Introduction

As a workers comp lawyer representing injured workers, one thing I find extremely disconcerting is the fact that individuals that suffer an injury at work often face major difficulties when deciding whether to retain representation to fight for benefits they are entitled to under the Industrial Insurance Act. The work that attorneys perform while representing injured workers is often complicated and time-consuming. Therefore, it is not surprising that the attorney’s fees associated with this representation reflect the challenges of work being performed. However, the result is that injured workers often find themselves fighting an uphill battle frequently compromised by access to justice issues linked to financial constraints. These financial constraints are not solely due to attorney’s fees. Other constraints include, but aren’t limited to, costs of litigation and reduced earning capacity while injured.

 

Background

First, if it comes to retaining legal representation, the Department of Labor and Industries is guaranteed representation by the Attorney General’s office and self-insured employers hire private counsel paid on an hourly fee basis. For workers compensation attorneys representing injured workers, the fee structure is contingent upon securing monetary benefits, meaning attorneys don’t get paid for the hours spent fighting for things like treatment authorizations or causal relationship of conditions. While important to injured workers, those benefits are not issued in monetary warrants or checks like time-loss compensation, permanent partial disability awards, and pensions are. Therefore, no contingent fee percentage can be charged for the time spent securing these kinds of benefits. What this means is that if an injured worker needs to retain representation to fight an issue like treatment or causal relationship of a medical condition, that injured worker must find a workers comp attorney willing to take the case and litigate it without any assurance of ever being compensated for the work performed. Attorneys that represent people injured at work have long argued that this represents a significant access to justice issue, but this argument has largely been ignored by the legislature.

 

Another difficulty faced by injured workers is the expense of litigation. Claims managers for the Department of Labor and Industries and self-insured employers cannot authorize treatment or casually relate a condition without medical support. However, often the claims managers want more specific information or completely overlook supportive medical opinions from treating providers. If an injured worker pushes the issue beyond the administrative level to the Board of Industrial Insurance Appeals to resolve a dispute that arises, the injured worker has the burden of presenting medical testimony to prove the need for treatment or causal relationship of the condition. For an injured worker earning only a small percentage of his or her pre-injury wages in time-loss compensation, securing supportive medical opinions are often cost prohibitive.

 

For example, a local orthopedic group, OPA Ortho charges $1,000 per hour for one of their medical providers to give testimony, even if the attorney travels to the doctor’s office. That hourly rate does not include the time the doctor spends reviewing their own chart notes to prepare for the deposition testimony. Imagine being injured, unable to work, and being told that in order to secure the treatment you need, your attorney will have to take testimony from your treating doctor and it will cost you a minimum of $1,000! On the flip-side, the Department and Self-Insured Employers seem very willing to pay out significant costs in order to obtain medical opinions that support their opinions.

 

Independent Medical Examiners

When the Department or a Self-Insurer wants medical evidence to support their opinion, they request an Independent Medical Examination or IME. IMEs are one-time evaluations performed by an evaluator that is not a treating physician. Despite clear case law to the contrary, the Department and Self-Insurers often take the opinions of the IMEs over the opinions of treating providers.

IMEs are a big business in the State of Washington. A public records request revealed that in a single year, 2014, the Department of Labor and Industries (L&I) paid out $18,272,904.94 in IME fees alone. That’s over $18M in fees paid by L&I, and this number does not include the fees paid out by Self-Insured employers. The sheer magnitude of costs associated with obtaining and presenting required medical testimony often prices injured workers out of the ability to push for the benefits they are otherwise entitled to under the Industrial Insurance Act.

 

Additional Considerations

For litigation before the Board, there is no fee shifting statute. That means each party is responsible for their own attorney’s fees and costs associated with litigation. A successful outcome before the Board of Industrial Insurance Appeals does not result in reimbursement of the costs and fees associated with obtaining the favorable outcome. However, if the matter goes up on appeal to the superior or appellate court from the decision and order of the Board, and the injured worker secures additional benefits or retains the right to benefits then costs and a reasonable fee for the services of the worker’s or beneficiary’s attorney shall be fixed by the court pursuant to RCW 51.52.130:

In the case of self-insured employers, the attorney fees fixed by the court, for services before the court only, and the fees of medical and other witnesses and the costs shall be payable directly by the self-insured employer.

Often, this simple fee shifting statute is viewed as an equalizer in workers compensation, giving incentive to attorneys representing injured workers to pursue difficult or challenging cases with no fee generating issues and acting as a deterrent from potentially meritless appeals as the Department or self-insured employer would ultimately be saddled with their own attorney fees plus the often costly hourly rates of the injured workers’ attorney in the event of a successful outcome for the injured worker. I assumed it was because of this statute that we rarely saw appeals from self-insured employers. However, this no longer seems to be the case. All four of the appeals I litigated at the Superior Court level in the past year have involved self-insured employer appeals.

 

Personal Experience

For example, I recently represented an injured worker who developed a complicated kidney condition secondary to his original industrial injury. This condition destroyed his kidneys and necessitated a lifesaving kidney transplant. At the administrative level, this kidney condition was accepted so that treatment would be provided under the claim. The self-insured employer disagreed with the determination and appealed it to the Board. Litigation before the Board required the presentation of lay witnesses, as well as competing testimony from two expert nephrologists, a specialty not usually seen in workers’ compensation cases. It was essential for this injured worker to be adequately represented at the Board level, but proving that the Department was correct in accepting the kidney condition would result in no fee generating benefits.

 

Therefore, the hours of representation required to secure the ultimately favorable Board decision were not compensable, but did enable the injured worker to obtain the lifesaving surgery. Even after the surgery had been performed, the self-insured employer appealed the Board’s determination to Superior Court. Again the injured worker required representation, without any assurance of compensation for the hours spent defending the Board’s decision at Superior Court. After three days of trial, a six person jury reached a verdict affirming the Board’s decision that the kidney condition should be accepted under the industrial injury. As a result the self-insured employer has agreed to pay our attorneys’ fees, an amount just over $20,000.

 

In this case our office firmly believed in our chances of securing a favorable outcome for the injured worker and was willing to accept the risks associated with representation. However, it goes without saying that some injured workers cannot find attorneys willing to take on the risks associated with appeals. These injured workers must either represent themselves pro se or give up the fight all together.