ADJ10808328 · November 15, 2024

The WCJ considered the complexity of the case, care exercised, and results obtained, and found a 10% fee reasonable. The WCAB found no reason to disturb this finding. Applicant's counsel was not entitled to a fee from the EDD lien because EDD participated in the proceedings.

From the decision · page 8A review of the record in its entirety supports my award of a fee of 10% of the indemnity as an attorney fee in this matter.

The petition for reconsideration was timely but the WCAB found no reason to disturb the WCJ's findings and denied the petition, adopting the WCJ's report.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's Report, which we adopt and incorporate, we will deny reconsideration.

The issue of reimbursement for QME travel expenses was not raised at trial and no evidence was presented. Further development of the record on self-procured medical expenses was already ordered; reconsideration is not appropriate for a non-final order.

From the decision · page 6As part of my August 16, 2024 Findings, Award and Order, I did order further development of the record on the issue of applicant's claim for reimbursement for self- procured medical expenses. Labor Code section 4600(e) provides for reasonable expenses for transportation, meals, and lodging incident to a medical- legal examination, along with payment for each day of lost wages in connection with the examination. To the extent that the transportation expenses are self- procured medical expenses, I have already ordered further development of the record on the issue.

Applicant's counsel failed to raise the issue of QME travel reimbursement at trial and presented no evidence of the amount of self-procured expenses.

Favours Defendant prevailed

This failure made reconsideration on this issue inappropriate and led to denial of the request.

From the decision · page 6Applicant failed to raise this issue at trial. No evidence of the amount of self- procured expenses incurred for the trips to the PQME evaluations were presented. Therefore, the request that an order for reimbursement issue as part of this petition for reconsideration is inappropriate.

EDD participated in the proceedings regarding its lien, including the pretrial conference and trial.

Favours Defendant prevailed

Because EDD participated, applicant's counsel was not entitled to a fee from the EDD lien recovery.

From the decision · page 8Labor Code section 4903.2 allows for an award of an attorney's fee in the recovery of a lien claim in instances where the lien claimant does not participate in proceedings with respect of their lien. (Labor Code section 4903.2(b).) That is not the case here. EDD participated in the preparation of the September 14, 2023 pretrial conference statement. (EAMS ID 7762963.) EDD was also present at the time of the July 2, 2024 trial, and submitted evidence in support of their lien. As EDD participated in the proceedings, applicant's counsel is not entitled to a fee from the recovery of their lien in this matter.

Applicant's counsel did not present evidence to support arguments for including value of lodging, meals, and fuel in average weekly wage calculation; evidence was introduced by defendant.

Favours Defendant prevailed

This affected the findings on average weekly wage and the reasonableness of the attorney fee awarded.

From the decision · page 7A major issue for trial was the applicant's average weekly wage. Although applicant's counsel asserted that the value of lodging, meals and fuel should be used in the calculation of the average weekly wage, he did not present the evidence to support his arguments. Under direct examination, applicant testified that he received from his employer what he believed was subsidized housing, along with a gas card and some meals. (Summary of Evidence, pages 8:46-9:13.) However, the value of the gas card was introduced through defendant's cross examination of the applicant, not by applicant's counsel. (Summary of evidence, 13:17-19). Likewise, the value of the subsidized house was introduced by defendant on cross- examination. (Summary of Evidence, 16:30-33.) The evidence regarding the housing as applicant's exhibit 16 was impossible to read even when magnified and therefore of no probative value. No evidence was presented by applicant's counsel regarding the value of the subsidized meals.

Labor Code section 5909

A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

The WCAB issued its decision within 60 days of transmission, as required by statute.

From the decision · page 1(a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board. (b) (1) When a trial judge transmits a case to the appeals board, the trial judge shall provide notice to the parties of the case and the appeals board.

Labor Code section 4906(d); Cal. Code Regs., tit. 8, § 10844

Attorney's fees must be reasonable, considering responsibility, care, time, and results.

The WCJ considered these factors in awarding a 10% fee.

From the decision · page 2II. The Appeals Board has exclusive jurisdiction over fees to be allowed or paid to applicants' attorneys. (Vierra v. Workers' Comp. Appeals Bd. (2007) 154 Cal.App.4th 1142, 1149 (Vierra).) In calculating attorney's fees, our basic statutory command is that the fees awarded must be "reasonable." (Lab. Code, § 4903, 4906(a) & (d).) Pursuant to Labor Code section 4906, in determining what constitutes a "reasonable" attorney's fee, the Board must consider four factors: (1) the responsibility assumed by the attorney; (2) the care exercised in representing the applicant; (3) the time involved; and (4) the results obtained by the attorney. (Lab. Code, § 4906(d); see also

Labor Code section 4903.2(b)

Attorney's fee from EDD lien recovery is only allowed if EDD did not participate in proceedings.

EDD participated in the proceedings, so applicant's counsel is not entitled to a fee from the EDD lien.

From the decision · page 8Labor Code section 4903.2 allows for an award of an attorney's fee in the recovery of a lien claim in instances where the lien claimant does not participate in proceedings with respect of their lien. (Labor Code section 4903.2(b).) That is not the case here. EDD participated in the preparation of the September 14, 2023 pretrial conference statement. (EAMS ID 7762963.) EDD was also present at the time of the July 2, 2024 trial, and submitted evidence in support of their lien. As EDD participated in the proceedings, applicant's counsel is not entitled to a fee from the recovery of their lien in this matter.

Labor Code section 4600(e)

Reimbursement for reasonable expenses for transportation, meals, and lodging incident to a medical-legal examination is allowed.

Further development of the record on self-procured medical expenses was ordered, but no evidence was presented at trial for QME travel reimbursement.

From the decision · page 6As part of my August 16, 2024 Findings, Award and Order, I did order further development of the record on the issue of applicant's claim for reimbursement for self- procured medical expenses. Labor Code section 4600(e) provides for reasonable expenses for transportation, meals, and lodging incident to a medical- legal examination, along with payment for each day of lost wages in connection with the examination. To the extent that the transportation expenses are self- procured medical expenses, I have already ordered further development of the record on the issue.

Applicant's counsel failed to present evidence regarding the value of subsidized housing, meals, and fuel for average weekly wage calculation; evidence was introduced by defendant on cross-examination.

From the decision · page 7A major issue for trial was the applicant's average weekly wage. Although applicant's counsel asserted that the value of lodging, meals and fuel should be used in the calculation of the average weekly wage, he did not present the evidence to support his arguments. Under direct examination, applicant testified that he received from his employer what he believed was subsidized housing, along with a gas card and some meals. (Summary of Evidence, pages 8:46-9:13.) However, the value of the gas card was introduced through defendant's cross examination of the applicant, not by applicant's counsel. (Summary of evidence, 13:17-19). Likewise, the value of the subsidized house was introduced by defendant on cross- examination. (Summary of Evidence, 16:30-33.) The evidence regarding the housing as applicant's exhibit 16 was impossible to read even when magnified and therefore of no probative value. No evidence was presented by applicant's counsel regarding the value of the subsidized meals.

Applicant's counsel failed to notify the board of client's current address until after submission for decision.

From the decision · page 7Applicant's counsel is under an obligation to notify the board of his client's current address. (Title 8, Cal. Code of Regulations section 10205.5) A review of EAMS shows that applicant's counsel failed to even file a change of address for his client from the address at Menlo College until well after this matter was submitted for a decision.