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.

First Step for a California Workers’ Compensation Injured Worker

As indicated throughout this blog, it is important to hire a Workers’ Compensation attorney to help assist you with your claim.  However, it is not likely that you will have an attorney already hired before you suffer an injury on the job.  This article is designed to briefly tell you what to do as soon as you get hurt on the job.  Of course, after you fill out the claim form and see the doctor, you need to contact an experienced California Work Comp lawyer.

The first step after any Work Comp injury  is to report the injury immediately to your supervisor.  Also, if you are able, make a mental note of any witnesses that might have seen your injury.  Collect any evidence and take pictures of the accident site, unless you are not allowed to take photographs at your job due to confidentiality or security policies.

Your employer should give you a California Workers’ Compensation claim form, also called a DWC-1, once you report the injury.  As an injured worker you have the right to demand the form if your employer does not give you the Work Comp claim form.  You will need to fill out your portion of the form to begin your Workers’ Compensation claim in California.  Ask the employer to fill out their section and request a copy of the Work Comp claim form.

Make sure that you include all injured body parts.  If something falls on your shoulder, but your back is the body part that hurts, then make sure that you at least list the shoulder and the back as injured body parts.  You can amend your claim later, but it is best to list all body parts that you think that may have been injured as a result of the work injury.  It is better to be over-inclusive than under-inclusive.  You don’t want to lie or misstate an injury, but if you think that any body part may have been injured, then list it on the form and then get the injury checked out by a Workers’ Compensation doctor.

Contact an experienced lawyer experienced in Workers’ Compensation law to make sure that your rights are protected.  Whether you need an attorney for in San Diego or anywhere else in San Diego, you can contact attorney Eric M. Overholt.