*1 THAT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
APPELLEES TO PAY THE COSTS.
Paulette S. SCHAUDER v. H. Stuart BRAGER et al. Term, Sept. No. 1984. Appeals Court of Maryland.
28,May *2 Thomas, (Durkee, Clarence M. Baltimore Thomas & Hahn, Baltimore, brief), on the for appellant. Levasseur, Towson,
Ronald J. for appellees. MURPHY, C.J., SMITH, Argued before ELDRIDGE, COLE, McAULIFFE, JJ., RODOWSKY and and CHARLES ORTH, Jr., E. Judge Associate of the Court of Appeals (retired), Maryland Specially Assigned.
SMITH, Judge. *3 We shall here hold Maryland (1957, that under Code Repl.Vol.) Art. 57 the Workmen’s Compensation Commission is to empowered approve fees of and physicians others who evaluate a claimant in preparation for trial and appear who a claimant at trial. This provides section in pertinent part: person
“No or charge any collect compensation for in services connection claims any under arising article, this or for or treatment rendered or supplies pursuant furnished to 37 of article, unless the same approved by the Commission. When so approved, fee such or claims shall a become lien upon the compensation awarded, be paid but shall only therefrom in the manner fixed the Commission. Upon applica- interest, tion of any party in the Commission shall have power full to hear and determine and any questions all which may arise concerning legal services in rendered connection with any claim under this article and any attorney order or other person same, receiving the to person same, refund to the paying portion the of any charge legal services which the Commission inmay, discretion, its deem excessive.” in Schauder, injury an sustained Paulette S. Appellant, services of retained the of her She employment. the course The injuries. her to evaluate psychologist and physicians After the the Commission. testified before psychologist her, attorney presented her made an award to Commission his fee own seeking payment the Commission as per professional of these other to the appended signed Her consent was attached bills. paid the amount to be reduced Commission petition. that these reduced its order persons. specified It these from the sums and deducted lump “to be fees were physicians Appellees, of compensation.” last weeks to the Circuit appeal entered an question, psychologist for Baltimore City. Court the Workmen’s circuit court it contended “that
In the was ap- has no over jurisdiction Commission Compensation medical fees for evaluation and/or reduction of proval of the Work- request in this case at the were submitted That court held: Compensation Commission.” men’s specific to any itself is void as “Because statute of fees Com language regarding regulation only as to because evaluating physicians mission Appeals Harris v. language Special of the Court [in 453 (1983),] Enterprises, Md.App. Janco statutory authority that the has no indicates this Court regulate evaluating physicians, the fees of Commission ex holds that the Workmen’s given the awards modifying ceeded its authority *4 at the hearing doctors level.” Special to the of
An was filed Court appeal promptly certiorari, 697, 301 Md. We issued a Appeals. writ 640, to in the prior argument on our motion A.2d own might in order that we address appellate intermediate court public presented. issue here important 674, 455 A.2d Md.App. v. Enterprises, Harris Janco opinion, alluded in his judge to which the trial 101, 37(a) of Art. 37. Section application concerned an provides compensation provided that addition to the for in Art. 101
“the employer promptly provide injured shall an em- for such ployee, period may as the nature the injury medical, require, surgical such or or other attendance treatment, services, medicines, hospital nurse and crutch- es, hands, arms, apparatus, legs artificial feet and and prosthetic applicances other as be may Commission____” states, 37(c)
Section “All charges fees and other for such treatment and subject regulation by Commission, services be and shall limited such charges prevail in the same for similar community injured persons treatment of a like standard of living.”
Harris simply physician held that the fee of “a had who accident, examined Harris more than five after the years for the sole purpose evaluating disability his testify- ing at the trial” was not a fee the employer which was obliged pay under 37. Judge Adkins was careful to a footnote place for the Special Appeals Court case to the effect that was not because issue before it that court did “not decide whether Commission has authority regulate fees for the of a testimony treating physician, as opposed to fees for the treatment alone.” 53 Md.App. at n. 455 A.2d at n. 2.
Section 57 is not the form of its enactment in 1914. Chapter 404 of the Acts of 1931 added the sentence:
“Upon application any interest, party the Commis- sion shall have full power to hear and any determine all questions which may concerning legal arise rendered in connection with any claim under this article order any or attorney person receiving other same, to refund to person same, paying portion any charge for legal services which the Com- discretion, mission in its may, deem excessive.” *5 from quoted This is third sentence what we have the study the Work- report 57. The of the Commission 1930-31 “recom- Maryland men’s Act 57 of the Act change mended that some be made Section Industrial Accident Commission would whereby the State require the return excessive power have the charged of a fee that had been portion This enactment approval the of said Commission.” without that followed recommendation. “the the Com argue language gives that
Appellees practic and attorneys non-attorneys mission over authority Commission, or not authorized by the whether ing before law, to order of the Commission authority also charges in cases of or unauthorized refunds abuse that have been known to non-lawyers fees.” It is true Op. See 23 represent claimants before Commission. Ninth of the Gover Att’y Report Gen. 427 and the Compen Workmen’s Study Maryland nor’s Commission to (1969).1 report proposed sation The latter at Laws employer order to a claimant or and insurer represent one to be a member of before has enacted no Maryland Assembly Bar. The General at some legislation. non-lawyers such The fact that have is not past appeared time in the before the Commission hand, dispositive of the issue at however. long-standing of our cases tell us that the view
Many agency, particularly of a an administrative statute taken passage,” strong, per such “soon after its is view taken determining judicial suasive influence in construction strongest for the disregarded except and should not be However, language urgent most reasons. where construction cannot be plain unambiguous judicial however, Note, Co., Md.App. that in Lukas v. Bar Ass'n Mont. (1977), it is stated that the Chairman of 671-72 Compensation Commission advised Lukas "that under the Workmen’s Maryland represent the law of Lukas could not before [an individual] the Commission.” considerations, custom, controlled extraneous since no venerable, however *6 nullify plain can meaning pur- See, pose of the statute. Comptroller v. John e.g., C. Co., 527, 543-44, Louis 285 Md. 404 1045, A.2d 1055-56 (1979); Baltimore & v. 284 Department, Gas Elec. Md. 216, 220, 1174, (1979); 395 A.2d Holy 1176 Hosp. Cross v. Services, 677, 685, 181, (1978). Health 283 Md. 185 Brown, 285, Congoleum 290, 220, Nairn v. 158 Md. A. (1930), proposition states this specifically as to State Commission, Industrial Accident the predecessor to the Compensation Workmen’s Commission.
The a Commission filed brief amicus curiae in this case. states, It “The long standing Commission’s administrative practice regard to fees for expert evaluative and witness services demonstrates consistent exercise regulatory this authority under Section Appended 57.” Commission’s brief its present approved form for a petition for fee in attorney’s specific provi- which has it sion for medical The form of order appended also provides for medical fees. The order specifies, “Said fees paid to be from final weeks in compensation due case.” This could not refer to fees for treatment because § those would arise under 37 and paid are Hence, employer. there would be no need specify that such fees “be from the compensa- final weeks of tion due in this case.” The present form was recommended for adoption by report 19, 1982, of November of the Governor’s Commission on Compensation Workmen’s Laws. at 8. prior Id. The form was somewhat more lengthy but it provided also relative to physicians’ fees. The order with it specified “that the employer and insurer pay the aforesaid fees, in lump sum, by deducting the same from the terminal compensation weeks of payable the claim- ____” al, T. ant et Cornblatt Workmen’s Compensation (MICPEL—1981)at 82-83.
We do not know how far
this practice
back
of the Com-
goes.
mission
Confirmation of its existence for more than
twenty years is
found
Mutual,
v.
Liberty
Hoffman
51,
(1963). Attorneys’
physicians’
Md.
Given the proposition that not employers, are responsible for their attorneys’ fees and for the of for physicians presentation of their case by way of evalua tion or by way of and the further testimony, proposition that many claimants would not have the cash available to such fees of pay either or the physicians attorneys, only practical for way paid by them to be claimants would be out of the last weeks of compensation. Section 49 provides, “Lump-sum payments may also be made by § for the purposes provided for in 57 of this article.” It is intended protected that claimants be under Art. 141 Queen In v. 287 Md. 412 A.2d Agger, (1980), 733 § we were part concerned with that of the language 57 states, which “No person charge shall or collect any com- pensation ... services or treatment rendered or supplies § pursuant article, furnished of 37 this unless same approved be by Commission.” We there held that a health provider care could not collect from a claimant an amount for services rendered in excess of that approved by the Commission. Judge Court, Davidson said for the “The oral contract provider between health care and the
claimant resulted in charges provided uner which were excess of the amount approved by the Com- mission. Such a contract violates the statute and will not 346-47, enforced. We reverse.” 287 Md. at A.2d at 735. Greer,
Chanticleer Rm. v. 271 Md. Skyline concerned It attorney’s significant, however, that Judge said for Digges the Court: § 57,
“Through Legislature attempted has to for- mulate comprehensive mechanism the award which regulated. of an fee is attorney’s system This is desir- able the practice requiring because when each party to pay lawyer his own superimposed upon closely-calculated
‘is
system
benefits,
wage-loss
question
a serious
arises whether
the social
objectives
legislation
may to some
extent be thwarted. The benefit
are
scales
so tailored
cover only
the minimum
support
the claimant
during disability. There is nothing to indicate
framers
the benefit rates
any padding
included
care of legal
take
and other
expenses incurred
ob-
taining
Larson,
the award.’ A.
The Law Work-
(1973).
men’s
83.11
Therefore,
statutory system
acts to prohibit
dissipation of an employee’s compensation through the
excessive
fees out of the
award
*8
giving
power
the Commission the
to regulate
when
how much remuneration an attorney
represents
who
claimant in
compensation
workmen’s
litigation is to re-
ceive from the employee for legal services rendered to
699-700,
him.”
Similar found Feissner v. Prince George’s Co., 413, 418, 282 Md. (1978). 745-46
The question fees in arose connection prep presentation aration for and of the claimant’s case. With out such evaluation or testimony or both a claimant could Thus, not effectively present his case. it would seem that “compensation legal fees fit services in these within arising ap- claims under this article” connection with ... § in the first sentence which from 57. pearing quoted we the long-standing When to this is added administrative practice protective purpose of the Commission and the concerned, Art. 101 insofar as claimants are we conclude § power the Commission vested with under 57 to such approve REVERSED; PAY THE
JUDGMENT APPELLEES TO COSTS.
McAULIFFE, Judge, dissenting. dissent, I
I as am unable to conclude that the term “legal services” means or embraces medical fees for evaluation or testimony by physician. (1957, operative portion Maryland Repl. Code §
Vol.) provides: Art. No or collect person charge any compensation for legal any arising connection with claims under article, or for services or treatment rendered or § supplies pursuant article, furnished 37 of this unless the same approved by Commission. concedes,
As the majority the second clause of this dis- junctive apply non-treating sentence cannot to the fees of physicians because 37 deals only with medical services Therefore, for treatment of or disease. injury legislature order to conclude that the granted has to the Workmen’s Compensation original Commission exclusive jurisdiction regulate to be claimants to non-treating physicians it is necessary interpret “legal to include charges services” of such I physicians. find nothing legislative history of 57 that would support construction, this strained and indeed I legislative read the history developed by fees, to refer majority only without reference to physician’s fees.
I think it much more likely legislature was concerned fees, with from protecting attorney’s claimants excessive kept whether or shared with by attorneys others.1 I find the phrase “compensation for services” §in unambiguous, used be synonymous “lawyer’s term fees.” That is consistent with the use the term in of of the Code Professional Responsibility. See, e.g., DR 2-106 “Fees Legal entitled for Services” setting forth factors to be in establishing considered reason- 2-107(A) able fees. DR prohibiting lawyer See also a from dividing “a fee for legal services” with another lawyer under except specified conditions.
The majority places
emphasis
considerable
on
existing
of
practice
the Commission to consider the payment of
medical bills
non-treating physicians
of
as a part of the
petition for
attorney’s
genesis
practice
of that
is
unclear.
it
Conceivably, may represent
more
nothing
than
a convenient consolidation of
separate procedures—the
two
petition for attorney’s fees and the
for
petition
lump
sum
payment. The
attorney’s
normally
is
filed
within a short time after the
of an
entry
award
compen
time,
At
an attorney
sation.
the same
wishing
obtain a
sum
lump
on
payment
may
behalf
the claimant
file a
101,
petition pursuant to Art.
49.2 This
have
may
been a
common practice among
attorneys
those
who had advanced
examining
fees, and
physician’s
quite likely was otherwise
utilized
widely
by prudent
attorneys who wished
ensure
1,
Virginia,
In Brotherhood
Railroad Trainmen v.
377 U.S.
84 S.Ct.
1113,
(1964)
Supreme
C. clear, terms the services which have been forth concise claimant, fee requested the amount rendered to the petition signed by a statement on the approved, and to be acknowledgment the claimant’s indicating the claimant making application allow- attorney the fact that the rendred specific fee for the services attorney’s ance of an the amount of the fee. peti- consent of the claimant to the E. The Consent. binding not upon for a fee for services is tion of the determining the reasonable value Commission rendered. July seq., effective 3. COMAR 14.09.01.01 et revised issuing The an Approval. G. Commissioner award of petitions for compensation approve attorney’s shall also each case. COMAR 14.09.01.21 has published from time to time a Guide Fees, Surgical Medical and the most recent publica bearing
tion an date of Al January effective 1978.4 than I though guide pages, contains more am any specific unable to find reference to fees to be allowed physicians who are not involved in the treatment of the claimant. Guideline fees established consultation and report are related to clearly physicians involved the direct *11 claimant, treatment of the or for employed specifically consultation connection with that A separate treatment. statement of for policy approval fees, the of attorney’s 1970, the by entered Commission on October similarly If, contains no reference to evaluating physician’s fees. insists, the majority the Commission has held long the view that it must approve evaluating fee, it is every physician’s to why difficult understand the guidelines Commission’s no specific contain to reference those fees.
If practice the current the Commission con- actually sists nothing more than the concurrent consideration a petition for attorney’s fees and a for allowance lump payment, sum the not Commission should the adjust physician’s fees, for the to authority payment allow in a compensation lump sum not carry does with it the to authority adjust the bills to proposed be from that If, contends, sum. as the majority the practice current from a part flows belief on the of the Commission that term “legal encompasses fees, services” physician’s different, no result should be interpretation because the too In Comptroller strained. Co., v. John C. Louis 527, 543, Md. (1979), 404 A.2d from quoting part 4. The procedures. Guide establishes a unit value for various This unit multiplied by changed value is periodically conversion factor that is update Commission the fee schedule. v. Department, Baltimore Gas & Elec. 284 Md. said: we an interpretation administrative ordinarily entitled
[E]ven “great weight” may given weight where, be no at all example, statutory language “is plain unambig- uous,” “judicial because construction cannot be controlled considerations, by extraneous since custom no however venerable, plain can nullify purpose of a meaning statute.” unquestionably has authority per- lump
mit a sum from the compensa- last weeks tion the purpose paying the fees of non-treating and in cases this physicians, provide most will a source for the expert claimant to obtain that may assistance needed. Whether it is or necessary grant desirable to authority Commission additional to completely regulate a non-treating physician amount charge a claimant question is a which should be debated the legisla- before ture, and answered that body. deliberative
I would affirm the decision of the Circuit Court for Baltimore City.
Judge ORTH has authorized me to state he concurs with the expressed. views here