Frank v. Workmen's Compensation Appeal Board

Commonwealth Court of Pennsylvania

Frank v. Workmen's Compensation Appeal Board

630 A.2d 489, 157 Pa. Commw. 447, 1993 Pa. Commw. LEXIS 481

CourtCommonwealth Court of Pennsylvania

DecidedAugust 3, 1993

DocketNo. 52 C.D. 1993

StatusPublished

This text of 630 A.2d 489 (Frank v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Frank v. Workmen's Compensation Appeal Board, 630 A.2d 489, 157 Pa. Commw. 447, 1993 Pa. Commw. LEXIS 481 (Pa. Ct. App. 1993).

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Opinions

PALLADINO, Judge.

Joseph P. Frank (Claimant) appeals an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the decision of the referee awarding Claimant’s attorney, Merle S. [449]*449Kramer (Attorney), $1,000.00 in attorney’s fees, instead of $1,955.10 as requested by Attorney. We affirm.

On May 25, 1989, Claimant sustained a low-back injury while working for Sunrise Sunoco (Employer). Thereafter, Claimant received total disability benefits under a notice of compensation payable. On August 6, 1990, Employer filed a petition for suspension or modification, and requested supersedeas.

The referee held two hearings on Employer’s petition. At the first hearing, on October 12, 1990, the referee denied Employer’s request for supersedeas. At the second hearing, on August 27,1991, Employer withdrew its petition. Attorney then requested attorney’s fees for unreasonable contest, pursuant to Section 440 of The Pennsylvania Workmen’s Compensation Act (Act).¹ In support of her request, Attorney presented the referee with a “statement of services rendered on behalf of Claimant” and a “statement of difficulty of work performed by Claimant’s attorney”. Claimant’s Exhibit No. 5. In the latter statement, Attorney requested attorney’s fees in the amount of $1,955.10, which was equal to twenty percent of the benefits received by Claimant from September 13, 1990, the date that Claimant retained Attorney, to August 27, 1991, the date that Employer withdrew its petition.

In his decision, the referee concluded that Employer’s contest was unreasonable. Employer has not appealed that conclusion. As to Attorney’s request for $1,955.10 in attorney’s fees, the referee made the following finding of fact:

9. With respect to the assessment of counsel fees, claimant’s attorney submitted Exhibit “5” which enumerates the [450]*450services performed, the times used for their performance, and a description thereof. Also, pertinent is the contingent-fee agreement (Exhibit “4”) wherein an hourly rate of $85.00 was agreed upon under certain circumstances (see paragraph 7 therein).[²]

10. A reasonable attorney’s fee of $1,000.00 is approved for assessment against employer under the facts and circumstances of this case. Claimant did not testify; no deposition was taken; the only witness was Ms. Williams, a rehabilitation coordinator, who testified for employer and whose testimony did not sustain employer’s burden of proof; no competent or admissible medical evidence was adduced; only two hearings were scheduled and held; and the burden of proof was on the employer.

Claimant appealed to the Board which affirmed. In general, the Board concluded that the referee had the authority to determine what constituted a reasonable attorney’s fee, that the referee exercised that authority in his tenth finding of fact, and that such finding of fact was supported by substantial competent evidence.

On appeal to this court,³ the sole issue presented is whether the referee erred in reducing the amount of attorney’s fees requested by Attorney.

In Eugenie v. Workmen’s Compensation Appeal Board (Sheltered Employment Service), 140 Pa.Commonwealth Ct. [451]*45151, 57-59, 592 A.2d 358, 361-62 (1991), we stated that attorney’s fees in an unreasonable contest case were:

limited by the express language of Section 440 to a “reasonable sum.” When such a sum is related to the work actually done by the attorney, the purpose of the section is served ... Nearly a century ago, our Supreme Court stated: “The amount of fees to be allowed to counsel, always a subject of delicacy if not difficulty, is one peculiarly within the discretion of the court of first instance. Its opportunities of judging the exact amount of labor, skill and responsibility involved ... are necessarily greater than ours, and its judgment should not be interfered with except for plain error.” Good’s Estate, 150 Pa. 307, 24 A. 623 (1892). Under the Act, the referee is given the authority in the first instance to determine what constitutes a reasonable fee. In doing so, the referee may, of course, take into account any fee agreement between the attorney and claimant, the legislative declaration of reasonableness, as well as the other factors discussed in our cases. His finding is a conclusion of law and is reviewable by the Board and by this Court.

Moreover, the Eugenie court concluded that “in appropriate circumstances, Section 440 may require attorney’s fees in an amount less than twenty percent of the award, if the record shows that twenty percent would be unreasonable.” Id. at 58, 592 A.2d at 362. See also Spangler v. Workmen’s Compensation Appeal Board (Ford), 145 Pa.Commonwealth Ct. 56, 63, 602 A.2d 446, 449 (1992) (“An award of 20% of the compensation is not reasonable per se for purposes of Section 440 simply because that is the fee agreement between a claimant and his attorney for ordinary counsel fees for handling the case. Eugenie.”).

In Bandos v. Workmen’s Compensation Appeal Board (Pennbrook Corporation), 149 Pa.Commonwealth Ct. 199, 611 A.2d 374 (1992), the referee limited attorney’s fees, on a quantum meruit basis, to $2,500.00. The claimant appealed and the Board affirmed. On appeal to this court, the claimant argued that the referee lacked authority to limit attorney’s fees under Section 440 to less than twenty percent of all [452]*452compensation awarded, as agreed to by the claimant and his attorney. We affirmed on the basis of Eugenie and concluded that the amount of attorney’s fees “may be less than the amount claimant would have to pay if there was a reasonable contest.” Id. at 201-202, 611 A.2d at 376.

In the present case, Claimant argues that the referee must award $1,955.10 in attorney’s fees since Attorney’s statements of services rendered and difficulty of work performed were uncontradicted. We disagree. As factfinder, the referee concluded that $1,000.00 was a reasonable attorney’s fee based on the limited amount of work Attorney had to perform. Under Eugenie and its progeny, the referee here was clearly authorized to make such a conclusion, and we cannot say that the referee’s conclusion constitutes “plain error”.

Accordingly, we affirm the order of the Board.

ORDER

AND NOW, August 3, 1993, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is affirmed.

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PALLADINO, Judge.

Joseph P. Frank (Claimant) appeals an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the decision of the referee awarding Claimant’s attorney, Merle S. [449]*449Kramer (Attorney), $1,000.00 in attorney’s fees, instead of $1,955.10 as requested by Attorney. We affirm.

On May 25, 1989, Claimant sustained a low-back injury while working for Sunrise Sunoco (Employer). Thereafter, Claimant received total disability benefits under a notice of compensation payable. On August 6, 1990, Employer filed a petition for suspension or modification, and requested supersedeas.

The referee held two hearings on Employer’s petition. At the first hearing, on October 12, 1990, the referee denied Employer’s request for supersedeas. At the second hearing, on August 27,1991, Employer withdrew its petition. Attorney then requested attorney’s fees for unreasonable contest, pursuant to Section 440 of The Pennsylvania Workmen’s Compensation Act (Act).¹ In support of her request, Attorney presented the referee with a “statement of services rendered on behalf of Claimant” and a “statement of difficulty of work performed by Claimant’s attorney”. Claimant’s Exhibit No. 5. In the latter statement, Attorney requested attorney’s fees in the amount of $1,955.10, which was equal to twenty percent of the benefits received by Claimant from September 13, 1990, the date that Claimant retained Attorney, to August 27, 1991, the date that Employer withdrew its petition.

In his decision, the referee concluded that Employer’s contest was unreasonable. Employer has not appealed that conclusion. As to Attorney’s request for $1,955.10 in attorney’s fees, the referee made the following finding of fact:

9. With respect to the assessment of counsel fees, claimant’s attorney submitted Exhibit “5” which enumerates the [450]*450services performed, the times used for their performance, and a description thereof. Also, pertinent is the contingent-fee agreement (Exhibit “4”) wherein an hourly rate of $85.00 was agreed upon under certain circumstances (see paragraph 7 therein).[²]

10. A reasonable attorney’s fee of $1,000.00 is approved for assessment against employer under the facts and circumstances of this case. Claimant did not testify; no deposition was taken; the only witness was Ms. Williams, a rehabilitation coordinator, who testified for employer and whose testimony did not sustain employer’s burden of proof; no competent or admissible medical evidence was adduced; only two hearings were scheduled and held; and the burden of proof was on the employer.

Claimant appealed to the Board which affirmed. In general, the Board concluded that the referee had the authority to determine what constituted a reasonable attorney’s fee, that the referee exercised that authority in his tenth finding of fact, and that such finding of fact was supported by substantial competent evidence.

On appeal to this court,³ the sole issue presented is whether the referee erred in reducing the amount of attorney’s fees requested by Attorney.

In Eugenie v. Workmen’s Compensation Appeal Board (Sheltered Employment Service), 140 Pa.Commonwealth Ct. [451]*45151, 57-59, 592 A.2d 358, 361-62 (1991), we stated that attorney’s fees in an unreasonable contest case were:

limited by the express language of Section 440 to a “reasonable sum.” When such a sum is related to the work actually done by the attorney, the purpose of the section is served ... Nearly a century ago, our Supreme Court stated: “The amount of fees to be allowed to counsel, always a subject of delicacy if not difficulty, is one peculiarly within the discretion of the court of first instance. Its opportunities of judging the exact amount of labor, skill and responsibility involved ... are necessarily greater than ours, and its judgment should not be interfered with except for plain error.” Good’s Estate, 150 Pa. 307, 24 A. 623 (1892). Under the Act, the referee is given the authority in the first instance to determine what constitutes a reasonable fee. In doing so, the referee may, of course, take into account any fee agreement between the attorney and claimant, the legislative declaration of reasonableness, as well as the other factors discussed in our cases. His finding is a conclusion of law and is reviewable by the Board and by this Court.

Moreover, the Eugenie court concluded that “in appropriate circumstances, Section 440 may require attorney’s fees in an amount less than twenty percent of the award, if the record shows that twenty percent would be unreasonable.” Id. at 58, 592 A.2d at 362. See also Spangler v. Workmen’s Compensation Appeal Board (Ford), 145 Pa.Commonwealth Ct. 56, 63, 602 A.2d 446, 449 (1992) (“An award of 20% of the compensation is not reasonable per se for purposes of Section 440 simply because that is the fee agreement between a claimant and his attorney for ordinary counsel fees for handling the case. Eugenie.”).

In Bandos v. Workmen’s Compensation Appeal Board (Pennbrook Corporation), 149 Pa.Commonwealth Ct. 199, 611 A.2d 374 (1992), the referee limited attorney’s fees, on a quantum meruit basis, to $2,500.00. The claimant appealed and the Board affirmed. On appeal to this court, the claimant argued that the referee lacked authority to limit attorney’s fees under Section 440 to less than twenty percent of all [452]*452compensation awarded, as agreed to by the claimant and his attorney. We affirmed on the basis of Eugenie and concluded that the amount of attorney’s fees “may be less than the amount claimant would have to pay if there was a reasonable contest.” Id. at 201-202, 611 A.2d at 376.

In the present case, Claimant argues that the referee must award $1,955.10 in attorney’s fees since Attorney’s statements of services rendered and difficulty of work performed were uncontradicted. We disagree. As factfinder, the referee concluded that $1,000.00 was a reasonable attorney’s fee based on the limited amount of work Attorney had to perform. Under Eugenie and its progeny, the referee here was clearly authorized to make such a conclusion, and we cannot say that the referee’s conclusion constitutes “plain error”.

Accordingly, we affirm the order of the Board.

ORDER

AND NOW, August 3, 1993, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is affirmed.

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630 A.2d 489, 157 Pa. Commw. 447, 1993 Pa. Commw. LEXIS 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-workmens-compensation-appeal-board-pacommwct-1993.

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