The Case for Increased Counsel Fees

By Jon L. Gelman

Courtesy of Workers Compensation

Long overdue legislation has been introduced in the NJ Assembly to increase workers' compensation counsel's fees for petitioner's/claimant's attorneys. The workers' compensation law field has historically been considered a legal specialty that needs to be improved in the quality of representation available to injured workers. It has hindered the ability of injured workers to seek adequate recoveries in the administrative law system.

A bill, A5353,  to increase attorney fees in workers' compensation cases was introduced by Assemblyman Anthony S. Verrelli to increase counsel fees to 25% from a 1911 imposed statutory limit of 20%. 

Workers' compensation is a system of insurance that provides wage replacement and medical benefits to employees who are injured in the course of their employment. The system is designed to ensure that injured workers receive prompt and fair compensation, regardless of who is at fault for the injury.

Workers' compensation claims can be complex and time-consuming, and injured workers often face an uphill battle in obtaining the benefits they deserve. This is where workers' compensation attorneys play a vital role. Workers' compensation attorneys represent injured workers in their claims against their employers or their employers' insurance companies. They help injured workers navigate the complex workers' compensation system and fight for the benefits they are entitled to. See also, "Counsel Fee of $123,415 Deemed Excessive by the Appellate Division," Gelman, Jon, workers-compensation-blogspot.com, Dec. 26, 2022.

Employers have the monetary resources to hire large and expensive law firms to defend work-related claims. They can expend large sums of money on unlimited discovery resources, including hiring medical experts and medical-legal research.

Increasing counsel fees for workers' compensation attorneys would improve the quality and depth of representation available for injured workers in several ways. First, it would attract more experienced and qualified attorneys to the workers' compensation law field. Many workers' compensation attorneys are solo practitioners working in small firms. They often need more resources, time, and attention to handle complex workers' compensation cases. Increasing counsel fees would allow workers' compensation attorneys to hire more staff and invest in technology that would help them better serve their clients. 

Second, increasing counsel fees would allow workers' compensation attorneys to spend more time on each case. Currently, many workers' compensation attorneys are forced to handle a high volume of cases to make a living. This can lead to mistakes and missed opportunities. Increasing counsel fees would allow workers' compensation attorneys to spend more time on each case, leading to better outcomes for injured workers.

Third, increasing counsel fees would make it more affordable for injured workers to hire an attorney to invest in the discovery and trial preparation required to prosecute a workers’ compensation case. Currently, most injured workers cannot afford to advance the discovery costs essential in complex workers’ compensation claims. Increasing counsel fees would make it more affordable for injured workers to hire an attorney, giving them a better chance of success in their claims.

In conclusion, increasing counsel fees for workers' compensation attorneys would improve the quality of representation available for injured workers. It would attract more experienced and qualified attorneys to the workers' compensation law field, allow workers' compensation attorneys to spend more time on each case, and make it more affordable for injured workers to hire an attorney. 

STATEMENT"This bill revises the workers’ compensation law to increase counsel fee awards to a prevailing party in workers’ compensation matters from a cap of 20 percent to a nondiscretionary award of 25 percent, and it expands the application of the fee to orders for payment of medical and temporary disability benefits on motion and orders approving settlement of any kind. This legislation is intended to address the ruling in the unpublished case of Garzon v. Morris County Golf Club, App. Div. Docket #A-1100-21, 2022 WL 17882435(NJ App. Div. 2022), concerning the basis for the award of counsel fees in the workers’ compensation system.

"Attorneys for injured workers are compensated on a contingency fee basis, to encourage the vindication of the rights of injured workers to medical treatment, temporary total disability, permanent disability, and dependency benefits under a beneficent and remedial system. The cost of denying these benefits to injured workers poorly situated to paying hourly counsel fees is to be borne by the employer when appropriate and to the extent appropriate, as determined by a workers’ compensation judge.

"According to the sponsor, the purpose of this bill is to incentivize attorneys to zealously represent injured workers and their families in every case compensable under the workers’ compensation law, and to create a disincentive for employers to deny or delay medical, temporary, and permanency benefits without legal defense or cause. Per the sponsor, since the original contingency cap of 20 percent was passed by the Legislature, attorneys for injured workers have been given additional duties by changes in the statutory and regulatory structures on both State and federal levels. The availability of additional attorney fees takes into account increased duties of attorneys for injured workers. It is the sponsor’s position that a successful litigant should receive 25 percent as the counsel fee for securing these essential benefits for the injured worker if the court determines the efforts of counsel resulted in the payment of these benefits.

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