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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 522 SEPTEMBER TERM, 1996 ___________________________________

DONALD F. ROGERS

v. JOSEPH L. WELSH

___________________________________

Murphy, C.J., Cathell, Hollander, JJ. ___________________________________ Opinion by Cathell, J. ___________________________________

Filed:

December 27, 1996

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 We

general in nature, while others are specific to this case. repeat them as given: 1. Does the Worker[s'] 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? 4. Did the Commission abuse its discretion in refusing to acknowledge the Appellant's fully documented extraordinary

- 2 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?

- 3 The Award of Fees In Edmond v. Ten Trex Enters., Inc., 83 Md. App 573, 577 (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 We

(quoting Mayor of Baltimore v. Bowen, 54 Md. App. 375, 386 (1983)). 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 [(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. 83 Md. App. at 578.

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 (1985), aff'd, 306 Md. 27 (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 (emphasis added).

- 4 In the case sub judice, appellant argues that there was

substantial evidence of exceptional difficulty. look to the evidence of that difficulty.1

Accordingly, we

The workers' compensation claimant, appellee, fell from a cashier's stool onto the floor, striking his head. that, as a result, he developed a heart condition. He asserted

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 There, a jury affirmed the award to the claimant.

circuit court.

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. circuit court. That decision was then appealed to the

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.

We extrapolate this material from the Statement of Facts in appellant's brief. Appellee does not contest that statement.

1

- 5 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 The employer and

was held in October of 1990 with the same result. 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 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 (1985), aff'd, 306 Md. 27 (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

- 6 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), 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; 3 A. Larson, Workmen's Compensation Law

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