I keep harping on calling an attorney when you have questions or need help with a workers compensation claim. I started thinking about what might stop an injured worker from making that call. I suppose there could be a lot of reasons, from simple procrastination to intimidation. If you’ve never needed an attorney, this could really be a daunting task. But, push comes to shove, I think the number one reason injured workers may put off talking to an attorney is fear of what it is going to cost them. Am I right? You are reluctant to ask, not sure what the protocol is, and frankly, we can be a scary bunch sometimes. (Not really, but it is a lot like being assertive with your medical provider. We are providing a service, and you shouldn’t be afraid to ask)
So, let’s talk head on about what it will cost you to ask for help with your work related injury claim. The first thing to remember is any attorney in this line of work will talk to you on the phone or at an initial office consultation for free. It cost you nothing, nada, zip out of pocket. Pick our brains, ask your questions. It will not cost you a dime. It’s a relief to get that out of the way, isn’t it?
Now, what will it cost you if you hire the attorney you speak with to represent you? Washington State Labor & Industries first. These types of cases are generally done on a contingency fee basis. In plain English this means we are going to take as a fee for our work a percentage of the benefits we obtain for you. The percentage is different depending on the type of benefit we obtain for you, for instance back due time loss, on-going payment of time loss, permanent partial disability, permanent total disability or pension benefits, to name a few. The percentage should be clearly spelled out in the contract you sign, and you should definitely ask questions if you have them. If we don’t get you any additional benefits under your claim, we are not going to get paid a fee for our legal services.
Separate from fees for legal services you will be responsible for any out of pocket costs incurred or advance by the office in pursuing your claim. That may sound scary but don’t let it put you off. Initially the costs incurred are very minimal. We get the file for free from Labor & Industries or the self-insured employer. We may pay reasonable fees to get additional medical records from your providers. There may be larger costs incurred if your claim is in litigation. Unfortunately, medical providers have to be paid for their time to testify, vocational experts have to be paid for their assistance, court reports are necessary to take depositions. All of these costs are ultimately your responsibility. The attorney you hire should talk to you about these types of anticipated costs. You have the final authority to proceed with the litigation or to pull the plug. This is sometimes a tough decision, but can and should be guided by what you have to gain from the litigation. No attorney can guarantee an outcome, sometimes the anticipated benefit is worth the risk, and sometime it isn’t.
I’ve always believed contingent fee arrangements are good for consumers, in this case injured workers. They tend to keep legal professionals more realistic about what they can and can not do. I honestly tell potential clients if I can do anything to help them. If there are no additional benefits to gain, it is a waste of time, for both of us, to chase a claim where there are no benefits to be had. If all possible benefits are already being paid, you might not really need an attorney – yet. In that case, a good attorney may explain what to watch out for, when to call back, and send you on your way. Contrast that to an attorney who is billing hourly for their work. It might not matter so much what the final outcome for the client may be. Some legal work has to be done hourly, and those consumers have different issues and questions they should be asking. But for injured workers in Washington State I believe the contingency nature of the contract serves everyone well.
There is an additional protection built into the Washington State Labor & Industries law to protect workers who hire attorneys to represent them. It is not a secret – it is written right there in our fee contract, and when you hire an attorney the Department will send a letter explaining it as well. If you hire an attorney to represent you with respect to an L&I claim and you are charged a fee for legal services, even if it is exactly what you agreed to be charged, if you don’t think it is fair and you and the attorney can not work out an agreement, you can go to the Department or the Board of Industrial Insurance Appeals and ask them to review the matter and set a reasonable fee. It does not happen often, but it is a fail stop to protect injured workers. That’s a good thing.
So, what if you have a Longshore and Harbor Workers Compensation claim? By statute, attorneys who represent workers are paid on an hourly contingency fee basis. UH? I know, that sounds confusing. In a nutshell, we bill for our legal time on an hourly basis, but we only get to recover that hourly fee if we are successful in obtaining benefits for the worker under the claim. So, you still have the consumer protections built into a contingency fee arrangement, but the attorney has to account for all time actually spent working on your file.
There is also a fee shifting provision in Longshore claims. Fee shifting is a nifty mechanism to assist injured workers in getting the legal help they need with their claims. If the employer has controverted or denied your claim, and if we are successful in obtaining additional benefits, the employer can be held responsible for both our hourly fee and the out of pocket costs spent in pursuing the claim. This has the duel effect of encouraging workers to get legal help when they need it, and discouraging attorney from taking on claims before there is really a dispute. Unfortunately, this fee shifting is not available in Washington State Labor & Industries claims.
There is an added protection for injured workers with Longshore claims. Any attorney seeking to collect a fee for legal services for representing a worker must file a petition documenting the time spent and requesting an award of the fees, specifying whether fees should be paid by the employer or the worker. The requested fee has to be awarded by the District Director, Administrative Law Judge, Board or Court before who the legal work was done, before the attorney can be paid the fee. One more hoop for attorneys, but one more layer of protection for workers with Longshore claims.
See, all in all, that wasn’t too painful or intimidating. These are all the things I would discuss with a potential client on the phone or in my office. You are the consumer here, and you have the right to ask questions and understand how your attorney will be paid, and what you will be responsible for yourself. If an attorney can’t or won’t answer these types of questions, then you are in the wrong office. Ultimately, you have to be comfortable with your attorney. Questions about legal fees and costs should never stop you from getting the legal help you need with your workers compensation claim.
WELCH&CONDON 
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