Bentley v. Industrial Accident Commission

SHINN, J.

A writ was issued herein for review of an award of attorney's fees by the Industrial Accident Commission. A return was made and the matter has been argued and submitted. The record shows that petitioner, an attorney at law, represented one Charles T. Martin as an applicant for compensation for an industrial injury sustained while working for Douglas Aircraft Company, Inc. The evidence at the hearing, including that furnished by medical reports of physicians, disclosed that petitioner therein, while going upstairs, slipped and fell, landing on the heel of his hand, twisting his body and injuring his neck. Following the injury he suffered pains in the neck and violent headaches which came on at least every 24 hours. The injury occurred on August 27, 1945, and the hearing was on October 25, 1945. At the hearing Mr. Martin was represented by his attorney and the defendants were also represented by counsel. A medical report was received from the defendants’ physician, who first examined Mr. Martin. This report showed that Mr. Martin had been examined on August 28 and 31 and September 4 and that he appeared practically well but was instructed to return for further medication if his pain returned. Mr. Martin testified before the referee, being questioned by his own attorney and the attorney for the defendants. It appeared from his testimony that in addition to other injuries he had a tremor in both hands. It was arranged that he should be examined by a neurologist and he submitted to such examination upon two occasions. A detailed report was made of these examinations, which concluded with the statement, “From the history and findings to date, there is definite evidence of pathological change in the left parietal area, ’ ’ and further observation was recommended. On October 25 the referee made findings to the effect that applicant had suffered temporary total disability from August 27 to and including October 25, 1945, ‘ and continuing, ’ ’ and fixed compensation at maximum earnings of $30 per week. An attorney’s fee of $25 was recommended. On December 5 an award was made in accordance with the findings of the referee. Petitioner herein applied for a rehearing as to the award of attorney’s fees. The petition was'passed upon by the same referee, who recommended that it

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be denied and it was denied. In his report the referee based his recommendation upon the fact that petitioner had offered no evidence as to the amount of work he had done or as to the value of his services, saying, “We cannot under these circumstances evaluate the value of attorney’s fees in any case,” and the referee then stated that he was allowing the minimum fee of $25.