Rogers v. Welsh

CATHELL, Judge. Donald F. Rogers appeals from a judgment of the Circuit Court for Baltimore County, (Cadigan, J., presiding) that sustained a decision of the Workers’ Compensation Commission, which awarded appellant counsel fees in the amount of $12,500 in respect to appellant’s representation of Joseph Welsh, appellee, in a workers’ compensation case. Some of the questions appellant presents are general in nature, while others are specific to this case. We repeat them as given: 1.

Does the Workers’] Compensation Commission as a matter of [c]ommon practice award attorney’s fees in excess of their Statement of Policy for the Approval of Attorney’s Fees (the guidelines)? 2. Should the appellant’s work performance and extremely favorable settlement on behalf of his client, by the exercise of reasonable interpretation, entitle him to an enhanced award in excess of the guidelines? 3. Should the computation of attorney[’]s fees under the guidelines be limited to a $45,000 parameter when a $150,-561 lump[-]sum settlement is involved and an extraordinary work effort has been performed and an exceptional result achieved because of that work effort? ¹⁴⁴ 4. Did the Commission abuse its discretion in refusing to acknowledge the Appellant’s fully documented extraordinary work effort and the superb result achieved for his client? 5.

Did the Circuit Court of Baltimore County err in not remanding the case back to the Worker’s Compensation Commission? The Award of Fees In Edmond v. Ten Trex Enters., Inc., 83 Md.App. 573, 577 , 575 A.2d 1267 (1990), we first noted that in workers’ compensation fee cases, “the only issue on appeal is whether the Commission has abused its discretion” in fashioning the fee award. We later noted that “[s]ince the Commission is vested with the authority to set counsel fees, ‘it is not the province of the courts to constrain the legitimate exercise of the commission’s discretion.’ ” Id. at 577-78 , 575 A.2d 1267 (quoting Mayor of Baltimore v. Bowen, 54 Md.App. 375, 386 , 458 A.2d 1242 (1983)). We then stated the limits on the Commission’s discretion: In exercising its discretion to set the amount of attorney’s fees, the Commission is required to protect the claimant against depletion of the compensation award by an excessive counsel fee.

Feissner [v. Prince George’s County], 282 Md. [413,] 418, 384 A.2d 742 [ (1978) ]. The fee cannot, however, be so low as to deprive claimants of a practical ability to obtain counsel. Bowen, 54 Md.App. at 386 , 458 A.2d 1242 . 83 Md.App. at 578 , 575 A.2d 1267 . In affirming the trial court’s affirmance of the Commission, we concluded: We agree with the trial judge and perceive no error in the application of the Mitchell [v. Goodyear Serv.

Store, 63 Md.App. 426 , 492 A.2d 984 (1985), aff'd, 306 Md. 27 , 506 A.2d 1178 (1986) ] test. Since there is no evidence of any exceptional difficulty with the claim, we cannot say the Commission abused its discretion. 83 Md.App. at 580 , 575 A.2d 1267 (emphasis added). In the case sub judice, appellant argues that there was substantial evidence of exceptional difficulty. Accordingly, we ¹⁴⁵ look to the evidence of that difficulty. 1 The workers’ compensation claimant, appellee, fell from a cashier’s stool onto the floor, striking his head.

He asserted that, as a result, he developed a heart condition. In 1983, during contested proceedings, the Commission found that the claimant had suffered a work-related injury and awarded him temporary total disability. The employer and insurer appealed that order to the circuit court. There, a jury affirmed the award to the claimant.

No further appeal as to that award was taken. After appellee reached maximum improvement, a further hearing was held on May 15, 1987, as to the “nature and extent of disability.” The Commission denied benefits, by order of November 10,1987, finding that the disability was not related to the injury of September 6,1982. That decision was then appealed to the circuit court. Prior to a trial, the circuit court granted summary judgment in favor of appellee, reversing the Commission’s decision and remanding the matter back to the Commission, with special instructions in respect to the nature of claimant’s psychiatric condition.

That order was appealed to this Court, and we affirmed. The Court of Appeals denied certiorari. Thereafter, the case was heard by the Commission, which found that appellee was permanently disabled solely due to the accidental injury and that the Subsequent Injury Fund was, therefore, not liable. The employer and insurer requested a rehearing, and one was held in October of 1990 with the same result.

The employer and insurer then appealed to the circuit court. While this trial was pending, and just prior thereto, the parties settled the case for a total lump-sum payment of $150,561, composed of $75,561 already due the claimant for the period of September 1982 to May of 1991, $50,000 in additional contributions from the employer and ¹⁴⁶ insurer, and $25,000 in contributions from the Subsequent Injury Fund. At that time there was in place a fee schedule that placed an initial cap of $45,000 on these types of awards, even though the statute provided for methods of continuing payments to a claimant in excess of $45,000 when a finding of permanent disability was made. That attorneys’ award fee schedule was applied only up to the $45,000 cap and not to the continuation payments beyond that amount.

In Mitchell v. Goodyear Serv. Store, 63 Md.App. 426 , 492 A.2d 984 (1985), aff'd, 306 Md. 27 , 506 A.2d 1178 (1986), as relevant to the issues here presented, Mitchell’s attorney disputed the amount of the fee award based upon a calculation of Mitchell’s weekly award of $220, his age, and what he would receive if he had an average life expectancy. That calculation resulted in a possible total of $245,000 more than the amount initially awarded by the Commission. We stated: [W]e now focus upon the fee awarded by the Commission with respect to the projected figure of $245,000 in compensation benefits.

Of course, that figure, based on life expectancies, is but an educated guess grounded on statistics and, as such, subject to the unexpected. The fee requested by Barnes [Mitchell’s counsel] in the instant case is approximately 5 percent of the additional possible $245,000 award. The $4,000 awarded Barnes by the Commission, as an additional fee, amounts to 1.6 percent of the $245,000. Although the policy statement provides a maximum fee and not an entitlement (see Bowen[, 54 Md. App.] at 386, 458 A.2d 1242 ), the Commission may not set fees so cheeseparingly as to deprive claimants of the practical ability to obtain competent counsel.

See Bowen[, 54 Md.App.] at 386, 458 A.2d 1242 A. Larson, Workmen’s Compensation Law § 83.16 (1982 ed. & Supp.1984); Cline v. Warrenberg, 109 Colo. 497 , 126 P.2d 1030 (1942) (denying claimants the right to competent legal representation by fixing [inadequate] attorney’s fees may constitute a denial of due process). ¹⁴⁷ The Commissioner further expressed concern that Barnes used life expectancy tables in computing the size of the claimant’s award. The Commissioner opined: “[T]here is no basis of the allegation that he [the claimant] will receive in excess of $250,000. He’ll get it if he lives, and unless you can assure me that he will do that ... [incomplete sentence].” Furthermore, the trial judge was correct in remanding the case to the Commission rather than setting the amount of the fee. The circuit court was acting in an appellate and not a trial capacity.

Remanding the case to the Commission “[p]reserve[s] both the Commission’s authority to set the fee and counsel’s ‘right’ of judicial review under [Md.Code, Art. 101, [2] ] § 57.” Bowen, 54 Md.App. at 387 , 458 A.2d 1242 . 63 Md.App. at 433-35 , 492 A.2d 984 (some brackets in original). As is especially pertinent here, in Mitchell , we reminded the Commission that: The award of counsel fee should be on the basis of the work performed and the result obtained. The Commission should never use the setting of fees as a methodology for exerting punitive measures on counsel. No judicial or quasi-judicial officer should take personal umbrage because he or she is reversed by a higher tribunal.

In so commenting, we are not to be understood as attributing any improper motive to the Commission in the matter sub judice. Rather, we use this opportunity to comment on the subject purely in an academic vein. Id. at 436 , 492 A.2d 984 . With Mitchell in mind, we shall examine what appellant asserts were extraordinary efforts on his part, above and beyond the perceived complexity we have discussed. ¹⁴⁸ We have examined appellant’s Petition for Approval of Attorney’s Fee and his Supplemental Petition for Approval of Attorney’s Fees and Itemization.

They contain approximately forty statements relating to the work appellant performed. 3 Of these forty, we perceive that thirty-seven of the allegations would be work that a highly skilled and competent counsel, such as appellant, would ordinarily do on behalf of a claimant during the various stages of these proceedings. While we are of equipoise as to several (three) instances of work performed, that decision is the Commission’s to make, so long as its fact-finding is supported by sufficient evidence to make the issue fairly debatable and it does not abuse its discretion in the process. The Commission is deemed to be the expert in respect to the discretionary decisions the statute authorizes it to make. See Mitchell, supra, and Edmond, supra.

Although it may be of little solace to Mr. Rogers, we perceive that he has rendered legal services to the claimant of a high quality and exhibited a great degree of professionalism in the process. He represented appellee’s interests with complete competence, but that is what the guidelines contemplate. We are not persuaded that the Commission abused its discretion in failing to find that appellant made extraordinary o efforts on behalf of appellant when it awarded attorney’s fees. The $45,000 Cap This brings our attention to the existence of the cap itself and the somewhat intriguing issue arising out of the prior reasons why attorney’s fees have not been awarded in respect to sums that might be received over and above the $45,000 cap in a lump-sum context.

Because we were faced with a somewhat different issue in Mitchell v. Goodyear Serv. Store, supra, some of the language of that case might appear to support a case-imposed require ¹⁴⁹ ment that attorney’s fees must relate, not only to the original $45,000 award, but to the continuing payments thereafter. We commented that the fee requested by the attorney in that case was “approximately 5 percent of the additional possible $245,000 award” and that the fee actually awarded amounted to “1.6 percent of the $245,000.” 63 Md.App. at 434 , 492 A.2d 984 . We then shortly thereafter noted, as indicated previously, that the fees could not be awarded so “cheeseparingly, as to deprive claimants” of the services of competent counsel.

Id. While in Mitchell it appears as if we were approving the awarding of fees for sums above the $45,000 original award, we were not. We were merely noting that the fees requested and the fees awarded represented certain percentages of the additional sum. The issue of the appropriateness of attorneys’ fees based on the additional sums potentially to be received, was not raised on appeal in Mitchell and was not addressed by that panel.

That case was reversed by the trial court judge because he felt that the Commission had “predetermined the issue and that the amount of the fee requested ... ‘shocked’ the Commission.” 63 Md.App. at 430 , 492 A.2d 984 . The trial court directed the matter back to the Commission to reconsider the fee award. We presumed that there existed a “5 percent figure contained in the guidelines” and that it applied in respect to the sums over the $45,000 original award. In fact, it appears now that the five percent figure related to additional sums earned by reason of appeals, but still related to the fee cap of $6,100, which is based upon the original award of $45,000 in compensation to a claimant. 4 When applied to the facts here extant, some of the language in Mitchell may be inadvertently misleading.

In any event, we note language that, although dicta, is relevant to the concerns we are now addressing. We said as to the $245,000 figure upon which extra compensation might be receivable that ¹⁵⁰ that figure, based on life expectancies, is but an educated guess grounded on statistics and, as such, subject to the unexpected. Mitchell, 63 Md.App. at 434 , 492 A.2d 984 . The intriguing issue presented in appellant’s argument, that we will subsequently address, is that all doubt as to the amount appellee will actually receive has been removed in the case sub judice.

By settling the case and receiving a lump-sum award in respect to future payments, the contingency as to the claimant’s receipt of the payments has been removed. He, therefore, argues that there is no need to utilize