West Virginia claimant attorneys can recover attorneys fees in certain instances. Pursuant to W. Va. Code § 23-2C-21(c), if the denial of compensability, initial award of temporary total disability (“TTD”) benefits, or medical authorization is determined by the Board of Review (“BOR”) to be unreasonable, then reasonable attorney fees and expenses will be paid to the claimant by the private carrier or self-insured employer, which issued the unreasonable denial. A denial is unreasonable if the issuing party is unable to demonstrate that it had evidence or a legal basis, supported by legal authority, at the time of the denial which was relevant, probative, and supportive of the denial of the award or authorization. Payment of attorney’s fees and costs awarded under this subsection will be made to the claimant at the conclusion of litigation, including all appeals, of the claimant’s protest of the denial. The attorney fees and costs awarded under this section are not capped.
However, pursuant W. Va. Code § 23-5-16(c)(1) if a claimant successfully prevails in a proceeding relating to a denial of medical benefits only, claimant’s counsel seeks reimbursement of the reasonable costs and reasonable hourly attorney’s fees of the claimant. Following the successful resolution of the denial in favor of the claimant, a fee petition can be submitted by the claimant’s attorney to the BOR, or a court, whichever enters a final decision on the issue. This is awarded by right and it does not matter if the employer had a reasonable basis for the denial. The BOR, or court, will then enter an order within 30 days awarding reasonable attorney’s fees. However, the fee cannot exceed $125.00 per hour and an award of the claimant’s attorney’s fees is limited to $500 per litigated medical issue, and cannot to exceed $2,500 in a claim. In determining the reasonableness of the attorney’s fees to be awarded, the BOR, or court, will consider the experience of the attorney, the complexity of the issue, the hours expended, and the contingent nature of the fee.
This limitation on the amount per hour and limitation per claim is something that we would love to see adopted in Pennsylvania workers’ compensation. We have seen claimants’ lawyers with little experience submit quantum meruit statements in Pennsylvania litigation with charges of over $600 per hour!