Appeal of Metevier - 146 N.H. 62, 767 A.2d 427 (2001)

Rule:

The authority to adopt a scale of legal fees lies with the New Hampshire Commissioner of the Department of Labor and not with the New Hampshire Compensation Appeals Board. N.H. Rev. Stat. Ann. § 281-A:60, I(f) (Supp. 2000).

Facts:

Petitioner, Pat Metevier, injured her elbow while working at Wal-Mart Stores, Inc. AIG Claim Services, Inc. (AIG), Wal-Mart's workers' compensation carrier, denied her request for workers' compensation benefits. While represented by Attorney Andrew Richelson, she petitioned the New Hampshire Department of Labor for a hearing. Finding that the petitioner failed to demonstrate that her injuries were causally related to her employment, the department of labor denied benefits. Petitioner hired Attorney James Townsend, an attorney with more than twenty-five years of experience, and appealed the decision to the compensation appeals board. The board found in favor of the petitioner. Attorney Townsend submitted a request for the payment of twenty and one-half hours at a rate of $ 175.00 per hour. AIG objected to Attorney Townsend’s request, contending that it was not reasonable and suggesting that ten hours at $ 125.00 per hour would be a more appropriate award. Without a hearing, the board approved Attorney Townsend’s request for payment of twenty and one-half of work; however, it reduced his hourly rate to $ 130.00. The board found that the case was within the normal average of cases presented to it with respect to the nature of the dispute, length, and complexity, and that in matters of this nature, the range of approved rates was from $ 120 to $ 150 per hour. Petitioner appealed, asserting that the board erred by: (1) failing to consider her attorney's standing and skill and the extent to which he prevailed; (2) relying upon an unpublished range of approved rates because it lacked the authority to set such a range; and (3) finding that an attorney with no experience was entitled to $ 120.00 per hour, while an attorney with twenty-five years of experience was entitled to only $ 130.00 per hour in "the normal average of cases."

Issue:

Did the Board err in reducing the lawyer’s hourly rate to $ 130.00 based on an unpublished range of approved rates? 

Answer:

Yes.

Conclusion:

The court vacated and remanded the determination. Based on the record, it did not appear the Department of Labor commissioner had adopted such a scale of legal fees and the appeals court's review of the applicable regulations did not reveal such a scale. It was error for the board to rely upon a range of approved rates when the commissioner had not adopted such a range.