Donald F. Rogers appeals from a judgment of the Circuit Court for Baltimore County, (Cadigan, J., presiding) that sustained a decision of the Workers’ Compensation Commission, which awarded appellant counsel fees in the amount of $12,500 in respect to appellant’s representation of Joseph Welsh, appellee, in a workers’ compensation case. Some of the questions appellant presents are general in nature, while others are specific to this case. We repeat them as given:
1. Does the Workers’] Compensation Commission as a matter of [c]ommon practice award attorney’s fees in excess of their Statement of Policy for the Approval of Attorney’s Fees (the guidelines)?
2. Should the appellant’s work performance and extremely favorable settlement on behalf of his client, by the exercise of reasonable interpretation, entitle him to an enhanced award in excess of the guidelines?
3. Should the computation of attorney[’]s fees under the guidelines be limited to a $45,000 parameter when a $150,-561 lump[-]sum settlement is involved and an extraordinary work effort has been performed and an exceptional result achieved because of that work effort?
4. Did the Commission abuse its discretion in refusing to acknowledge the Appellant’s fully documented extraordinary work effort and the superb result achieved for his client?
5. Did the Circuit Court of Baltimore County err in not remanding the case back to the Worker’s Compensation Commission?
The Award of Fees
In Edmond v. Ten Trex Enters., Inc.,
In exercising its discretion to set the amount of attorney’s fees, the Commission is required to protect the claimant against depletion of the compensation award by an excessive counsel fee. Feissner [v. Prince George’s County], 282 Md. [413,] 418, 384 A.2d 742 [ (1978) ]. The fee cannot, however, be so low as to deprive claimants of a practical ability to obtain counsel. Bowen,54 Md.App. at 386 ,458 A.2d 1242 .
We agree with the trial judge and perceive no error in the application of the Mitchell [v. Goodyear Serv. Store,63 Md.App. 426 ,492 A.2d 984 (1985), aff'd,306 Md. 27 ,506 A.2d 1178 (1986) ] test. Since there is no evidence of any exceptional difficulty with the claim, we cannot say the Commission abused its discretion.
In the case sub judice, appellant argues that there was substantial evidence of exceptional difficulty. Accordingly, we look to the evidence of that difficulty.
The workers’ compensation claimant, appellee, fell from a cashier’s stool onto the floor, striking his head. He asserted that, as a result, he developed a heart condition. In 1983, during contested proceedings, the Commission found that the claimant had suffered a work-related injury and awarded him temporary total disability. The employer and insurer appealed that order to the circuit court. There, a jury affirmed the award to the claimant. No further appeal as to that award was taken.
After appellee reached maximum improvement, a further hearing was held on May 15, 1987, as to the “nature and extent of disability.” The Commission denied benefits, by order of November 10,1987, finding that the disability was not related to the injury of September 6,1982. That decision was then appealed to the circuit court. Prior to a trial, the circuit court granted summary judgment in favor of appellee, reversing the Commission’s decision and remanding the matter back to the Commission, with special instructions in respect to the nature of claimant’s psychiatric condition. That order was appealed to this Court, and we affirmed. The Court of Appeals denied certiorari.
Thereafter, the case was heard by the Commission, which found that appellee was permanently disabled solely due to the accidental injury and that the Subsequent Injury Fund was, therefore, not liable. The employer and insurer requested a rehearing, and one was held in October of 1990 with the same result. The employer and insurer then appealed to the circuit court. While this trial was pending, and just prior thereto, the parties settled the case for a total lump-sum payment of $150,561, composed of $75,561 already due the claimant for the period of September 1982 to May of 1991, $50,000 in additional contributions from the employer and insurer, and $25,000 in contributions from the Subsequent Injury Fund.
At that time there was in place a fee schedule that placed an initial cap of $45,000 on these types of awards, even though the statute provided for methods of continuing payments to a claimant in excess of $45,000 when a finding of permanent disability was made. That attorneys’ award fee schedule was applied only up to the $45,000 cap and not to the continuation payments beyond that amount.
In Mitchell v. Goodyear Serv. Store,
[W]e now focus upon the fee awarded by the Commission with respect to the projected figure of $245,000 in compensation benefits. Of course, that figure, based onlife expectancies, is but an educated guess grounded on statistics and, as such, subject to the unexpected.
The fee requested by Barnes [Mitchell’s counsel] in the instant case is approximately 5 percent of the additional possible $245,000 award. The $4,000 awarded Barnes by the Commission, as an additional fee, amounts to 1.6 percent of the $245,000. Although the policy statement provides a maximum fee and not an entitlement (see Bowen[, 54 Md. App.] at 386,458 A.2d 1242 ), the Commission may not set fees so cheeseparingly as to deprive claimants of the practical ability to obtain competent counsel. See Bowen[, 54 Md.App.] at 386,458 A.2d 1242 A. Larson, Workmen’s Compensation Law § 83.16 (1982 ed. & Supp.1984); Cline v. Warrenberg,109 Colo. 497 ,126 P.2d 1030 (1942) (denying claimants the right to competent legal representation by fixing [inadequate] attorney’s fees may constitute a denial of due process).
The Commissioner further expressed concern that Barnes used life expectancy tables in computing the size of the claimant’s award. The Commissioner opined:
“[T]here is no basis of the allegation that he [the claimant] will receive in excess of $250,000. He’ll get it if he lives, and unless you can assure me that he will do that ... [incomplete sentence].”
Furthermore, the trial judge was correct in remanding the case to the Commission rather than setting the amount of the fee. The circuit court was acting in an appellate and not a trial capacity. Remanding the case to the Commission “[p]reserve[s] both the Commission’s authority to set the fee and counsel’s ‘right’ of judicial review under [Md.Code, Art. 101,[2] ] § 57.” Bowen,54 Md.App. at 387 ,458 A.2d 1242 .
The award of counsel fee should be on the basis of the work performed and the result obtained. The Commission should never use the setting of fees as a methodology for exerting punitive measures on counsel. No judicial or quasi-judicial officer should take personal umbrage because he or she is reversed by a higher tribunal. In so commenting, we are not to be understood as attributing any improper motive to the Commission in the matter sub judice. Rather, we use this opportunity to comment on the subject purely in an academic vein.
Id. at 436,
With Mitchell in mind, we shall examine what appellant asserts were extraordinary efforts on his part, above and beyond the perceived complexity we have discussed.
We have examined appellant’s Petition for Approval of Attorney’s Fee and his Supplemental Petition for Approval of Attorney’s Fees and Itemization. They contain approximately forty statements relating to the work appellant performed.
We are not persuaded that the Commission abused its discretion in failing to find that appellant made extraordinary o efforts on behalf of appellant when it awarded attorney’s fees.
The $45,000 Cap
This brings our attention to the existence of the cap itself and the somewhat intriguing issue arising out of the prior reasons why attorney’s fees have not been awarded in respect to sums that might be received over and above the $45,000 cap in a lump-sum context.
Because we were faced with a somewhat different issue in Mitchell v. Goodyear Serv. Store, supra, some of the language of that case might appear to support a case-imposed requirement that attorney’s fees must relate, not only to the original $45,000 award, but to the continuing payments thereafter. We commented that the fee requested by the attorney in that case was “approximately 5 percent of the additional possible $245,000 award” and that the fee actually awarded amounted to “1.6 percent of the $245,000.”
that figure, based on life expectancies, is but an educated guess grounded on statistics and, as such, subject to the unexpected.
Mitchell,
In Edmond, we reviewed the award of counsel fees concentrating on the cap established by the Commission. Edmond’s attorney had requested fees of $8,526 but was awarded the then applicable cap amount of $6,100.
In language that, in part, contributed to our earlier comment that the issue appellant presents is “intriguing,” we said, in Edmond, “[although the claimant’s compensation award could reach and even exceed the $69,264 mark, the award could also be as low as $45,000.” Id. We, additionally, opined that
focusing on value based on life expectancy would lead to unreasonable results____ [EJvaluation of a compensation award based on life expectancy “is but an educated guess grounded on statistics and, as such, subject to the unexpected.”
Id. (quoting Mitchell,
In Edmond, after stating that ‘Value based on life expectancy would lead to unreasonable results,” we noted, as an example, that attorneys performing the same tasks would receive different fees based on the age differences of their clients. So long as lump-sum settlements are based, at least in part, on the life expectancies of clients, the fees could be equally unreasonable. Obviously, the life expectancy of a claimant in respect to compensation would be the paramount consideration of all parties involved in settlement negotiations. Thus, whether based on lump-sum settlements or periodic payments, the fee awards, to the extent that they would be based on the performance of services, could be inconsistent and, in some cases, unreasonable.
Moreover, there is another concern that must, of necessity, be addressed, i.e., the public policy that is the foundation of the workers’ compensation laws in the first instance. In Edmond, as previously pointed out, we summarized one of the desired results of the statute as it related to counsel fees: “The primary purpose of [Art. 101,] § 57 is to protect an employee’s compensation award from diminution through the payment of excessive legal fees.”
Our comments in Edmond and Mitchell, while important and correct, do not resolve the basic, fundamental question of whether the percentage fee schedules should be applied to sums above the $45,000 award that, but for a lump-sum settlement, would be paid out over the lifetime of a claimant. Obviously, if counsel fees in settlement cases were to be based upon the total amount of the lump-sum award, and yet fee awards in unsettled cases, in respect to claimants who are awarded continuing compensation, were based upon a maximum of $45,000, there would be a great disparity in the respective fee awards. Moreover, lump-sum awards could be expected to increase — if not drastically so.
It is through the process we have heretofore undertaken, that we have arrived at the real issues in this case:
A. Should lump-sum awards in lieu of periodic compensation over the life of a claimant be encouraged?
B. Is this type of public policy appropriate for the courts generally, or the Court of Special Appeals specifically, to create?
A.
In C & R Contractors v. Wagner,
The Workjers’] Compensation Act was passed to promote the general welfare of the State and to prevent the State and its taxpayers from having to care for injured workmen and their dependents, when under the law as it previously existed, such workmen could not recover damages for their injuries.
As relevant to the case sub judice, we, in C & R Contractors, discussed the Commission’s power, after the prohibition was repealed, to make lump-sum awards that terminated the right to continuing compensation entitlements. We noted that, in order to justify lump-sum awards, the Commission “must have an evidentiary basis supporting the extraordinary aspect of need expressed by the claimant and the amount of any such award.” Id. at 811,
After we had discussed some of the legislative history, in respect to the statutes that ultimately authorized lump-sum awards, we concluded:
As we perceive the intent of the Legislature generally, and as specifically reflected by the Subsequent Injury Fund amendments of 1986, it is concerned with insuring that weekly benefits inure to a claimant, both to assist a claimant and to keep her/him from requiring public assistance. As we see it, and as we have previously stated, the primary purpose of the Act is to provide for periodic maintenance payments. In light of the legislative history we have reviewed, the 1986 amendments, though they eliminated the prohibition, have not changed that primary thrust of the Act, i.e., periodic payments.
C & R Contractors,
We thereafter reviewed the trial court’s affirmance of the Commission’s lump-sum award. We discussed several cases, among them Petillo v. Stein,
In C & R Contractors, in reversing the lump-sum award, we stated, in part:
We are especially cognizant that the two primary purposes of the statutory scheme for periodic payments are: (1) to provide for regular payments to replace the normal income the covered employee would have received had he/she not been injured; and (2) to avoid, by making payments periodically, the wasting of a claimant’s means of support in order to prevent the claimant from becoming a burden on society. The lump-sum award in the case at bar, on the evidence heard, patently conflicts with the latter stated purpose.
Id. at 822-23,
We are thus unable to conclude that it is, or was, the legislative intent to encourage lump-sum payments. Instead, it appears clear that periodic payments, rather than lump-sum awards are generally preferred. Were it our function to establish public policy in regard to workers’ compensation payments, we would adopt that policy that would extend periodic payments rather than compress them into lump sums. Thus, in our view, the Commission’s practice of limiting attorney fee awards to the initial $45,000 is generally appropriate. Moreover, as we see it, it is the Legislature’s function to establish that policy and its operative entity, in this case, is the Commission.
B.
We have no way of knowing whether there is a surplus, or paucity, of able and competent attorneys willing to practice in the area of workers’ compensation under the Commission’s current policy as to fees. The administrative agency, the Commission, is in a better position to know this. Moreover, it is much better able to assess, on a continuing basis, whether its fee guidelines offer sufficient inducements to attract the requisite number of competent attorneys. Thus, whether the cap should be increased is not, primarily, a judicial function. It is for the Legislature, or its creation, the administrative agency, in this case the Commission, to consider. In setting fee awards, the Commission is concerned not only with fairness but, more important, with its ultimate concerns for the welfare of the claimants and the State’s interest in keeping workers off public assistance.
The Commission is generally better able to juggle the interests of claimants and how those interests are affected by the fairness, or lack of fairness, in the awarding of fees. In that process, the Commission may always consider that lump-sum conversions of periodic lifetime payments may not be conducive to meeting the State’s other goal of reducing the utilization of public assistance by injured workers. As we perceive it, the Commission’s stance in respect to its present method of computation of fees achieves one of the purposes of the statute. We cannot say that it abused its discretion.
If the method of attorney fee computation in workers’ compensation cases is to be changed, it is more appropriately done by the Commission, the General Assembly, or, perhaps, by a policy statement by the Court of Appeals.
JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.
Notes
. We extrapolate this material from the Statement of Facts in appellant's brief. Appellee does not contest that statement.
2. Article 101 of the Maryland Code, Workmen’s Compensation, was repealed by 1991 Md. Laws, Chap. 8, § 1, effective October 1, 1991. It was, thereafter, codified, in large part, without substantive change, as title 9 of the Labor & Employment Article of the Maryland Code.
. Some of the averments summarize previous averments. Some of the statements refer to the medical condition of the claimant, the status of the case, etc., which are covered by other averments. The itemization relates to the matters contained in the petition.
. The schedule suggested that $6,100 was the amount that was appropriate based upon the percentages attributable to differing sums when the total award is $45,000.
. The initial cap, we are informed, has, since Edmond, again been increased; it is now in the area of $7,200.