WCDefenseCA

On occasion, your humble blogger feels himself an advocate for injured workers.  Yes, yes, laugh it up, but in all seriousness, I’m very sympathetic to workers that have suffered actual injuries while doing their jobs.  I’ve been very fortunate that my clients have bent over backwards to make sure workers actually hurt in the line of duty get the treatment and benefits they need.

So, once in a while, your humble blogger finds himself in a position where he actually takes the side of the injured worker.  In this particular case, however, that position is aligned with the worker against the applicant’s attorney.

Consider the case of Ramona Bolyard v. Sterling Heights and Care West Insurance.  Ms. Bolyard retained an attorney, but subsequently dismissed him and proceeded with the case in pro per.  The results weren’t that great, and she was awarded future medical treatment but no permanent disability benefits.

Subsequently, she agreed to resolve her claim for future medical treatment for the tidy sum of $10,000.  Everybody’s happy, right?  No.

After being served with a copy of the C&R, her former attorney came riding in demanding an attorney fee.  For what?  For a portion of the $10,000 of course!

Now, Ms. Bolyard tried her best in pro per, and she ended up with nothing but future medical treatment.  She then negotiated the future medical treatment settlement on her own, so why should she have to pay anything to an attorney she dismissed before the work was done?

Well, her attorney did file a lien claim after being dismissed, but the WCJ recommended against reconsideration because the work was not done by her attorney – the only source of a potential attorney fee was from funds negotiated by Ms. Bolyard herself.

The WCAB granted reconsideration, but simply held that the lien of the attorney must be addressed.  It also held that if there was a finding that the lien claim must be paid, and the $10,000 was already paid to Ms. Bolyard, the defendant might be responsible.

So, what should defendants do in such cases?  Well, the best approach is to have the C&R reflect that the lien of the applicant’s attorney is to be paid, adjusted, or litigated by the applicant.  This may seem like a harsh approach, shifting more litigation burden on an unrepresented applicant, but it would probably be the most effective: the injured worker is the best witness for justifying a disallowed attorney fee.

In cases where there is a former attorney and a new attorney, the language should reflect that the lien of the former attorney is to be paid, adjusted, or litigated by the current attorney.  This takes care of the application mills down south that do intake, file an application, and then sub out, laying claim to an attorney fee while letting the next attorney do all the heavy lifting.

And, if you’re ever curious about what fantastic service looks like from the applicant’s bar, drop by the waiting room of any WCAB board, where you will see applicants’ attorneys meeting their clients for the first time on the date of a hearing, calling their names out blindly.

Your humble blogger feels compelled to report that, despite the above-mentioned stereotype, there are a few applicants’ attorneys that actually put in decent time: they meet with their clients regularly, pay attention to their lives as well as their cases and how the two interact, and provide quality service and zealous advocacy.  Sadly, this is not the business model of many AA firms, and results in a net loss for injured workers and defendants.