When I interview workers’ compensation clients at HammondTownsend, the discussion always finds its way to fees, specifically how much do we charge and when does the client have to pay. Since our fee arrangements are essentially the same as our colleagues and competitors, I took a closer look at fees in the workers’ comp setting.
I start with the statute that gives the Virginia Workers Compensation Commission (VWCC or the Commission) jurisdiction over attorneys’ fees in these cases. Virginia Code section 65.2-714(A) provides “Fees of attorneys … whether employed by employer, employee, or insurance carrier … shall be subject to the approval and award of the Commission.” The statute gives the Commission “exclusive jurisdiction over all disputes concerning such fees.” The Commission even has the authority to “order repayment of the amount of any fee which has already been paid that it determines to be excessive.”
In determining proper fees, the VWCC does not use a fee schedule. Rather it considers these factors: the time spent by the attorney, the necessity of an appearance at a hearing or deposition, the attorney’s ability and skill as reflected by the results of that effort, and the actual benefits which inured to the party who is assessed the fee.
64 O.I.C. 224 (1985). These factors are especially in play when the Commission awards the claimant’s attorney a fee for successfully representing a claimant at a hearing which results in the claimant getting or retaining benefits which the employer challenges.
While these factors are still considered in cases where the claimant is successful in making his/her claim for permanent partial disability or reaches a compromise settlement, the VWCC has established guidelines for awarding fees in those situations. In PPD cases, the guideline is 15% of the award,
68 O.I.C. 245 (1989).
So, in the three types of cases in which the Commission is likely to award a claimant’s attorney a fee, the VWCC has existing guidelines for the amount of the award. For a favorable result at a hearing, the Commission will apply the factors in the case, set out above. For permanent partial disability awards, the guideline is 15% of the award. In compromise settlements, the guideline is 20% of the settlement. In all cases, the Commission has discretion to vary from the guidelines to fit the circumstances of the case at hand.