In our ongoing series discussing ways to permit applicants access to attorneys in this post-SB-899 world where applicants' attorneys are screening their cases more and more because of lower and lower fees, an interesting case in Sacramento - now under review by the Third District Court of Appeal - caught our interest.
The case, Fred Vierra v. WCAB, is the first case we know of to test the waters of whether the fee guidelines promulgated in the Practice and Procedure Manual is the only way to go.
Now, we know that the Labor Code technically permits any reasonable fee agreement, as long as its fair and first approved by a Workers' Compensation Judge. But what's "fair" - at least in the eyes of different workers' compensation judges - is far from clear (and the attorney in this case argues that, despite the technical right to ask for any reasonable fee, it's still the "unwritten" rule to award 12% or so of the permanent disability awarded).
So along comes Mr. Vierra's creative lawyer - Sacramento attorney Tom Johnson of the firm Anderson & Johnson - arguing that a retainer agreement signed by his client and agreeing to "the lesser of either an hourly rate of $225.00 per hour, or 12 % of the final amount of permanent disability remaining after litigation on the respondents petition to reopen to reduce benefits" was a fair way to be compensated in a situation in which the attorney was retained after a stipulated 78% award issued, for the purpose of defending against an anticipated Petition to Reduce by the defense. (The defense did in fact ultimately file a Petition to Reduce.)
The Workers' Compensation Judge essentially rejected the fee agreement, the WCAB denied reconsideration and the applicant filed his Writ which was granted for review this month by the Third District.
Applicant's attorney argues in his briefs that - as supported by a study from the Commission on Health and Safety and Workers' Compensation - permanent disability benefits have been reduced by 50% or more since the 2003-2004 changes (click here to read that report). He goes on to say,
"With fewer attorneys willing to work for 12% of less than half of what they earned five years ago, injured workers need to have the same freedom as other citizens to hire a lawyer to represent them."
The applicant's attorney has been kind enough to, with his client's permission, grant WorkInjury.com access to the pleadings and briefs currently filed with the Third District. To read them,
Click Here for Applicant's Writ and P&A's
Click Here for P&A's in Response to Def. Answer
- Help for the Injured Worker
