ADJ12805812 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; WCJ's Order reducing attorney's fee rescinded; matter returned for further proceedings.

Applicant's attorney petitioned for reconsideration of the WCJ's August 12, 2024 Order Reducing Attorney's Fee from 25% to 15%.

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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.

Sanctions under Labor Code §5813Remanded

The WCJ reduced the attorney's fee without affording petitioner a hearing or opportunity to present evidence, violating due process. The Appeals Board rescinded the Order and remanded for further proceedings to allow development of the evidentiary record.

From the decision · page 5In keeping with due process, we will rescind the Order and return the case in order to afford petitioner the opportunity to develop the evidentiary record on the issue of attorneys' fees. In the further proceedings, petitioner should present documentary evidence and testimony in an evidentiary hearing so that the WCJ may decide the issue on a more complete record based on the factors set forth in Labor Code section 4906(d) and WCAB Rule 10844. Applicant should be granted notice of the hearing and the notice required by WCAB Rule 10842.

The facts that decided it

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code § 4906(d); WCAB Rule 10844

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

The Board must consider these factors in determining a reasonable attorney's fee.

From the decision · page 4determining 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 Cal. Code Regs., tit. 8, § 10844.)

Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158

Due process requires notice and a meaningful opportunity to present evidence.

The WCJ must provide an opportunity for the petitioner to present evidence before reducing attorney's fees.

From the decision · page 4All parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537].) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at pp. 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].)

ADJ12805812 · October 21, 2024

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