IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
1995 MTWCC 78A
WCC No. 9306-6809
COMPENSATION INSURANCE FUND
WILSON PLUMBING AND HEATING
ORDER GRANTING ATTORNEY FEES
On October 12, 1995, this
Court issued its ORDER AWARDING ATTORNEY FEES AND COSTS. The Court assessed
costs in the amount of $1,007.65 and directed claimant to submit a verified
statement of his claim for attorney fees. The matter of attorney fees
is now ready for decision.
Claimant seeks $22,196.50
in fees. Respondent objects to this amount because the hourly rate upon
which it is based exceeds $75 per hour. It also objects to the inclusion
of hours spent pursuing the attorney fee issue.
Respondent argues that the
Division rule fixing an hourly maximum of $75 must be applied. That
rule states in part:
ATTORNEY FEE REGULATION (1) This rule is promulgated under the authority
of sections 39-71-203 and 39-71-613, MCA, to implement regulation of
the fees charged to claimants by attorneys in workers' compensation
cases as provided in section 39-71-613, MCA.
. . .
(4) The fee
schedule set forth in subsection (3) [contingent percentage fee arrangement]
does not preclude the use of other attorney fee arrangements, such as
the use of a fee system based on time at a reasonable hourly rate not
exceeding $75.00 per hour, but the total fee charged may not
exceed the schedule set forth in subsection (3) except as provided in
subsection (7). When such fee arrangement is utilized, the contract
of employment shall specifically set forth the fee arrangement, such
as the amount charged per hour. [Emphasis added.]
. . .
The rule became effective
on November 11, 1988, and implemented the second sentence of 39-71-614(2),
MCA (1987), which provides:
(2) The judge
shall determine a reasonable attorney fee and assess costs. The hourly
rate applied to the time spent must be based on the attorney's customary
and current hourly rate for legal work performed in this state, subject
to a maximum established by the division. [Emphasis added.]
It has long been the rule
that the law in effect on the date of a worker's injury governs the
worker's entitlement to compensation. In Kraft v. Flathead Valley
Lab. and Cont'rs., 243 Mont. 363, 366, 792 P.2d 1094, 1096 (1990),
the Supreme Court considered the date on which a claim for carpal tunnel
syndrome arose and determined that the law in effect "during the period"
of time the condition arose should be applied. Kraft involved
an old law, micro trauma claim made under the Workers' Compensation
Act; however, the same test should apply in occupational disease cases,
at least where the condition surfaces at a definite time, as it did
in this case.
The claimant was diagnosed
with bilateral carpal tunnel syndrome in February 1988. On February
10, 1988 and on March 2, 1988, he underwent carpal tunnel release surgeries.
Claimant filed his Claim for Compensation on November 14, 1988. The
State Fund accepted liability and paid the medical expenses for claimant's
surgeries. (Caekaert v. State Compensation Insurance Fund,
268 Mont. 105, 110, 885 P.2d 495, 498 (1994).) Thus, claimant's disease
manifested itself in early 1988, prior to the Department's adoption
of the $75 maximum hourly rate for attorney fees. Since the rule was
adopted after the claim arose, it is inapplicable. Claimant is entitled
to attorney fees at his usual and customary rate.
The second issue is whether
claimant is entitled to attorney fees for those hours spent litigating
his entitlement to attorney fees. Respondent suggests that Ingebretson
v. Louisiana-Pacific Corporation, WCC No. 9403-7030, Order Granting
Attorney Fees and Costs, decided November 6, 1995, precludes an award
of attorney fees with respect to time spent after remand on the attorney
fee issue. Ingebretson, however, held only that attorney fees
are not recoverable for time spent establishing the amount of
the fees due. Attorney fees for time spent establishing the right to
attorney fees were allowed. The fact that the entitlement was established
prior to the appeal in that case, whereas it has been established post-appeal
in this case, is immaterial. Claimant has deleted those hours spent
to establish the amount due; thus, the remaining hours are compensable.
ORDER AND JUDGMENT AFTER
IT IS HEREBY ORDERED that
the State Compensation Insurance Fund shall pay $22,196.50 in attorney
fees, along with an additional $1,007.65 in costs. This Order and Judgment
DATED in Helena, Montana,
this 16th day of May, 1996.
c: Mr. Patrick G. Frank
Mr. William J. Mattix
Submitted: December 29, 1995