Larry Horton v. Aspen Waste Sys., Inc., No. WC21-6412 (W.C.C.A, December 1, 2021).
The WCCA reversed the compensation judge’s award of attorney fees from the Employee’s benefits and noted that where substantial evidence fails to support the compensation judge’s determination that there was a genuine dispute over PPD benefits, the fees awarded must be reversed.
This case involved an Employee who was injured while training as a driver and waste handler. A fully loaded garbage truck ran over the Employee. He was diagnosed with various fractures. He also sustained a nerve injury resulting in almost total loss of use of his right, dominant arm. The employer and its insurer admitted the work injury, paid medical expenses, and commenced payment of TTD. Dr. Sipple rated overall disability at 70.5%. Eventually, the Employee retained Attorney Jeremy Lagasse. Mr. Lagasse filed a claim petition alleging the Employee’s entitlement for PPD based on the ratings provided by Dr. Sipple. The Employer and Insurer filed an answer and requested for clarification on the PPD ratings provided by Dr. Sipple.
Eventually, the insurer accepted a combined PPD rating of 66.66% but also advised that PPD was not yet payable because the Employee was still receiving TTD benefits. The Employee terminated Mr. Lagasse and he filed a Statement of Attorney Fees. The employer and insurer objected to the fee statement and the compensation judge found the claim for fees to be premature and dismissed the claim.
The Employee continued to receive TTD benefits until he had received 130 weeks. The insurer then began payment of PPD benefits. Then Mr. Lagasse filed another Statement of Attorney Fees. The Employee, now represented by a new lawyer, objected to the fee statement. The compensation judge awarded Mr. Lagasse the requested fees but denied the claim for excess fees. The employee appealed to WCCA. The WCCA vacated the compensation judge’s decision.
Mr. Lagasse filed another Statement of Fees. Compensation Judge Grant Hartman awarded Mr. Lagasse his requested fees. The Employee appealed and the employer and insurer cross-appealed from the fee award. On appeal, the WCCA noted even if there is a dispute, the attorney representing an injured worker is not automatically entitled to a fee. The attorney must establish that benefits for the employee were obtained through the efforts of the attorney.
The WCCA found that there is no evidence that the insurer refused or failed to pay PPD benefits to the Employee. The Employee’s TTD benefits ended on when he had received 130 weeks. Then the insurer began payment of PPD benefits. Also, Mr. Lagasse did not obtain any PPD ratings from any of the medical providers. There were no actions by him, which resulted in the Employee being paid PPD benefits. WCCA concluded that there was no basis for an award of fees to Mr. Lagasse on the undisputed facts of this case.
Takeaway: The Employee’s attorney establish that benefits for the employee were obtained through the efforts of the attorney.