ADJ640631 · May 21, 2021

The lien claimant was entitled to one-third of all fees awarded over the life of the cases based on its significant responsibility and care during representation, despite being dismissed before the final settlement.

From the decision · page 6After analyzing the record in view of applicable authority, I concluded that lien claimant exercised a significant level of responsibility and care in connection with its representation of the injured worker, as evidenced by the timeliness of its efforts after being retained leading to defendants' acceptance of the two claims, as well as by the caution it exercised in order to protect applicant's interests by refusing to release his file or potentially leave him without formal legal representation in the absence of a fully executed substitution or dismissal of attorneys. Equally importantly, I found that the entire value of the 2019 C&R lay in applicant relinquishing his right to future medical care, since the Appeals Board no longer had jurisdiction to award any other benefits by then. That right had been secured for Mr.

Lien claimant exercised significant responsibility and care in representing the injured worker early in the case.

Favours Applicant prevailed

This justified awarding lien claimant one-third of all fees despite dismissal before final settlement.

From the decision · page 6After analyzing the record in view of applicable authority, I concluded that lien claimant exercised a significant level of responsibility and care in connection with its representation of the injured worker, as evidenced by the timeliness of its efforts after being retained leading to defendants' acceptance of the two claims, as well as by the caution it exercised in order to protect applicant's interests by refusing to release his file or potentially leave him without formal legal representation in the absence of a fully executed substitution or dismissal of attorneys. Equally importantly, I found that the entire value of the 2019 C&R lay in applicant relinquishing his right to future medical care, since the Appeals Board no longer had jurisdiction to award any other benefits by then. That right had been secured for Mr.

No petition to reopen was filed after the 2006 joint award; the 2019 C&R settled entitlement to further medical care secured by lien claimant.

Favours Applicant prevailed

This established the value of lien claimant's early work in the final settlement.

The record is silent as to the reason Dr. Gravina was later replaced with Dr. Lavorgna.

From the decision · page 16That, however, does not invalidate lien claimant's work during its representation, which included obtaining records and entering into an AME (the record is silent as to the reason Dr. Gravina was later replaced with Dr. Lavorgna). In addition, I find from lien claimant's correspondence in exhibits D and G that it did employ significant responsibility and care to protect the client's interests. The same cannot be said of applicant's later counsel--not necessarily because of any evidence of dereliction of their duties, but because the record is mostly silent concerning the actual work performed.

Was initially the AME but was later replaced by Dr. Lavorgna.

Rose & Leventhal v. Workers' Comp. Appeals Bd. (1978) 43 Cal. Comp. Cases 135

Balancing factors for dividing attorney fees including responsibility, time of representation, and results obtained.

Applied to determine lien claimant's entitlement to one-third of total fees.

From the decision · page 16Thus, considering the factors typically relied on by the Appeals Board (see, e.g., Rose & Leventhal v. Workers' Comp. Appeals Bd. (1978) 43 Cal. Comp. Cases 135, 136), dividing the fees in this case requires the balancing of (a) responsibility and care, which favor lien claimant against (b) time of representation, which does not, and (c) results, which are equivocal because the C&R was undoubtedly negotiated long after lien claimant was dismissed as counsel of record, yet its efforts early on gave rise to much of the C&R's value. The period from December 8, 2004, until August 2, 2019, when the C&R was approved, comprised 5,685 days.

Labor Code section 5502

Labor Code section 5502 regarding witness testimony and due process.

Applied in allowing lien claimant's witness testimony despite objections.

Testimony of attorney Dennis Weaver was allowed and did not prejudice petitioner.

From the decision · page 83. Lien claimant's witness was appropriately allowed to testify and, even if his testimony should have been excluded, petitioner was not prejudiced because said testimony did not give rise to any findings adverse to its interests.

Correspondence and exhibits showed lien claimant exercised significant responsibility and care in representation.

From the decision · page 16That, however, does not invalidate lien claimant's work during its representation, which included obtaining records and entering into an AME (the record is silent as to the reason Dr. Gravina was later replaced with Dr. Lavorgna). In addition, I find from lien claimant's correspondence in exhibits D and G that it did employ significant responsibility and care to protect the client's interests. The same cannot be said of applicant's later counsel--not necessarily because of any evidence of dereliction of their duties, but because the record is mostly silent concerning the actual work performed.