What the panel ordered
Petition for reconsideration granted; Findings and Award rescinded and substituted; matter returned to trial level for further proceedings consistent with decision
Petition for reconsideration granted; Findings and Award rescinded and substituted; matter returned to trial level for further proceedings on attorney's fees and earnings
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ erred by failing to assess attorney's fees on temporary disability indemnity; the issue is deferred for further record development.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Favours Applicant prevailed
Corrects a clerical error in the original Findings and Award and affects calculation of temporary disability indemnity
Fee disclosure statement was incomplete and misleading, failing to comply with Labor Code section 4906(e)
Favours Defendant prevailed
Supports deferral of attorney's fees issue and admonishment to correct disclosure
From the decision · page 5II. Cohen contends that the WCJ erred by failing to assess attorney's fees on the temporary disability indemnity and that he is entitled to a fee of 18% thereon. Before we address Cohen's argument, we turn to the WCJ's statement in the Report that the fee disclosure filed by Cohen's office is incomplete and implies that he is allowed an attorney's fee of at least 15% and up to 30% of benefits awarded. Under section 4906(e), an applicant's attorney "shall furnish the employee a written disclosure form promulgated by the administrative director which shall... describe.. the range of attorney's fees customarily approved by the appeals board." (§ 4906(e).) Here, the fee disclosure states that attorney's fees normally range from 9% to 12% without referring to the statutory requirement that the appeals board approve the amount of the fee. (Fee Disclosure Statement, December 11, 2018.) The fee disclosure is thus incomplete. The fee disclosure further states that Cohen's firm "charges a fee of 15% of the benefits awarded." (Id.) This deviates from the content required by section 4906(e) and implies that applicant is bound to a minimum fee of 15%. Hence we agree with the WCJ that the disclosure form is incomplete and misleading--and fails to comply with section 4906(e).
No proof of written notice to applicant of attorney's adverse interest as required by WCAB Rule 10842
Favours Defendant prevailed
Supports deferral of attorney's fees issue and admonishment to provide notice
From the decision · page 6Here, as stated in the Report, Cohen's Petition seeks a fee increase without pleadings or proof that he provided written notice to applicant of his adverse interest as required by Rule 10842.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4903(a)
Labor Code section 4903(a) authorizes liens for reasonable attorney's fees against any sum to be paid as workers' compensation, including temporary disability indemnity
Applied to determine entitlement to attorney's fees on temporary disability indemnity
Cal. Code Regs., tit. 8, 10842
WCAB Rule 10842 requires proof of service of written notice of attorney's adverse interest to applicant for fee increase requests
Applied to assess procedural compliance for attorney's fee increase request
From the decision · page 6Under WCAB Rule 10842, all requests for an increase in attorney's fee shall be accompanied by proof of service on the applicant of written notice of the attorney's adverse interest and of the applicant's right to seek independent counsel--and any failure to so notify the applicant constitutes grounds for dismissal of the request for increase in fee. (Cal. Code Regs., tit. 8, § 10842.)
Cal. Code Regs., tit. 8, 10844
WCAB Rule 10844 requires the WCJ to consider responsibility, care, time, and results in establishing reasonable attorney's fees
Applied to guide the WCJ's consideration of attorney's fees
From the decision · page 6Accordingly, we will grant the Petition. WCAB Rule 10844 provides that the WCJ shall consider the responsibility assumed by the attorney, the care exercised in the representation, the time involved, and the results obtained in establishing a reasonable attorney's fee. (Cal. Code Regs., tit. 8, § 10844.) Since the WCJ did not conclude that Cohen is entitled to an attorney's fee on the temporary disability indemnity, there is no record regarding how Cohen's representation meets these criteria.
What proof carried it
The evidence the panel weighed, by kind.
Fee disclosure statement was incomplete and misleading, failing to comply with Labor Code section 4906(e)
From the decision · page 5II. Cohen contends that the WCJ erred by failing to assess attorney's fees on the temporary disability indemnity and that he is entitled to a fee of 18% thereon. Before we address Cohen's argument, we turn to the WCJ's statement in the Report that the fee disclosure filed by Cohen's office is incomplete and implies that he is allowed an attorney's fee of at least 15% and up to 30% of benefits awarded. Under section 4906(e), an applicant's attorney "shall furnish the employee a written disclosure form promulgated by the administrative director which shall... describe.. the range of attorney's fees customarily approved by the appeals board." (§ 4906(e).) Here, the fee disclosure states that attorney's fees normally range from 9% to 12% without referring to the statutory requirement that the appeals board approve the amount of the fee. (Fee Disclosure Statement, December 11, 2018.) The fee disclosure is thus incomplete. The fee disclosure further states that Cohen's firm "charges a fee of 15% of the benefits awarded." (Id.) This deviates from the content required by section 4906(e) and implies that applicant is bound to a minimum fee of 15%. Hence we agree with the WCJ that the disclosure form is incomplete and misleading--and fails to comply with section 4906(e).
No proof of written notice to applicant of attorney's adverse interest as required by WCAB Rule 10842
From the decision · page 6Here, as stated in the Report, Cohen's Petition seeks a fee increase without pleadings or proof that he provided written notice to applicant of his adverse interest as required by Rule 10842.
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