Back in the day, when your humble blogger was knee-high to a grasshopper, the workers’ compensation system really did not want defendants filing applications for injured workers.  If an application were to be filed by a defendant, the applicant became entitled to an attorney fee on top of, rather than out of, the overall recovery.

However, with the wisdom of SB-863 came a reform: Labor Code Section 4064(c) now reads: “if an employer files a declaration of readiness to proceed and the employee is unrepresented at the time the declaration of readiness to proceed is filed, the employer shall be liable for any attorney’s fees incurred by the employee in connection with the declaration of readiness to proceed.”

So, in the case of Michael Blessing v. City of Sacramento, when the defendant filed a DOR, the unrepresented injured worker sought out and hired an attorney.  But the WCJ had ordered the matter off calendar specifically to allow the applicant to retain an attorney, at which point this attorney had filed his own DOR.

So, dear readers, when does the applicant’s attorney’s meter stop running?  At what point does the Defendant get released for paying for attorney fees “incurred by the employee in connection with the” DOR?

The Blessing panel seems to take a fairly broad view of the term “in connection with.”  In fact, as the underlying matter was being litigated even on reconsideration, the matter was deferred.

But, from the panel decision, we can clearly infer that “in connection with” does not mean until the hearing goes off calendar.  It also is not clear if there is any duty on the injured worker to ensure he is not incurring unreasonable attorney costs.

For example, could the unrepresented applicant “incur” costs of $1,000 per hour, knowing that the plain language of the statute would make Defendant liable for the full amount?  At what point are the costs “incurred” when no money ever changes hands?  Shouldn’t the employee have to show that, if defendant is fount not to be liable for the attorney fee, the employee would have a legal obligation to pay the hired gun attorney?

Also, should the fee be a percentage of the benefits recovered? Should it be an hourly rate like for a deposition?

Like so many parts of the “reform,” this section may have the best of intentions, but is not clearly thought out in terms of application.  Or, if there was clear thinking, it was kept safely in the drafters’ thoughts and away from any paper.

Until we get some solid, citeable authority on how to interpret this vague provision, we can look forward to some needless litigation on this point.  Yet another of SB-863’s blessings.  (See what I did there?)