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Schofield v. Giovetti

Court of Workers Compensation of Montana

February 7, 1996

DANE C. SCHOFIELD Appellant
v.
CHRIS GIOVETTI Claimant/Respondent.

          Submitted: January 12, 1996

          ORDER ON JUDICIAL REVIEW

          Mike McCarter JUDGE

         Summary: Fee dispute between attorney and workers' compensation claimant resulted in order of DOL hearing examiner that attorney was not entitled to 20% of permanent partial disability benefits where fee contract allows fees on benefits obtained "due to the efforts of the attorney" and claimant ultimately received amount of PPD benefits offered by adjuster without input or involvement of attorney. Attorney appealed to WCC.

         Held: DOL decision affirmed where adjuster had computed and offered same amount of PPD benefits as claimant ultimately accepted without any involvement from attorney. The fact that claimant, on attorneys advice, went to mediation on request for additional PPD benefits does not change the fact that the amount of PPD benefits obtained were not obtained due to efforts of attorney. Attorney awarded 20% of rehabilitation benefits, which were obtained with his efforts.

         Topics:

Attorney Fees: Fee Dispute. WCC affirmed order of DOL hearing officer that attorney was not entitled to 20% of PPD benefits where fee contract allowed fees on benefits obtained "due to the efforts of the attorney" and claimant ultimately received amount of PPD benefits computed and offered by adjuster without input or involvement of attorney. The fact that claimant, on attorneys advice, went to mediation on request for additional PPD benefits does not change the fact that no additional PPD benefits were obtained due to efforts of attorney. Attorney awarded 20% of rehabilitation benefits, which were obtained with his efforts.

         This is an appeal by Dane C. Schofield, an attorney, from a Department of Labor and Industry decision denying his claim for attorney fees on permanent partial disability benefits received by his client, Chris Giovetti. After hearing, the Department's hearing examiner found that Giovetti did not receive the benefits "due to the efforts of the attorney" and limited Schofield's attorney fee to 20% of rehabilitation benefits which Schofield did secure for Giovetti. For the reasons set forth in the following discussion, the Department's decision is affirmed.

         Factual and Procedural Background

         Chris Giovetti was injured on September 29, 1993, in an industrial accident while working for Stillwater Mining, which is self-insured. His claim for compensation was accepted by Stillwater.

         Approximately six months after the accident, Giovetti sought legal advice from Dane C. Schofield concerning his entitlement to workers' compensation benefits. On March 4, 1994, Giovetti signed an attorney fee agreement providing in relevant part:

         A. Claimant and attorney agree to a fee schedule as follows:

For cases that have been settled without an order of the workers' compensation judge or the Supreme Court, twenty percent (20%) of the amount of additional compensation payments the claimant receives due to the efforts of the attorney. [Emphasis added.]

         The agreement was approved by the Department on March 23, 1994.

         Thereafter, by letter dated July 12, 1994, Stillwater's claims adjuster (Cathy Andersen of Crawford and Company) notified Giovetti that he was entitled to a 49% permanent partial disability benefit award, equating to 171.5 weeks of benefits at claimant's permanent partial disability rate of $181.00 weekly. Neither Schofield's testimony nor other evidence show that Schofield had any input concerning Stillwater's computation, or that he had even contacted Stillwater or its adjuster. Andersen's letter was addressed to Giovetti.

         Unhappy with the adjuster's calculations, Schofield and Giovetti requested mediation. Ultimately, Schofield persuaded the adjuster and Stillwater to kick in an additional $1, 724.00 in rehabilitation benefits. While Schofield apparently urged Giovetti to authorize him to petition the Workers' Compensation Court in the hope of obtaining more benefits, Giovetti threw in the towel and accepted the 171.5 weeks of permanent partial benefits and the $1, 724.00 in rehabilitation benefits. He thereafter executed a Petition ...


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