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Workers' Compensation

California: No Blanket Rule Precludes Award of Attorney's Fees Based on a Medicare Set-Aside

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Attorney’s Fees; Calculation; C&R Agreements. WCAB, rescinding WCJ’s award of $66,860.30 fee to applicant’s attorney, held that attorney was entitled to full $90,000 fee requested pursuant to LC 4903(a), 8 CCR 10775 and WCAB Policy and Procedural Manual § 1.140, when WCAB found that, in calculating attorney’s fee at reduced rate, WCJ improperly determined that pursuant to Pratt v. Wells Fargo Bank, 2010 Cal. Wrk. Comp. P.D. LEXIS 499 applicant’s counsel was not entitled to any fee based upon settlement monies used to fund Medicare Set Aside account in applicant’s C&R Agreement, that panel’s holding in Pratt was not intended to set a blanket rule precluding an award of attorney’s fees based on an MSA when there has been a prior award of medical treatment, that WCAB was not bound by holding in Pratt to extent decision prohibits award of attorney’s fees based on MSA, that although disregard of MSA funds may be appropriate in setting a reasonable attorney’s fee in proper case, given results obtained, disregard of those funds would not be reasonable in instant case, and that WCJ in this case incorrectly found that applicant did not benefit by MSA for purposes of attorney’s fee award. See Viale panel decision.

Reminder: Be sure to check the subsequent history of a case before citing to it.

© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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