Submitted: April 20, 1998
ORDER ON APPEAL
MIKE
McCARTER JUDGE.
Summary:
Appellant signed Attorney Retainer Agreement providing that,
in cases which are settled without an order of the
workers' compensation judge or Supreme Court, the
attorney will receive "twenty percent (20%) of the
amount of additional compensation payments the claimant
receives due to the efforts of the attorney." Through
the efforts of the attorney, appellant's claim for
benefits was reclassified from an occupational disease to an
injury, making her eligible for permanent partial disability
benefits. When claimant reached MMI, the attorney demanded
permanent total disability benefits on her behalf. The
insurer refused and mediation ensued. During the period of
negotiation, the insurer continued temporary total disability
benefits. Eventually, the insurer conceded claimant was
permanently totally disabled. Appellant then discharged the
attorney and maintained that her PTD benefits were not
subject to the fee agreement. After a Hearing Officer for the
Department of Labor Hearing Officer found the attorney was
entitled to twenty percent of PTD benefits and of the
impairment award, claimant appealed.
Held:
While claimant is correct that her total disability benefits
did not change after she reached MMI, she fails to
acknowledge the whole picture. After she reached MMI, she was
no longer entitled to temporary total disability benefits.
Through the attorney's efforts, the insurer accepted her
claim for PTD status. In Madill v. State Compensation Ins.
Fund, 280 Mont. 280, 930 P.2d 665 (1997), the Supreme Court
expressly held that where an insurer denies that a claimant
is permanently totally disabled and the claimant's
attorney thereafter obtains a concession that claimant is
PTD, the attorney has obtained additional benefits for
claimant. Although Madill involved an award of attorneys fees
against an insurer, the conclusion regarding attorneys
efforts is indistinguishable from the issue in this case.
Appeal denied.
Topics:
Attorney Fees: Fee Dispute. Under a standard
fee agreement between claimant and her attorney, the attorney
was entitled to receive "twenty percent (20%) of the
amount of additional compensation payments the claimant
receives due to the efforts of the attorney" if the
matter was settled without an order of the workers'
compensation judge or Supreme Court. Where the insurer had
denied claimant was permanently totally disabled and the
claimant's attorney thereafter obtained a concession that
claimant is PTD, the attorney obtained additional benefits
for claimant and was entitled to twenty-percent of PTD
payments. See, Madill v. State Compensation Ins. Fund, 280
Mont. 280, 930 P.2d 665 (1997).
¶1
This is an appeal of a decision of the Department of Labor
and Industry (Department) finding that David W. Lauridsen
(Lauridsen) is due attorney fees from former client Barbara
Stumvoll (Stumvoll). The facts are not in
dispute.[1]
Facts
¶2
Stumvoll was injured at work on September 24, 1992. She
thereafter filed a claim for compensation. On February 22,
1993, the State Compensation Insurance Fund (State Fund)
accepted the claim as an occupational disease and commenced
paying temporary total disability benefits.
¶3
Stumvoll then enlisted the services of Lauridsen, signing an
Attorney Retainer agreement on November 10, 1993. Lauridsen
contacted the State Fund and demanded that her claim be
accepted as an injury under the Workers' Compensation
Act. The matter was mediated on January 27, 1994. On July 22,
1994, after Lauridsen petitioned the Workers'
Compensation Court on Stumvoll's behalf, the State Fund
accepted the claim as an industrial injury. It thereafter
continued paying temporary total disability benefits at the
same rate.[2]
¶4
On December 8, 1995, Lauridsen notified the State Fund that
Stumvoll had reached maximum medical improvement and
requested that she be determined to be permanently totally
disabled. He attached a letter from Dr. John R. Dorr opining
that Stumvoll was at maximum medical recovery and rating her
as having a 20% impairment.
¶5
The State Fund declined to reclassify Stumvoll as permanently
totally disabled, and Lauridsen sought another round of
mediation. The mediation took place on January 31, 1996. On
April 19, 1996, the State Fund reclassified Stumvoll as
permanently totally disabled. The reclassification did not
change Stumvoll's biweekly benefits since her rate was
the same for both temporary and permanent total disability
purposes. Since the State Fund apparently continued paying
temporary total disability benefits between December 8, 1995
and April 19, 1996, Stumvoll suffered no interruption in her
benefits.
¶6
Immediately after the State Fund reclassified her, Stumvoll
fired Lauridsen and contested his entitlement to any attorney
fees.
¶7
Thereafter, Lauridsen requested that the Department determine
his entitlement to attorney fees. On June 21, 1996, the
Department issued an initial determination finding that
Lauridsen was entitled to attorney fees with respect to
...