Wilson v. Maryland Casualty Co. , 71 Ga. App. 184 ( 1944 )

1. Where an attorney filed with the State Board of Workmen's Compensation for its approval his contract for fees for services rendered a client in a proceeding under the workmen's compensation act, as required by the Code, § 114-714, and petitioned the board to grant him a hearing, so that he might introduce evidence before the board to show the time and services expended by him under the contract, it was error for the board to refuse the attorney a hearing, where it approved the contract as to a portion only of the amount provided for therein.

2. Where an attorney's contract for fees in a workmen's compensation case provides he is to receive a certain percentage of the amount recovered, the amount of his fee is subject to approval by the board, and is based on a percentage of the money actually received by the claimant and his personal representative, and not on a percentage of the original award entered in said case.

3. The award of the State Board of Workmen's Compensation refusing to assess the fee of the claimant's attorney against the employer and its insurance carrier, is supported by evidence, and the superior court did not err in affirming it.

4. It was stated in the brief of counsel for the plaintiff in error that no exception was taken to the judgment of the superior court affirming the award made by the board, in so far as it dealt with the contract entered into between the attorney and Maude Price.

5. For the reasons set out in division 1 of the opinion, the superior court erred in affirming the award of the State Board of Workmen's Compensation.

DECIDED MAY 24, 1944. Deborah S. Price was severely and permanently injured on July 23, 1942, in an accident arising out of and in the course of his employment with Lookout Mountain Hotel. He employed an attorney and filed a claim for compensation with the State Industrial Board against his employer and the employer's insurance carrier, Maryland Casualty Company. A hearing was had before a director, who, on January 8, 1943, entered an award in favor of the claimant for compensation at $9 a week for total disability from July 23, 1942, and continuing until the maximum number of weeks allowed by law had been reached, or there had been a change in the claimant's condition, and for medical, surgical, and hospital treatment, not to exceed $500, and that all accrued compensation be paid immediately. On January 9, 1943, A. E. Wilson, attorney for the claimant, filed with the Industrial Board his contract for fees for approval by the board. This contract was executed by the claimant on December 3, 1942, and provided in part: "My said attorney is to receive one-third of any sum recovered either from Lookout Mountain Hotel, or its insurer, Maryland Casualty Company, whether paid as a result of compromise, or by order of the Industrial Commission of Georgia. It is understood that this contract is made subject to the approval of the Georgia Industrial Commission, as [is] by law required in such cases." The employer and its insurer, being dissatisfied with the award made, appealed the same on January 18, 1943, for review by a full board. The hearing on review was had on January 25, 1943, at which time it was agreed for the board to appoint a disinterested physician to examine the claimant, and file a report of his findings with the board. The physician was appointed, and he examined the claimant several times before the claimant's death on February 2, 1943, and filed a report of his findings with the board. After the death of the claimant, the attorney filed a petition for a special hearing on his application for approval of his contract for fees. On April 22, 1943, the board ratified and affirmed the award by the director, and ruled that the attorney's motion that his fee be fixed on the award previously made, was not properly before the board at that time. On April 29, 1943, the employer and its insurance carrier paid to the temporary administrator of the claimant the sum of $190.29 in "full settlement of all accrued compensation due under an award made by the Industrial Board to the death of the claimant."

Maude Price, as mother and sole dependent of Deborah S. Price, deceased, filed a claim and petition with the State Board of Workmen's Compensation, formerly the Industrial Board, on June 26, 1943, to have determined the liability of the employer and insurance carrier for dependency, medical bills, and funeral expenses. A hearing was had before a director of the board at which evidence was introduced. The director on August 11, 1943, entered an award, which he amended on August 18, 1943, that the employer and its insurance carrier pay compensation to the mother-claimant in the sum of $1.91 per week for 173 weeks, beginning as of February 3, 1943, and pay all the reasonable medical expenses not to exceed $500, and $100 to the claimant to reimburse her on the funeral bill of the deceased, and that all accrued compensation be paid immediately.

The attorney filed a brief of law and a petition in which he asked that he be given a hearing on his petition before the board for approval of his contract for fees, and in which he contended that an attorney's fee of one-third of the full recovery of 347 weeks would be a reasonable fee; and he requested that he be awarded a fee of one-third of the weekly compensation of $9 per week for 347 weeks, and that this amount be assessed against the employer and its insurance carrier and paid in a lump sum. The application of the mother-claimant that her compensation be paid in a lump sum was denied by the board. The attorney, on August 30, 1943, filed a request with the State Board of Workmen's Compensation that his contract for fees with Maude Price, in which she agreed to pay him a fee equivalent to 40% of the recovery, be approved by the board and ordered paid in a lump sum. The contract was attached to the petition as an exhibit. On September 16, 1943, the board entered the following order and award: "The above claim is before the full board upon application of the Honorable A. E. Wilson to approve attorney's fee. After due consideration has been given to this petition and a study of the file and records of the above claim, the board is of the opinion that twenty-five per cent. would be a reasonable and adequate fee for services rendered, taking into consideration the small amount of compensation involved. It appearing from the records that the Honorable A. E. Wilson represented the deceased claimant, Deborah Price, in his claim to obtain compensation during his lifetime, and it further appearing from the records in this claim that after the death of the claimant, Deborah Price, that the Honorable A. E. Wilson was made temporary administrator of the estate of Deborah S. Price, and as such was paid the sum of $190.29 by the insurance carrier, this amount, together with some six weeks paid claimant, making a total of $243, and twenty-five per cent. of $243 is $60.75. Therefore, the administrator A. E. Wilson is authorized to pay himself from the sum of $190.29 the sum of $60.75, representing a reasonable and adequate fee for his services rendered the claimant in prosecuting his claim. The records of the Workmen's Compensation Board will further show that after the death of the claimant, Deborah S. Price, the Honorable A. E. Wilson and Charles G. Bruce represented the mother-claimant, Maude Price, in prosecuting her claim as a partial dependent. The records further show that at the present time there are thirty-two weeks accrued compensation at the rate of $1.91 per week, or $61.12, twenty-five per cent. of this amount would be $15.28. Therefore, it is hereby ordered by the board that the insurance carrier pay the sum of $15.28 to the Honorable A. E. Wilson and Charles G. Bruce from the accrued compensation, and in addition thereto, the insurance carrier is further directed to pay the aforementioned attorneys twenty-five per cent. of all future payments. The records show that there are 141 weeks outstanding at $1.91 per week, or the sum of $460.31, twenty-five per cent. of this amount being $115.08. Therefore, it is further ordered that the insurance carrier pay to the Honorable A. E. Wilson and Charles G. Bruce from this amount $115.08, representing a reasonable and adequate attorney's fee for services rendered the mother-claimant. The insurance carrier is authorized to pay this $115.08 from the latter payments of compensation, which at this time would entitle the insurance carrier to take credit at the end of the compensation period for 72.1 weeks at $1.91 per week, or $137.71. And it is so ordered."

The attorney, individually, and as temporary administrator of the estate of Deborah S. Price, filed an appeal from this award to the superior court, which was allowed on October 11, 1943, and after consideration of the case, the judge entered an order approving and affirming the award of the State Board of Workmen's Compensation, and the exception here is by the attorney, A. E. Wilson, to that judgment. 1. It appears from the evidence that on December 3, 1942, Deborah S. Price entered into a written contract with the attorney, wherein he agreed to pay the attorney for his services in prosecuting his claim for compensation a fee of one-third of the amount recovered. The contract expressly provided it was made subject to the approval of the State Board of Workmen's Compensation. The attorney performed services under the contract, and an award was made in favor of the claimant against the employer and its insurance carrier. The attorney filed the contract with the board with a request that it be approved, and later filed a petition asking that he be given a hearing before the board on his request that his contract for fees be approved and ordered paid. Without granting his request for a hearing, the board entered an order on September 16, that in their opinion a fee of twenty-five per cent. of the amount paid to the claimant would be a reasonable fee for the services rendered by the attorney, and directed that he be paid a fee of $60.75, which was twenty-five per cent. of the amount paid to Deborah S. Price and his personal representative on the claim. The order of the board was appealed to the superior court, which affirmed it. The attorney contends that the board acted without authority and in excess of their authority in fixing his fee, and that the facts found by the board do not support the decree.

The State Board of Workmen's Compensation is an administrative body possessing only the power the conferred upon it by statute to administer the workmen's compensation act. Gravitt v.Georgia Casualty Co., 158 Ga. 613 (123 S.E. 897); U.S.Casualty Co. v. Smith, 42 Ga. App. 774 (157 S.E. 351);Perry v. American Mutual Liability Ins. Co., 65 Ga. App. 130 (15 S.E.2d 471). Although the act is in derogation of the common law, it is remedial in its nature and purpose and should be liberally construed to give effect to the purposes for which it was enacted. Code, §§ 114-101 et seq.; Van Treeck v.Traveler's Insurance Co., 157 Ga. 204 (121 S.E. 215);Meadows v. Dixon, 61 Ga. App. 697 (7 S.E.2d 329). A reasonable and logical application of the act should be had according to the ordinary and usual acceptation and signification of its terms. Harden v. U.S. Casualty Co., 49 Ga. App. 340 (175 S.E. 404). The act provides that fees of attorneys for services under it "shall be subject to the approval of the State Board of Workmen's Compensation." Code, § 114-714 (Ga. L. 1937, p. 230). Since the act is entirely statutory, the recovery of fees by attorneys for services under it, is governed exclusively by the terms of the act itself, and such fees can only be recovered in a proceeding authorized by the act. Patterson v.Curtis Publishing Co., 58 Ga. App. 211 (198 S.E. 102). While the claimant had full power to select any attorney qualified to practice before the courts of this State to represent him in prosecuting his claim before the board, and before the superior and appellate courts on appeal, any contract that he may have made with such attorney for this purpose was subject to the approval of the board, and was not valid without such approval. The power vested in the board to approve the contract entered into between the claimant and the attorney is a discretionary power. The discretion to be exercised in such a case is not an arbitrary and unlimited one, but should be based on evidence, or the facts as disclosed by the record when the same are sufficient for this purpose, and the law applicable thereto. Miller v. Wallace, 76 Ga. 479 (2 Am. St. Rep. 48). The petition of the attorney alleging, "that he had rendered all of the professional services and expended all of the time necessary to effect a final determination, through a litigated hearing, of the case," and asking that he be given a hearing and "an opportunity to present evidence of these services and time expended, and of the fact that his fee, which was agreed to by claimant, became thus fixed and established," was properly before the board, and the hearing should have been granted. The contract for fees was in writing and was agreed to by the claimant and the attorney. The attorney was interested in getting the contract approved, and as a party at interest, he had the right to introduce evidence before the board to show that the contract should be approved by the board. In refusing to give him a hearing so that this evidence could be introduced before the board for its consideration, and in arbitrarily approving the contract only as to a portion of the amount agreed upon by the parties, we think the board erred. The exception taken by the attorney to the award made, in so far as it dealt with the order fixing his fees without giving him a hearing, was well taken, and the superior court erred in affirming the award of the board for this reason.

2. The contention of the attorney, that he was entitled to have the amount of his fee based on the award made of $9 per week for 347 weeks because he had a lien on the amount recovered by the claimant, and the full amount of the award would have been paid if his client had lived, cannot be sustained. The attorney's right to a fee was based on his contract with the claimant, which was subject to the approval of the board. The workmen's compensation act does not provide for any lien in favor of an attorney for services under the act, but the attorney's lien attaches to the award under the provisions of the Code, § 9-613.Camp v. U.S. Fidelity c. Co., 42 Ga. App. 653 (157 S.E. 209). In the present case, the contract provided for the attorney "to receive one-third of any sum recovered" by the claimant by reason of his injuries. The word "recovered" as used in this contract means the actual receipt of the money by the claimant. The contract did not provide for a fee of a percentage of the award; but provided for a fee of a percentage of the amount recovered; and the only amount recovered was the money which was actually paid under the award to the claimant and his personal representative. The attorney's contract expressly provided that it was made subject to the provisions of the workmen's compensation act, and this act provides that, "if during the period of disability caused by an accident death results proximately therefrom, the compensation under this title shall be as follows: (a) The employer shall, in addition to any other compensation, pay the reasonable expenses of the employee's last sickness, and burial expenses not to exceed $100. If the employee leaves no dependents this shall be the only compensation," and the act further provides that the dependents of such deceased employee shall receive certain payments, in the event that such employee was survived by dependents. Code, § 114-413. It follows that the fee to which the attorney is entitled in this case is a percentage of the amount actually paid to the claimant and his personal representative, the amount of the fee to be fixed by the board in the exercise of its discretion as above stated.

3. The contention of the attorney, that his claim for an attorney's fee based on a percentage of the original award in favor of Deborah S. Price of $9 per week for 347 weeks, should be allowed and assessed against the employer and its insurance carrier because the attorney had a lien against the award for his fees, and if the employer and carrier had furnished the claimant proper medical treatment the claimant would have lived, and the attorney's fee would have been based on the original award rather than on the smaller amount paid to the claimant and his personal representative after his death, is without merit. The fee of the claimant's attorney may be assessed against the employer and its insurance carrier where it appears that the action was defended without reasonable ground, as provided by the Code, § 114-712; or where there has been a refusal or wilful neglect on the part of the employer to comply with the terms of the act relative to insuring his liability or furnishing proper proofs of his ability to pay any award which may be made against him, as required by § 114-603. The provisions of § 114-603 do not provide for the assessment of an attorney's fee against the employer and its carrier for failure to pay compensation when due or to furnish medical treatment when needed. Dunn v.American Mutual c. Ins. Co., 64 Ga. App. 509, 514 (13 S.E.2d 902). And under the provisions of § 114-712, as amended, whether or not the employer had defended the action without reasonable ground was an issue of fact for determination by the State Board of Workmen's Compensation. In the present case, their finding, that the action had not been defended without reasonable ground, is supported by evidence, as Dr. R. E. Newberry testified on the hearing before the board on December 8, 1942, which was within two months of the death of the claimant, that he had just examined the claimant, and that "he thought the claimant would be able to return to work in about 10 days or two weeks, and saw no reason that he should not. That in so far as he could tell the claimant was an able-bodied man." While this evidence was in direct conflict with the other medical testimony in the case, it is well established that all conflicts in the evidence are for determination by the board; and this court can not say, as a matter of law, that a finding was demanded that the employer and its insurance carrier had defended the action without reasonable ground for so doing. The finding of the board being supported by evidence, the superior court did not err in affirming the award made by the board refusing to assess the fee of the claimant's attorney against the employer and its insurance carrier.

4. It is stated in the brief of counsel for the plaintiff in error. that no exception was taken to the award made by the board, in so far as it dealt with its approval of the contract entered into between the attorney and Maude Price.

5. For the reasons set out in division 1 of this opinion, the superior court erred in affirming the award of the State Board of Workmen's Compensation.

Judgment reversed. Felton and Parker, JJ., concur.