Workers' compensation-attorney fees.

WORKING DRAFT
2012
STATE OF
WYOMING
12LSO-0340

HOUSE BILL
NO.
HB0110

Workers' compensation-attorney fees.

Sponsored by:
Representative(s) Jaggi, Harvey and Senator(s) Dockstader

A BILL

for

AN ACT relating to
workers’ compensation; amending the jurisdictional limit for small claims proceedings; limiting awards of attorneys’ fees for hearings and appeals as specified;
and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.

W.S. 27
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602(b)(i)
and
(d), 27
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614 and 27
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615 are amended to read:

27
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602.

Contested cases generally.

(b)

Upon receipt of a request for hearing from the division as provided in W.S. 27
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601(k)(v), the case shall be determined by a hearing examiner in accordance with the law in effect at the time of the injury as a small
claims hearing or as a contested case hearing subject to the following:

(i)

A request for hearing shall be conducted as a small claims hearing if the amount at issue is less than
two thousand dollars ($2,000.00)

five thousand dollars ($5,000.00)
, is not an issue of the compensability of the injury pursuant to W.S. 27
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601(a) and the division requests the hearing be held as a small claims hearing. The division shall provide notice that it seeks a small claims hearing under this paragraph in the notice of request for hearing filed pursuant to W.S. 27
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601(k)(v). If the division provides such notice, the hearing shall be a small claims hearing unless a party to the hearing objects within fifteen (15) days from the date of the notice of request, in which case the hearing officer shall review the file and determine if a small claims hearing is appropriate or if a contested case hearing is necessary or appropriate. Each party to the hearing may within thirty (30) days from the date of notice of request, submit to the hearing examiner any written evidence and argument on the issue. The hearing officer may require either party to provide such documents, filings and evidence as the hearing officer deems relevant to the issue. Copies of the material submitted to the
hearing examiner shall be mailed or delivered to all opposing parties. In addition, each party may submit rebuttal evidence and argument to the hearing examiner within forty-five (45) days following the date of notice of request for hearing. Upon request of any party to the hearing and at the discretion of the hearing officer, any proceeding under this paragraph may be conducted in person or by telephone. The hearing examiner shall review the case and written submissions and render a written decision not more than seventy-five (75) days following referral of the request for hearing. No attorney fees or other costs shall be allowed by the hearing examiner on behalf of or for any party to a hearing under this paragraph. In addition, the attorney general's office shall not represent or directly assist the division in the preparation for a hearing under this paragraph;

(d)

Upon request, the hearing examiner may appoint an attorney to represent the employee or claimants and may allow the appointed attorney a reasonable fee for his services at the conclusion of the proceeding. An appointed attorney shall be paid according to the order of the hearing examiner either from the worker's compensation
account

fund
, from amounts awarded to the employee or
claimants or from the employer. In any contested case where the issue is the compensability of an injury, a prevailing employer's attorney fees shall also be paid according to the order of the hearing examiner from the worker's compensation account, not to affect the employer's experience rating. An award of attorney's fees shall be for a reasonable number of hours and shall not exceed the benefits at issue in the contested case hearing. In all other cases if the employer or division prevails, the attorney's fees allowed an employee's attorney shall not affect the employer's experience rating. Attorney fees allowed shall be at an hourly rate established by the director of the office of administrative hearings and any application for attorney's fees shall be supported by a verified itemization of all services provided. No fee shall be awarded in any case in which the hearing examiner determines the claim or objection to be frivolous and without legal or factual justification. If the division or a hearing examiner determines that an injured worker's failure to meet any procedural deadline in this act is through the fault of the worker's attorney, the division shall reconsider its determination or a hearing examiner shall order the contested case returned to the division for
redetermination of the contested issues as provided in W.S. 27
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601(k).

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614.

Direct appeal by director from any order; stay of execution; costs.

The director may appeal to the district court from any order or judgment of the hearing examiner awarding compensation or declining to award compensation although he was not a party to the proceedings before the hearing examiner, without the necessity of presenting any petition for reopening of a case to the hearing examiner. After the appeal is perfected, the hearing examiner may stay the execution of the order or judgment appealed from without requiring any bond. The attorney general or his assistant shall represent the director in all cases. All the costs of the new hearings granted upon petition of the director and all costs of appeals conducted by the director shall be paid by the worker's compensation
account

fund
except such costs as the court in its discretion shall assess against any of the other parties to the cause.

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615.

Appointment of attorneys for court proceedings; fees.

(a)

The district court may appoint an attorney to represent the employee during proceedings in the district court and appeal to the supreme court. The district court may allow the attorney a reasonable fee for his services at the conclusion of the proceedings in district court and the supreme court may allow for reasonable fees for services at the conclusion of the proceedings in the supreme court. In any appeal where the issue is the compensability of an injury, a prevailing employer's attorney fees shall also be paid according to the order of the district court or supreme court from the worker's compensation account, not to affect the employer's experience rating. An award of attorney's fees shall be for a reasonable number of hours and shall not exceed the benefits at issue in the appeal. In all other cases, if the employer or division prevails in the district court or supreme court, as the case may be, the fees allowed an employee's attorney shall not affect the employer's experience rating.
No fee shall be awarded to the attorney for an employee or claimant pursuant to this section unless:

(i)

The employee or claimant prevailed in the proceeding. For purposes of this paragraph, an employee or
claimant has prevailed if any part of the decision appealed from was reversed and the division was ordered as a result of the reversal to pay any monetary benefit in excess of the amount ordered in the decision appealed from; or

(ii)

The proceeding was initiated by a party other than the employee or claimant.

Section 2.

This act is effective July 1, 2012.

(END)

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HB0110