Apparently, no payments, or inadequate payments, were made after the award was entered into. Applicant’s attorney filed a Declaration of Readiness to Proceed on November 2, 1992, asserting that the award of August 12, 1992, remained unpaid. The attorney requested enforcement of the order, as well as a 10% penalty.

On November 24, 1992, WCJ Theophile ordered SCIF to make payments. The WCJ further awarded a 10% penalty, pursuant to Labor Code § 5814.

Apparently the penalty and award was still not paid. However, on December 18, 1992, the applicant settled a third-party claim for $415,000.00. She netted $230,249.38. SCIF had, in fact, received $20,000.00 from its third-party complaint-in-intervention.

The Board ultimately found that the defendant was entitled to credit not only for amounts owed before the third-party agreement, but also for 10% penalty. Needless to say, a Petition for Writ of Review was filed. At this point in time, even the California Applicants’ Attorneys Association became involved. They filed an amicus curiae brief. Unfortunately for them, it was to no avail. The Court of Appeal, Third Appellate District, denied the Petition for Writ of Review. The defendants were allowed their credit.

This case was somewhat of a surprise in that the Applicants’ Attorneys Association made a good argument that the defendant was not entitled to “anticipatory” third-party credit, prior to an actual settlement, against an existing award. It was argued that such “anticipatory” credit would defeat the constitutional policy of requiring an injured worker to be furnished benefits expeditiously and would frustrate the policy behind the award of penalties.

It is quite apparent that if a defendant is going to refuse to pay an award, then it does so at its own peril. However, it was obvious in this case that they knew that a very large net settlement was going to be reached.

Attorney Fees Be Based Upon Present Value of 100% Award

n February 16, 1990, Dan Tomlinson sustained a very serious injury when he fell facedown approximately 20 feet from a ladder. He broke his leg and suffered facial injuries. Approximately three hours after the fall, he suffered the first of a recurring series of seizures.

Tomlinson went to the Law Offices of Wheeler and Beaton who later filed a workers’ compensation claim on his behalf. When Tomlinson’s psychiatric symptoms became evident, the claim was amended to include a psychiatric injury.

On February 22, 1992, psychiatrist James Wells stated that Tomlinson’s condition was permanent and stationary. Tomlinson was found to be totally partially disabled.

Tomlinson attempted to participate in vocational rehabilitation on two occasions. However, because of his extreme fear of being in an unfamiliar environment and associating with people, he was unable to successfully participate.

Mr. Tomlinson’s attorneys deposed Dr. Wells. Dr. Wells conceded during the deposition that: “for him to present himself independently and say, ‘I would like a job’ at the time I saw him seemed almost unthinkable.

Tomlinson’s employer offered to settle for $114,000.00. Tomlinson was advised by his attorneys to turn this down. Because of Tomlinson’s probable life expectancy of at least 30 years, permanent disability indemnity payments were estimated to total more than $400,000.00.

The case was tried before workers’ compensation Judge Lang. Judge Lang found the applicant to be permanently totally disabled. He found reasonable attorneys’ fees to be $10,500.00. The applicant was awarded permanent disability indemnity payments of $266.00 per week for life.

Tomlinson’s attorneys, Wheeler and Beaton, argued that they should be awarded attorneys fees substantially higher than $10,500.00. They filed a Petition for Reconsideration arguing that because of the work required and the result obtained, attorneys’ fees of 12% of present value were justified.

The attorneys failed to accompany their request for additional attorneys’ fees by a proof of service on Mr. Tomlinson with written notice of the attorneys’ adverse interest and Mr. Tomlinson’s right to seek independent counsel. This is required by California Code of Regulations, Title 8, Section 10778.

The WCJ recommended against the Petition for Reconsideration. He stated that the attorneys’ fees had been calculated pursuant to the case of Goler v. WJ Sloan Company (1979) 44 CCC 1065. The Goler case held that in a case of average complexity in which a worker is rated totally and permanently disabled, the attorney is entitled to a fee based upon 621.25 weeks of permanent disability benefits.

The Board refused the Petition for Reconsideration. The attorneys then filed a Petition for Writ of Review. In the interim, they provided Mr. Tomlinson with notice as required per Section 10778.

The Court of Appeal granted the Petition for Writ of Review. The Court gave considerable weight to Section 10775 which provides in pertinent part: “in establishing a reasonable attorney’s fee, a workers’ compensation judge...shall consider the [¶](a) responsibility assumed by the attorney, [¶](b) care exercised in representing the applicant, [¶](c) time involved, [¶](d) results obtained.”

The Court noted that in this contested case, Petitioner performed services which were of substantial value in obtaining a far better benefit than Tomlinson would have received had he not been found to be totally disabled. Petitioner did the following: deposed Dr. Wells with sufficient skill to overcome his opinion that Tomlinson was only partially disabled, obtained a ruling from the Rehabilitation Unit which helped establish Tomlinson’s inability to compete in the labor market; participated in settlement negotiations with PG&E; and prepared for and participated in a hearing which convinced the WCJ that Tomlinson was totally disabled.

The Court acknowledged that in some cases a fee in the range of 9-12% of the Award of permanent disability would be excessive, for example, where there is little dispute and little time, effort or skill involved. In cases of below average complexity, the fee applicable to all benefits may range downward from 12% to as low as 1%.

The Court remanded the matter to the WCJ to render an opinion consistent with Section 10775.

Wheeler and Beaton v. WCAB, 60 CCC 1075

Juror Found to Be Employee for Purposes of Exclusive Remedy

osemary Waggener claims that she injured herself while serving as a juror in a criminal trial. While exiting a jury box, Ms. Waggener slipped and fell in Los Angeles Superior Court. Ms. Waggener brought suit against County of Los Angeles for negligence and premise liability, seeking to recover damages for lost wages, hospital, and medical expenses, and other unspecified damages.

The County moved for summary judgment, arguing that Ms. Waggener was an “employee” of the County within the meaning of the Workers’ Compensation Act. The motion was granted. An appeal was made.

The Court of Appeal agreed that Ms. Waggener was an employee under the Workers’ Compensation Act. The Act is to be construed liberally “with the purpose of extending its benefits for the protection of persons injured in the course of their employment.” See Labor Code § 3202.

Labor Code § 3351 further defines an employee as “. . . every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, . . .” Specifically included within the definition of the term “employee” are, for example, all elected and appointed paid public officers and all persons incarcerated in a state penal or correctional institution while engaged in assigned work. Moreover, Labor Code § 3357 provides that “any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.”

Jurors are not specifically mentioned in the Act. They are neither included nor excluded. An analysis of case law in other cases discloses that most courts concluded that jurors were not employees. However, the California Court of Appeal, Second Appellate District, Division Five, determined otherwise. The Court stated, “We can discern no rational basis upon which to distinguish the foregoing cases (cases finding individuals employees) from the one before us. It cannot be argued that a juror does not provide “services” to the County; indeed, the common term for describing the work of a citizen called to sit on a jury is “jury service.” And while it is true that the County does not, and cannot, exercise control over the juror’s ultimate work product, that is, the deliberative process, the County does control each and every other aspect of the juror’s work environment, including, in the extreme situation of sequestration, the juror’s whereabouts out of the courtroom, as well as in. In sum, it is wholly consistent with the broad purpose of the Act to place upon the County which benefits from the unique and invaluable services provided by jurors the responsibility to ensure that injuries which they may sustain providing such services to the County.

The Court concluded that a juror is injured in the course of performing his or her jury service is an employee for purposes of the Act. Rosemary Waggener v. County of Los Angeles, 60 CCC 977.

Official Fee Schedule Used as Guidance

r. Sam Gould, a psychotherapist, treated various injured workers for work-related injuries. All of the injured workers were employed by the City of Los Angeles who was self-insured for workers’ compensation benefits.

Dr. Gould treated the applicants to “cure and relieve the effects” of their industrial injuries.

Dr. Gould had charged $150.00 per session. The employer had paid $98.40 per session, using the Official Medical Fee Schedule.

Dr. Gould requested the balance for his session charges. The matter was resolved by Workers’ Compensation Judge Charles Glassman who found that the Official Medical Fee Schedule should apply. The WCJ used the 1987 Fee Schedule, which was effective through December 31, 1993. The WCJ found that defendants had properly paid Dr. Gould’s lien for medical treatment and that defendant did not have to pay the excess claimed by Dr. Gould.

Dr. Gould argued that he was allowed to set his own fee based upon his experience of what a reasonable session fee for medical treatment was. He argued that he should be able to use his own computation of a reasonable fee rather than using the Official Fee Schedule set out by the Administrative Director. The Medical Fee Schedule was revised and adopted by the Administrative Director, effective January 1, 1994.

Dr. Gould sought reconsideration of the WCJ’s opinion. This was denied. The Board stated that the WCJ properly applied the Official Fee Schedule to Dr. Gould’s medical treatment expenses. The Board cited J. DeWitt Fox v. WCAB (1992) 57 CCC 149. This case provided that “[t]he Official Medical is primae facie evidence that the reasonableness of fees charged for medical services although higher fees may be charged ‘when reasonable’...accompanied by itemization and explanation...[and not] in excess of [the physicians] usual fee.” As stated by the Board: The Medical Fee Schedule for services provided on or after January 1, 1994 gives the conversion factors which establish the reasonable maximum fees. [footnote omitted] We note that the revised Medical Fee Schedule was not in effect during the time that a majority of these services were rendered by Dr. gould. However, we find important, the fact that the conversion factors remain the same as those set forth in the Medical Fee Schedule for services on or after July 1, 1986"

The Board also noted that when the Official Fee Schedule was revised, the appropriate reasonable fee was stated to be $98.40 per psychiatric session. This was the same amount as provided in a prior fee schedule. On the basis of this, there was no reason to look to factors outside the fee schedule.

Dr. Gould filed a Petition for Writ of Review. This was denied on October 16, 1995.

Gould v. WCAB 60 CCC 1109