a-z indexroundtableArticles & Editorialsmarketplacemeet the publisherscontactsearch
home
  A-Z Index
A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z

ATTORNEY FEES

Labor Code §4906 provides, that "No charge, claim, or agreement for the legal services or disbursements mentioned in subdivision (a) of Section 4903, or for the expense mentioned in subdivision (b) of Section 4903, is enforceable, valid, or binding in excess of a reasonable amount. The appeals board may determine what constitutes a reasonable amount." Further, no fees can be received in advance: see subsection (b).

Under Labor Code §4903, the WCAB "may determine, and allow as liens against any sum to be paid as compensation....(a) A reasonable attorney’s fee for legal services pertaining to any claim for compensation either before the appeals board or before any of the appellate courts, and the reasonable disbursements in connection therewith...."

Lien: While considered a lien on the injured worker's award, under 8 CCR §10207, no filing fee is required.

An injured worker's attorney can receive a fee for prosecuting a lien in some circumstances: see LC §4903.2

When Defendant Pays:

In some instances, the defendant may be liable for fees for the injured worker's attorney. Labor Code §4064 amended by SB 863, provides, in relevant part:

 (b) For injuries occurring on or after January 1, 2003, if an unrepresented employee obtains an attorney after the evaluation pursuant to subdivision (d) of Section 4061 or subdivision (b) of Section 4062 has been completed, the employee shall be entitled to the same reports at employer expense as an employee who has been represented from the time the dispute arose and those reports shall be admissible in any proceeding before the appeals board.
(c) Subject to Section 4906, if an employer files a declaration of readiness to proceed and the employee is unrepresented at the time the declaration of readiness to proceed is filed, the employer shall be liable for any attorney’s fees incurred by the employee in connection with the declaration of readiness to proceed.

Labor Code §4066, which had required the defendant to pay the injured worker's attorney fees "[w]hen the employer files an application for adjudication of claim contesting the formal medical evaluation prepared by an agreed medical evaluator," was repealed.

Labor Code §5710(b)(4): "A reasonable allowance for attorney's fees for the deponent, if represented by an attorney licensed by the State Bar of this state. The fee shall be discretionary with, and, if allowed, shall be set by, the appeals board, but shall be paid by the employer or his or her insurer." Various Board offices have a presiding judge's memorandum listing what are considered reasonable fees.

If the employer is uninsured, "the appeals board may award a reasonable attorney's fee in addition to the amount of compensation recoverable" under Labor Code §4555.

See, too: Sanctions and the list of fees under "Labor Code" below.
 
Calculation of fee: The case fee is generally 15% of the permanent disability or of the total settlement amount, but may be lower: see WCAB Policy below. If the fee is for depositions or to enforce awards or defend against certain petitions (see below), then it is based on hours worked multiplied by a reasonable hourly rate.

WCAB Policy: The WCAB Policy and Procedural Manual states:

"The Labor Code imposes an obligation on WCJs to determine what is a reasonable attorney's fee in cases submitted to them for decision.

The WCAB recognizes the valuable service rendered to applicants by competent attorneys. The WCAB recognizes, too, that reasonable fees must be sufficient to encourage such competent attorneys to participate in this field of practice. The WCAB has seen instances where fees appear to be unreasonably low or high. The WCAB has seen, too, instances where attorneys accept sizeable fees for services which are largely unnecessary because there is little dispute and little time, effort or skill involved."


Referral Fees: While an attorney may make a referral fee arrangement with another attorney, the State Bar requires that:

(A) A member 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: 
(1) The client has consented in writing thereto 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 provision for division of fees and is not unconscionable as that term is defined in rule 4-200. (Rule 2-200)

See, too, Representation and Commutation

Label Item Links Comments
Labor Code Fees are set by, and must be approved by, the Workers' Compensation Appeals Board before they can be paid.   LC §4906  
  When the payment of compensation has been unreasonably delayed or refused subsequent to the issuance of an award the board "shall...award reasonable attorneys' fees incurred in enforcing the payment of compensation awarded. LC §5814.5  
  When applicant "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," Board shall award "a reasonable attorney's fee for services rendered in connection with the petition for writ of review." LC §5801  
  When defendant unsuccessfully petitions to terminate an award of continuing medical treatment, the board "may determine the amount of attorney's fees reasonably incurred by the applicant in resisting the proceeding to terminate the medical treatment, and may assess such reasonable attorney's fees as a cost upon the party instituting the proceedings to terminate the award of the appeals board. LC §4607  
  When defendant unsuccessfully petitions to decrease or terminate liability for TD, the board may determine the amount of attorney's fees reasonably incurred by the applicant in resisting the petition and may assess such reasonable attorney's fees as a cost upon the party filing the petition. LC §4651.3  
  When defendant unsuccessfully petitions to reduce an award of permanent disability,  "the board may make a finding as to the amount of a reasonable attorney's fee incurred by the applicant in resisting such proceeding...." LC §5410.1  
  Added by SB 863: "If appropriate, an attorney’s fee for recovery of home health care fees under this section may be awarded in accordance with Section 4906 and any applicable rules or regulations." LC §5307.8
 
  Uninsured employer LC §4555  
Regulations/Rules §10134. Attorney Fee Disclosure Statement Form.

§10135. Required Use of Form. "Every attorney or his/her agent who consults with an injured worker or dependent is required to furnish the attorney fee disclosure statement form set forth in Section 10134 of this Article to the injured worker or dependent at the initial consultation."

§10135.1.Within 15 days of the employee's and attorney's execution of the disclosure form, a copy of the disclosure form shall be mailed to the employer or, if known, to the employer's insurer or third-party administrator.
8 CCR §10134

8 CCR §10135





8 CCR §10135.1

 
§10775: Reasonable Attorney's Fee. In establishing a reasonable attorney's fee, the workers' compensation judge or arbitrator shall consider the (a) responsibility assumed by the attorney, (b) care exercised in representing the applicant, (c) time involved, (d) results obtained.

Reference will be made to guidelines contained in the Policy and Procedural Manual and workers' compensation judges and arbitrators shall at all times comply with Labor Code section 5313 by setting forth the reasons or grounds for applying the guidelines in any fee determination.

Through its power to grant reconsideration on its own motion, the Appeals Board shall exercise authority to ascertain the extent to which these guidelines are followed.

§10776. Approval of Attorney's Fee.:(a) No request for payment or demand for payment of a fee shall be made by any attorney for, or agent of, a worker or dependent of a worker until the fee has been approved or set by the Workers' Compensation Appeals Board. (b) No attorney or agent shall accept any money from a worker or dependent of a worker for the purpose of representing the worker or dependent of a worker before the Workers' Compensation Appeals Board or in any appellate procedure related thereto until the fee has been approved or set by the Workers' Compensation Appeals Board or an appellate court. (c) Any agreement between any attorney or agent and a worker or dependent of a worker for payment of a fee shall be submitted to the Workers' Compensation Appeals Board for approval within ten (10) days after the agreement is made.
8 CCR §10775


















8 CCR §10776
§10778. Request for Increase of Attorney's Fee.
All requests for an increase in attorney's fee shall be accompanied by 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 fee.
8 CCR §10778
  WCAB manual: see above Policy and Procedural Manual  
Forms Labor Code §4906 requires "a written disclosure form promulgated by the administrative director." DWC-3 (Attorney Fee Disclosure)   
Cases Reich, Adell, Crost & Perry v. WCAB. (1979) 99 Cal. App. 3d 225: How the Board determines (and reduces) fees.

Noteworthy panel decisions on attorney's fees (July-December 2012)
Reich, Adell, Crost & Perry v. WCAB


LexisNexis summary
Websites    
Practice Tips Amend the DWC-3 form to note something like this: "*WCAB is awarding fees of 15% on usual cases and 18-20%  on complex cases. 15% is the minimum fee this office requests." Also have a supplementary fee agreement that spells out increased fees for penalties, etc. If there is a serious and willful case or a 132a case, have an agreement just as you in a civil case.     
Articles Calculating the Attorney’s Fee Calculating the Fee
 
Magazine Articles Commutation of Attorney Fee by Warren Schneider, Esq. Commutation of Fee
 
Roundtable    
Miscellaneous      

A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z