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Schraer v. Southern Trucking Co.

Decided: November 30, 1970.

BERTHA SCHRAER, PETITIONER-APPELLANT,
v.
SOUTHERN TRUCKING CO., RESPONDENT-RESPONDENT



Simpson, J.c.c.

Simpson

In this workmen's compensation appeal petitioner applied for a counsel fee for services in the County Court. Both the amount and the apportionment thereof are in dispute.

Walter Schraer died of an acute coronary occlusion while working on January 18, 1965. A claim petition was filed January 18, 1966, testimony was taken in the Division of Workmen's Compensation on several days between July 13, 1967 and September 17, 1968 under the "partial hearing" system, and on October 3, 1968 dependency benefits were denied. A subsequent appeal to this court resulted in a remand on January 14, 1969 for additional testimony, findings of fact and conclusions. Further hearings resulted in a similar denial of benefits on February 9, 1970. On the second appeal to this court, the decision of the judge of compensation was reversed, and the resulting judgment below was for $14,000 benefits, $400 funeral expense and a counsel fee for services in the Division of $2,750, apportioned $1,500 against respondent and $1,250 against petitioner.

This attorney's fee for services below was virtually the maximum allowable 20% of the judgment under N.J.S.A. 34:15-64.

For all services on the aforesaid two appeals to the County Court, as well as the proceedings on this application for attorney's fee, an allowance of $6,500 is sought, and respondent contends that $1,000 "would be more than reasonable." Petitioner urges that the full allowance be assessed against respondent, while the latter argued that an apportionment of between one-half and two-thirds thereof against it would be more appropriate.

I

In the Division of Workmen's Compensation an unsuccessful petitioner's attorney gets no fee. An attorney for a respondent successful in the Division gets no fee (payable by petitioner), either. This results from the wording of N.J.S.A. 34:15-64 providing for a discretionary attorney's fee "to the party in whose favor judgment is entered * * * not exceeding * * * (20%) of the judgment." Haberberger v. Myer , 4 N.J. 116 (1950).

R. 4:74-1(f), as to workmen's compensation appeals to the County Court, provides:

The county court, may in its discretion, allow to a petitioner prevailing on the appeal a reasonable attorney's fee for his services in the county court. [Emphasis added]

Discretionary attorney's fees in connection with further appeals of workmen's compensation proceedings may be allowed by the appellate courts pursuant to R. 2:11-4. The foregoing two new rules reflect two changes in the previously applicable R.R. 5:2-5(f) which provided:

The county court may, in its discretion, allow reasonable attorney's fee to the prevailing party on appeal from an order or determination of the Division of Workmen's Compensation for his services in the county court, the Appellate Division of ...


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