When is an Unrepresented Worker Entitled to Attorney Fees?

We were recently asked to do a special edition about when an unrepresented worker would be entitled to obtain attorney fees.

This case appeared at 22 CWCR 83 and appears to have been a WCAB panel decision after reconsideration.  The factual basis was that it was an admitted industrial claim for which temporary disability was paid. The applicant was informed of his rights under Labor Code section 4061 when the treating physician found him permanent and stationary. The applicant selected a QME from the panel of three provided to evaluate permanent disability and need for treatment. The QME determined the applicant was still TD and in need of treatment. The Code states in section 4061 (K) that the insurer has to commence payments or file an application if they are unwilling to follow the QME. Here the insurer did neither and after a month the applicant filed his own application. Thereafter, the applicant retained an attorney who requested the insurer to pay attorney’s fees under section 4064 (d).

The panel believed the insurer had the choice of either providing benefits according to the QME or filing an application for a adjudication of claim.  Since the insurer did neither the applicant was forced to file the application on his own. The applicant then needed an attorney to represent him at the hearing. Presumably if the insurer would have done what they were supposed to do the applicant would not have needed an attorney at that point.

The panel indicates that the insurer is mandated to file the application under Labor Code section 4061 and 4063.  Once the insurer does that then the insurer is required under 4064(D) to pay attorney’s fees. If the insurer fails to file the application or pay benefits then the applicant could be left without a remedy reasoned the panel The only way the applicant could ensure the payment of benefits was to file his own application. Once having done so the panel reasoned that the applicant was entitled to attorney’s fees. They considered the application “constructively” filed at this point by the defendant. This is merely a legal technicality to make sure the insurer complies with sections 4061(K) and 4063. The panel is saying that you cannot ignore the QME findings.

If the QME finds either the need for compensation or treatment you must either provide it or file an application. If you file the application you are responsible for attorney’s fees. If you do not do anything and force the applicant to file the application you will still be responsible for attorney’s fees.

Case: Ferguson V. Kemper Ins.

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

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