A Well Deserved Raise (Continued from page 27)
sion may approve an additional attorney’s fee in an amount up to 5 percent of the final award of compensation, but not ex- ceeding six times the State average weekly wage.
(b)When a decision of a circuit court on an appeal from a com- pensation award of the Commission is appealed to a higher appellate court and the appeal is briefed and decided on its merits, the Commission may approve an additional attorney’s fee for each appeal in an amount up to 5 percent of the final award, but not exceeding six times the State average weekly wage.
(c)When an appeal from a com- pensation award of the Commission to a circuit court is not tried, or an appeal to a higher appellate court is not briefed and decided on its mer- its, the Commission may approve an additional attorney’s fee in an amount up to 2.5 per- cent of the final award, but not exceeding three times the State
average weekly wage.
(d)When a final award has not been made and a decision of the Commission on the issue of compensability of a claim is ap- pealed to a circuit court, if the claim is determined on appeal to be compensable, the Com- mission, upon remand of the case to the Commission for the passage of a final award, may approve an additional attorney’s fee in an amount up to 5 per- cent of the final award, but not exceeding six times the State average weekly wage.
(10) Attorney’s Fee Not Allowed. (a)Absent exceptional circum- stances, the Commission may not approve an attorney’s fee in a case in which it is determined that the claimant is not entitled to any compensation or benefits.
(b)Absent exceptional circum- stances, the Commission may not approve an attorney’s fee in a case involving issues such as medical care and treatment, or vocational rehabilitation, in which the claimant does not re- ceive any monetary award.
Unfortunately, there has been no change in the fee schedule as to settle-
ments. The reason this change has not occurred is that fees in settlements are contingent upon the monetary value of the settlement while fees in all other cases are based on the weeks of compensation awarded. At the present time, the MTLA is working with the Commission’s Fee Committee in hopes to resolve this dis- crepancy in the near future. For the time being, in order to rem- edy this discrepancy, an attorney may petition for a fee that exceeds the statuto- rily prescribed fee as long as he/she can support the claim with evidence of ex- traordinary circumstances. This evidence may include extraordinary time or cir- cumstances used in negotiating the settlement on behalf of the claimant. It is also recommend that the settlement and fee petition be hand-delivered to the Duty Commissioner so that any explanation needed to detail the surrounding circum- stances may be provided. Because all benefits awarded in a work-
ers’ compensation claim depend upon the claimant’s average weekly wage, it is vi- tally important that this wage be correct. It is strongly recommended that if the average weekly wage cannot be accurately determined at the time of the claim’s fil- ing, then it should be amended as soon as possible so as to protect the claimant’s rights as well as guarantee the maximum possible award for your client. Also, keep in mind that the average weekly wage need not be restricted to the 13 week period prior to the accidental injury. As seen in Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37, 626 A.2d 55 (1993), the Commission may use evidence other than the 13 week period if that other time pe- riod more fairly represents the claimant’s wage. For example, if the claimant is a seasonal worker whose main earning pe- riod is the summer months, he will earn more per week during this period than compared to the winter months. If the claimant sustains a compensable injury during the winter months, his 13 week wage statement will not properly reflect his earnings. Under Gross, the claimant may argue that a 52 week period would more fairly and accurately reflect his earn- ings for an average weekly wage.
This
higher average wage will then allow for benefits to be paid at a level which more fairly reflects the claimant’s past earnings. At MTLA our concern is to protect
Maryland families. We are committed to advocating this position both in the court- room and in the legislature.
Our
legislative section and workers’ compen- sation section will continue to work hard on behalf of Maryland families and I en- courage all of our members to join this endeavor.
30 Trial Reporter Summer 2003
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