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New WV Law Regarding Payment of Attorney’s Fees in Workers’ Comp Litigation
West Virginia Update – May 30, 2013
By: Dill Battle and Karin Weingart
This past legislative session, the West Virginia Legislature passed H.B. No. 3069, which will be effective as of July 12, 2013.
Prior to the enactment of H.B. 3069, there were only two means by which a claimant’s lawyer could recover a fee. The first is under West Virginia Code §23-5-16 which essentially permits 20% of any indemnity benefits awarded or 20% of the total value of a final settlement – each with certain limitations. The second was under West Virginia Code §23-2C-21(c) which provides for an award of attorney fees for an unreasonable denial of compensability, TTD, or authorization for medical benefits. The determination is made by the Office of Judges if the responsible party cannot demonstrate that there was reasonable evidence or legal basis to support the denial at the time the decision was made.
With the enactment of H.B. No. 3069, West Virginia Code §23-5-16 has a new subsection (c) which provides for an award of attorney’s feesand costs to be paid by the private carrier or self-insured employer where a claimant successfully litigates a denial of medical benefits before an arbitrator, mediator, the Office of Judges, Board of Review or court. Within 30 days of the final decision granting the benefits, the claimant’s lawyer must file a petition for fees before the body which made the decision.
The fees must be reasonable, and there are limits to the fees that can be awarded: $125/hour, not to exceed $500 per litigated issue or $2500 per claim.
This new Code provision will not require any immediate action or change in practices by any responsible party. The potential for an award of attorney’sfees and costs may suggest that each request for medical services be reviewed more closely in order to prevent the denial of a requested service that is likely to be reversed on protest or appeal. In cases where you have a difficult time obtaining the medical records needed to evaluate any request, best practices might dictate that you consider issuing an “under investigation” letter before outright denying the request. When a provider is not cooperative in disclosing necessary information to assist an adjuster in making a decision, the regulations allow issuance of a letter advising the claimant that you have received the request from the treating physician for certain treatment, but despite numerous requests for treatment records and treatment plan, no response has been received. Ultimately any final decision denying treatment must be protestable and in compliance with the statute and regulations.