Attorney Fees on OD Cases

Attorney Fees: Occupational Disease Cases

MacNeeley v. Everest National [6/12/02] 2002 MTWCC 35 Claimant suffering from an occupational disease is not entitled to attorney fees since the legislature repealed the attorney fee provision of the OD Act in 1999 and he would not qualify for fees under the Workers' Compensation Act (if applicable) since the insurer did not act unreasonably.

Polk v. Planet Ins. [8/17/01] 2001 MTWCC 44 Under section 39-72-613, MCA (1993), which provided for attorney fees in occupational disease cases in which the insurer requests a contested case hearing or appeals a Department determination of compensability to the Workers' Compensation Court, no attorney fees are allowable where the claimant made the original request for a Department hearing and the second hearing, at which claimant prevailed, was held only because the Supreme Court reversed a finding of non-compensability because of an error of law in the first proceeding.

Caekaert v. State Compensation Ins. Fund [10/12/95] 1995 MTWCC 78 Insurer acted unreasonably where medical opinion did not provide affirmative proof of an aggravation by claimant’s post-injury work, but were equivocal. Proceeding to trial without independent medical support for the insurer’s position entitled claimant to attorney fees.

Caekaert v. State Compensation Ins. Fund [10/12/95] 1995 MTWCC 78 Though the Occupational Disease Act contains no express provision for award of attorneys fees in the Workers’ Compensation Court, the attorney fee provisions of the Workers’ Compensation Act, sections 39-71-611 and -612, MCA (1987) are applicable to occupational disease cases litigated in the Workers’ Compensation Court through section 39-72-402(1), MCA (1987) and judicial decision.

Kastella v. Plum Creek Timber Company [06/30/95] 1995 MTWCC 54 Under 39-72-613(1), MCA (1987), claimant is entitled to attorneys fees and costs where he has prevailed in a hearing requested by the insurer before the Department of Labor, which he has in light of this Court’s reversal of the decision below.