Attorney Fee Proposals

Anderson, Kevin_webThe Workers’ Compensation Board is moving forward with several changes in attorney fee rules. Formal rules will be drafted and reviewed at a public hearing this fall. The board welcomes any input, comments, or concerns with these rules. These rules will not be effective until after the public hearing.

  • If an ALJ awards additional PPD, claimant’s attorney is entitled to a fee up to 25% of the increased compensation, but no more than $4,600. The board is proposing to remove the cap and award a “reasonable attorney fee.” See OAR 438-015-0040(1).
  • If the board, on review, awards additional PPD, claimant’s attorney is entitled to a fee up to 25% of the increased compensation, but no more than $6,000. The board is proposing to remove the cap and award a “reasonable attorney fee.” See OAR 438-015-0055(2).
  • If an ALJ awards additional PTD, claimant’s attorney is entitled to a fee up to 25% of the increased compensation, but no more than $12,500. The board is proposing increasing the cap to $20,000. See OAR 438-015-0040(2).
  • If the board, on review, awards additional PTD, claimant’s attorney is entitled to a fee up to 25% of the increased compensation, but no more than $16,300. The board is proposing to increase the cap to $30,000. See OAR 438-015-0055(3).
  • Claimant’s attorneys are entitled to 25% of the first $17,500 in a Claim Disposition Agreement (CDA) and in a Disputed Claim Settlement (DCS). The attorney is then entitled to 10% of any amounts over $17,500. The board is proposing to increase the $17,500 threshold to $50,000. See OAR 438-015-0050; OAR 438-015-0052.
  • If a claimant’s attorney is instrumental in obtaining additional temporary disability benefits, the attorney is entitled to a fee of up to 25% of the increased compensation, but no more than $1,500. The board is proposing to remove the cap and award a “reasonable attorney fee.” See OAR 438-015-0080. This change would apply to Own Motion cases as well. See OAR 438-015-0080(2).
  • When an assessed fee (not an out of compensation fee) is awarded, the ALJ or board must consider the “time devoted to the case.” OAR 438-015-0010(4)(a). This is currently limited to the attorney’s time and does not include paralegal or clerical work. The board is proposing a change to consider “time devoted to the case for legal services” which is intended to capture paralegal, but not clerical work.
  • Also when an assessed fee is awarded, the ALJ or board must consider “the risk in a particular case that an attorney’s efforts may go uncompensated.” OAR 438-015-0010(4)(g). The board is proposing a change to include “the contingent nature of the practice.” The current rule is limited to the facts of the case before the ALJ; the proposal will allow consideration of factors outside the case before the ALJ.
  • Attorney fees awarded in a litigation order are due within 30 days of when the order becomes final. The board is proposing to limit this to 14 days from when the order becomes final. See OAR 438-015-0082(2). This change would align the attorney fee payment with back owed time loss, medical benefits, and permanent impairment awarded by litigation order.
  • The board is not proposing any changes to attorney fees related to responsibility cases (OAR 438-015-0055(5)), third-party cases (OAR 438-015-0095), or settlements in third-party cases (OAR 438-015-0025).

The board considered a proposal from several claimant’s attorneys to create a bifurcated system in which they would not present evidence regarding their attorney fee until after an order addressing the merits of the case is issued. The general concern is that they are not compensated for their time preparing to argue attorney fees and since fees are not awarded in every case, a lot of their time is going uncompensated.

The board is not currently moving forward with the bifurcated attorney fee proposal. There were many concerns raised regarding whether the WCB could issue an order on the merits without addressing the fee, whether bifurcating the issues could lead to conflicting legal orders, whether the board’s administrative process could handle multiple exhibit lists on the same case file, and the general need for this system.

Any comments you could provide on the financial or practical impact of these changes on claim processing would be appreciated. If any of these proposals become legally binding, we will let you know. Please contact me at kanderson@sbhlegal.com with your comments and questions.