CCR 10775 states: Reasonable atty fees states, "In establishing a reasonable atty's fee the WCJ or arbitrator shall consider the (a) responsibility assumed by the atty., (b) care exercised in representing the applicant, (c) time involved, (d) results involved. Reference will be made to guidelines contained in the Policy and Procedural Manual.... (see below) 1.140 Attorney's Fees, Lien for
MERLE C. RABINE
Workers' Compensation Appeals Board RICHARD P. GANNON
Division of Workers' Compensation
Effective: October 6, 2003
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.
The WCAB also recognizes that because of the lack of any increase in permanent disability benefits since April 1, 1972 in many cases a fee based solely on a percentage of permanent indemnity may be inadequate to compensate an attorney for his services.
To encourage attorneys to render a more balanced service and to increase opportunity for attorneys to be more adequately compensated (particularly in view of increased statutory temporary disability) the following is promulgated as a guideline for the use of the WCJs.
1. In cases of average complexity, the WCAB believes that a reasonable fee will be in the range of 9 percent to 12 percent of the permanent disability indemnity, death benefit or compromise and release awarded. In addition thereto, a fee equivalent to 9 percent to 12 percent of the temporary disability indemnity and out-of-pocket medical benefits to the extent that they are obtained or awarded as a result of applicant's attorney's services may be allowed.
2. In cases of above average complexity, a fee in excess of the normal upper limit of 12 percent applicable to all benefits described in Paragraph 1 hereof is warranted. Such cases may include, but are not limited to:
a. cases establishing a new or obscure theory of injury or law;
b. cases involving highly disputed factual issues, where detailed investigation, interrogation of prospective witnesses, and participation in lengthy hearings are involved;
c. cases involving highly disputed medical issues;
d. cases involving multiple defendants.
3. In cases of below average complexity, the fee applicable to all benefits described in Paragraph 1 hereof may range downward from the 9 percent - 12 percent range to as low as 1 percent. Such cases may include, but are not limited to:
a. the uncontested death cases where normal proof of dependency is all that is required of counsel;
b. the undisputed statutory 100% permanent disability case or other undisputed presumption cases;
c. other essentially undisputed cases.
A $750 fee in a $75,000 death benefit award provides ample compensation for the time and skill involvement of applicant's attorney where counsel is required to do no more than provide a marriage certificate and birth certificate. The WCAB emphatically rejects the theory that the applicant in such a case should pay a higher fee to provide an offset for the cases which counsel handles at a loss. There is no reason for the deserving widow, the blind, the paraplegic or other employee with a major disability to underwrite the case of the employee with a minor or questionable claim.
4. In considering the value of counsel's services, the criteria set forth in Bentley v. IAC, 11 CCC 204, and Rose, Klein & Marias v. WCAB, 39 CCC 771, are to be given full consideration. It should be realized that the time involvement of a recognized specialist, who has demonstrated his skill in the field, is to be valued much more highly on an hourly basis than the time involvement of a person less knowledgeable and skilled in the field of workers' compensation law.
5. If the record does not establish, to the satisfaction of the WCJ, a sufficient basis for determining the value of counsel's services, the WCJ should request counsel to supply the desired information. This need not be done orally on the record or by written communication, but the WCJ should be satisfied that there is an adequate basis for justifying the fee determination if it should be made an issue."