Cassella v. Mylan Pharm., Inc. (In re Petition for Attorney Fees & Costs), No. 11–1503.

• Court: Supreme Court of West Virginia
• Writing for the Court: BENJAMIN, Justice
• Citation: 234 W.Va. 485,766 S.E.2d 432
• Parties: Re: PETITION FOR ATTORNEY FEES AND COSTS. Sandra Cassella, Claimant Below, Petitioner v. Mylan Pharmaceuticals, Inc., Employer Below, Respondent.
• Decision Date: 18 November 2014
• Docket Number: No. 11–1503.

234 W.Va. 485
766 S.E.2d 432

Re: PETITION FOR ATTORNEY FEES AND COSTS.

Sandra Cassella, Claimant Below, Petitioner
v.
Mylan Pharmaceuticals, Inc., Employer Below, Respondent.

No. 11–1503.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 2014.
Decided Nov. 18, 2014.

Mikel R. Kinser, Esq., Rollins Law Office, Fort Myers, FL, for Petitioner.

H. Dill Battle III, Esq., Spilman Thomas & Battle, PLLC, Charleston, WV, for Respondent.

Opinion

BENJAMIN, Justice:

234 W.Va. 487

This case arises from a petition for an award of claimant's attorney fees and costs filed with this Court by Petitioner Sandra K. Cassella after she prevailed before this Court in a workers' compensation claim in which she sought medical benefits. For the reasons provided below, we grant the petitioner's petition, and we remand this case to the Workers' Compensation Office of Judges for a determination of reasonable fees and costs.

I. FACTS

By order dated June 25, 2010, the claims administrator denied authorization for pain clinic treatment to Petitioner Sandra K. Cassella. By order dated February 10, 2011, the Workers' Compensation Office of Judges reversed the claims administrator and found that the requested pain clinic treatment constituted reasonable medical treatment secondary to the petitioner's compensable condition.¹ The Workers' Compensation Board of Review reversed the order of the Office of Judges on October 3, 2011, and reinstated the claims administrator's decision denying pain clinic treatment. The petitioner subsequently appealed the decision of the Board of Review to this Court.

On July 12, 2013, a legislative amendment to W. Va.Code § 23–5–16 became effective. Pertinent to this case, new subsection (c) of the statute provides that the payment of attorney fees and costs for successful recovery of denied medical benefits may be charged or received by an attorney and paid by the private carrier or self-insured employer for a claimant or dependent.

By a memorandum decision filed on October 24, 2013, this Court reversed the decision of the Board of Review regarding the petitioner's request for medical benefits, and we remanded the case with direction to the Board of Review to reinstate the order of the Office of Judges. This Court's mandate issued on November 25, 2013, and the memorandum decision became final.

On December 2, 2013, the petitioner filed with this Court a Petition for Award of Claimant's Attorney Fees and Costs pursuant to W. Va.Code § 23–5–16(c).² Subsequently

234 W.Va. 488

766 S.E.2d 435

Respondent Mylan Pharmaceuticals, Inc. filed a written response in opposition to the petition which this Court refused.

By order dated June 13, 2014, this Court scheduled the matter for oral argument under Rule 20 of the Rules of Appellate Procedure.³ The Court also directed the parties to file additional briefs addressing several issues. Having carefully considered the briefs of the parties and the applicable law, this Court now will proceed to decide the issues before us.

II. STANDARD OF REVIEW

The resolution of the issues in this case requires this Court to determine the meaning or application of W. Va.Code § 23–6–16(c) (2013). Under our law, “[w]here the issue on an appeal ... is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Accordingly, this Court's standard of review in this case is de novo.

III. DISCUSSION

The sole issue in this case centers on the application of W. Va.Code § 23–5–16(c). This code section provides:

(c) Except attorney's fees and costs recoverable pursuant to subsection (c), section twenty-one [§ 22B–2C–21], article two-c of this chapter, an attorney's fee for successful recovery of denied medical benefits may be charged or received by an attorney, and paid by the private carrier or self-insured employer, for a claimant or dependent under this section. In no event may attorney's fees and costs be awarded pursuant to both this section and subsection (c), section twenty-one, article two-c of this chapter.

(1) If a claimant successfully prevails in a proceeding relating to a denial of medical benefits brought before the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, as a result of utilization review, arbitration, mediation or other proceedings, or a combination thereof, relating to denial of medical benefits before the Office of Judges, Board of Review or court, there shall additionally be charged against the private carriers or self-insured employers, whichever is applicable, the reasonable costs and reasonable hourly attorney fees of the claimant. Following the successful resolution of the denial in favor of the claimant, a fee petition shall be submitted by the claimant's attorney to the Insurance Commissioner or his or her successors, arbitrators, mediator, the Office of Judges, the Board of Review, or court, whichever enters a final decision on the issue. An attorney representing a claimant must submit a claim for attorney fees and costs within thirty days following a decision in which the claimant prevails and the order becomes final.

(2) The Insurance Commissioner or his or her successors, arbitrators, mediator, the Office of Judges, the Board of Review, or court shall enter an order within thirty days awarding reasonable attorney fees not to exceed $125 per hour and reasonable costs of the claimant to be paid by the private carriers or self-insured employers, whichever is applicable, which shall be paid as directed. In no event may an award of the claimant's attorney's fees under this subsection exceed $500 per litigated medical issue, not to exceed $2,500 in a claim.

(3) In determining the reasonableness of the attorney fees to be awarded, the Insurance Commission, arbitrator, mediator, Office of Judges, Board of Review, or court shall consider the experience of the attorney, the complexity of the issue, the hours expended, and the contingent nature of the fee.

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