Attorney Fee Hearings in Workers’ Compensation

Bruce Burk

Tampa, FL ( – The objective in any workers’ compensation claim is to lower exposure and not have to pay attorney’s fees and costs. However, claimants will sometimes prevail in final hearings and attorney’s fees and costs may be owed. When that happens, it is important to understand how to handle an attorney fee hearing in workers’ compensation.

Attorney fee and costs claims come in two stages. Firs is entitlement and second is the amount. Parties have the option of bifurcating these issues and asking the court to handle them in separate proceedings.

Establishing entitlement relates to whether attorney’s fees are owed. The standard for this differs from state to state. Typically it relates to whether the claimant’s attorney obtained a benefit that was being previously provided. This can be proven at hearing through the use of medical benefits or a payment ledger.

Once you get past the entitlement stage, a decision has to be made whether to litigate the claimant’s attorney’s hours and costs. During this stage, settlement demands or offers can be exchanged to see if the issue can be resolved without a hearing.

An attorney fee hearing is essentially a trial. Both sides submit evidence and call witnesses. If both sides agree, each attorney can be their own expert witness with respect to attorney fees and costs. If this happens, the attorney acts as both expert and attorney, simultaneously testifying and objecting to questions on cross-examination.

As an attorney fee expert, one should testify to factors that include: 1) the rate typically charged in the jurisdiction, 2) the level of difficulty in the case, 3) the certainty of a fee, 4) whether it was an urgent matter, and 5) the experience level of the claimant’s attorney.

Going through the claimant’s attorney’s hours can be a painstaking process. Depending on how long the litigation lasted, you could be looking at everything they did in the case for a year or more. However, there are several categories of time that can be excluded from an attorney fee award that you should know.

The first is secretarial time. Time reflecting actions such as calls made to schedule depositions, sending letters, notifying the claimant of a mediation, or typing a letter can be categorized as secretarial time and can be removed from an attorney fee award.

Next is non-relevant time. This is time that is spent doing things there not relevant to the benefit obtained. For example, if a claimant is awarded a medical benefit at final hearing but the time records are requesting an award of attorney time for reviewing payroll records, this would be more relevant for an indemnity claim but not for a medical one.

Next is hand holding time. Some states exclude hand holding or time spent speaking to the claimant to simply make them aware of events and talk about the case. An example of this could be a phone call with the claimant to discuss medical records that were obtained.

Another is excessive time. This includes entries for time where it appears that the time is excessive for the action which was done. For example a .8 entry for the preparation of a boilerplate request for production could be considered excessive.

Litigating an attorney fee claim also costs money, so a cost-benefit analysis should always be done prior to making the decision to proceed with one.

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