Wright v. Plaza Ford

• Decision Date: 04 August 1978
• Citation: 395 A.2d 1259,164 N.J.Super. 203
• Parties: John WRIGHT, Petitioner-Appellant, v. PLAZA FORD and Second Injury Fund, Respondents-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 203

164 N.J.Super. 203

395 A.2d 1259

John WRIGHT, Petitioner-Appellant, v. PLAZA FORD and Second Injury Fund, Respondents-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 30, 1978.

Decided Nov. 28, 1978.

Supplemental Brief of the Attorney General Received Aug. 4, 1978.

Samuel E. Bass, Newark, for petitioner-appellant (Freemand & Bass, Newark, attorneys).

A statement in lieu of brief was filed by Robert G. Bressler, East Orange, for respondent Plaza Ford.

A statement in lieu of brief and supplemental brief were filed by John J. Degnan, Atty. Gen., of New Jersey, attorney for respondent Second Injury Fund (William F. Hyland, former Atty. Gen., and Michael S. Bokar, Deputy Atty. Gen., on the statement, and Stephen Skillman, Asst. Atty. Gen., on the supplemental brief).

Before Judges FRITZ, BOTTER and ARD.

The opinion of the court was delivered by

BOTTER, J. A. D.

This is an appeal from that portion of a judgment entered in the Division of Workers' Compensation which allowed petitioner's attorneys a counsel fee of $3,000 and from the refusal to increase the award on a motion for reconsideration. This appeal also seeks review of the fees allowed to petitioner's three expert medical witnesses of $50 each, purportedly in conformity with N.J.S.A. 34:15-64. In addition, although not named as a separate party, Samuel Bass, an attorney, appeals from three orders orally entered holding him in contempt for misconduct in the presence of the judge of compensation. The alleged contempts occurred at the hearing on the motion for reconsideration of counsel fees. That hearing was followed by a proceeding three days later limited to the sentence to be imposed on the contempt determinations. For each contempt a $50 fine and a one-day jail sentence were imposed, but the custodial sentence was suspended. Bass contends that his conduct was not contemptuous, that the exercise of the contempt power was not authorized by statute, that it is unconstitutional, and that the contempt proceedings were procedurally deficient.

First we deal with the counsel fee awarded to petitioner's attorneys. Petitioner suffered a myocardial infarction at Plaza Ford's place of business after running up a flight of steps on July 5, 1972 when his boss told him to turn off an alarm. He collapsed and was taken to the hospital where he remained for 23 days. He has not worked since.

The judge of compensation found petitioner totally and permanently disabled from several causes. The major cause was the compensable heart condition which accounted for 50% disability. Additional disability of 25% Was based upon anxiety, resulting from the July 5, 1972 episode, which was termed a psychoneurosis of a conversion hysterical reaction type with left hemihypesthesia and loss of motor power of the extremities on the left side. Petitioner also suffered from chronic bronchitis which was found to be compensable to the extent of 5% Of total. The total disability as a physiological and industrial unit was attributed to the disability incurred in his last employment with respondent Plaza Ford added to preexisting noncompensable conditions which included diabetes, arteriosclerotic heart disease and hypertension. The compensable award was $27,720, representing 360 weeks (80% Of 450 weeks) at $77 a week. Eventually, petitioner will receive payments from the Second Injury Fund also.

There were five hearing dates due to the unavailability of petitioner's medical experts on a single date. The transcript of one hearing comprises only 13 pages dealing with the introduction of a hospital record and brief medical testimony as to petitioner's loss of hearing and nasopharyngitis. The transcript of all testimony occupies 148 pages. At the final hearing, reports of Plaza Ford's medical experts were introduced by consent, no witnesses were called by Plaza Ford or the Second Injury Fund, and all parties submitted without summation and argument. The decision was then announced.

On the issue of the counsel fee awarded petitioner's attorneys, no affidavit of services was submitted in the agency below and no application was made to enlarge the record before us. ¹ See Barbarevech v. Johns-Manville Products Corp., 143 N.J.Super. 31, 34, 362 A.2d 609 (App.Div.1976), certif. den. 73 N.J. 58, 372 A.2d 323 (1977). However, at oral argument in the agency below petitioner's counsel recited the scope of his firm's services. Despite the absence of specific findings by the compensation judge and affidavits detailing the services rendered and time spent, the transcripts of the workers' compensation hearings and the oral representations on the motion for reconsideration of counsel fees furnish us a sufficient basis to evaluate the award without a remand. R. 2:10-5; Cf. Gromack v. Johns-Manville Products Corp., 147 N.J.Super. 131, 137, 370 A.2d 882 (App.Div.1977).

Bass contended before the judge of compensation and contends here that a fee representing approximately 11% Of the compensation award is inadequate and that the "customary counsel fee awarded in the Division is somewhere between 1/6 (16.7%) of the award and 20% Of the award." This position was properly rejected below. The Barbarevech and Gromack cases, Supra, make clear that "although the amount of the award is a factor to be considered in fixing the fee, it has limited significance." Gromack, supra at 134-135, 370 A.2d at 884. "The more important factors are the nature and extent of the services and the responsibility involved." Id. at 135, 370 A.2d at 884. Thus, the notion of a narrow range near the 20% Maximum fee allowed by N.J.S.A. 34:15-64 was properly rejected below. On the basis of our independent examination of the record made by Bass in the Division, we affirm the award of a $3,000 fee as within the discretion of the judge of compensation. Cf. Gromack, supra, where a counsel fee of $7,000 was reduced to $5,000. That case was settled after testimony was taken at two hearings and dependency benefits of $45,000 were awarded. 147 N.J.Super at 137-138, 370 A.2d 323. See also Barbarevech, supra, where we entertained an employer's challenge to a counsel fee of $5,750, which was 11.83% Of the $48,600 compensation award. 143 N.J.Super. at 33, 362 A.2d 609. The case was remanded for further proofs and findings so that we could evaluate appellant's contention that the award was excessive.

The next issue to be considered is the contention that the fees granted to petitioner's three medical experts were inadequate. Each was awarded $50. Conceding that such fees conform to N.J.S.A. 34:15-64 when strictly read, appellant argues that the judge of compensation could have allowed a fee of $75 to $100 for the medical examination and report of petitioner's principal witness in addition to the $50 fee for his testimony.

N.J.S.A. 34:15-64 provides in pertinent part:

* * * The official conducting any hearing under this chapter may, in his discretion, allow to the party in whose favor judgment is entered, costs of witness fees and a reasonable attorney fee, not exceeding twenty per centum (20%) of the judgment; and a reasonable fee not exceeding fifty dollars ($50.00) for any one witness, or one hundred fifty dollars ($150.00) in any one case, for medical witnesses residing in the State when in his judgment the services of an attorney and medical witnesses were necessary for the proper presentation of the case.

The statute does not expressly authorize a separate award for the examination and report of a medical witness, and it clearly limits the award to $50 for each such resident witness. To avoid obvious possibilities for evading the legislative purpose, we must hold that the fee awarded to a resident medical witness cannot exceed $50, inclusive of his services in making an examination and report incidental to testifying. (It would seem reasonable to also apply such limitation to a resident medical expert whose report is used as stipulated testimony.) Petitioner's reliance on Cerasi v. Cooperson Bros., Inc., 123 N.J.Super. 524, 303 A.2d 895 (App.Div.1973), certif. den. 63 N.J. 566, 310 A.2d 481 (1973), and Carr v. Campbell Soup Co., 124 N.J.Super. 382, 307 A.2d 126 (App.Div.1973), is misplaced. Each case upheld a witness fee in excess of $50 ($200 in Cerasi and $100 in Carr ) awarded to a Pennsylvania doctor who testified for petitioner. However, we said in Cerasi that N.J.S.A. 34:15-64 "limits fees payable to New Jersey resident medical witnesses, but places no similar limitations on nonresident medical witnesses." 123 N.J.Super. at 525, 303 A.2d at 896. Thus, Cerasi lends support for the limitation on the resident medical expert's fee which the judge of compensation applied in this case.

We note that N.J.S.A. 34:15-64 has not been amended since 1952. Common sense suggests that a fee limitation that was reasonable for those times may be economically unrealistic today. However, this is a matter for the Legislature. The authority of the agency is governed by the existing legislation.

We turn now to the contempt proceedings. The alleged contempts arose out of Bass' persistent reference to counsel fees awarded in other unreported cases despite repeated requests and orders of the judge of compensation to confine his remarks to the case at hand. See DR 7-106(A); In re Ungar, 160 N.J.Super. 322, 330-331, 389 A.2d 995 (App.Div.1978); Hallinan v. United States, 182 F.2d 880, 886 (9 Cir. 1950), Cert. den. 341 U.S. 952, 71 S.Ct. 1010, 95 L.Ed. 1375 (1951); Hawk v. Superior Court, 42 Cal.App.3d 108, 126, 116 Cal.Rptr. 713, 725 (Ct.App.1974), Cert. den. 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680 (1975); Cf. State v. Stewart, 162 N.J.Super. 96, 103, 392 A.2d 234 (App.Div.1978). However, our disposition on the constitutionality of the right of an administrative officer to adjudicate and punish for contempt makes it unnecessary for us to consider Bass' contention that his conduct did not constitute a contempt.

...