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Posted: 6:16 PM- After four years of working on two cases involving injured workers, attorney Mike Martinez has not been paid a dime.
Under Utah policy, there are limits on how much he is paid, and then he doesn't get paid until his clients' win their cases against Workers Compensation Fund (WCF). Martinez argues that it's unfair that his WCF counterparts continue to get a paycheck while the cases are being contested.
Because of that and the low fee limits that were established in 1991, Martinez and other lawyers say it's difficult for injured workers to get anyone to represent them.
"Attorneys can't afford to work for free," Martinez told a group of some 30 people during a Utah Labor Commission meeting on Wednesday.
Most of those in attendance, including lawyers and workers, were there to discuss proposed changes to the state's rule on attorney fee limits in injured worker cases.
Some of those attending complained that the meeting was not publicly noticed, and could not find information about it or the rule changes on the commission's Web site.
Robyn Barkdull, the commission's spokeswoman, recognized it was an error that the meeting was not posted on the site, saying the site is being revised. She said the meeting notice was sent to the media and other people a week ago.
Commissioner Sherrie Hayashi said the agency is not required to hold a public hearing before rules are changed but wanted to hear public comment on the proposed attorney fee rule changes. After listening to the public for about 90 minutes, she said she was concerned about some issues and didn't take any action.
"I will seriously revisit this rule," Hayashi said after the meeting.
In 1991, the state rule was changed from no attorney fee limits to a cap of $12,250 per case. However, if lawyers win medical-related costs for a client, they do not get any compensation, attorneys said.
A few years ago, the commission created an eight-member committee - comprised of insurance companies and attorneys who represent injured workers - to evaluate the rule because most attorneys were rejecting injured worker cases due to the financial limits, lawyers said. There are only a handful of attorneys who actually take injured worker cases, they said.
Under the committee's recommendation, the rule would expand the fee cap to a maximum of $15,250 per case and no compensation for winning medical-related costs for the client. The fee cap is only for attorneys representing injured workers. There is no comparable cap for attorneys representing the insurance companies, such as WCF, the state's largest workers' compensation insurer.
Attorney Dawn Atkin, who sat on the committee, said the rule changes were the result of a "two-year compromise." She said she supports a higher fee cap of at least $17,000 per case.
"Both sides were not smiling when we left the room," she said during the meeting.
The issue of a lack of fee limits for insurers was brought up during the committee's discussions at some point, Atkins said. But insurance representatives, including one from WCF, refused to talk about the topic, saying their fees can't be regulated.
Calls made to WCF on Wednesday afternoon seeking comment were not immediately returned.
During the Wednesday meeting, injured workers talked about their difficulty in finding an attorney, with some complaining they can't get anyone to represent them. Martinez asked Hayashi to hold a public hearing before she makes a decision on the rule changes.
Attorney Mark Sanchez said there has been an increase in injured worker cases, especially among Spanish-speaking Latinos, but lawyers can't afford to take their cases. He said the rule changes are inadequate compared to the real changes and issues that need to be addressed on both sides.
"I do have to turn away valid cases because I can't do it alone," Sanchez said.
After the meeting, Hayashi said she is concerned about the "fairness issue" with fee caps applied only to attorneys representing injured workers. She said she wants to make sure the rule changes are "balanced and fair" for workers and lawyers on both sides.
She said she expects to make a decision within the next 30 days.