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More Inconsistency from WCAB on Applicants’ Attorney Fees

Are applicants’ attorneys entitled to an attorney fee from the money used to set up and fund a workers’ compensation Medicare Set-Aside account?  After all, the applicant’s lawyer has to do some work to get that amount and to get applicant’s future medical needs taken care of, doesn’t he?  Previously, the Workers’ Compensation Appeals Board had held, in a panel decision (Pratt v. Wells Fargo), that the attorney’s fee comes out of everything other than the WCMSA – so all those future medical treatment dollars put no pennies in the pockets of hungry applicant’s lawyers.

Recently, however, there has been a contrary panel decision (Robert Viale v. Lockheed Martin Corporation), in which the same WCAB chided the workers’ compensation Judge for giving “undue weight to a non-binding panel decision” by relying on Pratt.  The WCAB further noted that “notwithstanding the fact that someone at LEXIS deemed the Pratt decision ‘noteworthy,’ prior panel decisions are not binding on WCJs or subsequent Appeals Board panels.”

But… isn’t the Viale opinion just another “non-binding panel decision,” with or without a LEXIS “noteworthy” stamp, which some other WCJ will be chided for giving “undue weight”?

Applicant’s counsel won an additional $50,000 in attorney’s fees through his efforts.  Now, bear in mind, at the moment, your humble blogger has no dog in this fight.  When applicant’s lawyers and applicants are at each other throats, the defense doesn’t really suffer all too much.

However, as noted in this article, there are plenty of times when the defense is suddenly on the hook for an applicant’s attorney’s fees on top of his or her other recovery.  This means that cases such as Viale, and unlike Pratt, could be used to inflate the liability of the defendant to include an attorney fee on the WCMSA.

Let’s hope that future panel decisions lean in favor of Pratt and some binding authority on this topic comes out soon before an employer gets stuck paying double the attorney fee.

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