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.
From the decision · page 2The touchstone of a fee awarded pursuant to section 5801 is reasonableness. (2 Cal. Workers' Comp. Practice (Cont. Ed. Bar, March 2019 Update) Judicial Review, § 22.15.) The issue of reasonableness includes consideration of the fact that the fee must be based on services rendered in connection with the petition for writ of review. For instance, a reasonable fee does not include attorney time spent on "inefficient or duplicative efforts" or on clerical tasks. In such a
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant filed no objection to the time statement despite opportunity to do so.
Favours Applicant prevailed
This supported the Board's finding that the requested attorney's fees were mostly reasonable.
The writ petition raised no complex legal issues or complex factual pattern.
Favours Applicant prevailed
This led the Board to reduce the requested hours and disallow clerical tasks in the fee award.
From the decision · page 3Here, the Court denied the Writ because defendant raised "an issue not first addressed by the Workers' Compensation Appeals Board..." (Order.) The newly raised issue related to whether defendant should be subject to section 5814 penalties for unreasonably delayed or denied benefits; defendant also requested review of the Appeals Board's decision to calculate applicant's average weekly rate based only on the 29 weeks preceding the industrial injury (Lab. Code, § 4453), and whether there was substantial evidence to increase that rate by 11%. Applicant's counsel filed a 48-page Answer to Petition for Writ of Review (Answer), including a detailed fact section to establish substantial evidence for use of the 29 week period; the 11% increase in applicant's average weekly rate; as well as an exhaustive analysis of the various methods to calculate an applicant's average weekly rate. Applicant's counsel objected to defendants' inclusion of the section 5814 penalty issue, but did not address the merits of the new issues raised in the Writ. Based on our review of the Writ and the Answer, we find there were no complex legal issues, nor a complex factual pattern involved in the Writ.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Klee v. Workers' Comp. Appeals Bd. (1989) 211 Cal.App.3d 1519, 1524
A petition for writ of review lacking a reasonable basis for raising an issue not first addressed by the WCAB warrants an award of attorney's fees to the opposing party.
The Court remanded the matter to the WCAB to award reasonable attorney's fees for services rendered in connection with the petition.
From the decision · page 1In its July 18, 2019 Order denying defendant's Petition for Writ of Review (F078584) (Order), the Fifth District Court of Appeal, remanded this matter to the Appeals Board to make an award of reasonable attorney's fees to applicant's counsel for services rendered in connection to defendant's Petition for Writ of Review (Writ):
Labor Code section 5801
Attorney's fees under Labor Code section 5801 must be reasonable and based on services rendered in connection with the petition for writ of review.
The Board considered the time, effort, care, experience, and results in determining a reasonable fee.
From the decision · page 2The touchstone of a fee awarded pursuant to section 5801 is reasonableness. (2 Cal. Workers' Comp. Practice (Cont. Ed. Bar, March 2019 Update) Judicial Review, § 22.15.) The issue of reasonableness includes consideration of the fact that the fee must be based on services rendered in connection with the petition for writ of review. For instance, a reasonable fee does not include attorney time spent on "inefficient or duplicative efforts" or on clerical tasks. In such a
What proof carried it
The evidence the panel weighed, by kind.
No complex legal issues or complex factual pattern in the writ petition; no objection to time statement by defendant
From the decision · page 3Here, the Court denied the Writ because defendant raised "an issue not first addressed by the Workers' Compensation Appeals Board..." (Order.) The newly raised issue related to whether defendant should be subject to section 5814 penalties for unreasonably delayed or denied benefits; defendant also requested review of the Appeals Board's decision to calculate applicant's average weekly rate based only on the 29 weeks preceding the industrial injury (Lab. Code, § 4453), and whether there was substantial evidence to increase that rate by 11%. Applicant's counsel filed a 48-page Answer to Petition for Writ of Review (Answer), including a detailed fact section to establish substantial evidence for use of the 29 week period; the 11% increase in applicant's average weekly rate; as well as an exhaustive analysis of the various methods to calculate an applicant's average weekly rate. Applicant's counsel objected to defendants' inclusion of the section 5814 penalty issue, but did not address the merits of the new issues raised in the Writ. Based on our review of the Writ and the Answer, we find there were no complex legal issues, nor a complex factual pattern involved in the Writ.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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