Barbarevech v. Johns-Manville Products Corp., JOHNS-MANVILLE

• Decision Date: 07 July 1976
• Docket Number: JOHNS-MANVILLE
• Citation: 143 N.J.Super. 31,362 A.2d 609
• Parties: Jacob BARBAREVECH, Petitioner-Respondent, v.PRODUCTS CORP., a corporation, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 31

143 N.J.Super. 31

362 A.2d 609

Jacob BARBAREVECH, Petitioner-Respondent, v. JOHNS-MANVILLE PRODUCTS CORP., a corporation, Respondent-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued June 22, 1976.

Decided July 7, 1976.

Richard H. Thiele, Jr., Somerville, for respondent-appellant (Wharton, Stewart & Davis, Somerville, attorneys; David A. Sacks, Richard H. Thiele, Jr., and Dorothy A. Dygas, Somerville, on the briefs).

Edward B. Goorno, Manville, for petitioner-respondent (Weiss, Ehrlich & Goorno, Manville, attorneys; Edward B. Goorno, Manville, on the brief).

Before Judges MATTHEWS and LYNCH.

PER CURIAM.

Respondent appeals only from that portion of the judgment of the Division of Worker's Compensation which fixed the fee of petitioner's attorney at $5,750, chargeable $3,500 against respondent and $2,250 against petitioner. It is appellant's contention that in accordance with N.J.S.A. 34:15--64 the Division is authorized to award 'reasonable' attorney fees only; that the record does not support the award of the $5,750 in this case, and that an attorney should support his application for fees by an 'affidavit of services setting forth in detail the time and efforts expended on behalf of the petitioner and the nature of the services involved,' analogous to the requirements of R. 4:42--9(b).

Petitioner's attorney contends that the award of fees is within the discretion of the compensation judge; that the fee here is in the nature of a 'contingency' fee, and that since the total award amounts to $48,600, the counsel fee of 11.83% Of that figure is reasonable.

On June 24, 1974 a petition was filed on petitioner's behalf which alleged a pulmonary disability resulting from exposure to asbestos during the 37-year period of his employment with respondent. Petitioner's attorney arranged to have him examined by Dr. Saul Lieb, a pulmonary specialist. He also forwarded copies of hospital records to Dr. Lieb, who rendered two reports dated November 2 and November 16, 1974. In the latter report the doctor stated that the prognosis was poor and therefore he recommended that the case be brought to trial as soon as possible or that petitioner's deposition be taken.

Counsel for both parties agreed to take petitioner's testimony as soon as possible. Accordingly, a hearing was held in the Division on January 8, 1975. Only petitioner testified with respect to the pulmonary petition and also in support of a separate petition for loss of hearing. Subsequent to this testimony respondent's expert, Dr. Sanford M. Lewis, examined the petitioner and by his report of April 3, 1975 concurred with Dr. Lieb's opinion that petitioner was totally disabled as a result of exposure to asbestos during his employment with respondent.

The final hearing was held on April 23, 1975. The medical reports of Doctors Lieb and Lewis were marked in evidence, whereupon the judge made his findings and conclusions. In speaking of counsel fees he noted that the case had not been fully tried and that he would consider this fact in fixing counsel's fee. He stated that 'the Statute permits me to give a fee up to 20 per cent of the award or approximately $9,600' and that 'acting within my discretion and based on my knowledge with cases of this type, I will fix a...