Demos, J.s.c. (temporarily assigned).
In this workmen's compensation appeal, the petitioner Anna Raves on August 23, 1964, suffered injuries by accident arising out of and in the course of her employment for the County of Middlesex, Roosevelt Hospital. The injury was caused by the negligence of a third party. The negligence claim, handled by an attorney other than petitioner's present counsel was concluded by way of settlement for the sum of $4,000, before the employee's claim for compensation benefits was heard in the Division of Workmen's Compensation. It was not until just short of two years after the occurrence of the accident that petitioner's attorneys, in the compensation claim, were consulted for the first time. A claim petition was filed on July 18, 1966, being prior to the settlement of the third-party negligence claim.
In answer to the filed claim petition, the respondent admitted the employment and notice of the accident. While
R.S. 34:15-15 requires the employer to "furnish to the injured workman such medical, surgical and other treatment, and hospital services, as shall be necessary to cure and relieve the workman of the effects of the injury . . .", the petitioner's hospital bill at the Perth Amboy General Hospital, where she was removed immediately following the accident, was not paid for by the employer nor did the employer furnish or pay for the medical treatment that she required. The judge of compensation properly included these items as part of the ultimate judgment in favor of the petitioner. In addition petitioner was awarded permanent disability of ten per cent of partial total. Five per cent partial total each for orthopedic and neuropsychiatric conditions. The total workmen's compensation liability of the employer for medical and hospital bills, temporary disability and permanent partial disability, amounted to $3,335.57, slightly less than the gross third-party recovery. However, after giving the employer credit for the sums to which it was entitled under N.J.S.A. 34:15-40, the employer was required to pay the petitioner the sum of $1,074.43.
The judge of compensation allowed a counsel fee to petitioner's attorney of $210.00 based only on the last stated amount and not on the full compensation award of $3,335.57.
Petitioner does not appeal from the compensation award entered by the judge of compensation. This limited appeal is from that portion of the judgment of the judge of compensation wherein he allowed a counsel fee on the net sum recovered by the petitioner, rather than on the full compensation liability. Appellant contends that the counsel fee should have been based on the entire compensation award, before any credits were given to the respondent, resulting from the third-party-settlement.
The judge of compensation in granting the allowance of a counsel fee to petitioner's attorney indicated that it was his understanding of the existing law to be that he was restricted in the making of such allowance to such net amount recovered by the petitioner. He further indicated that he
would have granted a larger counsel fee if he were permitted to consider the full compensation award before credits given to the respondent. Counsel for the respective parties indicate that the judges of compensation are divided in their opinions as to the method to be used in granting counsel fee allowances in cases where a third-party claim has been concluded prior to the entry of judgment in the workmen's compensation case.
N.J.S.A. 34:15-64 in part provides:
"The official conducting any hearing under this chapter may, in his discretion, allow to the party in whose favor judgment is entered, * * * a reasonable attorney fee, not exceeding twenty per ...