Md. Code Regs. 14.09.04.03

Current through Register Vol. 51, No. 7, April 5, 2024

Section 14.09.04.03 - Schedule of Attorney's Fees

A. The Commission shall approve attorney's fees in accordance with the schedule of fees established by the Commission and set forth in §C of this regulation.

B. Definitions.

(1) In this regulation, the following terms have the meanings indicated.

(2) Terms Defined.

(a) Award of compensation" means the amount of indemnity benefits actually paid or payable to the claimant after applying:

(i) Any credit or offset required by Labor and Employment Article, § 9-503(c), 9-609, or 9-610, Annotated Code of Maryland; or

(ii) Reduction of the percentage of permanent partial disability following a stipulation, appeal, or other modification approved by the Commission.

(b) "Final award" means the award of compensation determined by the Commission after exhaustion of all applicable appeals, regardless of whether the award is increased or decreased because of any appeal.

(c) "Formal set-aside allocation" means a document reflecting a comprehensive analysis and projection of future injury-related medical needs and associated costs.

(d) "State average weekly wage" means the State average weekly wage in effect on the date of the accident or date of disablement.

C. Schedule of Fees.

(1) Amounts Excluded from Calculation. In calculating the attorney's fee, an attorney may not include in the calculation any amounts paid or payable for medical services and prescription drugs, including but not limited to:

(a) Any monies allocated to future medical expenses through a formal set-aside allocation;

(b) Any monies apportioned to future medical benefits;

(c) Any monies already paid or owing for medical services and prescription drugs; or

(d) Any monies charged or to be charged for the administration of a formal set-aside allocation.

(2) Fee in Excess of Limits - Exceptional Circumstances. The Commission may approve an attorney's fee in excess of the limits set forth in this regulation only if exceptional circumstances are shown under Regulation .02B of this chapter.

(3) Permanent Partial Disability.

(a) General. Except as otherwise provided in §C(3)(b) of this regulation, in a case in which a final award of compensation is made for permanent partial disability, the Commission may approve an attorney's fee in a total amount not to exceed 60 times the State average weekly wage and computed as follows:

(i) Up to 20 percent of the first $50,000 of the total award of compensation;

(ii) Up to 15 percent of the next $50,000 of the total award of compensation; and

(iii) Up to 5 percent of the total award of compensation in excess of $100,000.

(b) Disability Due to Amputation or Loss of Vision - Generally. Except as provided in §C(3)(c) of this regulation, in a case in which the rate of compensation is set for permanent partial disability due to the amputation of an arm, leg, hand, or foot, or total loss of vision in one eye, and the sole issue before the Commission is the nature and extent of disability, the Commission may approve an attorney's fee in an amount up to 5 percent of the compensation awarded, but not exceeding 7.5 times the State average weekly wage.

(c) Disability Due to Amputation or Loss of Vision - Worsening. In a case of worsening of a permanent partial disability due to the amputation of an arm, leg, hand, or foot, or total loss of vision in one eye, takes place or is discovered after the rate of compensation is set or compensation is terminated, the Commission may approve an attorney's fee computed under §C(8) of this regulation on the increased award.

(4) Permanent Total Disability.

(a) General. Except as otherwise provided in this regulation, in a case in which an initial determination of permanent disability produces a final award of compensation for permanent total disability, the Commission may approve an attorney's fee in an amount not exceeding 25 times the State average weekly wage.

(b) Special Cases. The Commission may approve an attorney's fee in an amount not exceeding 15 times the State average weekly wage in a case in which compensability is not an issue and an award of compensation is made for permanent total disability established pursuant to either:

(i) Labor and Employment Article, § 9-636(b), Annotated Code of Maryland, for the loss of two or more scheduled members; or

(ii) The stipulation on the extent of disability.

(5) Temporary Total and Temporary Partial Disability. The Commission may not approve an attorney's fee in a case in which final award of compensation is made for temporary total or temporary partial disability or temporary total disability paid while a claimant is receiving vocational rehabilitation services unless the claimant's right to the compensation is contested, and the issue is resolved by evidentiary hearing or by stipulation. In such a contested case, the fee may be in an amount not exceeding 10 percent of the compensation that has accrued as of the date of the award.

(6) Dependency Claims.

(a) In a case involving a claim of dependency where compensability is not contested, but the extent of dependency, partial or total, or the identity of a dependent, or both is contested, the Commission may approve a total attorney's fee for attorneys representing all dependents:

(i) In an amount not exceeding 6.25 times the State average weekly wage in a case of partial dependency under Labor and Employment Article, § 9-682, Annotated Code of Maryland; or

(ii) In an amount not exceeding 15 times the State average weekly wage in a case of total dependency under Labor and Employment Article, § 9-681 or 9-683.3, Annotated Code of Maryland.

(b) In a case involving a claim of dependency where neither compensability nor dependency is contested and a record is being made solely to determine to whom payments of compensation shall be made, the Commission may approve an attorney's fee in an amount not exceeding 2.5 times the State average weekly wage.

(c) In a case involving a claim of dependency where compensability and dependency are contested, the Commission may approve an attorney's fee:

(i) In an amount calculated under §C(3)(a) of this regulation in a case involving a claim of partial dependency under Labor and Employment Article, § 9-682 or 9-683.3, Annotated Code of Maryland; or

(ii) In an amount calculated under §C(4)(a) of this regulation in a case of total dependency under Labor and Employment Article, §9681, Annotated Code of Maryland.

(7) Settlement Agreements. In a case in which an agreement of final compromise and settlement is approved, and upon the filing of an application or petition for an attorney's fee in accordance with Regulation .02 of this chapter, the Commission may approve an attorney's fee not exceeding 60 times the State average weekly wage and computed in accordance with §B(3)(a) of this regulation.

(8) Increase in Last Award of Compensation.

(a) Permanent Partial Disability. If the claimant is entitled to additional compensation as a result of an increase in a permanent partial disability award under §C(3) of this regulation the Commission may approve an additional attorney's fee in an amount not exceeding the difference between the fee approved for all prior permanent partial disability awards and the fee computed under §C(3) or (4)(a) of this regulation on the increased award.

(b) Agreement of Final Compromise and Settlement. If the claimant is entitled to additional compensation as a result of an agreement of final compromise and settlement approved under §C(7) of this regulation following a prior award of permanent partial disability, the Commission may approve an additional attorney's fee in an amount not exceeding the difference between the fee approved for all prior awards and the fee computed under §C(3) or (4) of this regulation on the increased award.

(c) In a case in which a determination of permanent disability made pursuant to Labor and Employment Article, § 9-736(a), Annotated Code of Maryland, produces a final award of compensation for permanent total disability, the Commission may approve an additional attorney's fee in an amount as follows:

(i) 20 percent of the first 200 weeks of permanent total disability benefits, excluding any cost-of-living increase as provided in Labor and Employment Article, § 9-638 or § 9-638.1, Annotated Code of Maryland, minus a fee or fees approved for all prior permanent disability awards; and

(ii) Not exceeding 15 times the State average weekly wage.

(9) Additional Fees for Appeals of Compensation Awards.

(a) When a compensation award of the Commission is appealed to a circuit court and the case is tried on appeal, the Commission may approve an additional attorney's fee in an amount up to 5 percent of the first final indemnity award issued following the circuit court action, but not exceeding 7.5 times the State average weekly wage.

(b) When a decision of a circuit court on an appeal from a compensation award of the Commission is appealed to a higher appellate court and the appeal is briefed and decided on its merits, the Commission may approve an additional attorney's fee for each appeal in an amount up to 5 percent of the first final indemnity award issued following the appellate action, but not exceeding 7.5 times the State average weekly wage.

(c) When an appeal from a compensation award of the Commission to a circuit court is not tried, or an appeal to a higher appellate court is not briefed and decided on its merits, the Commission may approve an additional attorney's fee in an amount up to 2.5 percent of the first final indemnity award issued following the appellate action or circuit court action, but not exceeding 3.75 times the State average weekly wage.

(d) When a decision of the Commission on the issue of compensability of a claim is appealed to a circuit court, if the claim is determined on appeal to be compensable, the Commission, upon remand, may approve an additional attorney's fee in an amount up to 5 percent of the first final indemnity award issued following the remand, but not exceeding 7.5 times the State average weekly wage.

(e) An attorney may be awarded an appeal fee under only one of paragraphs (a) -(d) of this subsection for a circuit court action or appellate court action.

(f) Once an appeal fee has been awarded for a circuit court action or appellate action, the Commission may not award an additional appeal fee based on the same circuit court action or appellate action.

D. Attorney's Fee Allowed - Exceptional Circumstances.

(1) In exceptional circumstances as shown under Regulation .02B of this chapter, the Commission may approve an attorney's fee in a case in which it is determined that the claimant is not entitled to any compensation or benefits. Nothing in this regulation prohibits the Commission from awarding an attorney's fee under Regulation .02C of this chapter.

(2) In exceptional circumstances as shown under Regulation .02B of this chapter, the Commission may approve an attorney's fee in a case involving issues such as medical care and treatment, or vocational rehabilitation, in which the claimant does not receive any monetary award. Nothing in this regulation prohibits the Commission from awarding an attorney's fee under Regulation .02C of this chapter.

Md. Code Regs. 14.09.04.03

Regulation .03 amended effective 42:14 Md. R. 884, eff.7/20/2015; amended effective 45:5 Md. R. 287, eff. 3/12/2018; amended effective 46:7 Md. R. 370, eff. 4/8/2019; amended effective 46:20 Md. R. 843, eff. 10/7/2019; amended effective 48:20 Md. R. 890, eff. 10/18/2021; adopted effective 50:6 Md. R.219, eff. 4/3/2023