‘Do I Have To Pay For A Lawyer?’
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 lawyers 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 attorneys are not charging a fee higher than they are entitled to.
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 safeguards in place in regard 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 a lower fee amount if there is no lawsuit filed and charge a 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 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 Jan. 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.