Timing Is Everything—Applicant Would Have Recovered Fees Under Pre-2013 Version of Amended Statute.
For all of our followers, we have one for worker’s compensation practitioners—a category we do not see come up in many appellate decisions (it usually comes up through writ proceedings).
In San Francisco State University v. Workers’ Compensation Appeals Bd. (WCAB) and Jones, Case No. A141793 (1st Dist., Div. 3 Sept. 29, 2014) (unpublished), a S.F. State lecturer who was a worker’s comp. applicant representing herself for a time in worker’s compensation proceedings claimed entitlement to attorney’s fees under Labor Code section 4064(c). In a very convoluted chain of events, a worker’s comp judge (WCJ) first granted fees under section 4064, the WCAB deferred consideration of the fee issue until later, the WCJ denied fees in July 2013 (after the 2013 effective date of an important amendment to section 4064), and WCAB awarded applicant fees under the pre-2013 version of section 4064, prompting an appeal by S.F. State University as a writ petitioner.
Section 4064, before 2013, allowed fees to an unrepresented applicant at the time an application is filed as against employer if the employer filed an application for adjudication, covering fees incurred by the employee in connection with the application for adjudication. (This contemplates that the unrepresented applicant will later retain an attorney, which happened here when a deposition was scheduled.) Effective 2013, the triggering event for fees changed to a situation where an employer files a declaration of readiness. However, the 2013 amendment did apply to pending matters, but could not be used to impact any prior final award of workers’ compensation benefits. In this particular case, employer did file the application for adjudication (which did allow for fees under the pre-2013 statute) but employee filed the declaration of readiness to proceed (which did not allow for fees under the 2013 statute given that employer did not file the declaration).
So, the dispositive issue boiled down to whether there was a final award that could not be disturbed before the effective 2013 date of amended section 4064. The appellate court vacated the WCAB award of fees to applicant, because the WCAB prior deferment order of the fees ruling meant that there was no such finality and the 2013 amended statute applied, with applicant not entitled to recover fees thereunder because she (not employer) filed the declaration of readiness.