How To Determine Attorney Fees In 100 % P. D. Case

It would seem that there is some concern over how attorneys’ fees are determined when there is a Findings and Award for 100% permanent disability. On June 26, 2000 an Order Granting Reconsideration an Decision After Reconsideration issued by a Workers’ Compensation Appeals Board (WCAB) panel answering that question.

The applicant filed a workers’ compensation claim for injury to his heart as a fire captain. The defendant apparently accepted liability and paid temporary disability. An agreed medical examiner was chosen and found the permanent disability to be a limitation to light work and without “high degrees of emotional stress.” The defendant also provided psychiatric treatment.

The applicant apparently then became represented by his present attorney who brought this petition for reconsideration in regards to attorney fees. The applicant was alleged to be a difficult client to represent. His illness prevented him from acting competently. The claims examiner offered to stipulate to a permanent disability award of 83 %. The applicant’s attorney recommended rejection of the offer.

The applicant’s attorney had to secure the appointment of a guardian ad litem.  The applicant’s attorney represented the applicant over 8 years and made over a dozen appearances before the WCAB.  The applicant’s attorney even tried to withdraw of counsel at one point, but the workers’ compensation judge (WCJ) insisted that the attorney continue to represent the applicant.

The applicant was eventually determined to be 100 % permanently disabled. The applicant’s attorney asked for a fee of $59,732.65, or 15 %. The WCJ awarded a fee of $27,500. The WCJ apparently did not rely on Goler v, W&JSlocme Co., but used a different formula.

The applicant’s attorney filed a petition for reconsideration and relied on Lawrence Drasin v. WCAB and Wheeler & Barton. The Board granted reconsideration.

The Board looked at WCAB 10775.  The Board considers many factors in determining attorney fees,, including the time Spent on the case by the attorney and the result obtained. A normal fee is 9 to 12 %. In more complex cases a higher fee may be warranted based on all benefits obtained (Does this include temporary disability and medical care?). The Board indicated that the WCJ must include the amount of temporary disability and out-of-pocket medical expenses. In this case they awarded 15% of the present value of applicant’s benefits.

Case: Lowery V. State of California (SRO 78422)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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