California: The Applicant’s Attorney's Right to a 5814.5 Fee

The WCAB explains why a 5814.5 fee should be awarded where a 5814 penalty is found

In Juarez v. Watkins Manufacturing Corporation, 2014 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, having previously issued a Notice of Intention (NIT) to award attorney’s fees [see Juarez v. Watkins Manufacturing Corporation, 2014 Cal. Wrk. Comp. P.D. LEXIS 322 (Appeals Board noteworthy panel decision)], rescinded the WCJ’s finding that there was no basis to award attorney’s fees and returned the matter to the WCJ for an award of fees pursuant to Labor Code § 5814.5.

The WCJ previously awarded the applicant a 10 percent penalty under Labor Code § 5814 against unreasonably delayed compensation but did not consider applying Labor Code § 5814.5, which provides that the WCAB “shall” award reasonable attorney’s fees incurred in enforcing the payment of compensation awarded.

Here, the WCAB found that the WCJ’s lack of sua sponte application of Labor Code § 5814.5 was not reversible error per se because the applicant did not specifically identify the claim under Labor Code § 5814.5 for fees as an issue to be determined at trial. However, the issue was expressly identified for determination in the Minutes of Hearing and the applicant sought to recover attorney’s fees through a petition for reconsideration, thereby providing a basis for awarding attorney’s fees, contrary to the WCJ’s finding.

The WCAB did not accept the defendant’s objection to the NIT that the applicant waived the claim for attorney’s fees by citing Labor Code § 5813 in support of the claim instead of Labor Code § 5814.5.

Read the Juarez noteworthy panel decision.

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