Within the California Workers’ Compensation system, two key types of attorneys play significant roles: applicant attorneys and defense attorneys. The fundamental difference between applicant and defense attorneys lies in who they represent and their approach to the case. Applicant attorneys advocate for the rights and benefits of the injured worker, while defense attorneys focus on minimizing their client’s liability and costs. However, both parties work together to streamline resolution of legal issues with the goal of being able to eventually settle the case. Understanding the distinctions between the two is essential for effectively navigating the complexities of Workers’ Compensation claims and ensuring that the rights and responsibilities of all parties are properly addressed.
Applicant Attorneys: Advocates for Injured Workers
Applicant attorneys represent injured workers, also known as applicants, who are seeking benefits under California’s Workers’ Compensation system. Their primary responsibility is to ensure that their clients receive medical care, temporary disability benefits, permanent disability benefits, and a supplemental job displacement voucher to assist the injured worker with job retraining.
Applicant attorneys often take a more proactive role in managing their cases, guiding their clients through the often complex and bureaucratic process of the Workers’ Compensation system. This includes overcoming denials of the claim, helping their clients obtain medical treatment, gathering and submitting necessary medical records, filing applications for adjudication of the claim, appealing medical treatment denials, taking and defending depositions, and representing the worker in hearings before the Workers’ Compensation Appeals Board (WCAB).
Responsibilities of the Applicant Attorneys
Applicant attorneys will work to gather all relevant evidence, including medical records, accident reports, depositions, and employment records to support the claim and establish the extent of the injuries and their impact on the employee’s activities of daily living and ability to work. Both defense and applicant sides must each serve all records they plan on providing to the QME to the other party at least 20 days prior to the QME evaluation. The applicant attorney also ensures that any opinions on industrial causation and whole person impairment is per the legal standards set forth in California law. This is important because the applicant has the burden on causation and impairment. If the defense argues that a portion of the disability is due to non-industrial factors (apportionment), the applicant attorney may challenge this by questioning the validity of the evidence or the conclusions drawn by the AME/QME. The defendant ultimately has the burden on apportionment.
Client Focus
The client base for applicant attorneys is exclusively injured workers. These attorneys focus on advocating for the best possible outcome for their clients, ensuring that they receive fair compensation for their injuries. They may also assist in negotiating settlements, but only if it is in the best interest of the worker.
Fee Structure
Applicant attorneys typically work on a contingency fee basis, meaning they are paid a percentage of the settlement obtained, usually at 15%.
Defense Attorneys: Protecting Employers and Insurers
Defense attorneys represent employers and insurance companies. Their role is to defend against errant Workers’ Compensation claims, ensuring that only valid claims are paid, and that any compensation provided is within the bounds of the law. They may become involved after a claim has been filed, focusing on the legal defense and cost management aspects of the case.
These attorneys are responsible for investigating the legitimacy of the claim, negotiating settlements, and representing the employer or insurer at WCAB hearings. They work to mitigate the financial impact of a claim on their clients, often challenging the extent of the injury, the necessity of medical treatment, or the degree of disability claimed by the worker.
Responsibilities of the Defense Attorneys
A Workers’ Compensation defense attorney is responsible for reviewing all aspects of the case, including how the accident occurred and all relevant medical records. They review the injured worker’s medical history to identify any pre-existing conditions or other factors that might have contributed to the injury or disability, and they also review employment records and safety records to provide context or refute the worker’s claims. The defense attorney ultimately presents evidence to rebut the applicant’s claims, such as showing inconsistencies in the worker’s statements, highlighting other potential causes for the injury, or demonstrating that the worker’s condition is not as severe as claimed.
Client Focus
Defense attorneys work exclusively for employers, insurance companies, and third-party administrators. Their goal is to protect their clients’ financial interests, which often involves contesting claims that may be perceived as exaggerated or fraudulent.
Fee Structure
Unlike applicant attorneys, defense attorneys are typically paid on an hourly basis, with fees covered by the employer or insurer they represent. This structure reflects their ongoing duty to manage and mitigate the costs associated with Workers’ Compensation claims.
The Importance of Understanding Both Sides as a QME
As a QME, your evaluations and reports are often scrutinized by both applicant and defense attorneys, and your impartiality is key to the integrity of the process. Knowing the perspectives and strategies of both applicant and defense attorneys helps you navigate potential biases, communicate effectively with all parties, and ensure that your evaluations are fair, thorough, and legally sound. This knowledge also aids in anticipating the types of questions or challenges that might arise during depositions or hearings, allowing you to maintain the objectivity required of your role. The better quality your reporting is, the more you will be considered by both sides in this industry. Moreover, the higher caliber reporting you produce, the better chance the parties have of resolving many of the legal issues. You play a critical role in the outcome of the case.
Additionally, cultivating a strong reputation as a Qualified Medical Evaluator (QME) will only further your success in the industry. Engaging in professional conferences, seminars, and networking events tailored to applicant attorneys not only enhances your professional network but also ensures the fulfillment of the Continuing Medical Education (CME) requirements for QMEs. Furthermore, a positive reputation within the applicant attorney community significantly increases the likelihood of being selected for panels.
The roles of applicant and defense attorneys are critical in the California Workers’ Compensation system, each serving distinct and opposing functions. Understanding these differences helps illuminate the adversarial nature of Workers’ Compensation litigation, where the interests of injured workers and employers often collide. Whether you are an injured worker seeking benefits, an employer navigating a claim, or a Panel QME, knowing the role of each type of attorney can help you better understand the legal landscape and make informed decisions.
We thank Dane Gilliam, Esq., for his assistance in this commentary.