Thursday, December 22, 2016

A New Hampshire Attorney Fee

The Supreme Court of New Hampshire rendered its decision in Appeal of Katherine Streeter (New Hampshire Compensation Appeals Board) in December. The recent legislative and judicial discussions of Florida workers' compensation attorney fees have attracted significant attention. When other states address attorney fee entitlement and calculation, there is now a curiosity regarding how Florida parameters and interpretations compare.

Katherine Streeter received workers' compensation benefits following a 2013 accident. The carrier later issued a “Memo of Denial of Workers’ Compensation Benefits,” denying “ongoing disability and medical at this time as not [causally] related to employment.” She later underwent surgery and was excused from work for a period of months. 

She sought repayment for the surgery and indemnity for her absence from work. A hearing officer concluded her conditioned had worsened following the denial, and that the surgery she underwent was causally related to the work injury. The hearing officer awarded “payment of her medical treatment associated with this case, including, but not limited to, her surgery and physical therapy treatment . . . [and] indemnity benefits at the temporary total disability rate from May 20, 2014 through August 24, 2014.” Claimant's attorney was instructed to “submit for approval all fees charged for professional legal services rendered in connection with the claims. 

The attorney "was awarded 20% of the retroactive indemnity award, pursuant to New Hampshire Administrative Rules, Lab 207.01(a)(1)." This rule provides that "an attorney for a claimant who prevails at a workers’ compensation hearing before a hearing officer when the issue in dispute relates to the causal relationship of the injury to employment is entitled 'to 20% of the retroactive indemnity benefits payable out of the benefit received from the claimant.'" The fee is payable by the injured worker. And, it seems that the longer the absence, the larger the retroactive payment, the larger the probable fee.

Claimant's attorney also requested additional fees pursuant to New Hampshire Administrative Rules, Lab 207.01(a)(4). Under that rule, the prevailing attorney in certain cases (where dispute “relates to medical bills and a period of disability subsequent to the case being found compensable”) "is entitled to “20% of the retroactive benefits payable out of the benefits received from the claimant” and “[f]ees and cost paid by the carrier as a result of disputing the medical bill issue.” In this instance, both the injured worker and the carrier might each pay attorney fees. 

The hearing officer in this case denied the additional fees and limited the attorney to the 20% from the injured worker. The Workers' Compensation Board heard the claim for fees denovo (fresh, as if it had not been heard before) and likewise denied the attorney claim for "fees and costs pursuant to Rule 207.01(a)(4)," concluding that provision only applied when medical bill issues were successfully sought "subsequent to the case being found compensable." (Emphasis added). Since the bills in this instance were first "compensable" in the proceeding before the hearing officer, this section did not apply. 

Before the Supreme Court, the claimant argued that the bills in question were in a "compensable" claim because the carrier had originally accepted the work injury, and provided benefits, before denying further responsibility. Thus, she argued that Rule 207.01(a)(4) entitled the attorney to additional fees. The Supreme Court reviewed the Board decision with deference to factual conclusions, but was not bound by the Board's legal conclusions. Thus, its consideration and interpretation of the law and regulations was its own. 

The Supreme Court noted its role as "the final arbiter of the intent of the legislature," and explained its goal of ascribing "the plain and ordinary meanings to the words used,” whether in statute of administrative rules. The Court concluded that benefits were voluntarily paid following the work injury, and that thereafter further liability was denied. The Court noted that the Administrative Rules encourage payment in New Hampshire, by precluding liability for further payment from resulting from waiver or voluntary payment (“no payment of any benefits made under this chapter shall in any way prejudice the rights of an employer in any dispute regarding the question of whether or not an injury . . . arose out of and in the course of an employee’s service.”). The Court distinguished various cases that held otherwise following long periods (years) of voluntary benefit payment. 

Ultimately, the Supreme Court concluded that the injured worker's "attorney was entitled only to '20% of the retroactive indemnity benefits payable out of the benefit received.'” Essentially because the initial benefits were not "found" due, but voluntarily paid. The first time the benefits (surgery) were "found due," was before the hearing officer that awarded those benefits. 

The awarded indemnity benefits were for about 14 weeks. New Hampshire's maximum compensation rate in 2013 was $1,354.50. The 14 weeks of benefits were therefore worth a maximum of $18,963, and the resulting attorney fees were therefore a maximum of $3,792.60. It is possible that the indemnity benefits were less than the state maximum, and that therefore the fees payable by the injured worker were also less. 

The claim might have been different under Florida law. At the outset, Florida's maximum compensation rate in 2013 was significantly lower, $816.00. The same 14 weeks of benefits in Florida would have had a maximum value of $11,424.00, about 40% less than the maximum in New Hampshire. The "statutory attorney fee" on those indemnity benefits in Florida would have been about $1,892.40, about 50% of the fee awarded in New Hampshire. But, those fees would have been payable by the employer/carrier, an "addition to" the benefits to the injured worker instead of a "deduction from."  

And, it is possible that the trial judge in Florida might have concluded that the medical benefits were also procured through the efforts of counsel. Those benefits might therefore have also been included in the calculation of benefits for which an attorney fee would be due. And, that portion of fee would also have been payable by the employer/carrier under these facts. 

And, following the Florida Supreme Court's decision in Castellanos v. Next Door Company, the attorney's fee in Florida might have been determined based upon the value of those benefits procured, or might have been determined by applying a reasonable hourly rate to the hours expended in pursuit of those benefits. In effect, the fee from the employer/carrier might have been more than the benefits awarded to the injured worker. And, following the First District Court's decision in Miles v. City of Edgewater, the injured worker might have nonetheless owed additional  out-of-pocket fees, above and beyond the fees from the carrier.

It appears that the New Hampshire fee in this factual instance is likely to be less than a Florida fee would have been. Depending on the cost of the surgery, it is possible that the Florida fee would have been more even in the pre-Castellanos statutory fee analysis. 

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