Discretionary appointment of counsel - worker's compensation

In contested worker's compensation cases, the hearing examiner has a permissive, but not mandatory, power to appoint an attorney to represent the claimant. Wyo. Stat. Ann. § 27-14-602(d) ("Upon request, the hearing examiner may appoint an attorney to represent the employee or claimants and may allow the appointed attorney a reasonable fee for his services at the conclusion of the proceeding"); see also Wyo. Stat. Ann. § 27-14-615 ("The district court may appoint an attorney to represent the employee during proceedings in the district court and appeal to the supreme court. The district court may allow the attorney a reasonable fee for his services at the conclusion of the proceedings in district court and the supreme court may allow for reasonable fees for services at the conclusion of the proceedings in the supreme court."  The latter statute gives the district and supreme courts the authority to compensate the attorney, but the fees "shall not exceed the benefits at issue in the appeal." 

In State ex rel. Wyo. Workers' Safety & Comp. Div. v. Smith (In Re Worker's Compensation Claim of Timothy Smith), 121 P.3d 150, 158 (Wyo. 2005), the Supreme Court interpreted the attorney's fees portion of the statute to mean "a district court has authority to award reasonable attorney fees in its discretion to an employee's attorney and that the amount of the attorney fees awarded is not limited to the 'benefits at issue' in the appeal."  Therefore, only if the employer prevails will the attorney fees be capped. The Wyoming Supreme Court interpreted the predecessor statute, § 27-12-604, as authorizing the court to pay appointed counsel for appellate work as well. Graves v. Utah Power & Light Co., 713 P.2d 187, 195 (Wyo. 1986), superseded by statute, Wyo. Stat. Ann. § 27-14-102 (a)(xi)(J) ("We think that the word 'proceeding' should be interpreted broadly to authorize the award of appellate fees in worker's compensation cases"). The Graves court's rationale was very protective of the workers and recognized the risks of a power imbalance if only one side is represented:

If we were to hold that we could not order payment of appellate fees under § 27-12-604(c), then no attorney could be legally paid for representing a worker on appeal. As a result, few, if any, lawyers would voluntarily take such appeals. The worker's only choice would be to find an attorney willing to take his appeal pro bono, or to appeal pro se. The worker would be opposed by an employer represented by a paid attorney. Section 27-12-609(a) only prohibits the unauthorized payment of attorneys who procure "any benefit" under the act. It does not prevent an employer from hiring a lawyer to contest benefits …We do not think that the legislature could have intended a system in which the deck is stacked so heavily against the workers.