On appeal from the Department of Labor, Division of Workers' Compensation, C.P. No. 2002-27659.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 30, 2011
Before Judges Cuff and Waugh.
This appeal marks the third time this matter has been before this court. At issue is the amount of attorneys' fees payable by respondent employer when it fails to timely pay the benefits awarded by a judge of compensation. By order dated December 20, 2010, a judge of compensation awarded petitioner $217.05 in fees, plus an additional $247.05 awarded following our first remand. We reverse and in the exercise of our original jurisdiction, we award attorneys' fees in the amount of $3792.50.
Initially, the issues before this court were whether a judge of compensation must award counsel fees in addition to a penalty when an employer failed to make timely payment of temporary disability benefits and the appropriate standard to fashion the award. We held that an award of attorneys' fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits. Quereshi*fn1 v. Cintas Corp. (Quereshi I), 413 N.J. Super. 492, 503 (App. Div. 2010).
By order dated August 4, 2010, the judge of compensation awarded petitioner's attorney "the ordinary 20 percent fee on this which is $247.05." Petitioner filed a notice of appeal and a motion for summary disposition. We granted the motion for summary disposition and remanded for reconsideration of petitioner's fee request. In our November 5, 2010 order (Quereshi II), we noted that the judge of compensation misinterpreted the opinion and failed to follow directions. We stated:
Petitioner Kubra Quereshi and respondent Cintas Corporation move for summary disposition. Petitioner seeks reversal of an attorneys' fee award entered in her favor by a judge of compensation. She claims that the judge of compensation failed to follow this court's directions on remand and applied the wrong standard in determining the quantum of the award. Respondent seeks affirmance of the fee award. It argues the judge of compensation applied the correct legal standard and petitioner failed to properly document her attorneys' fee application. We grant petitioner's motion for summary disposition and deny respondent's cross-motion. The judge failed to follow this court's directions. We, therefore, reverse and remand for consideration of petitioner's fee request consistent with our earlier opinion.
Following issuance of our opinion, petitioner's fee application was heard on August 4, 2010, before the judge of compensation. The judge announced:
The Appellate Division has basically said that the law that allows the penalty requires me to pay an attorney fee starting at the normal ordinary 20 percent and possibly more if that is deemed to be appropriate and they remanded the case to me.
Today, we are resolving the issue since the last line in the Appellate decision says petitioner does not seek any enhancement of the fee as allowed by the methodology. They don't address that. I do not believe that an enhanced fee is appropriate since the petitioner is not seeking it.
I am going to award the petitioner's attorney the ordinary 20 percent fee on this which is $247.05.
When petitioner's counsel commented that he believed the proper methodology was to use a loadstar calculation, the judge of compensation responded: "All right. I recognize that the decision doesn't require it, but it allows it and as a result, that is my decision." The judge entered the order reflecting this decision on August 11, 2010.
Rule 2:8-3(b) allows the summary disposition of appeals where "the issues on appeal do not require further briefs or full record." "The procedure is intended to provide a pre-transcript, pre-argument opportunity for the screening out of appeals whose ultimate outcome is so clear as not to require full perfection and hearing for ...