Re: Petition for Attorney Fees and Costs Sandra Cassella v. Mylan Pharmaceuticals , 234 W. Va. 485 ( 2014 )


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  •            IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
    September 2014 Term
    _______________                       FILED
    November 18, 2014
    released at 3:00 p.m.
    No. 11-1503                   RORY L. PERRY II, CLERK
    SUPREME COURT OF APPEALS
    _______________                    OF WEST VIRGINIA
    RE: PETITION FOR ATTORNEY FEES AND COSTS
    SANDRA CASSELLA,
    Claimant Below, Petitioner
    v.
    MYLAN PHARMACEUTICALS, INC.,
    Employer Below, Respondent
    ____________________________________________________________
    PETITION FOR ATTORNEY FEES AND COSTS GRANTED; AND
    REMANDED TO THE WORKERS’ COMPENSATION OFFICE OF JUDGES FOR
    DETERMINATION OF REASONABLE ATTORNEY FEES AND COSTS
    ____________________________________________________________
    Submitted: September 10, 2014
    Filed: November 18, 2014
    Mikel R. Kinser, Esq.                            H. Dill Battle III, Esq.
    Rollins Law Office                               Spilman Thomas & Battle, PLLC
    Fort Myers, Florida                              Charleston, West Virginia
    Attorney for the Petitioner                      Attorney for the Respondent
    JUSTICE BENJAMIN delivered the Opinion of the Court.
    JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
    SYLLABUS BY THE COURT
    1.     “Where the issue on 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).
    2.     “The presumption is that a statute is intended to operate
    prospectively, and not retrospectively, unless it appears, by clear, strong and imperative
    words or by necessary implication, that the Legislature intended to give the statute
    retroactive force and effect.” Syl. pt. 4, Taylor v. State Comp. Comm’r, 
    140 W. Va. 572
    ,
    
    86 S.E.2d 114
     (1955).
    3.     “A law is not retroactive merely because part of the factual situation
    to which it is applied occurred prior to its enactment; only when it operates upon
    transactions which have been completed or upon rights which have been acquired or
    upon obligations which have existed prior to its passage can it be considered to be
    retroactive in application.” Syl. pt. 3, Sizemore v. State Workmen’s Comp. Comm’r, 
    159 W. Va. 100
    , 
    219 S.E.2d 912
     (1975).
    4.     West Virginia Code § 23-5-16(c) (2013) applies prospectively to a
    final order that successfully resolves the denial of medical benefits in favor of a claimant
    where the order is entered after the effective date of the statute, July 12, 2013.
    i
    5.     When a petition for attorney fees and costs is received by this Court
    as the result of an administrative appeal, this Court has the authority to set the appropriate
    amount of attorney fees and costs or the Court may, in its discretion, instead remand to
    the proper administrative body to determine the appropriate award of attorney fees and
    costs.
    ii
    Benjamin, Justice:
    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
    1
    The petitioner’s claim was held compensable for sacroiliac sprain.
    1
    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, 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
    2
    The petitioner’s Petition For Award Of Claimant’s Attorney Fees and Costs
    represents that her attorney worked a total of eleven hours on the research and
    preparation of the petition and appendix in her appeal of the Board of Review’s denial of
    medical benefits. Regarding costs, the petition lists a total of $47.55 for appendix labels
    and postage for the petition to this Court.
    3
    Both parties waived oral argument and the matter was submitted on briefs.
    2
    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
    3
    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.
    At the outset of our discussion of this statute, we note that 
    W. Va. Code § 23-5-16
    (c) was enacted with the recommendation of West Virginia’s Access to Justice
    4
    Commission.4 The purpose of the statute is to provide a financial incentive for lawyers to
    represent workers’ compensation claimants seeking medical benefits. Prior to the
    enactment of the statute, claimants often had difficulty retaining legal counsel in these
    types of cases because claimants could not afford the hourly rates charged by counsel and
    because there was no award basis by which counsel could be retained with a contingency
    relationship.
    Does 
    W. Va. Code § 23-5-16
    (c) apply retroactively?
    The issue as framed by the parties is whether 
    W. Va. Code § 23-5-16
    (c)
    applies retroactively. Simply put, 
    W. Va. Code § 23-5-16
    (c) does not apply retroactively.
    This Court has held that “[t]he presumption is that a statute is intended to operate
    prospectively, and not retrospectively, unless it appears, by clear, strong and imperative
    words or by necessary implication, that the Legislature intended to give the statute
    retroactive force and effect.” Syl. pt. 4, Taylor v. State Comp. Comm’r, 
    140 W. Va. 572
    ,
    
    86 S.E.2d 114
     (1955). Nowhere in the statute at issue are there clear, strong, and
    imperative words indicating that the statute applies retroactively, nor does such appear by
    necessary implication.
    This, however, does not resolve the issue. The petitioner argues that it is not
    necessary to apply the statute retroactively in order to grant her petition for attorney fees
    4
    The Access to Justice Commission was created by this Court in 2009 to assess
    the needs of citizens of the State in accessing the civil justice system in a meaningful
    manner.
    5
    and costs. According to the petitioner, her right to attorney fees and costs did not vest
    until this Court’s decision became final and successfully resolved the denial of medical
    benefits in her favor. This occurred on the Court’s issuance of the mandate on November
    25, 2013. The petitioner concludes that because 
    W. Va. Code § 23-5-16
    (c) became
    effective on July 12, 2013, its application to the successful resolution of the denial of
    medical benefits in her favor several months later is not retroactive.
    The respondent counters that because the effective date of 
    W. Va. Code § 23-5-16
    (c) was July 12, 2013, and because the petitioner’s request for medical benefits
    was denied by the claims administrator on June 25, 2010, any application of 
    W. Va. Code § 23-5-16
    (c) to the petitioner’s request for attorney fees and costs would necessarily be
    retroactive in nature. For support, the respondent cites this Court’s opinion in Wampler
    Foods v. Workers’ Comp. Div., 
    216 W. Va. 129
    , 
    602 S.E.2d 805
     (2004), in which we
    explained that an “award” is any action taken on an issue and the law in effect on the date
    of the “award” controls the adjudication of the particular issue within the claim, not the
    law in effect on the date of the injury.
    After considering the parties’ arguments, this Court finds that application of
    
    W. Va. Code § 23-5-16
    (c) to the petitioner’s request for attorney fees and costs is not a
    retroactive application of the statute. Significantly, the specific language of 
    W. Va. Code § 23-5-16
    (c) does not refer to the date on which a claimant’s claim for medical benefits
    was first acted upon as being the operative time at which a fee petition will be
    6
    considered. Therefore, this Court’s opinion in Wampler is not instructive on this issue.
    Instead, the statute, in its express language, becomes applicable when “a claimant
    successfully prevails in a proceeding relating to a denial of medical benefits.” 
    W. Va. Code § 23-5-16
    (c)(1) (Emphasis added.). The statute further indicates that
    [f]ollowing 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.
    
    Id.
     It is clear from this statutory language that the statute at issue becomes operative when
    there is a final order successfully resolving the denial of medical benefits in favor of the
    claimant, not when the initial claims decision is made.
    The final order successfully resolving the denial of medical benefits in
    favor of the petitioner was on November 25, 2013, the date on which the mandate was
    issued on the memorandum decision which ordered the reinstatement of the petitioner’s
    medical benefits. Under our law,
    [a] law is not retroactive merely because part of the
    factual situation to which it is applied occurred prior to its
    enactment; only when it operates upon transactions which
    have been completed or upon rights which have been
    acquired or upon obligations which have existed prior to its
    passage can it be considered to be retroactive in application.
    Syl. pt. 3, Sizemore v. State Workmen’s Comp. Comm’r, 
    159 W. Va. 100
    , 
    219 S.E.2d 912
    (1975). The fact that a claimant filed her original claim for medical benefits and it was
    first acted upon prior to the effective date of 
    W. Va. Code § 23-5-16
    (c) does not make the
    7
    application of the statute to the petitioner’s case retroactive. By the statute’s language, the
    initial action made on a claim for medical benefits is not the event that triggers the
    operation of the statute. Instead, a final order resolving a denial of medical benefits in the
    claimant’s favor is the triggering event for the purpose of 
    W. Va. Code § 23-5-16
    (c).
    Significantly, it is only when a final order is entered that the claimant acquires the right to
    attorney fees and costs, and it is only then that the private carrier or self-insured employer
    may become obligated to pay to the claimant attorney fees and costs. If this triggering
    event occurs after the effective date of 
    W. Va. Code § 23-5-16
    (c), the operation of the
    statute on that event is not retroactive. Therefore, we now hold that 
    W. Va. Code § 23-5
    ­
    16(c) (2013) applies prospectively to a final order that successfully resolves the denial of
    medical benefits in favor of a claimant and which is entered after the effective date of the
    statute, July 12, 2013.
    In the instant case, the final order resolving the denial of medical benefits in
    the petitioner’s favor was entered on November 25, 2013, which is after the effective date
    of 
    W. Va. Code § 23-5-16
    (c). As a result, the application of 
    W. Va. Code § 23-5-16
    (c) to
    the final order in this case is prospective so that the petitioner may seek and collect
    attorney fees and costs from the respondent pursuant to 
    W. Va. Code § 23-5-16
    (c).
    This Court has decided that the petitioner is entitled to attorney fees and
    costs pursuant to 
    W. Va. Code § 23-5-16
    (c) (2013), for prevailing on her request for
    medical benefits in this Court’s October 24, 2013, memorandum decision. With regard to
    8
    the determination of appropriate attorney fees and costs, generally, where attorney fees
    and/or costs are awarded by the Supreme Court pursuant to Rule 24 of the West Virginia
    Rules of Appellate Procedure, the Court has the authority to set the amount of the award
    or the Court may, in its discretion, instead direct the trial court to determine the amount
    of the appropriate attorney fee on remand. Similarly, when a petition for attorney fees
    and costs is received by this Court as the result of an administrative appeal, this Court has
    the authority to set the appropriate amount of attorney fees and costs or the Court may, in
    its discretion, instead remand to the proper administrative body to determine the
    appropriate award of attorney fees and costs. In the instant case, because an evidentiary
    hearing may be necessary to determine the amount of reasonable attorney fees and costs
    according to the guidelines set forth in this opinion, we deem it best to remand this case
    to the Office of Judges for the determination of reasonable attorney fees and costs.5
    IV. CONCLUSION
    For the reasons set forth above, the petition for attorney fees and costs in
    this case is granted, and this case is remanded to the Workers’ Compensation Office of
    Judges for a determination of reasonable attorney fees and costs.
    Petition granted and case remanded.
    5
    This Court requested that the parties address several other issues in their
    supplemental briefs. After further considering the matter, we find that it is not necessary
    to address these issues in order to resolve this case.
    9