Price v. Workers' Compensation Appeals Board

California Court of Appeal · Torts

TortsWorkers' compensationAttorney feesCommutation of awardsworkers' compensationattorney feeslienfar end of award

Facts

The parties signed stipulations requesting an award that provided Mr. Cadena was entitled to temporary and permanent disability indemnity and that his attorneys, Mr. Price and Mr. Kay, would receive specified fees payable from the far end of the permanent disability award. Before the workers’ compensation judge issued the stipulated award, Mr. Cadena died. A WCJ later issued the award, including the attorney-fee provision, but the record showed that because of overpayment of vocational rehabilitation temporary disability indemnity and permanent disability advances, no unpaid benefits had accrued or were due to Mr. Cadena at the time of death. A different WCJ then ruled no attorney fee was payable, and the Board denied reconsideration.

Issue

Whether attorneys may enforce an award of fees payable from the far end of a permanent disability award when the employee died before issuance of the stipulated award and there were no accrued but unpaid disability benefits due at death. Also, whether the employer and insurer were entitled to attorney fees for opposing the petition for writ of review.

Rule

Attorney fees in a workers’ compensation case are ordinarily payable as a lien against compensation to the injured employee. A direction that fees be paid from the far end of a permanent disability award is a commutation order, but under Labor Code section 4700 neither temporary nor permanent disability indemnity is payable for any period after the employee’s death; therefore, if no accrued but unpaid disability indemnity was due at death, no valid permanent disability award exists from whose far end fees may be commuted.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Fresno, Luis Moreno suffered an industrial back injury while working for Valley Crest Masonry, insured by Redwood Harbor Casualty. The parties signed stipulations providing for permanent disability indemnity and a $5,000 attorney fee "payable from the far end of the award," but Luis died before the judge issued the award; at death, the carrier had already advanced more than the total accrued disability indemnity then owing.

Can Luis's attorney enforce the fee provision against the employer and insurer?

Explanation. Attorney fees are ordinarily payable as a lien against compensation, not as an additional obligation. Language requiring payment from the "far end of the award" is treated as a commutation order. But if the employee dies before issuance of the award and no accrued but unpaid disability indemnity was due at death, Labor Code section 4700 bars disability indemnity for periods after death, so no valid permanent disability award remains from whose far end the fee can be commuted. The fee provision is therefore unenforceable.