ATTORNEY FEES - Applicant's deposition–Labor Code §5710–An attorney is entitled to a reasonable attorney's fee under Labor Code §5710(b)(4), which provides for the allowance of a reasonable attorney's fee for the deponent when represented at the deposition fee by a licensed attorney. In this case, the attorney's representation of applicant was limited to the deposition proceedings, and the completion or filing of a fee disclosure statement was not applicable. David Jones v. Workers' Compensation Appeals Board, CSAS 10 WCAB Rptr. 10,029 [Writ Denied]
ATTORNEY FEES - Labor Code §4906-The Appeals Board has the exclusive jurisdiction over fees to be allowed or paid to applicant attorneys. (See Wheeler & Beaton v. Workers' Comp. Appeals Bd. (1995) 40 Cal.App.4th 389.) [In this case, the Appeals Board properly refused to approve an attorney fee agreement that provided for attorney fees to be calculated on an hourly rate of $225.00 or 12% of the permanent disability award, whichever is less.] ___Cal.App.4th___
ATTORNEY FEES - Labor Code §4906–The law does not forbid contracts between applicants and attorneys but merely gives the Appeals Board final approval over their enforcement. Once services are rendered, the WCJ may approve, increase or reduce the fees provided for in such a contract, taking into consideration the factors listed in Labor Code §4906 (d) and the WCAB Policy and Procedures Manual. Fred Vierra v. Workers' Compensation Appeals Board, Collins Pine Company and Liberty Mutual Insurance Co. 9 WCAB Rptr. 10,275 ___Cal.App.4th___
ATTORNEY FEES - Labor Code §4064–The filing of a compromise and release by an employer and an unrepresented applicant constitutes the filing of an application by an employer within the meaning of Labor Code §4064, and employer is liable for any attorney fees incurred by the employee. Monument Car Parts v. Workers' Compensation Appeals Board (Stanley Teach) 9 WCAB Rtpr. 10,226[Writ Denied]
ATTORNEY FEES Does Labor Code §4607, which authorizes the Appeals Board to award attorney fees to an applicant who successfully resists a proceeding instituted by his or her employer to terminate a prior award for medical treatment, authorize the Appeals Board to award attorney fees to an applicant whose employer has not instituted proceedings to terminate medical care but has refused to authorize medical treatment, thereby requiring applicant to institute proceedings to obtain treatment? Ghitterman, Ghitterman & Feld v. Workers' Compensation Appeals Board, Clayton Ford, State Compensation Insurance Fund (David Amar) 9 WCAB Rptr. 10,154 [Writ Granted] Dwight Smith v. Workers' Compensation Appeals Board, California Youth Authority, State Compensation Insurance Fund 9 WCAB Rptr. 10,154 [Writ Granted]
ATTORNEY FEES - California Code of Regulations Title 8 §10775–In establishing reasonable attorney fees, the WCJ should consider (1) the responsibility assumed by the attorney, (2) the care exercised in representing the injured worker, (3) the time involved, and (4) results obtained. [In this case, the WCJ properly analyzed these various elements and noted that the mere fact that the case was in one attorney's office for more than seven years was not determinative of competing law firm claims, but rather what time and effort was spent in bringing the matter to settlement or taking the case to trial.] Kenoth Bishop v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 9 WCAB Rptr. [Writ Denied]
ATTORNEY FEES - California Code of Regulations, Title 8 §10775–Factors to be used in determining attorney fees are: the responsibility assumed, the care exercised, the time involved. and the results obtained. Glass & Seebode v. Workers' Compensation Appeals Board, Interstate Engineering (Elodia Garcia) 9 WCAB Rptr. 10,085 [Writ Denied]
ATTORNEY FEES - Labor Code §4906-Did the Appeals Board err when it refused to approve an attorney fee agreement that provided for attorney fees to be calculated on an hourly rate of $225.00 or 12% of the permanent disability award, whichever is less? Fred Vierra v. Workers' Compensation Appeals Board, Collins Pine Company and Liberty Mutual Insurance Co. 9 WCAB Rptr. 10,058 [Writ Granted]
ATTORNEY FEES - Labor Code §4607-When an employee receives an award that includes future medical care, and the employer/insurance carrier refuses to furnish the treatment but does not institute proceeding to terminate care pursuant to Labor Code §4607, the employee's attorney who succeeds in enforcing the award may receive attorney fees. Ghitterman, Ghitterman & Feld v. Workers' Compensation Appeals Board, Clayton Ford, State Compensation Insurance Fund (David Amar) 9 WCAB Rptr. 10,039 ___Cal.App.4th___ Dwight Smith v. Workers' Compensation Appeals Board, California Youth Authority, State Compensation Insurance Fund 9 WCAB Rptr. 10,039 ___Cal.App.4th___
ATTORNEY FEES-Labor Code §4607-When an employer questions medical treatment post-award, does this constitute a constructive petition to terminate treatment sufficient to support an award of attorney fees pursuant to Labor Code §4697? Ghitterman, Ghitterman & Feld v. Workers' Compensation Appeals Board, Clayton Ford, State Compensation Insurance Fund (David Amar) 8 WCAB Rptr. 10,210 Dwight Smith v. Workers' Compensation Appeals Board, California Youth Authority, State Compensation Insurance Fund 8 WCAB Rptr. 10,210 [Writ Granted]
ATTORNEY FEES- Request for increased attorney's fees–California Code of Regulations title 8 §10778–A Petition for Increased Attorney's fees must be accompanied by proof of service on the applicant of written notice of the attorney's adverse interest and of applicant's right to seek independent counsel. (See Stolzberg & Spencer v. Workers' Comp. Appeals Bd. (Hamalian) (1981 46 Cal.Comp.Cases 1207 [writ denied].) Mike Mayfield v. Workers' Compensation Appeals Board, Mee Allied Movers 8 WCAB Rptr. 10,102 [Writ Denied]
WCAB PROCEDURE– Award of Attorney Fees– Labor Code §5710– There is not legal or public policy basis for making the allowance of reasonable attorney fees under Labor Code §5710 dependent on whether the applicant signs his or her deposition transcript. Los Angeles County Metropolitan Transit Authority v. Workers' Compensation Appeals Board (John Lett) 6 WCAB Rptr. 10,190
ATTORNEY FEES– Lien Against Judgment– An attorney who secures payment of hourly fees by acquiring a lien against a client's future judgment or recovery has acquired an interest that is adverse to the client and must comply with the requirements of Rules of Professional Conduct Rule 3-300, which requires the client's informed written consent to the lien. Freddie Fletcher v. Carlyle Davis. 6 WCAB Rptr. 10,179
ATTORNEY FEES– Mandatory Fee Arbitration in Civil Cases– Business and Professions Code §6200 et.seq.– A client, who loses a binding fee arbitration conducted pursuant to the mandatory fee arbitration statute, may file a subsequent civil action against the attorney predicated on the same allegations of misconduct or breach of contract that formed the basis of the fee dispute. The client may not seek to recover as damages any portion of the fee that the arbitrators awarded the attorney. George Liska v. The Arns Law Firm. 6 WCAB Rptr. 10,104
ATTORNEY FEES– Attorney's can recover on a quantum meruit basis for the reasonable value of their legal services from their clients when their contractual fee arrangements are found invalid or unenforceable. Rule 2-200 of the California Rules of Professional Conduct does not preclude quantum meruit recovery when its client disclosure and consent requirements are not met. Huskinson & Brown v. Mervyn H. Wolf. 6 WCAB Rptr. 10,069
ATTORNEY FEES– A fee for an employee's attorney in a workers' compensation case is ordinarily payable as a lien against compensation to the injured employee. (See Price v. Workers' Comp. Appeals Bd. (1992) 10 Cal.App.4th 959.) [In this case, at the time the injured worker died there were no accrued but unpaid disability benefits from which attorney's fees could be paid.] Robert Reed v. Workers' Compensation Appeals Board, Department of Forestry. 5 WCAB Rptr. 10,358
ATTORNEY FEES– Labor Code §5801– In the event the injured employee prevails in any petition by the employer for a writ of review from an award of the Appeals Board, and the reviewing court finds that there is no reasonable basis for the petition, the court shall remand the case to the Appeals Board for a supplemental award of a reasonable attorney fee. (See Employers Mutual Liability Insurance Company v. Workers' Comp. Appeals Bd. (Rodriguez) (1975) 46 Cal.App.3d 104.) Garden Grove Unified School District v. Workers' Compensation Appeals Board (Toniette La Vertu) 5 WCAB Rptr. 10,306
ATTORNEY FEES– Labor Code §5801 does not specifically permit a fee for the preparation of the fee petition. (See Lee v. Workers' Comp. Appeals Bd. (1998) 63 Cal.Comp.Cases 1082 [writ denied].) Garden Grove Unified School District v. Workers' Compensation Appeals Board (Toniette La Vertu) 5 WCAB Rptr. 10,306
ATTORNEY FEES– Labor Code §3860(c)– An award of reasonable attorney fees may be made to the injured employee's attorney where the employee's claim against a third-party and the employer's claim for workers' compensation benefits are both settled solely through the employee's attorney's efforts. (See Draper v. Aceto (2001) 26 Cal.4th 1086, 3 WCAB Rptr. 10,332.) [In this case, it was error to calculate the basis of the settlement fund, including the full amount of the workers' compensation lien rather than the actual benefit received by the employer.] Javier Manriquez v. James Stephen Adams. 5 WCAB Rptr. 10,158
ATTORNEY FEES– Labor Code §4607– In the absence of a petition to terminate liability for medical treatment benefits, there is no basis for an assessment of attorney fees pursuant to Labor Code §4607. [In this case, the WCJ construed the employer's failure to provide the required medical care to applicant as a constructive petition to terminate medical benefits, thus allowing for the provision of attorney's fees. A WCAB panel reversed, noting that the defendant's failure to provide the medical care occurred more than five years from the date of injury, and therefore the WCAB had no jurisdiction over the issue.] Marriott International, Inc., v. Workers' Compensation Appeals Board (Charles Slemmons) 5 WCAB Rptr. 10,151
ATTORNEY FEES– Payment of referral fees– California Rules of Professional Conduct Rule 2-200– An attorney may pay a referral fee to another lawyer for referring a case, even if the referring attorney does no work on the case. (See Moran v. Harris (1982) 131 Cal.App.3d 913.) Fee-splitting agreements are enforceable only if there is compliance with Rule 2-200: (1) explained to the client in writing and consented to by the client in writing, and (2) the total fee charged by all lawyers is not increased solely by reason of the division of the fees and are not unconscionable. (See Chambers v. Kay (2002) 29 Cal.4th 142, 4 WCAB Rptr. 10,324.) Alan Thaler v. Shernoff, Bidart, Darras & Arkin. 5 WCAB Rptr. 10,044
ATTORNEY FEES– Written notice of attorney's adverse interest– California Code of Regulations, Title 8, section 10778 states that all requests for an increase in an attorney's fees shall be accompanied by a proof of service on the applicant of written notice of the attorney's adverse interest and of the applicant's right to seek independent counsel. Failure to so notify the applicant may constitute grounds for dismissal of the request for increase in the attorney's fees. Weidner, Swanson & Paul v. Workers' Compensation Appeals Board (Carol J. Weling) 5 WCAB Rptr. 10,039
ATTORNEY FEES– Employer liability for evaluation costs– Labor Code §4064– If an employer files an application for adjudication and the employee is unrepresented at the time the application is filed, the employer is liable for any attorney's fees incurred by the employee in connection with the application for adjudication. Ilse Sauerwald v. Workers' Compensation Appeals Board, University of California. 5 WCAB Rptr. 10,021
ATTORNEY'S FEES– Labor Code §5710(b)(4)– When an employer or insurance carrier requests a deposition to be taken of an injured worker, a reasonable allowance for attorney's fee may be awarded for the deponent, if represented by a licensed attorney. George Rupkey v. Workers' Compensation Appeals Board, Union Bank of California. 5 WCAB Rptr. 10,016
ATTORNEY FEES– Division of fees between attorneys– State Bar Rule 2-200(A)– An attorney shall not divide a fee with lawyers not associated in practice together unless (1) the client has consented in writing after a full disclosure has been made in writing that a division of fees will be made and the terms of such division, and (2) the total fee charged by all lawyers is not increased solely by reason of the provisions for division of fees and the division is not unconscionable. (See Chambers v. Kay (2002) 29 Cal.4th 142, 4 WCAB Rptr. 10,324.) H. Douglas Spruance III v. Thomas D. Thomas. 4 WCAB Rptr. 10,339
ATTORNEY FEES– Consent by client to division of attorney fees– A client may not revoke an informed consent to the division of attorney fees. (See generally, Margolin v. Shemaria (2000) 85 Cal.App.4th 891.) H. Douglas Spruance III v. Thomas D. Thomas. 4 WCAB Rptr. 10,339
ATTORNEY FEES– Fee sharing between attorneys– California Rules of Professional Conduct Rule 2-200(A)(1)– A member of the State Bar shall not divide a fee for legal services with a lawyer who is not a partner of, associate of, or shareholder with the member, unless the client has consented in writing thereto after full disclosure has been made in writing that a division of fees will be made and the terms of the division. Arthur Chambers v. Philip Kay. 4 WCAB Rptr. 10,324
ATTORNEY FEES– California Code of Regulations Title 8, §10775– In establishing a reasonable attorney's fee the WCJ should consider: (1) responsibility assumed by the attorney, (2) care exercised in representing the applicant, (3) time involved, (4) results obtained. Normal and customary fees for a 100% award are generally considered by calculating nine to twelve percent of the value of ninety-nine and three quarters percent of the permanent disability. In cases of above average complexity, a fee of 15% could be appropriate. [In this case, the fee was calculated on 15% of the present value of the award pursuant to the Workers' Compensation Commutation Work Sheet. No attorney's fees were awarded on the medical payments or permanent disability advances.] Calvin Hollingsworth v. Workers' Compensation Appeals Board, City of Huntington Beach. 4 WCAB Rptr. 10,317
ATTORNEY FEES– An award of attorney's fees is a separate class of benefits. County of Los Angeles v. Workers' Compensation Appeals Board (Stacy Jones) 4 WCAB Rptr. 10,292
ATTORNEY FEES– Labor Code §5410.1– If a party institutes proceedings to reduce the amount of permanent disability and is unsuccessful in those proceedings, the Appeals Board may make a finding as to the amount of reasonable attorney fees incurred by the applicant in resisting such proceedings to reduce permanent disability benefits previously awarded. Tenet Healthcare Corp. v. Workers' Compensation Appeals Board (Susan Milner) 4 WCAB Rptr. 10,092
ATTORNEY FEES– Labor Code §4906– In establishing a reasonable attorney's fee, consideration should be given to the responsibility assumed by the attorney, the care exercised in representing the applicant, the time involved, and the results obtained. (Cal.Code of Regs, title 8, §10775)Under the Attorney Fee Guidelines in the Policy and Procedure Manual, the attorney's fe in the range of 9 percent to 12 percent may be allowed from permanent disabioit indemnity, death benefits, temporary disability indemnity and out-of-pocket medical benefits to the extent that they are obtained or awarded as a result of the applicant's attorney's services. Dorothy Rodeberg v. Workers' Compensation Appeals Board. Regents of the University of California. 4 WCAB Rptr. 10,059
ATTORNEY FEES– Splitting fee between attorneys representing applicant– This case was setteled pursuant to Stipulations and Award with a 100% permanent disability. The initial attorney handled the case for 6 years and the disposition of the case was agreed upon before new counsel was substituted as counsel of record. The second attorney had the case for 10 months when the applicant agreed to the settlement and the dismissal of a serious and willful claim as well as penalty issues. Based on the WCJ's finding that "most of the work and preparation for a disposition was done by the prior attorney, and the new attorney only did little to finalize it," the WCAB panel affirmed a fee of 85 percent to the former attorney and 15% to the new attorney. Thomas Hughes v. Workers' compensation Appeals Board, Naumes, Inc. 3 WCAB Rptr. 10,363
ATTORNEY FEES– Commutation of attorney fees in a life pension case– Since there is no "far end" of an award of a life pension, the defendant properly commuted an a amount from each week's permanent disability payment to pay for the attorney fees. Carrol Wright v. Workers' Compensation Appeals Board, County of Los Angeles. 3 WCAB Rptr. 10,354
ATTORNEY FEES– Recovery of attorney fees in third party actions by employer and employee– Labor Code §3860– When attorneys separately representing an employer and its employee each actively prosecute an action against a third party, the fee of the employee's attorney must come out of the employee's share of any recovery. Peggy M. Draper v. Byron A. Aceto. 3 WCAB Rptr. 10,332
ATTORNEY FEES– Labor Code §3860(b)– Although the Appeals Board should not lightly disregard a fee agreement between attorney and client, that agreement is not binding on the Appeals Board, which must comply with its statutory duty to determine the reasonableness of attorney fees requested in matter pending before the Appeals Board. (See 99 Cents Only Stores v. Workers' Comp. Appeals Bd. (Arriaga) (2000) 80 Cal.App.4th 644, 2 WCAB Rptr. 10,189.) Jessie Serna v. Workers' Compensation Appeals Board (Jesus Arteaga) 3 WCAB Rptr. 10,325
ATTORNEY FEES– Labor Code §4903.2– When a lien claimant has an attorney or representative, who participates in the proceedings before the Board with respect to the lien claim, the applicant's attorney is not entitled to a fee for the lien claimant's recovery. Sharon Isham v. Workers' Compensation Appeals Board, Spieker Properties. 3 WCAB Rptr. 10,185
ATTORNEY FEES– Labor Code §4903.2– "Participation in the proceedings" is more that the mere filing of a lien claim. Participation does not require the attorney or representative to take an active role in the trial when an appearance is made on behalf of the lien claimant's behalf. It is sufficient that the lien claimant's attorney or representative attend the hearings. Sharon Isham v. Workers' Compensation Appeals Board, Spieker Properties. 3 WCAB Rptr. 10,185
ATTORNEY FEES– Commutation of attorney fees in a life pension case– Labor Code §5100– In cases of an award of a life pension, the proper method for commuting attorney fees is to commute them through the lifetime award using appropriate actuarial tables. (See Goler v. W&J Sloane Company (1979) 44 Cal.Comp.Cases. 1065 [en banc].) City of Foster City v. Workers' Compensation Appeals Board (John Sanchez) 3 WCAB Rptr. 10,184
ATTORNEY FEES– Attorney fees are allowed against applicant's recovery and not awarded against the defendant. The fee allowed will result in a reduction of applicant's recovery. City of Foster City v. Workers' Compensation Appeals Board (John Joseph Sanchez) 3 WCAB Rptr. 10,137
ATTORNEY FEES– Commutation of attorney fees– When there is an award of permanent total disability paid at the rate of temporary disability indemnity for the rest of the applicant's life, commutation cannot be made from the far end of the award to pay attorney fees but instead the attorney's fee must be commuted through the award with a reduction being made in each payment during the remainder of the applicant's life in an amount sufficient to pay the attorney fees forthwith. Ronald S. Winters v. Workers' Compensation Appeals Board (Esperanza Ward) 3 WCAB Rptr. 10,073
