Chetankum Patel v. SHOWBOAT CASINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

Chetankum Patel,

Petitioner-Appellant,

v.

SHOWBOAT CASINO,

Respondent-Respondent.

_______________________________

May 22, 2014

Argued April 9, 2014 Decided

Before Judges Grall, Waugh, and Accurso.

On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2007-22094.

Lynda Yamamoto argued the cause for appellant (Lynda Yamamoto, LLC, attorneys; Ms. Yamamoto, on the briefs).

Walter J. LaCon argued the cause for respondent (Cooper Levenson April Niedleman & Wagenheim, P.A., attorneys; Mr. LaCon, on the brief).

PER CURIAM

Petitioner Chetankum Patel appeals a perceived inadequate fee award to his counsel on a motion for medical and temporary disability benefits in the Division of Workers' Compensation. Because the fee awarded was in accord with applicable law and well within the discretion of the judge of compensation, we affirm.

Petitioner was injured on July 13, 2007, when he slipped and fell on an oily floor at work. By the time petitioner filed his claim in August, respondent Showboat Casino, through its workers' compensation carrier, had already deemed the claim compensable and authorized all reasonable and necessary treatment.

Petitioner continued to treat until May 2008, when he stopped attending medical appointments. His counsel advised the compensation judge that petitioner had determined to drop his claim. Respondent promptly moved to dismiss for lack of prosecution. Petitioner did not oppose the motion, and it was granted in June.

In late November, petitioner's counsel filed a motion to reinstate the claim, which respondent did not contest. Approximately thirty days later, petitioner's counsel filed his motion for medical and temporary disability benefits. The judge of compensation granted the motion in January 2009 but determined that the request for attorneys' fees would abide final resolution of the claim.

Four years later, in March 2013, the parties settled all issues except the award for the counsel fee for medical and temporary benefits. Judge French, who was not the judge who heard petitioner's motion for medical and temporary benefits in 2009, approved the settlement and awarded petitioner's counsel $5000 in fees on the motion without a statement of reasons.

Petitioner appealed the fee award and the judge issued a written opinion pursuant to Rule 2:5-1(b). After briefing but prior to hearing argument, we temporarily remanded to the judge of compensation for a further statement of her findings and conclusions of law. In response, Judge French filed a comprehensive opinion detailing her reasons for the fee award.

After reviewing the procedural history, the judge concluded that other than petitioner's abandonment of treatment and the subsequent dismissal and reinstatement of the claim, the matter had proceeded in a straightforward manner. The judge noted that this had not been a litigated claim, as "the only matter 'contested' by [respondent] was the necessity of [petitioner's] Motion for Medical and/or Temporary Disability Benefits." Finding that respondent had re-authorized treatment within thirty-four days of petitioner's motion to reinstate the claim, the judge concluded that "all of [respondent's] efforts in arranging for the re-authorization of Petitioner's treatment had taken place as a result of Appellant's Motion to Reinstate the Petitioner's claim and by the time the Motion for Medical and/or Temporary Disability Benefits was filed, the Petitioner's treatment had already been authorized."

Accordingly, the judge concluded that counsel's motion to reinstate petitioner's claim accomplished petitioner's goals of reinstating his claim and re-authorizing treatment. The motion for medical and temporary disability was not necessary to compel respondent's compliance with its obligation to furnish necessary medical and surgical treatment pursuant to N.J.S.A. 34:15-15. Nevertheless, the judge found that counsel's efforts in scheduling a prompt independent medical exam and filing the motion were justified in order to "appease an anxious Petitioner." Although respondent had not unreasonably delayed its compliance with N.J.S.A. 34:15-15, the judge concluded that a modest attorney fee of $5000 was warranted and in accord with Quereshi v. Cintas Corp., 413 N.J. Super. 492, 499-501 (App. Div. 2010).

The judge emphasized that petitioner's counsel had already received an award of twenty percent of the value of petitioner's award, or $15,708, earned for his efforts in representing petitioner on his overall claim, including the services necessary to achieve its reinstatement. Although conceding that the award might be perceived as overly generous in light of the overall fee award, especially given respondent's prompt compliance with its obligations, see Maskell v. Mid-State Filigree Sys., 322 N.J. Super. 68, 73 (App. Div. 1999), the judge concluded that no greater fee could in any way be justified on this record. The judge specifically found that a greater fee based on the $280,000 spent on petitioner's treatment was not warranted because those payments resulted from the uncontested reinstatement of the claim and not petitioner's motion for medical and temporary disability benefits. Counsel's $5000 fee was based solely on his approximately ten hours of time spent in connection with the motion. See Gromack v. Johns-Manville Prods. Corp., 147 N.J. Super. 131, 134-35 (App. Div. 1977) (noting that while the amount of the award to the petitioner is a factor in determining an appropriate fee, the more important factors are the nature and extent of the services performed and the responsibility involved).

Although petitioner made no argument in support of his fee award before the judge of compensation, he urges us to reverse on the basis of plain error because the judge lacked "sufficient knowledge of the claim to make an accurate assessment of the fees earned," and misinterpreted the law resulting in a manifest injustice.1 We disagree.

Our review of an award of counsel fees by a judge of compensation is narrowly circumscribed; we will not interfere unless an award is manifestly excessive or inadequate, thereby constituting a mistaken exercise of discretion. Gromack, supra, 147 N.J. Super. at 137. Here, having carefully reviewed the record, the applicable law, and having heard counsels' arguments, we affirm substantially for the reasons expressed by Judge French in her cogent and comprehensive opinion of February 24, 2014 on remand.

Affirmed.

1 Although noting in its case information statement its belief that the "fee award was correct as a matter of law and fair and reasonable," respondent now urges us to reverse the award as unwarranted. As respondent has not cross-appealed, we decline to consider the argument. See Seacoast Builders Corp. v. Jackson Twp. Bd. of Educ., 363 N.J. Super. 373, 381 (App. Div. 2003).