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Utah attorneys criticize workers-comp fee rule

Injured workers seeking workers compensation benefits are often unable to find attorneys because current rules won't allow them to charge adequate fees, according to testimony heard Wednesday at the Utah Labor Commission.

The hearing was on a proposal to raise fee caps for attorneys representing injured workers in workers compensation or occupational illness claims.

But attorneys who represent injured workers told Labor Commissioner Sherrie Hayashi that the rule change was inadequate to cover the costs of lawyers who take on such cases.

"It is economically prohibitive for any attorney to represent an injured worker," said attorney Mike Martinez.

No representatives of the Workers Compensation Fund spoke at the meeting, and phone calls to the fund weren't immediately returned.

Hayashi said she would take the proposal and comments under advisement. While she acknowledged attorneys should have a right to fair compensation, she also questioned how much injured workers could afford to pay.

"One of my concerns is it's coming out of the pocket of an injured worker's already reduced wage," she said, noting that workers compensation pays only two-thirds of lost wages.

The proposal would raise the percentage of a claim attorneys could charge as fees, while at the same time raising the cap on attorneys fees from $12,250 to $15,250. If the case is appealed, the caps would rise from $17,900 to $22,000; and from $23,550 to $27,000 for Utah Supreme Court cases.

Martinez criticized the rule, current and as proposed, as creating a "one-sided relationship," in which workers, particularly low-wage Hispanic immigrant workers, "are at the complete mercy of the insurer."

The Labor Commission regulates the workers compensation system to ensure employers carry insurance and injured employees get paid.

The proposal is a compromise reached after two years of negotiations and is a step in the right direction, said Dawn Atkin, an attorney who represents injured workers and serves on the workers' compensation advisory council subcommittee that suggested the proposed rule change.

One of the problems Atkin sees is that attorneys often cannot collect fees at all on medical-only cases, in which there are no claims for disability or unpaid time off work.

"You can get paid," she said, "if you jump through a number of hoops and at no time does the insurance company say, 'We should have paid that."'

That means if, after hours of work, the insurer decides to settle, the attorney can't collect any fees, she said. And if an employee loses a week of work, an attorney can only collect fees on the lost work week, not on the medical expenses, she said.

Maria Meza, one of three of Martinez's clients who testified, said a workers compensation doctor told her she was lying about her symptoms after she was disabled by chemical exposure at her work.

"The doctor treated me very bad," she said in Spanish through an interpreter. "He said I didn't have anything."

Martinez said there would probably have been a room filled with similar complaints if there had been more notice of the meeting. It wasn't posted on the commission's Web site, although news media were notified.

Hayashi said she'd make a decision on the proposal within 30 days, and post another public meeting if she decides broader changes should be considered.