STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

THOMAS BANDY, FILED 

Claimant Below, Petitioner October 10, 2017 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs.) No. 16-1165 (BOR Appeal No. 2051285) OF WEST VIRGINIA 

(Claim No.2013017957) 

MURRAY AMERICAN ENERGY, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Thomas Bandy, by M. Jane Glauser, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Murray American Energy, Inc., by 

Aimee Stern and Denise Pentino, its attorneys, filed a timely response. 

The issue on appeal is the payment of an attorney fee. On January 4, 2016, the claims 

administrator denied authorization for psychotherapy visits from January 1, 2016, through 

December 31, 2016. The Office of Judges reversed the claims administrator’s decision in its May 

31, 2016, Order. The Order was affirmed by the Board of Review on August 24, 2016. The Court 

has carefully reviewed the records, written arguments, and appendices contained in the briefs, 

and the case is mature for consideration. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

This case arises from a petition for an award of claimant’s attorney fees filed with the 

Board of Review by Thomas Bandy after the Board of Review affirmed an Office of Judge’s 

Order reversing the claims administrator’s denial of authorization for psychotherapy treatment. 

On May 3, 2016, the Office of Judges authorized twelve psychotherapy visits between January 1, 

2016, and December 31, 2016. The Board of Review affirmed the Office of Judges on August 

24, 2016. 

Following the entry of the Board of Review’s decision, On October 5, 2016, Mr. Bandy 

filed a petition for attorney fees in the amount of $500.00. The employer filed an objection to the 

award of $500.00 for an attorney fee as the claimant’s attorney had already received the 

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maximum amount of attorney fees permitted by statute for the successful protest of Orders 

denying authorization for medical treatment on October 18, 2016. In a letter to Mr. Bandy’s 

attorney, dated October 25, 2016, the Board of Review noted its records showed that he had 

previously been awarded the statutory maximum of $2,500.00 in attorney fees in the claim. It 

allowed Mr. Bandy twenty days in which to respond. On November 15, 2016, the Board of 

Review denied Mr. Bandy’s petition for attorney fees. 

Mr. Bandy asserted that the statutory maximum attorney fee of $500.00 of each 

successful protest of the denial of medical treatment, with a $2,500.00 maximum during the life 

of a claim is unconstitutional as it interferes with the ability of claimants to access the judicial 

system for a redress of wrongs and for due process of law. The arbitrarily set statutory maximum 

attorney fees makes it difficult for claimants to find representation, due to a lack financial 

incentive on the part of attorneys. 

However, Mr. Bandy’s ability to retain counsel was not prejudiced by West Virginia 

Code §23-5-16(c)(2013)’s limitation on attorney fees. He received temporary total disability 

rehabilitation benefits, the reinstatement of his 10% permanent partial disability award, an 

additional 2% permanent partial disability award for a secondary condition, and another 10% 

permanent partial disability award for additional compensable conditions after he retained his 

attorney on July 7, 2014, pursuant to a contingency fee contract. Although Mr. Bandy couched 

his appeal as a constitutional issue, it is in fact a policy argument. In Kasserman and Bowman v. 

Cline, 223 W.Va. 414, 675 S.E. 2d 890 (2009), we noted that public policy arguments “are more 

appropriately directed to the Legislature.” 

After review, we agree with the Board of Review’s denial of attorney fees. Mr. Bandy 

has reached the statutory maximum for payment of attorney fees in relation to successful protests 

of the denial of medical treatment. West Virginia Code §23-5-16(c) does not deprive claimants 

of due process or the ability to retain counsel. While we recognize Mr. Bandy’s frustration with 

the statutory maximum attorney fee contained in West Virginia Code §23-5-16(c), the 

Legislature is the appropriate branch of government with whom Mr. Bandy should raise his 

grievance. 

For the foregoing reasons, we find that the decision of the Board of Review is not in clear 

violation of any constitutional or statutory provision, nor is it clearly the result of erroneous 

conclusions of law, nor is it based upon a material misstatement or mischaracterization of the 

evidentiary record. Therefore, the decision of the Board of Review is affirmed. 

Affirmed. 

ISSUED: October 10, 2017 

CONCURRED IN BY: 

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Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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