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Iowa Q&A: Work. Comp. When should a lawyer get paid?

By Steve Lombardi

Q: I retained a lawyer for a workers comp injury-was receiving benefits before he was hired-now all of a sudden he wants me to give him a perecntage of my weekly benefits. I have not signed any form giving him permission to do so but he has also had the check made out in his name and mine and sent to him. How ethical and legal is this? The contract at first was for a third of the settlement. I'm confused about when should a lawyer get paid. Can you help me understand this?

A: It's not unusual for a lawyer to get paid from weekly indemnity benefits; in fact it should be expected. Lawyers normally and by rule in Iowa are required in contingent fee cases to have written fee agreements. I've used one for 27 years. If the weekly benefits are disputed then you pay a fee. If not, then unless there is some extenuating circumstances, probably not. There is weekly indemnity benefits paid during the healing period and those paid for permanent impairment. While PPD benefits are always disputed TTD benefits are not categorically disputed. I'd need to know more before I could give you a definitive answer. I've probably confused you more than anything so let me say, read your contingent fee agreement and see what it says about weekly indemnity benefits paid during a healing period as well as disputed benefits.

Temporary Total Disability (TTD) [85.32, 85.33(1)]

When an injury results in more than three calendar days of disability, the employee may be entitled to TTD benefits beginning on the fourth day and continuing until the employee has returned to work or is medically capable of returning to substantially similar employment, whichever occurs first. The three-day waiting period becomes payable if the disability period exceeds fourteen calendar days.

When a job-related injury results in a permanent disability, the employee may be entitled to PPD benefits based upon the degree of permanent disability. The PPD benefits are payable in addition to the HP benefits and are to begin at the termination of the healing period. There are two types of PPD benefits:

(1) Scheduled Member Disabilities - An employee's entitlement to PPD benefits when a scheduled member is involved is based on functional impairment. Below is a list of the scheduled body members along with the value (in number of weeks) for each member.

Weeks

Loss of thumb .... 60

Loss of first finger ... 35

Loss of second finger ... 30

Loss of third finger ... 25

Loss of fourth finger ... 20

Loss of hand ... 190

Loss of arm ... 250

Loss of great toe ... 40

Loss of any other toe ... 15

Loss of foot ... 150

Loss of leg ... 220

Loss of eye ... 140

Loss of hearing in one ear ... 50

Loss of hearing in both ears ... 175

Permanent disfigurement, face or head ... 150

This schedule represents the number of weeks of benefits payable for 100% loss, or loss of use, of the body member.

If the permanent partial disability rating is less than 100%, the percentage rating is multiplied by the number of weeks shown. For example a 20% loss, or loss of use, of a thumb would be computed as 20% of 60 weeks or 12 weeks of PPD benefits.

(2) Body As A Whole Disabilities - When an injury results in a permanent disability to the body as a whole, it is referred to as industrial disability. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. There are no weighting guidelines that indicate how each of the factors is to be considered. Once the degree of the industrial disability is determined, the percentage rating is multiplied by the total value of the body as a whole (500 weeks) to determine the number of weeks payable.

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on August 27, 2008 (boomark / email).