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Thread Title: Work Comp to pay attorney fees question
Created On Tuesday May 24, 2005 5:48 PM


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zgen
Junior Member

Posts: 6
Joined: Mar 2005

Tuesday May 24, 2005 5:48 PM

was injured in 2001. My case is being wrapped up now and I was told by a prior injured worker that when the work comp attorney makes the initial request to settle your case, then the injured worker could request that their attorney fees be paid by work comp. Has anyone ever heard of this before?

The second question I have is regarding attorney fees. The contract that I signed with my attorney back in 2001 stated his attorney fees would be in the range of 9% to 12%. Now he is saying 25%, does the new law allow for this to happen or is this something the attorney is pushing for. I have been ranked at 88% disabled.

I would appreciate your prompt reply if you have any informaton for me.

Thank you
zgen

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Amy
Senior Member

Posts: 789
Joined: Apr 2005

Thursday May 26, 2005 11:08 PM

On the first question, I've only heard of the situation where an AME report comes out and the IW is fine with it, but the IC decides to appeal it. In that case, the AA's fees are paid by the IC.

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loislane2
Senior Member

Posts: 599
Joined: Jul 2004

Thursday May 26, 2005 11:51 PM

This question was addressed in another thread. The way that the IW's atty fees would be covered is where the IC files the APP for Adjud of claim.

Lois

-------------------------
"When one door closes another door opens; but we so often look so long and so regretfully upon the closed door, that we do not see the ones which open for us. -Alexander Graham Bell (1847-1922)

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Outspoken
Junior Member

Posts: 2
Joined: Jun 2005

Saturday June 04, 2005 10:23 PM

You should be careful relying upon the information of other claimants. They are usually totally erroneous. Issues regarding having the carrier pay attorney fees revolve around the carrier's unreasonably requiring you to go to trial. Someone has also pointed out the refusal to accept an AME opinion. Others are based upon the carrier's trying to cancel an awarded benefit or filing an application while you are unrepresented. Usually, you pay the attorney fees. The attorney must have a fee petition that is approved by the judge before he can charge more than 15%. Usually an attorney fee of more than 15% is charged for special litigation such as serious and willful claims or discrimination claims.

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loislane2
Senior Member

Posts: 599
Joined: Jul 2004

Monday June 06, 2005 4:50 PM

Some of us who respond on this forum are professionals who work in the field. Ginger, myself and Jamie are all in this category. Feel free to go to the Pro side to read the post regarding this very issue. You will see that the advice given here is not erroneous.

We alll work very hard to give info which we believe to be correct. If we do not have an answer to a question, we seek out help.

And, i do agree u have to be very careful to whom u go to for advice. There is rampant misinfo out there for the taking.

Lois

-------------------------
"When one door closes another door opens; but we so often look so long and so regretfully upon the closed door, that we do not see the ones which open for us. -Alexander Graham Bell (1847-1922)

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Monday June 06, 2005 6:15 PM

Lois is right.

From an above post "Someone has also pointed out the refusal to accept an AME opinion"-- If this were true (which it isn't), I'd have had a free attorney over five years ago! There isn't an applicant atty in the world who wouldn't jump on a case if he could bill out his/her services to the IC at $150+ per hr versus working off of a small percentage of an IW's PD award!!!

For a good discussion on this see http://www.workcompforums.com/ca/pro/messageview.cfm?catid=5&threadid=1644

Later...

Edited: Monday June 06, 2005 at 6:25 PM by art

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Amy
Senior Member

Posts: 789
Joined: Apr 2005

Wednesday June 08, 2005 6:36 PM

If I mis-interpreted LC 4066, please let me know. It reads:

"When the employer files an application for adjudication of claim contesting the formal medical evaluation prepared by an agreed medical evaluator under this article, regardless of outcome, the workers' compensation judge or the appeals board shall assess the employee's fees against the employer, subject to Section 4906."

Amy

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tjfujii@scif.com
Member

Posts: 77
Joined: Dec 2002

Wednesday June 08, 2005 10:03 PM

Which is why you will never see an insurance carrier, except under the most extreme and rare circumstances, filing the Application for Adjudication. It just isn't done. The IW files the Application to bring the dispute to the WCAB. Why would the carrier do that, when all they have to do is be still? It's the IW who is petitioning for the benefits, and only the WCJ can award them if the defendant does not pay them voluntarily. So, no reason for the party with the money to file the Application. Therefore we don't pay the app attorney fees, that LC section notwithstanding.

That is why the IW is called the 'applicant' and the employer/insurer is called the 'defense'. We defend against the applicant, who files the application where a legal dispute is alleged. I can't think of any reasons for the defense to ever file an application although I know they can if they choose to do so and thus incur the attorney fees. In two decades I have never seen an application filed by the defense, nor have I ever seen a defendant pay the app attorney fees out of their own pocket and not as a deduction from an IW's award. Not that it might've happened rarely, but not where I've ever seen it done.

Edited: Wednesday June 08, 2005 at 10:38 PM by tjfujii@scif.com

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Amy
Senior Member

Posts: 789
Joined: Apr 2005

Thursday June 09, 2005 1:18 PM

LC 4066 appears to be addressing the subject of action by the employer immediately following the availability of the AME's report: "contesting the formal medical evaluation prepared by the agreed medical examiner." That is a different subject than an employer filing an original application for adjudication of claim. It appears to be saying that in that post-AME case, the employer pays the AA's fees if the employer decides to question the AME. However, if you read the text of LC 4066 and it says something different to you, I would be very interested in what your interpretation is. Please read it carefully before replying.

Thank you.
Amy

Edited: Thursday June 09, 2005 at 1:48 PM by Amy

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Thursday June 09, 2005 2:09 PM

Amy,

From your post--"LC 4066 appears to be addressing the subject of action by the employer immediately following the availability of the AME's report: "contesting the formal medical evaluation prepared by the agreed medical examiner."-- Exactly, therefore when there is NO ACTION taken (Filing an Aplication for Adjudication) by the employer the statutes criteria is not met.

"When the employer files an application for adjudication of claim" is the qualifier to the remainder of the statute. Without this qualifier your interpretatation that the statute meaning mere contestation of the AME's finding qualifies an IW to IC paid legal services would have merit. Since the qualifier is included however, one can conclude the legislative intent as without that specific intention there would be no reason to include the language in the firtst place.

But then, IANAL (I Am Not A Lawyer)

Later...

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pattynseitz
Member

Posts: 33
Joined: Mar 2005

Thursday June 09, 2005 3:13 PM

what about labor code section 4064 ? regarding attorneys fees ? how does differ with Labor Code Section 4066 ? what's the difference if any ?

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Thursday June 09, 2005 3:26 PM

pattynseitz,

If you are reffering to LC 4064 (c)--"...if an employer files an application for adjudication and the employee is unrepresented at the time the application is filed, the employer shall be liable for any attorney's fees incurred by the employee in connection with the application for adjudication." Then the language of "if an employer files" is the same operable qualifer as in my previous post and the same interpretation applies.

Later...

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tjfujii@scif.com
Member

Posts: 77
Joined: Dec 2002

Thursday June 09, 2005 5:40 PM

Exactly. It's the filing of the application that triggers the obligation to pay the app atty out of the insurer's pocket. Nothing else triggers that obligation.

Please stop trying to find a way to get atty fees paid by the insurer as it is an excercise in futility. WC atty fees are paid out of the IW's award except when the insurer (employer) files the application of adjudication. Period.

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Amy
Senior Member

Posts: 789
Joined: Apr 2005

Thursday June 09, 2005 7:04 PM

OK, that makes sense. If the employer questions the AME report and decides to do something about it, so to speak, and goes to ye olde proverbial WCAB and files an application for adjudication of claim, THEN the employer will be stuck with the AA's fees. However, if the employer just complains about it to other employers, etc. or the IC complains about it to other people and doesn't do anything about the complaint, then the AA's fees will remain the responsibility of the IW.

Thanks very much.
Amy

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Thursday June 09, 2005 7:08 PM

tjfujii@scif.com
Member

Posts: 77
Joined: Dec 2002

Thursday June 09, 2005 7:45 PM

Yay!

You ask good questions, it is impressive that you are trying to understand the quagmire of wc statutes and regulations out there. It's not an easy task, even for professionals with decades in the biz.

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Amy
Senior Member

Posts: 789
Joined: Apr 2005

Friday June 10, 2005 8:49 AM

Thanks very much, Art and tjfujii! I appreciate your explanations and information!

In Christopher Ball's book called "California Workers' Comp," he gives three more situations where the employer must pay for the AA's fees (not related to the original Adjudication). They can be found on pages 9/20 and 10/9.

Thanks again.
Amy

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loislane2
Senior Member

Posts: 599
Joined: Jul 2004

Friday June 10, 2005 11:14 AM

Amy,

I just read the info in the Ball book that you referenced.
He has a very good book for IW's.

Although in theory, he is correct. I have NEVER seen it happen. The IC's just do not pay the bene, the IW cannot afford to receive nothing, and the IW files the APP.

It would be interesting to see what would happen IF an IW's atty pursued this through the court. Although, i do not see that happening, because financially there is nothing in it for them. Do u see how that is convoluted? So, an IW may be entitled to have the IC pay the fees, but no AA will take this type of case (Unless the APP is filed by the IC, in which case u better play the lottery, because, it NEVER happens) and the IW ends up paying out of their settlement.

Amy, is this happening in your case? Is that why the interest? U should get a job in this field. You do have a good grasp on the laws, and researching them! If i need a paralegal, i will contact you!

Lois

-------------------------
"When one door closes another door opens; but we so often look so long and so regretfully upon the closed door, that we do not see the ones which open for us. -Alexander Graham Bell (1847-1922)

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Amy
Senior Member

Posts: 789
Joined: Apr 2005

Friday June 10, 2005 12:39 PM

Thanks, Lois, that would definitely be fun! However, I'm a mathematician, that's my bag. And I just landed a job teaching math with the Ticket to Work. My interview was just this morning!

Thanks again,
Amy

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Friday June 10, 2005 12:48 PM

A mathematician? Go figure...

Congrats on the job!

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