Developing the Record on Attorney’s Fees?
This panel nonsense is getting out of control. In the case of Jose R. Ramirez v. Parking Concepts, the parties went through three different PQMEs before one stuck.
The parties selected a PQME by the notorious process of elimination, but apparently the defense sent a letter directly to the PQME, and even though applicant was copied on it the communication was regarded as “ex parte” and a new panel was ordered.
The parties couldn’t agree on a joint letter to send to the second PQME, so the defense sent its own letter. And so, a third panel was issued.
That time, however, the defense provided the report of the first PQME to the third PQME.
The applicant’s attorney sought fees for all the extra panel work, and submitted a bill for 96.4 hours. The WCJ awarded attorney fees, but reduced the amount to 78.1 hours (at $350 per hour, of course).
In response to defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board denied the defense petition, but returned the matter to the WCJ because “[t]he itemization prepared by applicant’s attorney covers work performed over four years, but does not on its face establish a nexus between the prohibited communication and ‘attorney’s fees for related discovery.’”
Your humble blogger has no difficulty finding things to grumble about, especially in the world of workers’ compensation. But have we resorted to allowing applicant’s attorneys to bite and re-bite the apple in proving something as simple as hours spent working on a case?
Perhaps applicants’ attorneys have no need to keep track of hours spent working on cases – this is understandable given the fact that their recovery is a percentage of their clients’. If an applicant’s attorney cannot state, with specificity, how much time was spent working on which task in which file, there is probably a good reason for that – the attorney just doesn’t know and is giving a vague estimate.
If such is the case, why should the defense be expected to pay the bills? Should the defense pay for the lights? The secretary? Perhaps the catering?
In the Ramirez case, the applicant’s attorney had a chance to present accurate, detailed bills which specifically stated the nature, duration, and date of the work performed as part of additional discovery due to the panel disputes. Instead, the WCJ received and reduced a vague bill, and even after this reduction it was not detailed enough for the WCAB.
Applicant’s counsel had an opportunity to “develop the record” as to the bills, but didn’t. That should have been the end of it.