Eastwood, Jayne and Smalley. The opinion of the court was delivered by Jayne, J.A.D.
The fundamental problem transported to us for decision by this appeal will be more readily understood if the events in the background are mentioned only in an abstract rather than in a detailed fashion.
On September 1, 1949 the petitioner-appellant sustained an exceedingly serious bodily injury for which he was entitled to workmen's compensation and medical aid from his employer. The employer immediately acknowledged its statutory liability and proceeded to make the requisite payments of compensation and to furnish the necessary medical care and treatment. The petitioner instituted an action at law against the American Chain and Cable Co. in which he alleged that his injuries were proximately caused by the negligence of that company.
Perhaps for some incidentally useful or precautionary purpose the petitioner filed on December 14, 1951 a claim petition with the Division of Workmen's Compensation.
The petitioner's alleged cause of action against the American Chain and Cable Co. was settled for the sum of $60,000 in damages. The firm of attorneys who represented the petitioner as the plaintiff in the compromised tort action received a fee of $10,000. On January 22, 1952 an answer to the claim petition was filed with the Division of Workmen's Compensation on behalf of the employer in which the settlement of the action against the tortfeasor for a sum in excess of the allowable workmen's compensation was averred.
The Division awarded a judgment in favor of the petitioner for temporary compensation for a period of 89 weeks commencing September 1, 1949 at the compensation rate of $25 per week and for permanent total disability for 450 weeks at a like compensation rate together with the usual rehabilitation provisions. It is to be observed that the right of the petitioner to such compensation was never controverted or denied by the employer.
The additional segments of the judgment are the ones in controversy, the first which is the denial of a fee to the
attorney who prosecuted the proceeding on behalf of the petitioner in the Division of Workmen's Compensation. The other pertains to the amount of reimbursement to which the employer was entitled from the funds derived from the settlement of the independent tort action against the American Chain and Cable Company. The adjudications of the deputy director and of the Hudson County Court on appeal are substantially concordant.
Anent the denial of the attorney's fee. Assuredly the right of an attorney to compensation for his professional legal services in the prosecution of a proceeding in the Workmen's Compensation Division is prescribed and limited by the statute. Stetser v. American Stores Co. , 125 N.J.L. 275 (E. & A. 1940). R.S. 34:15-64 provides:
"When, however, at a reasonable time, prior to any hearing compensation has been offered and the amount then due has been tendered in good faith or paid, the reasonable allowance for attorney fee shall be based upon only that part of the judgment or award in excess of the amount of compensation, theretofore offered, tendered in good faith or paid."
Vide, Haberberger v. Myer , 4 N.J. 116 (1950), and decisions therein cited.
The legal propriety of the disallowance of an attorney's fee in the present proceeding is therefore dependent upon our determination of the question relating to the disputed amount of the reimbursement to which the employer is entitled ...