Paying your attorney: Workers' Compensation Cases

Do you have a workers' compensation case? Are you wondering how you pay for a lawyer to represent you in a workers' compensation case? It's a little complicated, but when you take it step by step, you can figure it out.

In Massachusetts, workers' compensation claims are addressed by state statute, regulations and the Rules of Professional Conduct. Payment of attorney's fees is laid out by the statute in M.G.L. c. 152, § 13A and 452 CMR 1.19 (although occasionally other areas are implicated).

Through the statute and regulation, the insurer generally makes payment to the employee's attorney at the various stages of litigation, in varying amounts (set each year). Specifically, when the insurer contests the liability of an employees claim and thereafter agrees to make payment on compensation due, the insurer pays the employee's attorney fee, plus necessary expenses. M.G.L. c. 152, § 13A sets out all of the amounts, plus expenses, that will be due the employee's attorney from the insurer in each level of litigation before the Department of Industrial Accidents.

M.G.L. c. 152, § 13A also lays out the payment when/if an employee's case is ultimately settled by way of a lump-sum settlement. If liability is not accepted by the insurer, the contingency is not more than fifteen percent of a lump-sum settlement. If liability is accepted by the insurer, the contingency is not more than twenty percent of a lump-sum settlement.

Throughout litigation at the Department of Industrial Accidents, normally the employee is not responsible for his/her attorney's fee, however this is not always the case. A few examples are as follows:

• When a cash award is voluntarily made to the employee within the first month from the date of the voluntary payment order or decision, by the amount owed the claimant's attorney the insurer can deduct up to 22 percent of that award for the attorney's fee paid.
• When an employee appeals a decision of an administrative judge and wins before the Reviewing Board.

There are also times when an employee and his/her attorney may agree on a retainer.

Have questions about this? (Don't worry, we know it can seem confusing.) Feel free to reach out to us.