Marvin Tellis v. Ash Timber Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1052

MARVIN TELLIS

VERSUS

ASH TIMBER COMPANY

**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION
DISTRICT 03, DOCKET NO. 13-8387
HONORABLE SAM LOWERY, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Mitchel M. Evans, II
416 North Pine Street
DeRidder, LA 70634
(337) 462-5225
ATTORNEY FOR APPELLANT
Mitchel M. Evans

Tina L. Wilson
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
ATTORNEY FOR APPELLEE
Marvin Tellis

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

This unusual workers’ compensation matter arose from a motion by

Claimant, Marvin Tellis, to determine the amount of attorney fees owed and from a

motion for the return of attorney fees being held by his former attorney, Mitchel

M. Evans, II. At issue was whether Mr. Evans followed statutory procedure in

withholding his fee from Claimant’s settlement; and, if so, whether the amount of

the fee was appropriate under the law.

On April 24, 2011, Claimant suffered an injury while in the course and

scope of his employment with Ash Timber Company. Claimant retained Mr.

Evans to represent him in pursuing his workers’ compensation claim. In

accordance with the representation, Claimant signed an “Authorization,

Assignment of Interest and Contract of Employment Under the Provisions of R.S.

37:218 [sic] and R.S. 9:5001,” which set out the following:

As a consideration for legal services rendered or to be rendered, client
agrees to pay Mitchel M. Evans, II, Attorney at Law, the fee 20% of
the first $20,000.00 collected and 10% of all amounts recovered in
excess of $10,000.00, or the maximum fee authorized by law,
whichever is greater. Any legally allowable award for attorney’s fees
under the provisions of R.S. 22:658, R.S. 23:1201.2, or any other
statute of Louisiana, shall accrue to Mitchel M. Evans, II, Attorney at
Law.

Upon the advice of Mr. Evans, Claimant entered into a $55,000.00

settlement agreement in exchange for a full and final settlement of the indemnity

portion of his workers’ compensation claim. The settlement did not include any

claims for compensable medical treatment related to the employment accident. An

order approving that partial settlement was signed on October 15, 2014. The order

did not reference attorney fees in any manner.

On January 9, 2015, Claimant received correspondence from Mr. Evans

outlining the proposed disbursement of funds received from the cash settlement. In

the disbursement document, Mr. Evans listed “Statutory Attorney Fee (20% of

$202,187.48) = $40,437.49.” The document did not specifically explain or list

how Mr. Evans reached those amounts.

Claimant then retained another attorney to represent him in contesting the

amount of attorney fees claimed by Mr. Evans. Correspondence was sent to Mr.

Evans requesting a return of the fee. In response, Mr. Evans filed a “Motion to

Determine Attorney’s Fees.” Claimant then filed a “Motion for Return of Funds

Held as Attorney’s Fees and Memorandum in Support Thereof.”

Both matters came before the Office of Workers’ Compensation on July 7,

2015. Mr. Evans explained the proposed $40,437.49 attorney fee by contending he

did not take the statutorily approved twenty percent fee solely out of the

$55,000.00 cash settlement, but he also took twenty percent of past indemnity

benefits which had been received by Claimant on a weekly basis. The workers’

compensation judge (WCJ) noted the two issues before him were: (1) was the fee

as calculated by Mr. Evans in accordance with the statutory guidelines; and (2) was

a judge’s approval of the withheld funds required.

After reviewing the evidence and hearing the arguments of both parties, the

WCJ rendered judgment in favor of Claimant, finding Mr. Evans did not comply

with La.R.S. 23:1143(B)(2). Thus, the WCJ ordered the entire $40,437.49 amount

withheld as attorney fees returned to Claimant. This appeal followed.

ANALYSIS

Louisiana Revised Statutes 23:1141 reads:

A. Claims of attorneys for legal services arising under this
Chapter shall not be enforceable unless reviewed and approved by a
workers’ compensation judge. If so approved, such claims shall have
a privilege upon the compensation payable or awarded, but shall be
paid therefrom only in the manner fixed by the workers’
compensation judge. No privilege shall exist or be approved by a
workers’ compensation judge on injury benefits as provided in
La.R.S. 23:1221(4)(s).

2

B. The fees of an attorney who renders service for an employee
coming under this Chapter shall not exceed twenty percent of the
amount recovered.

This court in Lopez v. Isle of Capri Casino, 13-418, p. 4 (La.App. 3 Cir.

11/6/13), 127 So.3d 55, 58-59, writ denied, 13-2833 (La. 2/21/14), 133 So.3d 684,

discussed, in depth, the attorney fees authorized by La.R.S. 23:1141:

The fee authorized by section 1141 is known as the contractual
fee. This fee is not authorized by statute, but is limited by statute.
McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d
694. “Moreover, the contractual fee is not assessed against the
employer or the employer’s insurer, but is contractually payable by
the employee to the attorney out of the employee’s recovery of
benefits that is attributable to the litigation handled by the attorney.
Finally, the contractual fee, as a contingency fee, is payable in every
case of successful litigation over unpaid benefits, irrespective of the
employer’s or insurer’s failure to reasonably controvert the claim that
benefits are due to the employee.” Id. at 698. The contractual fee is
limited because an injured worker receives at most two-thirds of his
average weekly wage in compensation indemnity benefits. Id. The
low rate of compensation established by section 1141 is theoretically
offset by the statutory attorney fees authorized by La.R.S. 23:1210(F),
which “may be viewed as an incentive for lawyers to accept more
workers’ compensation cases because of the possibility of greater
attorney fees in some cases when the employer or insurer has refused
to pay benefits.” Id.

Louisiana Revised Statutes 23:1143(B)(1) provides “an attorney may

withhold, as proposed attorney fees, a sum not to exceed twenty percent of all

amounts recovered in his trust account . . . pending approval of such fees by the

workers’ compensation judge.” Section (B)(2) of that statute further provides that

“[a]n application for approval of fees shall be filed by the attorney within thirty

days after the payment of the final weekly benefit, settlement of the claim, or

payment of the judgment, whichever occurs later. Otherwise the funds shall be

returned to the claimant.”

In his oral reasons for judgment, the WCJ relied on McKinney v. Little, 95-

177 (La.App. 3 Cir. 5/31/95), 660 So.2d 494. In McKinney, an attorney

represented the injured worker in both tort and workers’ compensation matters.

The matters were settled simultaneously, with the attorney retaining one-third of

3

the amount the client received in both actions. The WCJ approved the settlement,

and the order she signed provided, “the claimant’s attorney be paid out of the lump

sum settlement amount as provided in [La.]R.S. 23:1143(B).” Id. at 495. No

other application for fee was filed.

The client complained that the attorney had withheld an excessive fee and, in

fact, was entitled to no fee whatsoever as he had not filed a fee application in

accordance with La.R.S. 23:1143. The WCJ rejected the claimant’s argument that

the attorney should recover no fee, but did reduce the fee to twenty percent of the

amount recovered from the client’s employer. The client appealed. This court

agreed the attorney was not entitled to a one-third fee on all amounts he recovered

on the claimant’s behalf. This court also noted there had been no application for

approval of any fees in any amount whatsoever. In addressing the failure of the

attorney to file an application for approval of attorney fees, we stated:

La.R.S. 23:1143 B requires that an application “shall be filed”
and there is nothing to suggest that this requirement may be waived by
the hearing officer. A reasonable interpretation of this provision is
that a hearing officer must have an application in order to have
sufficient information to approve the attorney’s fees. It is the duty of
the hearing officer to receive and review applications for fees based
upon information in the application. It would not be logical to hold
that such an officer has the authority to waive the requirement because
in doing so he is also relieving himself of the duty to review the
application.

Id. at 497.

Recently in Lopez, 127 So.3d 55, this court dealt with a similar factual

scenario as here. In Lopez, a settlement was approved, and the attorney presented

the claimant with a settlement statement that showed him recovering attorney fees

of $86,221.60. This sum was calculated based upon the $135,616.00 the claimant

had received plus the present value of the annuity purchased to fund the annual

payments. The claimant filed a motion for the return of the funds asserting the

attorney had not filed an application for approval of his fees; accordingly, he was

4

not entitled to any fee whatsoever. The WCJ ruled the attorney failed to file an

application for approval of his fee and ordered the entire $86,221.60 returned to the

claimant with legal interest. This court affirmed the WCJ’s ruling, noting the

purpose of La.R.S. 23:1141 and 23:1143 is to protect the claimant from being

charged an excessive fee. We reiterated that “[t]he McKinney case makes it clear

that an application for approval of fees is a requisite for the attorney recovering his

fees.” Id. at 60.

In this case, the settlement of the indemnity portion of Claimant’s workers’

compensation claim was approved on October 15, 2014. Mr. Evans did not file his

Motion to Determine Attorney’s Fees (which was filed in response to Claimant’s

correspondence with him questioning the appropriateness of the fee amount) until

January 16, 2015, which is well past the thirty day period set forth in La.R.S.

23:1143(B)(2). As Mr. Evans’ application was untimely under La.R.S. 23:1143,

and following this court’s rulings in McKinney and Lopez, the WCJ correctly found

the attorney fees must be returned to Claimant.

Mr. Evans argues we should look at the legislative intent behind the

enactment of La.R.S. 23:1143. This court in McKinney, 660 So.2d at 497,

addressed the legislative intent, stating as follows:

What is the penalty if an attorney fails to file such an
application within the specified time? La.R.S. 23:1143 B(2) provides
that “[o]therwise, the funds shall be returned to the claimant.” This
appears to be punitive in nature and perhaps it is. Apparently, the
legislature felt that the requirement to apply for approval of fees was
important enough to specify a penalty for failure to comply.
. . . We find that neither of the hearing officers nor this court
has the authority to refuse to enforce the legislature’s mandate of
La.R.S. 23:1143 B(2). Accordingly, the entire fee on the $55,000
compromise settlement must be returned to plaintiff.

The WCJ in this case followed both the clear and unambiguous language of

La.R.S. 23:1143 and the dictates of this court in finding the entire fee must be

returned to Claimant. Mr. Evans argues he did not intentionally violate the statute.

5

However, as Claimant notes, the statute makes no distinction between intentional

and unintentional violations. Moreover, there was no evidence in the record of the

intentions, or lack thereof, on the part of Mr. Evans. As noted earlier, Mr. Evans

did not file his Motion to Determine Attorney’s Fees until after he received the

correspondence from Claimant questioning the amount of Mr. Evans’ fee.

Mr. Evans also argues that the settlement of Claimant’s indemnity benefits

did not constitute a “settlement” as meant in La.R.S. 23:1143. We disagree. Mr.

Evans sought judicial approval of the settlement and attempted to withhold a fee

from the settlement proceeds. Moreover, La.R.S. 23:1143 provides the application

for approval of attorney fees “shall be filed by the attorney within thirty days after

the payment of the final weekly benefit, settlement of the claim, or payment of the

judgment.”

We also find no merit in Mr. Evans’ argument that because the medical

portion of the claim is still open, there was no settlement. As Claimant notes,

medical benefits are not monetary benefits, such that a fee can be withheld from

them. The settlement before the WCJ was a full settlement of the indemnity

portion of the claim, and the portion from which Mr. Evans sought to withhold a

fee.

Lastly, Mr. Evans argues the trial court did not consider the work product of

the fee in order to determine the reasonableness of the proposed fee. The record

establishes Mr. Evans failed to introduce any evidence of his work product, thus,

there was nothing for the WCJ to consider. We note the WCJ did discuss the

reasonableness of the proposed attorney fee, and found it disturbing and lacking in

specifics:

Now, certainly when an attorney takes more than 70 percent out
of a settlement check, some explanation is called for. The sum, total,
and extent of the explanation on the disbursal sheet is, “statutory fee
20 percent of $202,187.48.”

6

Now, at the hearing, Mr. Evans told the Court that his fee was
based upon the cash settlement and past weekly indemnity benefits
which had been received by [Claimant]. He explained that he did not
take 20 percent of these weekly benefit checks.

So apparently, when the $55,000 cash settlement arrived, the
attorney took 20 percent of it, but he also took 20 percent of the
weekly checks. But [Claimant’s counsel] is correct in insisting that
math for this formula just doesn’t work. I don’t understand how the
total of $202,187.48 was calculated. Perhaps, we could have cleared
up this confusion when the motion for approval of attorneys’ fees
came to the court but here was no such motion.

Moreover, as stated above, Mr. Evans did not seek approval of his proposed fee in

accordance with La.R.S. 23:1143, and the law and jurisprudence mandate the

return of the entire fee to Claimant.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’

Compensation is affirmed. All costs of this appeal are assessed to defendant-

appellant, Mitchel M. Evans.

AFFIRMED.

7