v. Jurisdiction Claim No. VA KOONS OF TYSON CORNER, Employer PENN NATIONAL SECURITY INSURANCE COMPANY, Insurer

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1 VIRGINIA: IN THE WORKERS COMPENSATION COMMISSION SENAD SABIC, Claimant v. Jurisdiction Claim No. VA Opinion by WILLIAMS Commissioner July 2, 2012 KOONS OF TYSON CORNER, Employer PENN NATIONAL SECURITY INSURANCE COMPANY, Insurer Senad Sabic Claimant, pro se. Eric S. Wiener, Esquire Former counsel for the Claimant. Sean M. O Connor, Esquire For the Defendants. REVIEW on the record before Commissioner Dudley, Commissioner Williams and Commissioner Marshall at Richmond, Virginia. Eric S. Wiener, Esquire, has requested Review of the Deputy Commissioner s April 9, 2012 Order Approving Compromise Settlement awarding an attorney s fee of $5,000. Attorney Wiener argues that he should have been awarded $20,000 to reflect 20 percent of the total settlement of $100,000. We AFFIRM. The procedural history of this case is significant. The claimant sustained a compensable injury by accident on November 10, Pursuant to numerous award orders, the claimant had an outstanding medical benefits award and received ongoing payment of temporary partial disability benefits.

2 On February 8, 2011, the employer filed an Application for Hearing seeking to terminate the payment of wage loss benefits. Shortly thereafter, Attorney Wiener noted his appearance on behalf of the claimant. An on-the-record hearing transpired and the parties submitted position statements. By Opinion dated April 7, 2011, Deputy Commissioner Hunter terminated the payment of temporary partial disability benefits. The claimant timely appealed. On August 3, 2011, the Commission affirmed the suspension of wage loss benefits. Meanwhile, the claimant filed a claim for benefits on May 9, 2011, as amended on August 30, The Commission scheduled a hearing to be conducted on January 25, On January 3, 2012, Attorney Wiener filed a Motion to Withdraw as legal counsel based upon the claimant s request for his withdrawal as of December 23, He also asserted an attorney s fee lien for quantum meruit services rendered in the case. Attorney Wiener submitted his Attorney s Fee Contract entered by the claimant on February 11, The contract provided, in part, the following: For a full and final settlement of the case, the attorney s fee would be 20% of the award.... In the event that the Client terminates the [attorney s] employment under this contingency fee arrangement, the Client agrees to be responsible for the reasonable value of the services rendered up to this the date of the termination of employment. Such reasonable value will be established quantum meruit. By letter dated January 6, 2012, the claimant denied that Attorney Wiener s request for a lien should be honored. The claimant alleged that Attorney Wiener improperly failed to obtain and submit medical records on his behalf and did not follow his requests. 2

3 By Order dated January 9, 2012, the Commission dismissed Attorney Wiener as counsel for the claimant. The pro se claimant and the defendants signed a Petition for approval of compromise settlement on February 1, The documents were shortly thereafter filed with the Commission. On March 1, 2012, the Commission acknowledged the settlement letter and informed the claimant of the attorney s fee lien. The Commission directed Attorney Wiener to specify his requested attorney s fee within five days of the date of the letter and for the claimant to respond within five days of receipt. By letter dated March 12, 2012, the claimant advised that he failed to receive any information from Attorney Wiener regarding the amount requested. The claimant reiterated that Attorney Wiener should be paid no money. Also on March 12, 2012, Attorney Wiener responded to the Commission s request. Attorney Wiener detailed the time spent on the claimant s case and calculated a total of 30 hours. Attorney Wiener stated that his hourly rate was $250, and he sought a fee of $7,500 plus an additional amount for the pursuit of the settlement which eventually transpired. Attorney Wiener relied upon the initial agreement of 20 percent for a settlement on the $100,000 amount, and alternatively, 20 percent of the last negotiations of a $70,000 settlement. Attorney Wiener filed numerous documents, including a letter dated March 11, 2011 written to defense counsel on behalf of the claimant. This correspondence made a settlement demand of $150,000 with closed medical benefits. By letter dated July 7, 2011, Attorney Wiener responded to the defendants counteroffer and proposed a settlement of $130,000. On August 3, 2011, the defendants responded with an offer of $70,000. By letter dated August 5, 2011, Attorney Wiener wrote the claimant and suggested a 3

4 counteroffer of $120,000. On the same date, Attorney Wiener also wrote the defendants and advised that he was not prepared to counter the $70,000 offer. On October 25, 2011, the defendants expressed their motivation to settle the claim with Attorney Wiener. On April 9, 2012, the Commission approved the parties Petition and Order for compromise settlement. The parties agreed that the claimant would receive $100,000 and payment of medical treatment to the date of entry of the Order. The Commission ordered $95,000 to be paid in one lump sum to the claimant and $5,000 to Attorney Wiener for services rendered. Attorney Wiener timely requested Review of the awarded attorney s fee. In determining attorney s fees, the Commission does not use a fee schedule but considers the spent by the attorney, the necessity of the appearance at a hearing or deposition, the ability and skill as reflected by the results of the attorney s efforts and the actual results which inured to the benefit of the party against whom an attorney s fee is assessed. Williams v. Philip Morris, Inc., 69 O.I.C. 207 (1990). In a workers compensation case, no fee for legal services in excess of that approved by the Commission may be charged to a claimant. Hudock v. Industrial Comm n, 1 Va. app. 474, 340 S.E.2d 168 (1986). While a contingency fee is not prohibited by law in workers compensation cases, it must be approved by the Commission. Dillon v. Holiday Inn, 64 O.I.C. 113 (1985). On Review, we have carefully considered the information provided by Attorney Wiener and the detailed record of his time spent on the claimant s case. Significantly, we note that Attorney Wiener did not effectuate a settlement of this case. We understand that Attorney Wiener discussed settlement with the defendants for several months in Nonetheless, no settlement was reached. Attorney Wiener withdrew as legal counsel, as requested by the claimant. Then, slightly over one 4

5 month later, the pro se claimant and the defendants reached a settlement. Accordingly, we are not persuaded that Attorney Wiener s attorney s fee should equal 20 percent of the final settlement amount ($100,000) or the last offer made during Attorney Wiener s representation ($70,000). We do agree that Attorney Wiener is entitled to a fee for the services he provided prior to the termination of his employment. As previously stated, Attorney Wiener provided an extensive list of his efforts expended on the claimant s case, the documents he generated, and the efforts he made to settle the case. The Deputy Commissioner considered these materials and concluded that an attorney s fee of $5,000 was appropriate. We believe this amount to be reasonable and find no reason to alter the amount awarded. The $5,000 attorney fee award is AFFIRMED. This matter is hereby removed from the Review docket. APPEAL You may appeal this decision to the Virginia Court of Appeals by filing a Notice of Appeal with the Commission and a copy of the Notice of Appeal with the Virginia Court of Appeals within 30 days of the date of this Opinion. You may obtain additional information concerning appeal requirements from the Clerks Offices of the Commission and the Virginia Court of Appeals. cc: Koons of Tyson Corner Penn National Security Insurance Company 5