Printable Format44-536. Attorney fees; limitations; lien; review of contracts and fees claimed; matters to consider upon review; powers and duties of director and administrative law judge. (a) With respect to any and all proceedings in connection with any initial or original claim for compensation, no claim of any attorney for services rendered in connection with the securing of compensation for an employee or the employee's dependents, whether secured by agreement, order, award or a judgment in any court shall exceed a reasonable amount for such services or 25% of the amount of compensation recovered and paid, whichever is less, in addition to actual expenses incurred, and subject to the other provisions of this section. Except as hereinafter provided in this section, in death cases, total disability and partial disability cases, the amount of attorney fees shall not exceed 25% of the sum which would be due under the workers compensation act beyond 415 weeks of permanent total disability based upon the employee's average weekly wage prior to the date of the accident and subject to the maximum weekly benefits provided in K.S.A. 44-510c, and amendments thereto.
(b) All attorney fees in connection with the initial or original claim for compensation shall be fixed pursuant to a written contract between the attorney and the employee or the employee's dependents, which shall be subject to approval by the director in accordance with this section. Every attorney, whether the disposition of the original claim is by agreement, settlement, award, judgment or otherwise, shall file the attorney contract with the director for review in accordance with this section. The director shall review each such contract and the fees claimed thereunder as provided in this section and shall approve such contract and fees only if both are in accordance with all provisions of this section. Any claims for attorney fees not in excess of the limits provided in this section and approved by the director shall be enforceable as a lien on the compensation due or to become due. The director shall specifically and individually review each claim of an attorney for services rendered under the workers compensation act in each case of a settlement agreement under K.S.A. 44-521, and amendments thereto, or a lump-sum payment under K.S.A. 44-531, and amendments thereto, as to the reasonableness thereof. In reviewing the reasonableness of such claims for attorney fees, the director shall consider the other provisions of this section and the following:
(1) The written offers of settlement received by the employee prior to execution of a written contract between the employee and the attorney; the employer shall attach to the settlement worksheet copies of any written offers of settlement which were sent to the employee before the employer was aware that the employee had hired an attorney;
(2) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly;
(3) the likelihood, if apparent to the employee or the employee's dependents, that the acceptance of the particular case will preclude other employment by the attorney;
(4) the fee customarily charged in the locality for similar legal services;
(5) the amount of compensation involved and the results obtained;
(6) the time limitations imposed by the employee, by the employee's dependents or by the circumstances;
(7) the nature and length of the professional relationship with the employee or the employee's dependents; and
(8) the experience, reputation and ability of the attorney or attorneys performing the services.
(c) No attorney fees shall be charged with respect to compensation for medical expenses, except where an allowance is made for proposed or future treatment as a part of a compromise settlement. No attorney fees shall be charged with respect to vocational rehabilitation benefits.
(d) No attorney fees shall be charged in connection with any temporary total disability compensation unless the payment of such compensation in the proper amount is refused, or unless such compensation is terminated by the employer and the payment of such compensation is obtained or reinstated by the efforts of the attorney, whether by agreement, settlement, award or judgment.
(e) With regard to any claim where there is no dispute as to any of the material issues prior to representation of the claimant or claimants by an attorney, or where the amount to be paid for compensation does not exceed the written offer made to the claimant or claimants by the employer prior to execution of a written contract between the employee and an attorney, the fees to any such attorney shall not exceed either the sum of $250 or a reasonable fee for the time actually spent by the attorney, as determined by the director, whichever is greater, exclusive of reasonable attorney fees for any representation by such attorney in reference to any necessary probate proceedings. With regard to any claim where the amount to be paid for compensation does exceed the written offer made prior to representation, fees for services rendered by an attorney shall not exceed the lesser of (1) a reasonable amount for such services; (2) an amount equal to the total of 50% of that portion of the amount of compensation recovered and paid, which is in excess of the amount of compensation offered to the employee by the employer prior to the execution of a written contract between the employee and the attorney; or (3) 25% of the total amount of compensation recovered and paid as described in subsection (a).
(f) All attorney fees for representation of an employee or the employee's dependents shall be only recoverable from compensation actually paid to such employee or dependents, except as specifically provided otherwise in subsection (g) and (h).
(g) In the event any attorney renders services to an employee or the employee's dependents, subsequent to the ultimate disposition of the initial and original claim, and in connection with an application for review and modification, a hearing for additional medical benefits, an application for penalties or otherwise, such attorney shall be entitled to reasonable attorney fees for such services, in addition to attorney fees received or which the attorney is entitled to receive by contract in connection with the original claim, and such attorney fees shall be awarded by the director on the basis of the reasonable and customary charges in the locality for such services and not on a contingent fee basis.
(1) If the services rendered under this subsection by an attorney result in an additional award of disability compensation, the attorney fees shall be paid from such amounts of disability compensation.
(2) If such services involve no additional award of disability compensation, but result in an additional award of medical compensation, penalties, or other benefits, the director shall fix the proper amount of such attorney fees in accordance with this subsection and such fees shall be paid by the employer or the workers compensation fund, if the fund is liable for compensation pursuant to K.S.A. 44-567, and amendments thereto, to the extent of the liability of the fund.
(3) If the services rendered herein result in a denial of additional compensation, penalties, or other benefits, and it is determined that the attorney engaged in frivolous prosecution of the claim, the employer and insurance carrier shall not be liable for any portion of the attorney fees incurred for such services.
(h) Any and all disputes regarding attorney fees, whether such disputes relate to which of one or more attorneys represents the claimant or claimants or is entitled to the attorney fees, or a division of attorney fees where the claimant or claimants are or have been represented by more than one attorney, or any other disputes concerning attorney fees or contracts for attorney fees, shall be heard and determined by the administrative law judge, after reasonable notice to all interested parties and attorneys.
(i) After reasonable notice and hearing before the administrative law judge, any attorney found to be in violation of any provision of this section shall be required to make restitution of any excess fees charged.
History: L. 1927, ch. 232, § 44; L. 1957, ch. 293, § 5; L. 1967, ch. 280, § 10; L. 1974, ch. 203, § 36; L. 1977, ch. 177, § 2; L. 1987, ch. 187, § 13; L. 1993, ch. 286, § 50; L. 1997, ch. 125, § 10; L. 2011, ch. 55, § 23; May 15.
Source or prior law:
L. 1911, ch. 218, § 38; L. 1917, ch. 226, § 22; R.S. 1923, 44-536.
Revisor's Note:
Attorney fees for collection of past due compensation and penalties, see 44-512a.
Cross References to Related Sections:
Attorney fees in other workers' compensation cases, see 44-504, 44-512a, 44-566a.
Law Review and Bar Journal References:
"Changes in Workmen's Compensation," William F. Morrissey, 36 J.B.A.K. 173, 174 (1967).
"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 265 (1976).
"Workmen's Compensation—An Introduction to Changes in the Kansas Statute," Bryce B. Moore, 24 K.L.R. 603, 607 (1976).
"Workmen's Compensation—Major Changes in Employments Covered, Benefits, Defenses, Offsets, and Other Changes," Alvin D. Herrington, 24 K.L.R. 611, 619 (1976).
"Workmen's Compensation—Permanent Partial Disability Benefits—The Dilemma," George E. McCullough, 24 K.L.R. 627, 634 (1976).
"You Are Advertising Already," Gary L. Jordan, 2 J.K.T.L.A. No. 4, 19, 20 (1978).
"Preparation and Presentation of the Claimant's Case," Gary L. Jordan, 3 J.K.T.L.A. No. 6, 17 (1980).
"Worker Compensation; Attorney's Fees Under K.S.A. 44-536," Gary L. Jordan, Vol. 6, No. 6, J.K.T.L.A. 21 (1983).
"Workers' Compensation—A Salute to the Trial Lawyers of Kansas," Gary L. Jordan, 10 J.K.T.L.A. No. 6, 9, 11 (1987).
"Attorney Fees in Worker's Compensation: The North Wind is Beginning to Blow," Michael Wallace, 11 J.K.T.L.A. No. 3, 16 (1987-1988).
"Work Disability Under the New Law," Gary L. Jordan, 12 J.K.T.L.A. No. 3, 11 (1989).
"Attorney Fees for Representing a Claimant After Final Award," Timothy A. Short, J.K.T.L.A., Vol. XIII, No. 2, 13-15 (1989).
"An Overview of the 1993 Amendments to the Kansas Workers Compensation Act," David J. Rebein, 62 J.K.B.A. No. 5, 30, 35 (1993).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVI, No. 3, Special Section 1, 4 (1993).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 4, Work. Comp. Review Section, 1, 3 (1995).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 6, Review Section, 2 (1996).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 3, Review Section, 35 (1997).
"Workers Compensation Law: Constitutionality of the 1993 Kansas Workers Compensation Act," Nicole M. Zomberg, 37 W.L.J. 829 (1998).
"Workers Compensation Review," J.K.T.L.A. Vol. XXIII, No. 2, 25 (1999).
"Workers Compensation Review," Patrick R. Nichols, J.K.T.L.A. Vol. 23, No. 6, 20 (2000).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 26, No. 2, 19 (2002).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 25, No. 6, 20 (2002).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 4, 18 (2004).
Attorney General's Opinions:
Workers compensation; attorney fees; separation of powers. 96-30.
CASE ANNOTATIONS
Explanation, see Revisor's Note under article title, chapter 44, article 5.
1. Method of perfecting a lien is still that prescribed by general statute (see section K.S.A. 7-108). Graham v. Elevator Co., 115 Kan. 143, 145, 222 P. 89 (1924).
2. Intervener's petition to enforce attorney's lien held insufficient; lien not perfected soon enough. Polensek v. Sheridan Coal Co., 122 Kan. 725, 727, 253 P. 605 (1927).
3. A contract between attorney and client that the client may not settle without the attorney's consent is void as against public policy. Graham v. Elevator Co., 115 Kan. 143, 146, 222 P. 89 (1924).
4. If settlement be made, the lien attaches to the fund only; measure of attorney's recovery is attorney's contractual percentage of actual compromise sum. Graham v. Elevator Co., 115 Kan. 143, 146, 222 P. 89 (1924).
5. Employer served with notice of lien may inquire of workman the terms of contract to judge its reasonableness. Graham v. Elevator Co., 115 Kan. 143, 146, 222 P. 89 (1924).
6. Reduction of contractual fee by court and approval thereof as modified as authorized. Mickens v. Lawrence Paper Mfg. Co., 130 Kan. 149, 151, 285 P. 624 (1930).
7. Section not applicable to attorney fees for services in action on injunction bond. Harvey v. Majors, 129 Kan. 556, 283 P. 663 (1930).
8. Claim for attorney fees denied by supreme court for reason request had not been made to trial court. Karle v. Board of County Commissioners, 188 Kan. 800, 805, 366 P.2d 241 (1961).
9. K.S.A. 40-256 not applicable to attorney fees in workmen's compensation case. Walker v. Davis Van & Storage Co., 198 Kan. 452, 455, 456, 424 P.2d 473 (1967).
10. Contract of employment controls attorney's fees; provisions of subsection (h) discussed. Baker v. List and Clark Construction Co., 222 Kan. 127, 135, 563 P.2d 431.
11. Attorney's lien attaches to compensation due or to become due from the time of filing the attorney fee contract with director. Barnett & Lerner, Chtd. v. Aetna Cas. & Sur. Ins. Co., 8 Kan. App. 2d 270, 272, 656 P.2d 165 (1983).
12. Attorney having contingency fee contract with client who discharges attorney prior to occurrence of contingency is entitled to fee under quantum meruit rather than contract. Madison v. Goodyear Tire & Rubber Co., 8 Kan. App. 2d 575, 577, 578, 580, 663 P.2d 663 (1983).
13. Only director may award fees under subsection (g); district court lacks authority to do so. Lackey v. D & M Trucking, 9 Kan. App. 2d 679, 686, 687 P.2d 23 (1984).
14. Attorney fees based on enforcement of past due compensation, reasonable hours times reasonable rate rather than contingent basis determined. Hatfield v. Wal-Mart Stores, Inc., 14 Kan. App. 2d 193, 199, 786 P.2d 618 (1990).
15. Attorney fee limitation of 25% does not apply to personal injury cases. Maas v. Huxtable and Assocs., Inc., 23 Kan. App. 2d 236, 247, 929 P.2d 780 (1996).
16. Attorney fees cannot be accessed against respondent who has complied fully with workers compensation award provisions. May v. University of Kansas, 25 Kan. App. 2d 66, 67, 957 P.2d 1117 (1998).
17. Attorney fees for post-award services denied. Naff v. Davol, Inc., 28 Kan. App. 2d 726, 20 P.3d 738 (2001).
18. K.S.A. 44-510k does not permit the award of expert witness fees in pursuit of post-award medical benefits. Higgins v. Abilene Machine, Inc., 288 Kan. 359, 204 P.3d 1156 (2009).
19. Refusal to grant attorney fees upheld where no supreme court rule nor statute allowed for such award. Rogers v. ALT-A&M JV, 52 Kan. App. 2d 213, 221, 364 P.3d 1206 (2015).