What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by Defendant challenging Findings and Order dated November 12, 2021, regarding attorney's fees; WCAB panel denies reconsideration.
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 court found that defendant was on notice of applicant's attorney's representation and was required to withhold funds for attorney's fees from permanent disability advancements. The court awarded 12% attorney's fees based on the total permanent disability advancements paid to applicant, rejecting defendant's argument that fees are only payable after an award is issued. Public policy supports payment of fees on advancements to encourage retention of cases.
From the decision · page 2In this case, as in Lewis, it is undisputed that defendant issued applicant's permanent disability benefits without withholding funds sufficient to pay the attorney's fee. It is also clear that for the entire pendency of this action defendant has been on notice that applicant was represented by an attorney because the Application for Adjudication of Claim indicates that applicant is represented and identifies that applicant's attorney by name. The Application for Adjudication of Claim was served on defendant by proof of service dated August 10, 2017. Consequently, pursuant to Lewis, defendant was required to withhold funds to pay applicant's attorney's fees and is therefore subject to liability for failing to do so.