An injured worker often wonders whether they can afford to hire an attorney to assist them with a claim for benefits. The good news is that most workers’ compensation lawyers use a fee system similar to personal injury lawyers. This contingency fee system means that the attorney gets no fee unless you get benefits, and their fee is a percentage of your benefits award. The percentage is often controlled by state law, and a judge may need to approve the fee. As a result, even if you cannot pay for a lawyer up front, you can hire a lawyer for your claim. (Read more here about when you may need a lawyer and what a lawyer can do for you.)
Determining the Fee
In assessing whether a fee is appropriate, a workers’ compensation judge or appeals board will consider the amount of effort that the attorney devoted to the case. For example, if a case was resolved efficiently through a negotiated settlement, the attorney may be entitled to a lower fee than if they represented the worker at a hearing or in an appeal. The judge or board also will consider the difficulty of the case and the amount of benefits that the worker eventually received. There may be an absolute cap on the percentage or the dollar amount of the fee, although not every state imposes a cap. The common range is about 10 to 20 percent.
If the employer or insurer does not dispute certain types of benefits, the attorney may not be allowed to claim a percentage of those benefits as part of their fee. They may be able to recover fees from the opposing party in some cases involving intentional misconduct or bad-faith interference with the process. These types of fees are not subject to a cap.
An injured worker should clearly understand the fee arrangement before retaining an attorney to represent them. This is one of the key matters that you should address at your free initial consultation. You may want to research state law on the issue in advance so that you have a general sense of what to expect. For example, if your state imposes a certain cap, you can anticipate that your attorney probably will ask for that amount. You can try to negotiate the fee downward before you sign the representation agreement, but this may not be successful.
Other Costs Related to a Claim
You should be aware that court costs and certain other out-of-pocket expenses will not be covered by your fee agreement with your attorney. These may include filing fees, fees for expert witnesses, fees for doctors and other medical providers, and deposition costs. Your attorney may incur travel expenses, and they may need to pay for copies of medical records to submit as evidence. The attorney probably will cover these expenses during the course of the case, and then you will need to reimburse them. Often, reimbursement depends on whether you win, but some attorneys will require reimbursement regardless of the outcome. You may want to clarify this issue before retaining an attorney if reimbursement would pose a problem. The attorney should be able to provide an estimate of the likely costs. They also can tell you what they will cover up front and when you will need to reimburse them.