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Reasonable notice required for attorney’s fee claim

The Workers’ Compensation Appellate Commission correctly interpreted its rules to require reasonable notice when requesting attorney’s fees from a health care provider.

Although the relevant statute does not have a time requirement for filing a claim for attorney’s fees, the statute requires compliance with the commission’s Rule 6.2, which requires an attorney to provide a health care provider reasonable notice that an attorney’s fee motion will be filed.


In 2015, Marks, claimant’s counsel, successfully recovered more than $200,000 in surgical expenses from Honeywell, the claimant’s employer, on behalf of Henrico Doctors’ Hospital, the appellee in this case. Marks, the appellant in this case, made no attempt to recover attorney’s fees until 2017.

Appellant sent three emails to Nobbee, the hospital’s representative, requesting 25 percent of the recovered amount as an attorney’s fee award. All emails were sent to an incorrect email address. Appellant averred that he never received any indication that the emails were not delivered.

Three years later, in 2020, appellant sent a request to Nobbee’s correct email address. Appellee denied the request as untimely. Appellant then filed a formal attorney’s fee request with the commission.

A deputy commission awarded fees, noting that there was no specific time requirement in which to request such fees. The full commission reversed in a split decision.

“The majority held that, pursuant to its rules, a claimant is required to give reasonable notice of their request for attorney’s fees. It determined that appellant had failed to give such reasonable notice because appellee did not receive notice of the claim until March 2020, nearly five years after recovery of the surgical costs.”

The dissenting commissioner “noted that the relevant statutory provision contains no time requirement for the filing of a claim for attorney’s fees. Therefore, he concluded, the Commission lacked the authority to impose one.

“Commissioner Marshall reasoned that the requirement of reasonable notice as set forth in the Commission’s rules refers only to reasonable notice of the filing of a motion with the Commission, not notice for the abstract assertion of a claim. Accordingly, the dissent maintained that the reasonable notice requirement exists only to protect the due process rights of opposing parties.”

Relevant law

“Attorney’s fees in workers’ compensation claims are governed by Code § 65.2-714. In pertinent part, that statute provides that ‘If a contested claim is held to be compensable under this title and … benefits for medical services … inure to the benefit of a third-party … health care provider, the Commission shall award to the employee’s attorney a reasonable fee and other reasonable pro rata costs as are appropriate.

“‘However, the Commission shall not award attorney fees under this subsection unless and until the employee’s attorney has complied with Rule 6.2 of the Rules of the Commission.’ …

“Thus, while the statute contains no timeliness requirement in its text, it does require strict adherence to the requirements of Rule 6.2. That rule, in turn, requires an attorney seeking fees to certify that the ‘health care provider was given reasonable notice that a motion for an award of such fee would be made.’”


“The Commission interpreted this rule to require a party seeking recovery of attorney’s fees to give the third-party health care provider reasonable and timely notice of the claim itself, not just the formal filing of a request for attorney’s fees with the Commission.

“Essentially, the Commission interpreted notification that a motion ‘would be made’ to equate to notification that a claim for attorney’s fees was being pursued. In most circumstances, this would seem duplicative of Rule 6.2(A)(2), which requires certification that both the claimant and the provider ‘made a reasonable good faith effort to resolve the matter.’

“However, as this case exemplifies, a claimant’s attempt to resolve the matter may not always result in the third-party provider receiving notice of the claim.

“Appellant contends that the Commission erred because the only plausible interpretation of the rule is that a claimant must notify the provider that they intend to file a formal motion with the Commission.

“While that is one plausible interpretation, such a rule would serve essentially no purpose. Both appellant – and the dissent below – contend that such a rule would protect the due process rights of the provider by giving them notice of the claim for attorney’s fees pending before the Commission.

“However, Rule 6.2(A)(4) already does that by requiring certification that ‘[a] copy of the motion has been sent to each carrier and health care provider identified.’ Therefore, appellant’s interpretation would require a claimant to notify the third-party provider both that they intended to file a claim and that they actually filed a claim.

“Regardless, the role of this Court is not to interpret the Commission’s rules for it. The applicable standard of review limits this Court’s role to determining whether the Commission’s interpretation of Rule 6.2(A)(3) was reasonable. …

“Here, the rule is capable of two plausible interpretations. Therefore, this Court cannot say that the Commission’s choice of one over the other was unreasonable. Nor is there anything unreasonable about a requirement that a claimant give notice of their claim within a reasonable period of time. Indeed, rules of repose are replete in law.”


Marks v. Henrico Doctors’ Hospital, Record No. 0073-21-2, June 29, 2021. CAV (Huff) from the Virginia Workers’ Compensation Comm’n. B. Mayes Marks, Jr., pro se. Charles Arthur Gavin for appellee. VLW 021-7-076, 6 pp. Published.

VLW 021-7-076