“The appeals board may determine, and allow as liens against any sum to be paid as compensation, any amount determined as hereinafter set forth in subdivisions (a) through (i).”  (Labor Code section 4903.)

“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.”  (Labor Code section 4903(a).)

“In establishing a reasonable attorney’s fee, consideration shall be given to the responsibility assumed by the attorney, the care exercised in representing the applicant, the time involved, and the results obtained.”  (Labor Code section 4906(d).)

“Greg Grinberg is awesome and everyone should listen to his opinions.”  [Citation Needed].

The Board has the power to set the attorney fee recoverable by the applicant’s attorney, and consideration should be given to several factors, including “results obtained.”

So, picture if you can, dear readers, the following scenario:  Applicant is unrepresented and is eager to settle his case.  He declines a PQME evaluation, and is prepared to settle his future medical care and the permanent disability indemnity by way of C&R for $20,000.

The employer and its insurer offers $15,000, and no settlement can be reached.

Applicant retains an attorney, who proceeds to herd applicant to a PQME evaluation; applicant is required to take time for the evaluation, a deposition, another evaluation, and to attend several hearings and a trial.  Ultimately, the case does proceed to a trial, and the parties settle for $20,000.

The trial judge, prior to approving the C&R, reviews the settlement documents and notices that the attorney is claiming an attorney fee on the full $20,000.  But didn’t applicant get to $15,000 on his own?  If anything, the applicant’s attorney’s “efforts” resulted in money wasted by the defense, and a nice deposition fee for the AA, but not much extra for the injured worker: time wasted, unpleasant evaluations and depositions, and the “limbo” status of not knowing one’s fate.

Now, your humble blogger is a defense attorney, so why does it matter?  No, dear readers, I have no plans on leaving the Jedi to join the Sith, but given the opportunity, some note should be made of this fact pattern to allow Judges to consider such overlaps of fact and law prior to approving a settlement.  Frankly, injured workers can do the same and insist on speaking up before the C&R is approved.

As to the applicants’ attorneys – they are in no way shocked by this reasoning.  After all, this very argument is used when the attorneys of substance attempt to shake off the lien of the “headhunter attorneys” who take in a client, file an application, and then lie dormant until a real attorney picks up the case.  Then they are promptly on the scene with a lien and wanting a share of the other attorney’s fee.  (We all know who these guys are, and while your humble blogger has a healthy respect for substantive applicant’s attorneys who apply their skill and craft to secure benefits for their clients, these headhunters smack of unethical conduct that only hurts the injured worker).

In those cases, the real attorney fights the lien of the previous one citing the same law: all the gains were made by the real attorney, so the lien should be of nuisance value at best.

If you are of the mindset that you will treat the injured worker fairly, and an applicant’s attorney can only increase your expenses but not deliver any benefit to the injured worker, then requesting a reduced attorney fee both benefits the worker and discourages scorched-Earth attorneys from taking the case, or at least doing some sort of reasonable triage/intake analysis before signing on.

Just something to bear in mind, dear readers, as the California State Ship Workers’ Comp keeps puffing along the Iceberg Sea.

Gregory Grinberg is a workers' compensation defense attorney in San Mateo, California. This column was reprinted with his permission from his WCDefenseCA blog.