WV’s law limits attorney fees to ‘20 percent of the benefits to be paid during a period
of 208 weeks’ for each award. Although this is the maximum fee amount allowed under
WV law, not every attorney will charge the maximum. Do not make assumptions about the fee amount charged; it must be verified. WV attorneys generally provide detailed information regarding
their fee calculations, and are also an excellent source of information regarding
other excludable expenses.
The actual method used to calculate the fee charged varies from attorney to attorney.
Some base their fee on 48 months or 4 years instead of 208 weeks (WV allows this).
Some base their fee on 20 percent of the gross WC awarded and some on the net (after
deducting a prior amount of WC paid for the same period of time). Both are allowable.
Note that if the fee was 20 percent of a PP award and 20 percent of the gross PT award
that superseded it, the total fee would exceed 20 percent for some months. The total
fee would be coded in WC/PDB ICF as a dollar amount, not a percentage.
If PP was awarded on a claim for 200 weeks and then a second award was made for another
60 weeks (even if on the same claim) the attorney could charge a fee equal to 20%
of both awards, as neither exceeded 208 weeks.
Some attorneys calculate their fee on the highest WC rate paid, even though the rate
changed over the 208 week period the fee was deducted from (this is also allowed).
Be careful to use the dollar amount of the attorney fee in these cases, as the fee
was not always 20 percent of the WC rate paid.
Excluding the fee:
If the attorney fee was calculated using 20 percent of the payments for a specific
period of time, then use the 20 percent fee as an excludable expense for that period.
On PT awards the attorney will usually take 20 percent of the first retroactive payment
(which covers 12 to 15 months), 20 percent of the next few subsequent regular monthly
payments (usually 2 or 3 months), and then 20 percent of the second retroactive payment
(that pays the balance of the retroactive WC due and is issued after the 2 or 3 month
period). If the period covered by those payments is not at least 208 weeks, attorney
fee withholding should extend into future monthly payments. However, sometimes the
full balance of the attorney fee is, with the worker’s consent, withheld from the
second retroactive payment. We cannot attribute a 208 week fee to a smaller time period
or extend an attorney fee deduction period into future months when the full fee has
already been recovered. If a 208 week fee was withheld from less than 208 weeks of
WC, we must deduct the attorney fee from the WC effective with the first month for
which offset is imposed, along with any other excludable expenses.