Fundamentals of Work Comp Law - Part 8, Final

Saturday, May 10, 2003 | 0

The following article is the eighth and final in a series for attorneys and other professionals just getting started in workers' compensation. A list of the earlier segments is at the end of this article. This article presents an excellent checklist for the start of an applicant's practice.

Authors Richard Owen and Harold Greene have graciously permitted the republication of their outline from the annual class on workers' compensation they give to the CA State Bar Section Education Institute. Though not in narrative format, workcompcentral editors felt the material to be of excellent educational quality in present form and are proud to publish it here.

I. Applicant's practice - realities and considerations:

A. Handling referrals.

B. Justifying fees.

C. Third party, labor claims, social security claims, ADA and malpractice.

D. Expediting processing through technology.

E. Law Firm Employees: New Rule 10773 specifies what non-attorney law firm employees can and cannot do at the WCAB.

F. Advertising:

II. Thorough Initial Interview:

A. Complete intake information prior to initial interview; factors which go into deciding which case to take:

1. Candor with the client.

2. Explain costs, fees, and timing.

3. Prepare client for trauma of litigation.

4. Don't rush to litigate.

B. Attorney Disclosure Form (Labor Code section 4906(e); Rules 10134 - 10135.1):

C. How Attorney Fees are calculated:

1. Normal attorney fees: No attorney fee is allowed in workers' compensation matters unless ordered by the WCAB. Labor Code sections 4902 and 4906. Reasonable attorney fee are permitted and are a lien against compensation benefits. Labor Code sections 4903(a) and 4906; Rules 10775 - 10779. Normal fees range from 9% to 12% with SoCal Boards routinely giving 15%. See recent case Lambert v. WCAB (Aguirre) (1999) 64 CCC 637 (not published) for a discussion of attorney fees in a 100% case.

2. Deposition attorney fees (Labor Code 5710): Where the employer or insurance carrier requests a deposition to be taken of an injured worker, the injured worker is entitled to receive in addition to all other benefits a reasonable attorney fee if represented by an attorney licensed to practice in this State. The fee is discretionary and if allowed shall be set by the appeals board. Labor Code section 5710(b)(4). The process is to petition the WCAB for a section 5710 fee. Once ordered, the 5710 deposition fee is payable directly to the attorney forthwith, not at the conclusion of the case.

3. Vocational Rehabilitation attorney fees: See Rocha v. Puccia Construction Co., (1982 en banc) 47 CCC 377. The applicant's attorney needs to file a lien in the WCAB proceedings for an estimate reasonable fee for the services to be rendered in the rehabilitation proceedings. At the conclusion of the rehabilitation proceedings, the attorney needs to file a petition for fee with the WCAB setting forth the time spent on the rehabilitation issues and a description of the nature of the services. The WCAB will then order rehabilitation attorney fees. Usually, at the request of the attorney and with the consent of the injured worker, the defendants will withhold 12% from the VRMA payments to accumulate a fund from which to pay the rehabilitation fees; if more money is withheld than ordered for fee, the balance is payable to the injured worker.

III. What are the issues?:

A. Injury AOE/COE, employment, statute of limitations, other "threshold" issues:

B. Temporary Disability, Medical Treatment, Vocational Rehabilitation:

C. Permanent Disability and Apportionment:

IV. What are the first steps for resolving disputes and issues?:

A. Physicians resolve most disputes in Workers' Compensation cases through medical examinations and reports, sometimes supplemented by doctor's depositions; live testimony from a doctor is discouraged.

B. For injuries occurring after 1/1/94, the treating physician is presumed correct under current law; if a party disputes the treating doctor's conclusions, then "The AME-QME Dance" begins:

C. The AME-QME Dance:

1. If the injured worker is represented by counsel, the parties must attempt to agree on an Agreed Medical Examiner (AME) to resolve any and all medical issue disputes.

2. If the parties are not able to agree upon an AME, each party chooses his or her own Qualified Medical Examiner (QME).

3. After the medical reports are in, the parties review the medical reports and doctors' conclusions and attempt to Stipulate or Compromise & Release the case.

4. Communication between the parties is by letter or telephone and sometimes informal conferences at attorney's office. If unable to resolve informally, then seek assistance of the WCAB.

V. Finalization of case through settlement or trial:

The following reference guide is a suggested list only and is not to be construed as an exhaustive list nor a recommended source:

1. California Compensation Cases Reporter, published by Matthew Bender/LexisNexis. Note: This is the only "official" sources of all Workers' Compensation cases, both from the Courts and from the WCAB.

2. Workers' Compensation Laws of California, 2003 Edition, published by Matthew Bender/LexisNexis. Note: This is an annual softbound volume of all laws and regulations relating to workers compensation. (There are similar publications by other law book publishers.)

3. California Workers' Compensation Reporter (CWCR), published monthly by the California Workers' Compensation Institute.

4. Hanna, California Law of Employee Injuries and Workers' Compensation, Revised 2d Edition, published by Matthew Bender/LexisNexis. Note: This is considered to be the most authoritative treatise on the California workers' compensation laws.

5. Larson's, Workmen's Compensation, published by Matthew Bender/LexisNexis. Note: This is a highly regarded treatise on the workers' compensation laws of all states.

6. CEB, California Workers' Compensation Practice, 4th Ed., with current supplement.

7. California Civil Practice, Workers' Compensation, published by Bancroft-Whitney, with current supplement.

8. Hampton, Workers' Compensation Claims Desk Book 2 (1993), published by the Workers' Compensation Company, with current supplement.

9. Herlick, California Workers' Compensation Laws, 20th Ed., publish by Lexis Law Publishing, with current supplement.

10. O'Brien, Workers' Compensation Claims and Benefits, 10th Ed., published by Lexis Law Publishing, with current supplement.

11. St. Clair, California Workers' Compensation Law and Practice, 5th Ed., published by California Compensation Seminars, with current supplements.

12. Workers' Compensation Quarterly, published by the Workers' Compensation Law Section, State Bar of California.

13. Schedule For Rating Permanent Disabilities, State of California, Department of Industrial Relations, Division of Workers' Compensation, April 1997 (new rating schedule for injuries occurring on or after 4/1/97); July 1978 (old rating schedule for injuries prior to 4/1/97).

14. Physician's Guide to Medical Practice in the California Workers' Compensation System, State of California, Department of Industrial Relations, Industrial Medical Council, March 1994 (The Industrial Medical Council's guide to physicians on how to write a proper medical report for worker's compensation cases)

15. workcompcentral.com

The first article reviewed the history of workers compensation in CA, and provided an overview of the system framework. The second article reviewed benefits for temporary and permanent disability. Article three reviewed death benefits, penalties and provided an overview of benefit rates. The fourth part of the series started a review of WCAB procedures and the fifth article finished that review. The sixth article went over how medical issues are resolved. The last article discussed the review and appellate process.

Richard D. Owen is Sr. Staff Counsel with State Compensation Insurance Fund supervising a legal unit comprised of 16 litigation attorneys and 14 clerical support persons, and is responsible for training/educating attorneys for SCIF in Northern and Southern California. He can be reached at rdowen@scif.com.
Harold L. Greene is an Attorney at Law with the offices of Greene and Weinberger in Simi Valley, CA, and has been a certified specialist in workers' compensation law since 1974. He can be reached at haroldlgreene@hotmail.com.