The collective term for the lawyers in the state of Virginia who represent workers’ compensation claimants is “the claimants bar.” Over the years, many members of the claimants bar (VA workers’ compensation lawyers) have observed injured workers attempting to represent themselves before the Workers’ Compensation Commission. The legal term for self-representation is “pro se.” Unfortunately, the common outcome for an injured worker who self-represents, “pro se,” before the Workers’ Compensation Commission’s Deputy Commissioner in a first -level hearing is to crash and burn.
Members of the claimants bar suspect that many pro se claimants represent themselves because they have misconceptions regarding how a Virginia Workers’ Compensation lawyer is paid. In this blog we will shed understanding on how a VA Worker’s Comp lawyer is paid and why it is in the best interest of a worker injured on the job to seek specialized legal counsel.
In Virginia, the cardinal principle is that no lawyer for a claimant can receive a fee unless the Commission first approves the fee. This principle is enshrined in a statutory law. That is, the principle exists by virtue of a law the General Assembly passed many years ago. Owing to this legal principle, the Virginia Workers’ Compensation Commission sets parameters as to the amount of fees a Commonwealth workers’ compensation lawyer can be paid.
The Commission has been and remains vigorous in its use of this power to set the fees of the claimants bar. A claimant’s lawyer does not say, “I want a fee of $__” followed by the Commission’s rubber-stamp of the requested fee. The fees are set the other way around, with the Commission establishing a fair fee.
A claimant’s lawyer and his or her staff often spend many months preparing for a hearing. If the claimant prevails, the Deputy Commissioner will unilaterally decide the amount the claimant’s lawyer will receive. The biggest take-away is that workers’ compensation attorneys have skin in the game. If they do not prevail on your behalf, then they do not receive fees nor compensation. When your case is won, the attorney’s fee is paid either from accrued compensation or via a small deduction from the claimant’s weekly compensation payments. In other words, there are no out-of-pocket attorney fees for the injured worker.
If the claimant’s compensation rate is low, it is common for the Deputy Commissioner to award an attorney’s fee in the high hundreds or low four figures (e.g., $1,200). Although the claimant’s lawyer can ask the full Commission to review such an award, such requests are rare. The full Commission affirms a large majority of all Deputy Commissioner decisions that come before it for review.
A claimant may prevail before a Deputy Commissioner only to see the workers’ compensation insurer seek review of the victory by the full Commission. Remember, the insurance company is fighting for the employer, not the injured worker. They are seeking to reduce the compensation to the injured worker. Each party (the claimant’s team and the insurance team, has the right to seek such a review. A review proceeding involves the filing of written statements. Most written statements require at least several hours to draft, and some require many hours. If the claimant prevails on review (which is likely, as noted above), the full Commission typically awards a fee of hundreds (not thousands) of dollars for the work by the claimant’s lawyer on review.
After a claimant receives an award in a contested case, the claimant’s lawyer frequently finds it necessary to pursue the workers’ compensation insurer for payment of the medical treatment the insurer refused to pay for while the claimant’s claim was being litigated. This effort can be very labor intensive. The claimant does not pay for this work. Instead, another statute allows the lawyer to seek a fee from the medical providers who received payment due to the lawyer’s work on behalf of the claimant. Again, not out of the injured workers’ pocket.
It is common for a workers’ compensation insurer to agree to a full and final settlement of a claimant’s claim. In exchange for a lump sum of money, the claimant forever releases all claims for benefits arising from the claimant’s injury by accident. The Commission must approve all such settlements. Pursuant to the cardinal principle discussed above, this approval includes awarding an attorney’s fee to the claimant’s lawyer for negotiating the settlement. The Commission typically awards a fee of 20 percent of the settlement amount. The Commission also awards the costs the lawyer has advanced to the claimant during the case.
Just like a claim for personal injury, a workers’ compensation case is based on a contingency, namely, that the claimant will prevail. If the claimant does not prevail, the claimant’s lawyer receives no payment for his or her work. If a person is injured in a vehicle accident, the person’s lawyer typically receives one-third of the settlement amount. A lawyer for a workers’ compensation claimant receives typically receives a lower percentage than a personal injury lawyer – less than two-thirds of such a fee (i.e., 20 percent versus 33 percent).
The structure of hiring a workers’ compensation attorney is truly established with the injured worker in mind. The workers’ comp attorney only earns fees if the injured worker’s case is won. There are no out-of-pocket attorney fees. All legal fees paid to workers’ compensation attorneys are tied to either the accrued compensation or via a small deduction from the claimant’s weekly compensation payments. Finally, the Virginia Workers’ Compensation Commission serves as the gatekeeper of legal fees, ensuring that the fees a workers’ comp lawyer earns are fair.
With these parameters for a workers’ compensation attorney payment structure in place, why wouldn’t an injured worker choose to have a competent, skilled, specialized workers’ comp attorney fight for their fair compensation? Go it alone, represent yourself, and you could receive 100 percent of nothing. Hire an experienced workers’ compensation attorney and you could receive a substantial percent of something. Leave it to the experts. If you are injured on the job, call HammondTownsend for a free case evaluation. Our team will leave no stone unturned to help you earn the fullest measure of the claim you are entitled to.
HammondTownsend does not dabble in workers’ compensation law. We are specialists in the field of workers’ compensation, and we are ready, willing, and able to handle proceedings for a workers’ compensation claim at all judicial levels.