Hurt on the Job? Good Luck Finding a Lawyer

Get hurt at work and the system makes you a promise. File a claim, get treated, get paid while you heal. That is the promise of workers’ compensation. But there is a catch the public rarely hears about. If your injury is on the smaller side, you may not find a lawyer willing to take your case, and without one, you will probably walk away with far less than you are owed.

The Wall Street Journal recently reported on this problem nationwide: injured workers struggling to find attorneys because benefit cuts and fee limits have made the specialty hard to sustain. California is no exception. The way applicants’ attorneys are paid structurally decides who gets representation, and the people shut out are the ones with the smallest claims, who often need help the most.

Here is how it works. An attorney representing an injured worker in California cannot simply set a price. Under Labor Code Section 4906, the Workers’ Compensation Appeals Board (Board) must approve the fee, and the fee must be reasonable. In practice, that usually means somewhere between 9% and 15% of what the worker recovers, as recognized in 99 Cents Only Stores v. Workers’ Comp. Appeals Bd., 80 Cal.App.4th 644 (2000). The fee also comes out of the worker’s award as a lien on the recovery, not from the employer or its insurance carrier. Labor Code Section 4903. Put those two rules together and the math is unforgiving. The smaller the claim, the smaller the fee.

There is a second squeeze on top of that one. Weekly permanent partial disability benefits are computed from a capped earnings figure, and the cap has not moved since 2014. Labor Code Section 4453. The result is a maximum benefit of $290 a week, even as everything else gets more expensive. Because the fee is a capped percentage of that frozen number, the real value of the attorney’s compensation has been shrinking for more than a decade. Defense attorneys face no such constraint. They bill hourly, at rates set privately with their clients or insurance companies, with no Board approval required. Only the injured worker’s side of the case has its economics frozen in time.

For a serious injury with a large award, the arrangement still works well enough. For a modest injury, it collapses. Say the fee comes to 12% of a modest award. That might not even cover the total value of the lawyer’s time. Ordering medical records, lining up doctors, taking and defending depositions, appearing at hearings and taking a matter to trial; all of that takes the same time and skill whether the claim is big or small. So, the lawyer has to say no and the worker with the smallest claim is left to handle it alone.

Representation changes outcomes. In one published court decision, the worker’s attorney developed the medical evidence, advised the worker to reject a sizable settlement offer, and secured a result far above what was first on the table. Wheeler & Beaton v. Workers’ Comp. Appeals Bd., 40 Cal.App.4th 389 (1995). This is a common outcome where representation is secured. Unrepresented workers have none of that. They are less likely to recognize an inadequate offer, less likely to understand the full scope of available benefits, and less able to challenge denials of treatment. This highlights why legal representation must be available to all injured workers, even if it requires a change in fee structure to attract more lawyers.

Unrepresented workers struggle to get the full benefits they deserve, but the cost is not only financial. A worker who cannot fight for the right medical care heals more slowly and returns to work later, and sometimes an injury that should have healed becomes permanent. This may lead to the worker being removed from the workforce altogether.

We have already watched this issue play out with doctors. When payments to treating doctors fell below market, fewer doctors would see injured workers, and when the payments recovered, access improved. Attorneys respond to the same incentives. Pay them too little to handle small cases and they will stop handling small cases, and the injured worker absorbs the loss. The courts saw this coming decades ago, warning in Beloud v. Workers’ Comp. Appeals Bd., 50 Cal.App.3d 729 (1975), that fees should not be set so low that capable attorneys abandon this work.

The Legislature has started to notice. Senate Bill 555, introduced by Senator Anna Caballero and now pending in the Assembly, would raise the capped earnings figures used to compute permanent partial disability benefits for the first time since 2014, lifting the weekly range from $240–$435 to $363–$658 for injuries occurring on or after January 1, 2027. That would help injured workers directly, and because fees are calculated as a percentage of benefits, it would also repair some of the economics pushing attorneys away from this meaningful work.

But Senate Bill 555 alone does not finish the job. The increase is a one-time adjustment, so the same slow erosion begins again the day it takes effect, and a percentage of a small award is still a small number. For the small-claim problem, the fix is already hinted at in the statute. When a defendant deposes an injured worker, the worker’s attorney is paid a reasonable fee for that deposition, and the defendant pays it. Labor Code Section 5710. It does not come out of the worker’s pocket. Extend that logic to small claims. Set a fair minimum fee for legitimate small cases or require the employer or carrier to cover the fee when the worker prevails. Large awards would be untouched. We would simply stop pricing workers with the smallest claims out of legal representation.

A system that leaves its most vulnerable workers without counsel is breaking the promise it was built on. Paying applicants’ attorneys fairly is not a favor to lawyers. It is how we keep faith with people who got hurt doing their jobs.

Kathleen N. Mastagni Storm is a partner at Mastagni Holstedt A.P.C. with decades of experience representing public safety and labor organizations. Her practice centers on public union organizing, unfair labor practice litigation, collective bargaining and contract enforcement, and trial and appellate litigation in California and federal courts. She also represents clients in officer-involved shootings and disciplinary matters and lectures on the Firefighters’ Procedural Bill of Rights Act and the Public Safety Officers Procedural Bill of Rights Act, while regularly serving on public sector labor conference panels.