RENDERED: MARCH 9, 2001; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth Of K entucky Court Of A ppeals NO. 2000-CA-000669-WC MICHAEL DARNELL DEVERS APPELLANT PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-91-18127 NUTT & MAYER; ROBERTA LEWIS; JEWISH HOSPITAL; SPECIAL FUND; ROGER RIGGS, Administrative Law Judge; and WORKERS' COMPENSATION APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, EMBERTON AND TACKETT, JUDGES. EMBERTON, JUDGE: This appeal centers on the denial of a fee to appellant, Michael Darnell Devers, who was discharged by a claimant as the claimant s attorney in a workers compensation proceeding. The Workers Compensation Board affirmed the conclusion of the Administrative Law Judge holding that because the reasonable value of services performed by appellee, Nutt & Mayer, who completed the litigation for the claimant equaled the statutory maximum fee allowable, there remained no fee available for allocation to the discharged attorney. Appellant Devers s
primary arguments in this appeal are: (1) that the Board erred in 1 its interpretation of LaBach v. Hampton, the controlling authority on the method of determining fees in such circumstances; and (2) that it was improper for the ALJ to rely upon the rationale expressed in one of the Board s unpublished opinions. Finding no error in the Board s decision, we affirm. Devers was retained by appellee, Roberta Lewis, in August 1991, to represent her in a workers compensation matter under a contract which provided that an attorney fee in accordance with the amount set out in Kentucky Revised Statutes (KRS) 342.320 be deducted from any recovery. From August 21, 1991, until December 10, 1992, Devers performed various services in furtherance of this agreement mainly in the form of writing letters and maintaining contact with Lewis. Although Devers alleges that he succeeded in securing a resumption of the claimant s temporary total disability benefits, there is no indication in the record as to the value of the benefits received. It appears that these benefits terminated in September 1992. By letter dated December 10, 1992, Lewis informed Devers that she was discharging him and asked that her records be forwarded to Nutt, Gilbert, Hale. In her letter, Lewis expressed her disappointment in the length of time it was taking to resolve her case and in the fact that no claim had as yet been filed. Approximately one week after he was discharged, Devers received an offer of settlement dated December 18, 1992, 1 Ky. App., 585 S.W.2d 434 (1979). -2-
amounting to $12,641.69. Devers testified that he would not have recommended acceptance of this offer as he did not believe that Lewis had achieved maximum medical improvement. Lewis thereafter employed the law firm of Nutt & Mayer to represent her in the compensation proceeding. A claim was filed on February 4, 1993, which resulted in a settlement amounting to $31,659. On April 4, 1994, Nutt & Mayer filed a motion for attorney s fees, alleging that they had numerous contacts with Lewis and that they had prepared for and attended the depositions of Lewis, Dr. Timar Banerjee and Dr. Seligson. On March 4, 1993, Devers filed a notice of an attorney fee lien and motion for approval of a fee in the amount of $2,528.33, which equaled twenty percent of the settlement offer received in his office after discharge. Attached to this motion was an affidavit in which he claimed contact with Lewis on no less than 50 separate occasions and 25 letters sent on her behalf. He also alleged the expenditure of costs in the amount of $175.75. The next entry in the Board s file, dated February 2, 1997, is an order requesting a status report on the attorney fee dispute. After the parties responded that there had been no resolution, a hearing on the matter was conducted on October 27, 1997. After hearing testimony from both attorneys as to the services they had performed for Lewis, the ALJ entered an order in which he concluded: (1) that under KRS 342.320, the maximum fee available for all attorneys was $5,990.09; (2) that in determining the amount of fee to which Devers was entitled, he -3-
was relying upon the directions set out in LaBach v. Hampton, supra, and upon the rationale contained in the Board s opinion in 2 Hill & Allen v. GTE Corporation; (3) that the reasonable value of services performed by Nutt and Mayer amounted to $5,990.09; and (4) that because the value of the services provided by Nutt & Mayer equaled the amount authorized by statute, no amount of allowable fee remained for allocation to Devers. The ALJ also noted that while Devers might have secured some temporary total disability benefits for Lewis, he had not requested a fee against those benefits nor had he established in the record the amount of TTD involved. In his appeal to the Board, Devers alleged that the ALJ erred in relying upon an unpublished Board opinion and in the manner in which he applied LaBach to this case. The Board disagreed, noting that it was not improper for an ALJ to look to unpublished opinions of the Board for guidance and concluding that there was no error in the ALJ s application of LaBach in determining the amount of each attorney s fee. However, because the attorney s fee petition submitted by Nutt & Mayer erroneously indicated that they had attended the deposition of Dr. Banerjee when it was undisputed that no attorney from that firm was in attendance, the Board remanded the claim to the ALJ for a reconsideration using the same analysis but applying them to appropriate facts. Devers s attempted appeal to this court from that opinion was dismissed as not being from a final order. Upon 2 Claim No. 91-37278, rendered February 23, 1996. -4-
remand to the ALJ, Nutt & Mayer submitted a corrected itemization of the services performed on Lewis s behalf. On October 11, 1999, the ALJ issued a second order in which he again concluded that the reasonable value of the services rendered by Nutt & Mayer amounted to $5,990.09, leaving no recovery available to Devers. A second appeal to the Board produced an opinion affirming the decision of the ALJ, precipitating this appeal. Devers first asserts two procedural issues: (1) that the Board erred in permitting appellees to file a responsive brief which was seven days late; and (2) that it was improper for the ALJ to rely upon an unpublished opinion of the Board in reaching his determination as to the merits of his claim. We perceive no error on either point. First, as to the acceptance of a late brief, we agree with appellees that the rules and regulations which govern the prosecution of a claim for workers compensation benefits are similar in scope and intent to the rules governing acceptance of briefs in this court. Both specifically provide sanctions which may be imposed for the failure to timely file a brief and both contemplate the exercise of discretion in the decision as to what penalty, if any, is to be applied. Just as this court has authority to grant an enlargement of time to file a late brief, we can conceive of no legitimate basis for prohibiting the Board from exercising its discretion in a similar manner. Next, we agree with the Board that the Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) prohibition against citing unpublished opinions as authority by its own terms applies only -5-
to courts of this Commonwealth. As noted by the Board, utilization of the reasoning employed in similar claims serves the beneficial purpose in providing consistency within the administrative tribunal. We find absolutely nothing improper or erroneous in such a practice. Finally, we turn to the merits of Devers s complaint, that the Board misapplied the holding of this court in LaBach in denying his claim for a fee. Again, we disagree. Devers s own citations to the opinion in LaBach support the methodology 3 employed by the Board. Citing Henry v. Vance, and Gilbert v. 4 Walbeck, the LaBach court attempted to settle confusion as the proper method of measuring a fee to an attorney employed under a contingent contract who is discharged without cause before completion of the contract: We conclude from this [an examination of the cited cases] that our courts have used the term quantum meruit to indicate that the discharged attorney cannot rely upon the contract to collect a full fee but must deduct from the contract fee the reasonable cost of services of other attorneys required to complete the contract. 5 Thus, Devers s proposed method of applying a twenty percent fee to the $12,641.69 offer (which he admits he would not have suggested that his client accept) in no way comports with the LaBach directives. In other words, the reasonable cost of services of other attorneys required to complete the contract, 3 4 5 111 Ky. 72, 63 S.W. 273 (1901). 339 S.W.2d 450 (1960). 585 S.W.2d at 436. -6-
to which the LaBach court refers, contemplates completion of Lewis s claim for benefits either by settlement or award. Devers cannot simply choose an unaccepted settlement figure to support his claim as to the value of his services on the basis of quantum meruit. Furthermore, we are admittedly at a loss as to Devers s argument that the burden was upon Nutt & Mayer to establish the reasonable value of their services. It is abundantly clear that the Board required them to satisfy this burden by remanding the case to the ALJ for a proper submission of their services without reference to attendance at Dr. Banerjee s deposition. In sum, although it is conceivable that we might have reached a different figure as to the reasonable value of the services of Nutt & Mayer, that is not our prerogative. The factual determinations underpinning an award of attorney s fees are matters clearly assigned to the ALJ. We could not, even if we were so inclined, substitute our view of the evidence for his. The opinion of the Workers Compensation Board is affirmed. -7-
ALL CONCUR. BRIEF FOR APPELLANT: Michael D. Devers, Pro Se Louisville, Kentucky BRIEF FOR APPELLEE NUTT & MAYER: Edward A. Mayer Louisville, Kentucky BRIEF FOR APPELLEE SPECIAL FUND: Joel D. Zakem Frankfort, Kentucky -8-