On appeal from Division of Workers' Compensation.
Fritz, Botter and Ard. The opinion of the court was delivered by Botter, J.A.D.
This is an appeal from that portion of a judgment entered in the Division of Workers' Compensation which allowed petitioner's attorneys a counsel fee of $3,000 and from the refusal to increase the award on a motion for reconsideration. This appeal also seeks review of the fees allowed to petitioner's three expert medical witnesses of $50 each, purportedly in conformity with N.J.S.A. 34:15-64. In addition, although not named as a separate party, Samuel Bass, an attorney, appeals from three orders orally entered holding him in contempt for misconduct in the presence of the judge of compensation. The alleged contempts occurred at the hearing on the motion for reconsideration of counsel fees. That hearing was followed by a proceeding three days later limited to the sentence to be imposed on the contempt determinations. For each contempt a $50 fine and a one-day jail sentence were imposed, but the custodial sentence was suspended. Bass contends that his conduct was not contemptuous, that the exercise of the contempt power was not authorized by statute, that it is unconstitutional, and that the contempt proceedings were procedurally deficient.
First we deal with the counsel fee awarded to petitioner's attorneys. Petitioner suffered a myocardial infarction at Plaza Ford's place of business after running up a flight of steps on July 5, 1972 when his boss told him to turn off an alarm. He collapsed and was taken to the hospital where he remained for 23 days. He has not worked since.
The judge of compensation found petitioner totally and permanently disabled from several causes. The major cause was the compensable heart condition which accounted for
50% disability. Additional disability of 25% was based upon anxiety, resulting from the July 5, 1972 episode, which was termed a psychoneurosis of a conversion hysterical reaction type with left hemihypesthesia and loss of motor power of the extremities on the left side. Petitioner also suffered from chronic bronchitis which was found to be compensable to the extent of 5% of total. The total disability as a physiological and industrial unit was attributed to the disability incurred in his last employment with respondent Plaza Ford added to preexisting noncompensable conditions which included diabetes, arteriosclerotic heart disease and hypertension. The compensable award was $27,720, representing 360 weeks (80% of 450 weeks) at $77 a week. Eventually, petitioner will receive payments from the Second Injury Fund also.
There were five hearing dates due to the unavailability of petitioner's medical experts on a single date. The transcript of one hearing comprises only 13 pages dealing with the introduction of a hospital record and brief medical testimony as to petitioner's loss of hearing and nasopharyngitis. The transcript of all testimony occupies 148 pages. At the final hearing, reports of Plaza Ford's medical experts were introduced by consent, no witnesses were called by Plaza Ford or the second injury Fund, and all parties submitted without summation and argument. The decision was then announced.
On the issue of the counsel fee awarded petitioner's attorneys, no affidavit of services was submitted in the agency below and no application was made to enlarge the record before us.*fn1 See Barbarevech v. Johns-Manville Products
Corp. , 143 N.J. Super. 31, 34 (App. Div. 1976), certif. den. 73 N.J. 58 (1977). However, at oral argument in the agency below petitioner's counsel recited the scope of his firm's services. Despite the absence of specific findings by the compensation judge and affidavits detailing the services rendered and time spent, the transcripts of the workers' compensation hearings and the oral representations on the motion for reconsideration of counsel fees furnish us a sufficient basis to evaluate the award without a remand. R. 2:10-5; cf. Gromack v. Johns-Manville Products Corp. , 147 N.J. Super. 131, 137 (App. Div. 1977).
Bass contended before the judge of compensation and contends here that a fee representing approximately 11% of the compensation award is inadequate and that the "customary counsel fee awarded in the Division is somewhere between 1/6 [16.7%] of the award and 20% of the award." This position was properly rejected below. The Barbarevech and Gromack cases, supra , make clear that "although the amount of the award is a factor to be considered in fixing the fee, it has limited significance." Gromack, supra , at 134-135. "The more important factors are the nature and extent of the services and the responsibility involved." Id. at 135. Thus, the notion of a narrow range near the 20% maximum fee allowed by N.J.S.A. 34:15-64 was properly rejected below. On the basis of our independent examination of the record made by Bass in the Division, we affirm the award of a $3,000 fee as within the discretion of the judge of compensation. Cf. Gromack, supra , where a counsel fee of $7,000 was reduced to $5,000. That case was settled after testimony was taken at two hearings and dependency benefits of $45,000 were awarded. 147 N.J.
Super. at 137-138. See also Barbarevech, supra , where we entertained an employer's challenge to a counsel fee of $5,750, which was 11.83% of the $48,600 compensation award. 143 N.J. Super. at 33. The case was remanded for further proofs and findings so that we could evaluate appellant's contention that the award was excessive.
The next issue to be considered is the contention that the fees granted to petitioner's three medical experts were inadequate. Each was awarded $50. Conceding that such fees conform to N.J.S.A. 34:15-64 when strictly read, appellant argues that the judge of compensation could have allowed a fee of $75 to $100 for the medical examination and ...