A Fee Apart: The How, When, & Who in Awarding Attorney’s Fees

Saunders v. ADP Totalsource (NC Court of Appeals, 9/6/16)

In a compensable claim, defendants were ordered to pay for prior attendant care services that were performed by plaintiff’s partner. The deputy commissioner approved an attorney fee of 25% of the award of the retroactive attendant care services provided.  The Full Commission also awarded retroactive attendant care compensation to plaintiff’s partner, and awarded ongoing attendant care through a third party home healthcare agency.   Plaintiff did not seek an attorney’s fee for the medical compensation awarded by the Full Commission, and there was no evidence before the Full Commission of an agreement for plaintiff’s counsel to receive a fee on medical compensation.  A fee agreement between plaintiff and his counsel allowed for fees based on “any recovery,” but the Full Commission determined it was unreasonable to include medical compensation in “any recovery.”  After the Full Commission entered their Opinion and Award, plaintiff’s partner communicated to plaintiff’s counsel of his desire and intention to pay counsel 25% of the medical compensation he recovered.  Plaintiff’s counsel declined to accept the payment without approval of the Industrial Commission.

Plaintiff appealed to Buncombe County Superior Court for judicial review pursuant to NCGS §97-90(c).  That statute gives the superior court appellate authority to review the Commission’s determination of the reasonableness of the award of attorney’s fees but not a de novo hearing.  The superior court considered new evidence, including an affidavit from plaintiff’s partner that he agreed to payment of 25% of the compensation he was awarded for attendant care services.  The Court of Appeals found that the superior court overstepped its authority by hearing new evidence, when they were only permitted to determine if the fee awarded by the Full Commission was reasonable or not.  The Court of Appeals vacated the award of attorney’s fees for medical compensation and remanded the case back to the superior court.

Takeaway:  Plaintiffs’ attorneys cannot obtain fees based on award of medical compensation unless they have a fee agreement in place with the medical provider.