Employers Mutual Liability Insurance v. Workmen's Compensation Appeals Board

Opinion

ROUSE, J. In this writ of review proceeding, we are called upon to determine procedures to be employed in making supplemental awards of attorney’s fees for legal services performed in appellate proceedings in workers’ compensation cases.

The matter arose when, following our summary denial of an employer’s petition for a writ of review, the prevailing employee sought hearing in our Supreme Court on his request for an award of attorney’s fees. In its answer to the petition, the Workmen’s Compensation Appeals Board (hereinafter “board”) suggested that some guidance with respect to the procedures to be employed in awarding attorney’s fees in appellate proceedings was in order. Thereafter, on direction from the Supreme Court, we issued a writ of review.1

Section 5801 provides, in pertinent part, as follows; “In the event the injured employee or the dependent of a deceased employee prevails in any petition by the employer for a writ of review from an award of the appeals board and the reviewing court finds that there is no reasonable basis for the petition, it shall remand the cause to the appeals board for the purpose of making a supplemental award awarding to the injured employee or his attorney, or the dependent of a deceased employee or his attorney a reasonable attorney’s fee for services rendered in connection with the petition for writ of review. Any such fee shall be in addition to the amount of compensation otherwise recoverable and shall be paid as part of the award by the party liable to pay such award.”

The only reported case directing a supplemental award of attorney’s [107]fees under section 5801 is California Comp. & Fire Co. v. Workmen's Comp. App. Bd. (1968) 267 Cal.App.2d 297, at page 301 [72 Cal.Rptr. 782], Unfortunately, that case offers us no guidance as to procedures to be employed when the employer’s petition for writ of review is summarily denied. It has been our practice, in that instance, to make no separate ruling on the employee’s request for attorney’s fees.

In its answer to the petition, the board tells us that the more customary practice, where the employee prevails in his answer to an employer’s petition for a writ of review, is for the employee’s attorney to request the board to allow a supplemental attorney’s fee as a lien under section 4903 against compensation awarded to the employee; further, that the board has allowed such supplemental attorney’s fees upon request. The board also advises us that it does not consider a summary denial of a writ of review as necessarily meaning that there was no reasonable basis for the petition, and that it would not make any supplemental award under section 5801 without an order by the reviewing court directing such action.