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The ALJ’s determination that the claimant is entitled to reimbursement of travel expenses from March 9, 2021, through November 1, 2021, for treatment at the direction of Dr. S in the amount of $5,322.24 is supported by sufficient evidence and is affirmed.
The ALJ’s determination that the attorney’s fees should be paid pursuant to Rule 152.1(f) is supported by sufficient evidence and is affirmed. See Appeals Panel Decision (APD) 033375, decided February 19, 2004. See also APD 962504, decided January 27, 1997 (where the Appeals Panel determined that the claimant prevailed on the disputed issue of supplemental income benefits (SIBs) when the claimant received two quarters of SIBs in accordance with a benefit review conference agreement).
In evidence is an Order approving attorney’s fees in the amount of $5,187.50 for services performed from June 6, 2021, through July 12, 2021. At the CCH, the attorney argued in closing arguments that the self-insured failed to timely dispute the Order. The Order was issued on July 14, 2021, and sent to the claimant, the claimant’s attorney, and to the self-insured at their correct addresses of record. The attorney argues that the ALJ erred in failing to make findings regarding whether the self-insured timely disputed the Order. We agree. A review of the record reflects that the parties actually litigated whether the self-insured 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. APD 990533, decided April 16, 1999, APD 971769, decided October 14, 1997, and APD 180777, decided May 8, 2018.
Prior to January 30, 2017, 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 evidence indicates otherwise, the Division will 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 July 14, 2021. The ALJ failed to make any findings of fact regarding the date the self-insured received the Order. Pursuant to Rule 102.5(d) the self-insured was deemed to have received the Order five days after the date it was mailed. The evidence reflects that the Order was mailed to the self-insured’s address of record on July 14, 2021. The 5th day after July 14, 2021, was Monday, July 19, 2021, so pursuant to Rule 102.5(d) the deemed date of receipt of the Order is July 19, 2021. 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 apply 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 self-insured has not disputed the attorney’s fees awarded in the Order in the amount of $5,187.50 by requesting a CCH. The 20th day after July 19, 2021, the deemed date of receipt, was Sunday, August 8, 2021, so pursuant to Rule 102.3(a)(3) the deadline to dispute the Order was the next working day, which is Monday, August 9, 2021. Accordingly, we reverse the ALJ’s determination that attorney’s fees in the amount of $2,050.00 were reasonable and necessary for services rendered from June 1, 2021, through July 12, 2021, and render a new decision that the Order was not timely disputed by the self-insured and became final.
We affirm the ALJ’s determination that the claimant is entitled to reimbursement of travel expenses from March 9, 2021, through November 1, 2021, for treatment at the direction of Dr. S in the amount of $5,322.24.
We affirm the ALJ’s determination that the attorney’s fees should be paid pursuant to Rule 152.1(f).
We reverse the ALJ’s determination that attorney’s fees in the amount of $2,050.00 were reasonable and necessary for services rendered from June 1, 2021, through July 12, 2021, and render a new decision that the Order was not timely disputed by the self-insured and became final.
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
NAME
ADDRESS
CITY, TEXAS ZIP CODE.
Cristina Beceiro
Appeals Judge
CONCUR:
Carisa Space-Beam
Appeals Judge
Margaret L. Turner
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 (CCH) was held on July 29, 2005. The issues were whether the Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees, Sequence No. 1 dated May 24, 2005, was reasonable and necessary and whether the attorney’s fees order was timely disputed. The hearing officer determined that the appellant (attorney) is not entitled to attorney’s fees for Sequence No. 1 because there “is not a valid Contract of Employment between the parties in evidence” and that the respondent 1 (claimant) “timely disputed the [Attorney’s Fee] Order.” The hearing officer’s determination that the claimant timely disputed the Attorney’s Fees Order has not been appealed and has become final pursuant to Section 410.169.
The attorney appealed, contending that the hearing officer erred in finding no valid contract of employment, that the hearing officer cannot legally void a stipulation and that his attorney fees were reasonable, necessary and performed. The file does not contain a response from either the claimant or the respondent 2 (carrier).
DECISION
Reversed and a new decision rendered.
The parties stipulated that the claimant sustained “a work injury” on _________. Sometime in April 2005 the claimant retained the services of the attorney (because of a bad experience with an insurance company on a prior claim). The parties stipulated that “at some time” the claimant “signed a contract of employment with the law offices of [the attorney].” The hearing officer explained to the claimant what a stipulation was and the claimant agreed that she signed a contract for the attorney to be her lawyer. The attorney submitted a request for award of attorney fees for services performed between April 19 and April 26, 2005, for services including drafting letters, telephone conferences, reviewing documents, doing legal research and file set up. The attorney claimed 4.75 hours attorney time at $150.00 an hour and .50 hours legal assistant time at $50.00 an hour for a total of $737.50. The Division approved the request by “Commission Order For Attorney’s Fees” dated May 24, 2005. The claimant challenged the fees contending all the items billed had not been performed. The claimant stated that she “had no problem paying for the services of an attorney” but that the attorney had not properly kept her apprised of the status of her case. The claimant subsequently discharged the attorney on June 14, 2005.
At the CCH the attorney testified regarding the work he had done. The hearing officer in the Background Information section explained why he discounted some of the claimed fees but did comment that the claimant had mailed the attorney “a large package” of material. The hearing officer concluded that the attorney:
…did some work as evidenced by the exhibits so it is credible he received and reviewed documents on April 19, 2005, performed Legal Research and Reviewed the File, as itemized under Informal Resolution. Therefore 1.5 hours would be found reasonable and performed.
The hearing officer then focuses on one document entitled “Client Engagement of Attorney” which has marked out portions, is undated and signed only by the claimant, to conclude that there was no valid contract of employment between the parties in evidence. In evidence was a Notice of Representation or Withdrawal of Representation (TWCC-150) form which was properly signed and dated by both parties (the form was signed and dated by the attorney on April 18, 2005). The hearing officer dismisses the TWCC-150 form as not being a contract of employment between a claimant and an attorney and determines that the attorney is not entitled to any attorney fees.
The hearing officer erred for the following reasons. The issue before the hearing officer was whether the attorney fees ordered in the Division Order for Attorney’s Fees, Sequence No. 1 was reasonable and necessary. The issue was not whether there was a valid contract of employment between the claimant and the attorney. We would note that it is not uncommon in attorney fee disputes, based on a Division Order, for the actual contract of employment not to be in evidence. In this case the hearing officer exceeded the scope of the issue, which was the reasonableness and necessity of the fees ordered by the Division.
Further, the parties stipulated that the claimant signed a contract of employment with the attorney. The hearing officer commented that “[D]espite the stipulation the parties entered into at the beginning of the hearing, there is not a valid contract and that stipulation is voided.” The hearing officer at the CCH had explained in detail how a stipulation is a fact that does not need to be proven. The hearing officer does not explain how he can “void” a stipulation. Section 410.166 and 28 TEX. ADMIN. CODE § 147.4(c) (Rule 147.4(c)) provide, in part, that an oral stipulation or agreement of the parties that is preserved in the record is final and binding on the date made. Rule 147.4(c)(2) provides in part that such an agreement is binding on an unrepresented claimant through the final conclusion of all matters relating to the claim unless set aside by the Division for good cause. We note that the claimant is not contending that the contract or agreement for representation was void but only some of the fees were excessive or were for services not actually performed.
We hold that the hearing officer erred in finding that there was no valid contract of employment as ruling on a matter not at issue before him and that the attorney is not entitled to any attorney fees. The hearing officer did a credible job in determining which fees were unreasonable and which fees he “found reasonable and performed.” We hold that 1.5 hours of attorney fees at $150.00 an hour for a total $225.00 to be reasonable and necessary.
Accordingly, we reverse the hearing officer’s decision that the attorney is not entitled to attorney fees and render a new decision that 1.5 hours of attorney time at the rate of $150.00 an hour in the Division Order for Attorney’s Fees is reasonable and performed and that the attorney is entitled to $225.00 in attorney fees.
Thomas A. Knapp
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 July 8, 2003. The issue in dispute was “What is the correct amount of attorney fees for [respondent 2 (attorney)]?” The parties present at the CCH reached an agreement on this issue and the hearing officer issued a decision consistent with that agreement. The hearing officer determined that the attorney was paid twice for services listed under the Attorney Fee Processing System sequence No. 12 (Docket No. 1), and that the duplicate fees have been repaid by the attorney to respondent 1 (carrier). The appellant (claimant) appealed, arguing that he “never agreed for them to take away the amounts for the attorney’s fees.” The appeal file does not contain a response from the carrier.
DECISION
The appeal in this case was not timely filed and the decision and order of the hearing officer have become final. Section 410.169.
A request for appeal is timely if it is mailed on or before the 15th day after the appellant receives the decision and if it is received by the Texas Workers’ Compensation Commission (Commission) on or before the 20th day after the date of receipt of the decision. Section 410.202; Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(c) (Rule 143.3(c)). Records of the Commission show that the hearing officer’s decision was mailed to the parties on August 11, 2003. Under Rule 102.5(d), unless the great weight of evidence indicates otherwise, the claimant is deemed to have received the hearing officer's decision five days after it was mailed; in this case deemed receipt is August 16, 2003. The 15th day after the deemed date of receipt of August 16, 2003, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was September 9, 2003. The claimant's appeal was postmarked on October 14, 2003, and the appeal was received by the Commission on October 17, 2003. The claimant’s appeal was not timely filed with the Commission.
The decision of the hearing officer is final in the absence of a timely appeal. Section 410.169. Determining that the appeal was not timely filed, as set forth above, we have no jurisdiction to review the hearing officer’s decision.
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
MR. RUSSELL R. OLIVER, PRESIDENT
221 WEST SIXTH STREET
AUSTIN, TEXAS 78701.
Michael B. McShane
Appeals Panel
Manager-Judge
CONCUR:
Elaine M. Chaney
Appeals Judge
Chris Cowan
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 21, 2003. The hearing officer determined that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the sixth and eighth quarters. On February 7, 2003, hearing officer issued a Texas Workers' Compensation Commission (Commission) Order For Attorney’s Fees to be paid pursuant to Section 408.147(c) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 152.1(f) (Rule 152.1(f)), in which the hearing officer ordered that the claimant’s attorney be paid $2,450.00 in fees, the full amount for services performed during the period from January 10 to June 14, 2002. The appellant (carrier) appealed, and the claimant responded, urging affirmance.
DECISION
Affirmed.
We review attorney's fees cases under an abuse-of-discretion standard. Texas Workers' Compensation Commission Appeal No. 951196, decided August 28, 1995. The carrier argues that the fees ordered to be paid should be deducted from the claimant's recovery for SIBs for the disputed quarters. It argues that since the Commission initially determined that the claimant is not entitled to SIBs for the first quarter, the claimant did not "prevail" and the carrier should not have to pay the claimant’s fees pursuant to Section 408.147(c). We reject this argument. If a claimant seeks SIBs for a particular quarter and the carrier disputes the claimant’s entitlement to that quarter and the claimant prevails at a CCH, the claimant’s attorney's fees are not deducted from the claimant’s recovery. Texas Workers' Compensation Commission Appeal No. 970464, decided April 28, 1997. In those cases, the carrier is liable for payment of SIBs for that quarter and for attorney's fees necessary to dispute the denial for that quarter. See Appeal No. 970464, supra.
In Texas Workers’ Compensation Commission Appeal No. 961981, decided November 18, 1996, the Appeals Panel stated,
We believe that Section 408.147(c) is applicable whenever a carrier disputes entitlement to SIBs and the Commission (the hearing officer) determines that the employee should prevail on the entitlement to SIBs; the carrier will be liable for reasonable and necessary attorney fees for any quarter where carrier had disputed that entitlement and claimant has prevailed. We believe that to hold otherwise would negate the purpose and intent of Section 408.147(c) and encourage carriers to dispute each and every quarter of SIBs after the first quarter. We do not believe the 1989 Act or Commission Rules require such a narrow reading to limit the potential payment of reasonable and necessary attorney's fees to one, and only one quarter, that being the first quarter.
See also Texas Workers’ Compensation Commission Appeal No. 972049, decided November 20, 1997, where we stated,
Finally, the carrier argues essentially that attorney fees can never be awarded beyond a dispute over the Commission's first quarter determination. We utterly reject this argument, and believe it is expressly clear that the legislature intended, for SIBs to provide for an award of attorney fees, not payable from the SIBs benefit, for each quarter where the carrier's assessment of nonentitlement is overturned by the Commission or the courts. Texas Workers' Compensation Commission Appeal No. 950534, decided May 19, 1995.
Finding no legal error or abuse of discretion, the hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is
BEN SCHROEDER
ZURICH NORTH AMERICA
9330 LBJ FREEWAY, SUITE 1200
DALLAS, TEXAS 75243.
Michael B. McShane
Appeals Panel
Manager/Judge
CONCUR:
Judy L. S. Barnes
Appeals Judge
Edward Vilano
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 2, 2002. At issue was whether the Texas Workers’ Compensation Commission (Commission) can order the respondent (carrier) to pay attorney fees to the appellant (claimant’s attorney) in the amount of $556.79. The hearing officer determined that (1) the carrier improperly and without legal authority failed to withhold claimant’s attorney fees in the amount of $556.79 from the claimant’s “recovery”; (2) the Commission orders to pay attorney fees to the claimant’s attorney do not constitute a claim against the carrier; and (3) there being no further claimant’s “recovery” to serve as a source of payment for claimant’s attorney fees, there is no authority for the Commission to order payment of these fees from carrier assets. The claimant’s attorney appeals the determination asserting legal error. No response was filed.
DECISION
Affirmed.
The facts in this case are undisputed. The claimant received a 10% impairment rating for his compensable injury and received impairment income benefits (IIBs) payments from February 5, 2002, through September 3, 2002. On May 3, 2002, the Commission approved attorney fees under sequence numbers 3, 4, and 5, in the total amount of $1,420.00, for services provided from October 16, 2001, through March 25, 2002. The parties stipulated that the claimant’s attorney’s fees were reasonable and necessary. The total attorney fees approved would not have been paid by the time IIBs payments were completed, had 25% of each IIBs check been deducted for attorney fees. The claimant’s attorney agreed that only $728.11 was payable from the claimant’s recovery. The carrier did not deduct attorney fees from IIBs payments until August 8, 2002, when four payments were made in the total amount of $171.32. The claimant’s attorney now seeks an order that the balance of $556.79 be paid from the carrier’s own assets.
The claimant’s attorney argues that the carrier should be held liable for the unpaid attorney fees because it failed to deduct such fees from IIBs payments made between May 3, 2002, and August 8, 2002, as required by Commission rules. The claimant’s attorney cites no authority in support of his position that the carrier should be held directly liable for the claimant’s attorney fees in this instance, nor are we aware of any such authority. Indeed, the law is clear that a claimant’s attorney fees “shall be paid from the claimant’s recovery,” except in limited instances regarding supplemental income benefits and judicial review. Section 408.221(b). The 1989 Act provides no express authority for fee shifting, in this instance; nor do Commission rules, which provide that the claimant’s attorney fees “become a lien against any unpaid income benefits.” Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 152.1(c) (Rule 152.1(c)); and see Preamble at 19 TexReg 2547 (April 18, 1994). Because there is no further recovery from which payments may be withheld, the Commission has no authority to order the carrier to pay claimant’s attorney fees in the amount of $556.79.
The claimant’s attorney argues that the carrier should be held liable for his attorney fees as a matter of policy and/or equity, because to hold otherwise would allow carrier’s to neglect their legal responsibilities in similar instances without the fear of legal recourse. We note that a carrier’s willful or intentional violation of a Commission rule may give rise to administrative penalties under Section 415.002. Additionally, we view the effect of this decision as requiring claimant’s attorneys to be diligent in pursuing reasonable and necessary attorney fees. Nonetheless, in the absence of clear authority in the 1989 Act and applicable rules, we do not order the carrier to pay the claimant’s attorney fees.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is TEXAS PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION for Paula Insurance Company, an impaired carrier and the name and address of its registered agent for service of process is
MARVIN KELLY, EXECUTIVE DIRECTOR
9120 BURNET ROAD
AUSTIN, TEXAS 78758.
Edward Vilano
CONCUR:
Elaine M. Chaney
Appeals Judge
Gary L. Kilgore
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 February 20, 2002. The issue at the hearing was whether respondent 1 (claimant) was entitled to supplemental income benefits (SIBs) for the 13th quarter. The hearing officer determined that the claimant was entitled to SIBs for the 13th quarter because respondent 2 (carrier) waived the right to dispute entitlement to that quarter. On July 9, 2002, the hearing officer issued a Texas Worker’s Compensation Commission (Commission) Order for Attorney’s Fees (Order), covering services for the period from August 31, 2001, to May 22, 2002. The hearing officer approved all of the hours requested for a total approval of $3,735.00. In his appeal, the appellant (attorney) argues that the hearing officer abused her discretion by ordering the fees requested to be paid out of the claimant’s recovery. The appeal file does not contain a response from the claimant or the carrier.
Reversed and a new decision rendered that the attorney’s fees are to be paid by the carrier.
The amount of the attorney's fees awarded for the 13th SIBs quarter was not appealed. The July 9, 2002, order that the attorney's fees be paid from the claimant's benefits is reversed and a new decision is rendered that a fee of $3,735.00 is to be paid by the carrier consistent with the provisions of Section 408.147(c). In Texas Workers' Compensation Commission Appeal No. 951045, decided August 8, 1995, the Appeals Panel stated the following:
Under Section 408.147(c), a carrier is liable for reasonable and necessary attorney's fees incurred by the claimant as a result of the carrier's dispute of his or her SIBS entitlement. In addition, Section 408.147 specifically provides that those fees, unlike other attorney's fees under the 1989 Act, are not paid out of claimant's benefits. Rather, the carrier is liable for attorney's fees over and above its liability for SIBS. See also Texas Workers' Compensation Commission Appeal No. 962526, decided January 24, 1997; Texas Workers' Compensation Commission Appeal No. 960408, decided April 12, 1996; and Texas Workers' Compensation Commission Appeal No. 960228, decided March 20, 1996.
The Commission Order for Attorney’s Fees issued by the hearing officer on July 9, 2002, is reversed and a new order is rendered that the attorney’s fees are to be paid by the carrier.
The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is
GEORGE MICHAEL JONES
9330 LBJ FREEWAY, SUITE 1200
DALLAS, TEXAS 75243.
Margaret L. Turner
Appeals Judge
CONCUR:
Michael B. McShane
Appeals Judge
Philip F. O'Neill
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 April 24, 2002. Hearing officer 1 determined that the respondent (claimant) had not sustained a compensable injury on ________ and failed to give timely notice of his alleged injury to the employer and did not have good cause for failing to do so. On July 16, 2002, another hearing officer (hearing officer 2) issued “COMMISSION ORDER FOR ATTORNEY’S FEES” (order) approving all of the attorney’s fees and 5.50 hours out of 6.60 hours of requested legal assistant fees for a total of $1,437.00 out of $1,492.00 requested fees. The only items not approved as requested was 1.10 hours of legal assistant time on April 4, 2002, for “Draft Letter” and “Telephone Conference.” The written justification had two items, both dated April 4, 2002, for the draft letter “Provider” and two items, both dated April 4, 2002, for a telephone conference with “Provider.” Hearing officer 2 disapproved one of the draft letter requests and one of the telephone conference as a “Duplicate Service.”
The attorney explained in his appeal that the two communications were “required to communicate with two separate medical providers regarding Claimant’s records,” and requested additional fees in the amount of $55.00 be awarded.
Reversed and Rendered.
Although we note that the attorney certainly did not make clear in his written justification that the draft letters and telephone conferences were with two separate medical providers and hearing officer 2’s order was not incorrect based on the information that he had before him, we are satisfied that, in fact, there was communication with two different medical providers and that had hearing officer 2 had that information available, he would have approved the additional fees. We would caution attorneys in making their written justification that where it appears that duplicate services are being rendered to add sufficient justification why those services were in fact not duplicative.
Hearing officer 2’s order is reversed and we render a new decision awarding the attorney an additional 1.10 hours of legal assistant time and an additional $55.00 in attorney fees.
The true corporate name of the insurance carrier is CONTINENTAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Thomas A. Knapp
Appeals Judge
CONCUR:
Susan M. Kelley
Appeals Judge
Veronica Lopez
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, 2002. The matter under appeal involves the denial of some attorney’s fees/expenses claimed by the appellant (attorney), who represented respondent 1 (carrier). The hearing officer who approved the fee application was not the hearing officer who heard the CCH. There is no response in the file from the carrier or respondent 2 (claimant).
Reversed and rendered.
After reviewing the file, we agree that the hearing officer abused her discretion by disallowing the attorney $162.95 as an allowable expense. The Texas Workers' Compensation Commission rules allow reimbursement of travel expenses "at the rate set for state employees by the legislature in the General Appropriations Act" for travel in excess of 25 miles. Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE §152.5(b)(1) (Rule 152.5(b)(1)). The claimed expense does not appear to violate guidelines as stated by the hearing officer. Therefore, we reverse and render a decision that the amount of $162.95 for travel expenses is approved.
The true corporate name of the insurance carrier is CONTINENTAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Susan M. Kelley
Appeals Judge
CONCUR:
Judy L. S. Barnes
Appeals Judge
Michael B. McShane
Appeals Judge