Workers Comp Lawyer Fees
Many Injured Employees’ Attorneys Charge a Contingency Fee, Meaning They Receive a Percentage of Your Settlement or Accrued Benefits if You Win and Nothing if You Lose.
Although you do not have to hire a lawyer to receive workers compensation, data shows that obtaining legal representation improves your chance of a favorable outcome at a hearing and increases the likelihood of negotiating a higher settlement amount.
But as someone out of work and uncertain about when you will get another paycheck, you may wonder: How much does a workers comp lawyer charge, and how will I pay the attorney fees?
I have good news.
Most claimants’ lawyers, including me, charge a contingent fee.
With a contingent fee arrangement, your lawyer only charges attorney fees if the claim is successful at trial or settled out of court. Your lawyer does not get paid if you lose your case.
Therefore, you do not have to pay your workers comp lawyer a fee up front. Instead, you can wait to pay attorney fees until after a successful resolution of your case.
This article explains how much a workers comp lawyer costs, focusing on Virginia.
However, if you live or work elsewhere, you can use this information to start the discussion with the lawyer you plan on hiring. Your state may treat workers comp attorney fees similarly.
As you will see, the attorney fees paid in workers compensation are usually a small percentage of the total compensation you can receive in lifetime medical treatment, permanent partial disability benefits, and income replacement if you win or receive a workers compensation settlement.
Continue reading.
If you want answers to workers comp questions, check out the rest of this website, fill out this form, or call me at (804) 251-1620 or (757) 810-5614.
The Workers Compensation Act Permits Attorneys to Charge Fees
Legislatures understand that having an attorney helps an injured employee obtain benefits, which is a critical purpose of workers compensation.
Therefore, many states, including Virginia, explicitly allow workers comp attorney fees by statute. However, an attorney’s charges are subject to approval by the government agency that oversees workers compensation disputes.
For example, Code Section 65.2-714(A), Fees of attorneys and physicians and hospital charges, says that attorney fees are subject to the Workers Compensation Commission’s approval and award. Further, the Commission has exclusive jurisdiction over all fee disputes and may order the repayment of any amount already paid that it deems excessive.
Under this statute, attorneys representing injured employees must submit all fee requests to the Commission for approval and award.
Appellate courts will not disturb the Commission’s award of attorney fees unless the evidence shows the Commission abused its discretion or was clearly wrong.
The Supreme Court of Virginia has said this power to review and approve attorney’s fees prevents doctors and lawyers from overcharging for their services.
Does the Workers Compensation Commission Have to Accept the Contingency Fee Agreement Between the Injured Employee and Their Lawyer?
No.
The attorney-client retainer agreement does not bind the Commission, and the Commission may award a fee less than the contract.
What Percentage Does a Workers Comp Lawyer Get for Successfully Resolving My Claim?
An attorney receives a fee when they get workers compensation benefits moving or obtain a settlement for you.
The attorney fees equal a percentage of the benefits or settlement.
However, the Commission does not use a fee schedule to determine what to award your attorney.
Instead, the attorney’s fee depends on where you are in the workers compensation claim process and other factors, including the time the lawyer spends on your case, the skill shown by the attorney, the complexity of the legal questions involved, whether the lawyer appears at a deposition, mediation, or hearing, and the results obtained.
The following sections explain how much your workers compensation attorney may charge at each stage.
Attorney Fees for Settlements
Twenty percent (20%) is the standard workers comp attorney’s fee in cases resolved by settlements.
For example:
If you suffer a torn rotator cuff at work and settle the claim for $100,000, the Commission will likely award an attorney’s fee of $20,000 from that amount.
However, the Commission may reduce this percentage if a portion of the settlement includes a Medicare set-aside arrangement (MSA) for projected medical expenses.
Further, an exception to the standard 20% attorney fees may apply if you hire a lawyer after receiving a settlement offer from the insurance company.
In this situation, I ask the Commission for an attorney’s fee that is the lesser of 20% of the total settlement amount or 50% of the difference between the settlement offer I negotiated for you and the offer you received before hiring me. This way you do not lose money by hiring an attorney.
You pay no fee if I’m unable to negotiate a better settlement for you
Attorney Fees for Permanent Partial Disability (PPD) Benefits
When you reach maximum medical improvement (MMI) for your work-related injuries, I will help you obtain a permanent impairment rating from a qualified medical provider.
You need this rating to recover compensation for the loss of (amputation or joint replacement) or loss of use of the injured body part.
Fifteen percent (15%) is the standard attorney’s fee for an award of permanent partial disability benefits.
Attorney Fees When the Parties Resolve a Claim through Award Agreement Forms or Stipulated Order
Although many workers comp cases are disputed and litigated, some go more smoothly and do not require extensive discovery or trial.
If your lawyer helps you get an award of benefits (medical, wage loss, or PPD) through agreement forms or stipulations without appearing in court, the Commission will likely award an attorney’s fee between $100 and $1,000.
Attorney Fees When a Court Appearance is Required
Multiple issues may arise after you file a workers comp claim, even when the insurance carrier agrees that you suffered an injury by accident arising out of and in the course of your employment.
For example, the insurance carrier may deny specific medical treatment, such as a spinal fusion surgery for a herniated disc, refuse to offer a panel of physicians, deny that you performed an adequate job search entitling you to temporary total disability (TTD), or file an employer’s application for a hearing to stop benefits based on an unjustified refusal of treatment.
A trial is necessary when you and the insurer cannot resolve a dispute.
The Commission will determine your lawyer’s fee for the court appearance. The amount awarded typically depends on the hearing’s subject and outcome.
For example, if the disputed issue involves wage loss benefits, the Commission will often award an attorney fee equal to 20% of your back wage benefits.
This amount can range from $500.00 to $15,000.00 or more, depending on how much back pay you are owed. The Commission will use a different formula if no back pay is available.
This size fee is a large amount of money when the work injury is already causing financial stress. I understand that. That’s why I will work with you on the attorney fee. Instead of receiving the entire fee up front, I often ask the court to pay the attorney fee at a rate of $25 to $100 per week out of weekly benefits.
If the disputed issue involves medical treatment, the Commission will often award an attorney fee equal to $1,000.00 or less. The cost is usually lower in cases involving medical care authorization only because the attorney can request a payment from the health care provider who benefits financially from performing the procedure or providing the medical treatment.
For example, the insurance carrier may deny your claim seeking authorization and payment for total knee replacement surgery even if you have an award for a torn meniscus.
If I win your claim for the surgery, the workers comp insurance carrier will have to pay the surgeon and medical practice that performs the surgery. These health care providers must then pay me a percentage of the cost of the medical treatment.
The Commission can assess an attorney fee against a health care provider under the Workers Compensation Act.
Attorney Fees When Either Party Appeals the Judge’s Decision
Either party may appeal an unfavorable judge’s decision to the Full Workers Compensation Commission.
Appealing a case – or resisting an appeal if the employer and its insurance carrier request a review of the deputy commissioner’s decision – requires briefing of the issues always and oral argument occasionally.
The Full Commission, which reviews decisions made by deputy commissioners, may award an additional attorney’s fee at the appeal level.
In my experience, the Full Commission awards an additional $500 to $2,500 in attorney fees for a successful appeal.
Who Pays Attorney Fees in Workers Compensation?
Virginia workers comp follows the American rule for attorney’s fees.
Under this rule, regardless of the outcome, each party is responsible for its attorney fees.
Workers compensation attorney fees usually come from accrued benefits (money the insurer owes the injured employee but has not paid) or the lump sum settlement.
However, the Commission can sometimes order the employer or insurer to pay your attorney fees.
Under Code Section 65.2-713, the Commission can assess “a reasonable attorney’s fee” against an employer or insurer who has –
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- brought, prosecuted, or defended the proceedings without reasonable grounds
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- filed an application for a hearing in bad faith
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- delayed payment of medical bills without reasonable grounds (for example, ignored multiple letters seeking from the injured employee seeking payment or reimbursement)
Can a Workers Comp Attorney Charge More than the Commission Awards?
No.
If your attorney asks you to pay more than the fee awarded by the Commission, refuse to do so.
Or, if you have paid the excess amount, notify the Commission and ask it to order the lawyer to refund the amount charged beyond the Commission’s award with interest.
Asking an injured employee to pay more than what the Commission awards may violate the Virginia Code of Professional Responsibility.
Will I Have to Pay Two Attorney Fees if I Switch Lawyers?
If you switch attorneys during your case, both lawyers may receive a fee award. However, the total amount awarded to both attorneys will not exceed the standard fee award approved by the Commission.
For example:
Suppose you switch attorneys halfway through litigation and settle your case for $50,000.
Both attorneys can request and receive a fee.
However, the Commission will decide how to divide $10,000 in fees (20%) between the lawyers. Therefore, you will not be double charged.
Should I Try to Negotiate Lower Workers Comp Attorney Fees?
I am biased, but I do not recommend trying to lowball your workers comp lawyer’s fee at the beginning of the professional relationship.
Here’s why:
Top-ranked work injury lawyers turn down as many cases as they accept (or more) because they are in high demand. They do not have the time to help everyone who contacts them.
Therefore, there is no reason for the attorney you probably want to handle your case to accept a lower fee.
In addition, the time spent on a case often depends on how the claim administrator and insurer behave during litigation. Some defendants and their attorneys are reasonable. Others are not, engaging in extensive and wasteful discovery.
Only some attorneys will agree to a lower fee when there is so much uncertainty over the time and effort involved.
Hire an Attorney Who Charges Reasonable Fees and Has a Record of Success
Your lawyer can make a big difference in the outcome of your case. Make sure you research top-rated workers comp attorneys in your area and hire the best one for you.
As part of your research make sure you understand what fee you’re expected to pay, whether the workers comp lawyer fee varies depending on the outcome of your case, and how litigation expenses are dealt with. Then make sure these details are put in writing.
Don’t let concern over how you’ll pay your attorney keep you from getting help. I work on a contingency fee basis, so you’ll never have to pay me up front.
If you have questions, call me today.
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