Kansas Claimants’ Attorneys Face “Catch-22” in Appellate Work

No Provision for Court-Ordered Fees on Appeal

The Court of Appeals of Kansas recently reiterated that because of what amounts to a “Catch-22” in state law and appellate rules, an attorney representing a workers’ compensation claimant may not be awarded attorney’s fees for post-award work, even when prosecuting a successful appeal [see Pierson v. City of Topeka, 2018 Kan. App. LEXIS 33 (June 15, 2018)].

Attorney Fee Statute

The Court noted that an award for attorney fees in a workers compensation case is controlled by Kan. Stat. Ann. 2017 Supp. 44-536(g), which specifically limits an award of attorney fees to issues raised before the administrative law judge and Workers Compensation Board, not on appeal [emphasis added].

Supreme Court Rules Don’t Help

Unfortunately, claimants’ attorneys aren’t aided by appellate rules. Kansas Supreme Court Rule 7.07(b)(1) (2018 Kan. S. Ct. R. 50) only authorizes an award of attorney fees for the appeal of a case when the district court had authority to award fees. The appellate court here added that in as much as a workers compensation case is not heard by the district court, attorney fees for appellate work cannot be awarded under Kansas Supreme Court Rule 7.07(b)(1) [citing Rogers v. ALT-A&M JV LLC, 52 Kan. App. 2d 213, 364 P.3d 1206 (2015)].