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State ex rel Wyoming Workers' Safety and Compensation Division v. Gerrard1/29/2001
issue is the compensability of an injury, a prevailing employer's attorney fees shall also be paid according to the order of the hearing examiner from the worker's compensation account, not to affect the employer's experience rating. An award of attorney's fees shall be for a reasonable number of hours and shall not exceed the benefits at issue in the contested case hearing. In all other cases if the employer or division prevails, the attorney's fees allowed an employee's attorney shall not affect the employer's experience rating. Attorney fees allowed shall be at an hourly rate established by the director of the office of administrative hearings and any application for attorney's fees shall be supported by a verified itemization of all services provided. No fee shall be awarded in any case in which the hearing examiner determines the claim or objection to be frivolous and without legal or factual justification. 1995 Wyo. Sess. Laws ch. 193, § 1.
[ ] The first sentence of the statute remained unchanged and provides that "the hearing examiner may appoint an attorney to represent the employee or claimants and may allow the appointed attorney a reasonable fee for his services at the conclusion of the proceeding." The hearing examiner's jurisdiction to appoint counsel for the employee and award reasonable attorney's fees at the conclusion of the proceeding was retained wholly intact. The change affected by the added amendment language was that, in the event of a contested case regarding compensability of an injury, a prevailing employer's attorney's fees could be awarded but were not to exceed the benefits at issue in the contested case hearing. The hearing examiner's jurisdiction to award a prevailing employer's attorney's fees-not to exceed the benefits at issue in the contested case hearing-was added. Contrary to the Division's contention, the language did not diminish or limit the hearing examiner's jurisdiction to appoint counsel for the employee and award that attorney reasonable fees. To conclude otherwise would render the first sentence of the statute meaningless, and this we will not do. US WEST Communications, Inc. v. Wyoming Public Service Commission, 989 P.2d 616, 619-20 (Wyo. 1999); McClellan v. State, 933 P.2d 461, 465 (Wyo. 1997).
[ ] Our conclusion is further supported by the preamble language to this session law:
AN ACT to amend W.S. 27-14-602(d) and 27-14-615 relating to worker's compensation; allowing payment of attorney fees incurred by prevailing employers in contested cases and appeals; specifying that fees shall not be awarded in the case of certain frivolous claims or objections; and providing for an effective date. 1995 Wyo. Sess. Laws ch. 193.
Likewise it is consistent with our holding in Painter v. State ex rel. Wyoming Worker's Compensation Division, 931 P.2d 953, 955 (Wyo. 1997), abrogated on other grounds by Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998), that a hearing examiner has jurisdiction to appoint counsel for an employee when the Division issues a final determination regarding compensability of an injury and further to award fees to the appointed attorney at the conclusion of the proceedings, regardless of whether a full contested case hearing is held.
[ ] This Court has the authority to adjust factual findings based on the overwhelming evidence in the record and to correct errors of law. Pino, 996 P.2d at 683. The record clearly reflects that Attorney Hesco was appointed pursuant to § 27-14-602(d). This provision specifies that the hearing examiner may allow the appointed attorney a reasonable fee for services at the conclusion of the proceedings. Attorney Hesco's participation and the resulting stipulated dismissal meant
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