By Brimer H.B. No. 1324
77R3532 KSD-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to attorney's fees paid in certain workers' compensation
1-3 cases.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 408.221, Labor Code, is amended to read as
1-6 follows:
1-7 Sec. 408.221. ATTORNEY'S FEES PAID TO CLAIMANT'S COUNSEL.
1-8 (a) An attorney's fee, including a contingency fee, for
1-9 representing a claimant before the commission or court under this
1-10 subtitle must be approved by the commission or court.
1-11 (b) Except as otherwise provided, an attorney's fee under
1-12 this section is based on the attorney's time and expenses according
1-13 to written evidence presented to the commission or court. Except as
1-14 provided by Subsection (c) or Section 408.147(c), the attorney's
1-15 fee shall be paid from the claimant's recovery.
1-16 (c) An insurance carrier that seeks judicial review under
1-17 Subchapter G, Chapter 410, of a final decision of a commission
1-18 appeals panel regarding compensability or eligibility for, or the
1-19 amount of, income or death benefits is liable for reasonable and
1-20 necessary attorney's fees incurred by the claimant as a result of
1-21 the insurance carrier's appeal if the claimant prevails in any
1-22 issue on which judicial review is sought. This subsection does not
1-23 apply to attorney's fees for which an insurance carrier may be
1-24 liable under Section 408.147. An award of attorney's fees under
2-1 this subsection is not subject to commission rules adopted under
2-2 Subsection (f).
2-3 (d) In approving an attorney's fee under this section, the
2-4 commission or court shall consider:
2-5 (1) the time and labor required;
2-6 (2) the novelty and difficulty of the questions
2-7 involved;
2-8 (3) the skill required to perform the legal services
2-9 properly;
2-10 (4) the fee customarily charged in the locality for
2-11 similar legal services;
2-12 (5) the amount involved in the controversy;
2-13 (6) the benefits to the claimant that the attorney is
2-14 responsible for securing; and
2-15 (7) the experience and ability of the attorney
2-16 performing the services.
2-17 (e) [(d)] The commission by rule or the court may provide
2-18 for the commutation of an attorney's fee, except that the
2-19 attorney's fee shall be paid in periodic payments in a claim
2-20 involving death benefits if the only dispute is as to the proper
2-21 beneficiary or beneficiaries.
2-22 (f) [(e)] The commission by rule shall provide guidelines
2-23 for maximum attorney's fees for specific services in accordance
2-24 with this section.
2-25 (g) [(f)] An attorney's fee may not be allowed in a case
2-26 involving a fatal injury or lifetime income benefit if the
2-27 insurance carrier admits liability on all issues and tenders
3-1 payment of maximum benefits in writing under this subtitle while
3-2 the claim is pending before the commission.
3-3 (h) [(g)] An attorney's fee shall be paid to the attorney by
3-4 separate draft.
3-5 (i) [(h)] Except as provided by Subsection (c) or Section
3-6 408.147(c), an attorney's fee may not exceed 25 percent of the
3-7 claimant's recovery.
3-8 SECTION 2. Section 408.147(c), Labor Code, is amended to read
3-9 as follows:
3-10 (c) If an insurance carrier disputes a commission
3-11 determination that an employee is entitled to supplemental income
3-12 benefits or the amount of supplemental income benefits due and the
3-13 employee prevails on any disputed issue, the insurance carrier is
3-14 liable for reasonable and necessary attorney's fees incurred by the
3-15 employee as a result of the insurance carrier's dispute and for
3-16 supplemental income benefits accrued but not paid and interest on
3-17 that amount, according to Section 408.064. Attorney's fees awarded
3-18 under this subsection are not subject to Sections 408.221(b), (f)
3-19 [(e)], and (i) [(h)].
3-20 SECTION 3. Section 408.222(b), Labor Code, is amended to read
3-21 as follows:
3-22 (b) In determining whether a fee is reasonable under this
3-23 section, the commission or court shall consider issues analogous to
3-24 those listed under Section 408.221(d) [408.221(c)]. The defense
3-25 counsel shall present written evidence to the commission or court
3-26 relating to:
3-27 (1) the time spent and expenses incurred in defending
4-1 the case; and
4-2 (2) other evidence considered necessary by the
4-3 commission or court in making a determination under this section.
4-4 SECTION 4. This Act takes effect September 1, 2001, and
4-5 applies only to a claim for workers' compensation benefits based on
4-6 a compensable injury that occurs on or after that date. A claim
4-7 based on a compensable injury that occurs before the effective date
4-8 of this Act is governed by the law in effect on the date the
4-9 compensable injury occurred, and the former law is continued in
4-10 effect for that purpose.