Workers’ Compensation Attorney Fees Explained

Your California Workers’ Compensation Attorney will likely be paid on a contingency fee basis for the legal services that they perform.  An attorney who handles your Workers’ Compensation case in California is allowed to charge a range of between 9% to 12%.  However, the lawyer can charge more, a range of 15% to 30%, for above average complexity cases.  In San Diego, it is likely that all attorney’s who handle Workers’ Compensation have a provision in their fee agreement that says that they can charge the higher range.  There are additional protections in place in the Workers’ Compensation system to make sure that attorney’s are not charging a fee higher than they are entitled.

It is worth noting up front that all attorneys should be ethical and only charge a fee that they are entitled to in connection with your case.  There are many rules and regulations regarding how attorneys can charge contingency fees. But, the California Legislature has put additional safe guards in place in regards to contingency fees in Workers’ Compensation cases.

For example, as already indicated, fees are set by statute lower than most clients would pay in Personal Injury cases.  Personal Injury cases tend to have a range of 33% to 40%, and even potentially higher.  Usually in Personal Injury cases, like car accidents, the lawyer will charge the lower fee amount if there is no lawsuit filed and charge the higher fee amount if a lawsuit is filed in the case.

Another protection afforded to injured workers in California is that the fee agreement that an attorney and a client enter into must be submitted to the Workers’ Compensation Appeals Board (WCAB) for approval within ten (10) days after the agreement is made, pursuant to Labor Code 4906(b).  The WCAB can then verify that the client is being asked to pay exorbitant fees from the outset of the attorney representation of the worker.

Also, the attorneys’ fee needs to be approved at the end of the case by a Workers’ Compensation Judge (WCJ). Pursuant to California Labor Code 4906(b):

An attorney or agent shall not demand or accept any fee from an employee or dependent of an employee for the purpose of representing the employee or dependent of an employee in any proceeding of the division, appeals board, or any appellate procedure related thereto until the amount of the fee has been approved or set by the appeals board.

Further, there is specific criteria that a judge must consider in approving the fee that the attorney requests.  According to 8 California Code of Regulations 10775, In establishing a reasonable attorney’s fee, the WCJ or arbitrator shall consider: 1. the responsibility assumed by the attorney; 2) the care exercised in representing the applicant; 3) the time involved; and 4) the results obtained.

The fee will usually be be based on the total amount of money that the attorney recovers for you at the end of the case.  For example, the fee may be on the amount of Permanent Disability if the case is settled by Stipulations with Request for Award.  The attorney would also be paid a percentage of any Life Pension that the Applicant is entitled to if the disability is high enough.  See generally Stephens v. Patten Energy Enterprises, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 668.

If the case is settled by Compromise and Release, then the fees will be based on the total amount that the case is settled for.  However, for injuries occurring on or after January 1, 2013, an attorney may not take a fee on the Return to Work Voucher.

There are other instances where an attorney may be awarded a fee.  For example, if the attorney goes to a trial for retro- Temporary Disability benefits and is successful in obtaining retro benefits for the injured worker.  An attorney is also entitled to a fee for time preparing the injured worker for a deposition and for providing legal assistance at the deposition.  Those fees are paid at an hourly rate by the insurance carrier.  An insurance company may also be required to pay fees pursuant to Labor Code 5801 in the event that they file a frivolous Writ of Appeal in a case.  The Court can then award fees based on an hourly rate to the Applicant Attorney.

Workers’ Compensation Department of Industrial Relations Releases Contact Information for IMR

It is no secret that the IMR process implemented as a part of SB 863,  which took effect on January 1, 2013, is a complete disaster.  IMR is an Independent Medical Review process that reviews all denied treatment and upholds denials by the insurance company a majority of the time.  Injured workers across California, including San Diego, are facing extensive delays for their medical treatment as a result of this inefficient system.  Workers’ Compensation lawyers in California battle these changes to medical authorization everyday.

However, SB 863 is still touted on the Department of Industrial Relations Website as:

One of Governor Brown’s landmark reforms, Senate Bill 863   passed on August 1, 2012, and was signed into law on Sept. 18, 2012. The bill makes wide-ranging changes to California’s workers’ compensation system, including increased benefits to injured workers and cost-saving efficiencies.

See http://www.dir.ca.gov/dwc/SB863/SB863.htm

The IMR process neither increases benefits to injured workers, nor does it provide cost-saving efficiencies.  Instead, it causes unprecedented delays in getting injured workers in the Workers’ Compensation system in San Diego, and through California, medical treatment that they need.  According to one source at CAAA.com, as many as many as 3.5 million denials have passed through the IMR process.  See https://www.caaa.org/index.cfm?pg=Release_ProPublica.

This has lead to delays where injured workers in San Diego have waited as long as six months to receive a response from IMR as to whether their treatment has been approved.  The Department of Industrial Relations released a bulletin on March 18, 2015 for contact information to find out the status of your IMR application.  The contact information is: Toll free (855) 865-8873; Fax: (916) 605-4270; email: imrhelp@maximus.com.
If you are an injured worker, your best bet is to hire a competent Workers’ Compensation lawyer.  Whether you are an injured worker in San Diego or anywhere in California, you need an experienced attorney in your corner to help tip the odds in your favor.

What to do when your 104 weeks of temporary disability runs out

It frequently happens that an injured worker suffers a disabling injury that causes them to miss work.  Unfortunately, California Temporary Disability payments cap out at 104 weeks. Temporary Disability (TD) payments are payments that you receive from the Workers’ Compensation carrier when you are still in the treatment phase of your case.

It is important to know that in the Workers’ Compensation system, there are some exceptions to this rule that  can be found in CA Labor Code section 4656(c)(3)(C).  Contact an experienced Workers’ Compensation lawyer to see any of those exceptions will apply to your case so that you can exceed the 104 week cap.

In addition, you may be able to get an advance against your Permanent Disability (PD) benefits.  Depending on how good a relationship that you or your attorney has with the insurance company and how injured you are, the carrier may be willing to give you an advance against your PD, even if you are not declared Permanent and Stationary yet.

There are some other things that you can do outside the Work Comp system.  Never forget to check to see if you have a private insurance policy that may pay you benefits while you are unable to work.  Some employers offer these policies as incentives and you may not be aware or have forgotten that you have such a policy. Also, you can try to apply for State Disability and/or Social Security benefits.

Welcome to San Diego Lawyers’ Workers’ Compensation Blog

This blog is designed to provide a basic overview of the Workers’ Compensation system.  Those who have suffered an injury on the job often find the Workers’ Compensation system confusing.  There are many acronyms and terms that are unique to this system.  Whether you have a brain injury, a back injury, a shoulder injury, or any other type of injury, this blog should provide relevant information.

Of course, nothing compares to the one-on-one advise directly from an attorney.  Nothing in this blog or website is designed to provide legal advise and nothing on this site creates an attorney-client relationship.  Please contact Eric M. Overholt or another experienced Workers’ Compensation attorney if you would like more information about retaining an attorney to represent you for your work related injury