Whittaker's Case
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This is a workmen’s compensation case. G. L. (Ter. Ed.) c. 152. An award of dependency compensation was made by decree of the Superior Court to the claimant Louise Whittaker, the widow of a deceased employee James Whittaker. Thereafter, “the department of industrial accidents,”
It was the duty of the Superior Court to “render a decree in accordance” with the decision of the board.
1. The authority of the board constituting the department to fix the fees of the attorney for the claimant was conferred by
It is to be, observed that under this section the question of the amount of the fees of an attorney is a question between the attorney and a claimant. With respect to such fees, the situation is different from the situation with respect to the fees of physicians and the charges of hospitals where the question is between the insurer and the physician or the hospital. The authority of the board to fix fees of physicians is limited to those fees for which the insurer is liable. Holland v. Zeuner, 228 Mass. 142, 143. Apparently there is the same limitation with respect to charges of hospitals for services, and the statute contains a further express provision, added by St. 1933, c. 68, that certain hospitals shall be precluded from recovering “any charges for services under this chapter in excess of the amount approved by the department.” The fees of attorneys that are subject to the approval of the board under this section are, however, fees for which the claimant is liable. But the fees of an attorney that are subject to approval under this section are limited to fees “for services under this chapter,” that is, G. L. (Ter. Ed.) c. 152, the workmen’s compensation law, and obviously are limited to services in the compensation case. Under said § 13, as amended, the “board had discretionary power not merely to approve the . . . [attorney’s]] fees, but to fix his compensation at a sum which met with their *585approval .... If no money had been received by the . . . [attorney], he could lawfully demand and collect only the fees awarded.” Gritta’s Case, 241 Mass. 525, 529-530.
The findings of the board as to the amount of the attorney’s fees were as follows: “Upon all the evidence the board is of the opinion and finds that a fair fee for the services rendered by cotinsel in connection with this compensation case is $185. The board finds that counsel is entitled to the payment of $50 for the preparation of the case; $50 for trial before the single member; $35 for argument before the review board; and $50 for the preparation of a brief and argument before a justice of the Superior Court. The board finds that counsel is not entitled to be paid by the claimant for services rendered by him in having her appointed administratrix. The board further finds that counsel is not entitled to be paid from her compensation proceeds for any services rendered to her by him in connection with other matters.”
There was no legal error in the finding of the board “that counsel is entitled to the payment of $50 for the preparation of the case; $50 for trial before the single member; $35 for argument before the review board; and $50 for the preparation of a brief and argument before a justice of the Superior Court,” aggregating $185, and there was no legal error in the finding of the board “that a fair fee for the services rendered by counsel in connection with this compensation case is $185,” unless there was legal error in failing to include in the attorney’s fees “for the services rendered by counsel in connection with this compensation case” compensation for other services so rendered. The question arises whether, as a part of the attorney’s fees for services rendered by him in connection with this compensation case, compensation for services rendered by him in having the claimant appointed administratrix should be included. The board found expressly that he was not entitled to be paid by the claimant for such services. We interpret this finding to mean that he was not entitled to be paid for such services as a part of his fees in the compensation case.
*586Ordinarily, services rendered by an attorney in connection with the appointment of a legal representative of. the deceased employee are not services rendered in connection with a compensation case, that is, “services under this chapter,” c. 152, which under § 13 thereof, as amended, are “subject to the approval of the department.” But § 39 of this chapter, as amended by St. 1937, c. 317, provides that the “compensation payable in case of the death of the injured employee shall be paid to his legal representative . . .. When the appointment of a legal representative of a deceased employee ... is required to comply with this chapter, the insurer shall furnish or pay for legal services rendered in connection with the appointment of such legal representative . . . or in connection with his duties, and shall pay the necessary disbursements for such appointment, the necessary expenses of such legal representative . . . and reasonable compensation to him for time necessarily spent in complying therewith. Said payments shall be in addition to sums paid for compensation.” This statute implies that, when the appointment of a legal representative “is required to comply with this chapter,” the legal services in connection with such appointment are services in connection with the compensation case and, if such services are not furnished by the insurer, compensation therefor is a part of the attorney’s fees “for services ■ under this chapter.”
The board made no finding that the appointment of an administrator was so required or that the attorney rendered any legal services in connection with such an appointment. There was, however, evidence before the board bearing upon these matters which is summarized in the decision of the board as follows: “Counsel testified that the insurer refused to pay compensation that was due the employee until an administrator of his estate was appointed. He further testified that because of this he had the widow appointed administrator and that $50 was a fair fee for the services he ren- , dered in this connection and that part of the fee charged the dependent widow was for these services.” The board included in its decision the following ruling: “If the situation *587was as testified to by counsel, that the insurer refused to make payments without the appointment of an administrator, then § 39 of the act provides that the insurer is responsible for these services and not the dependent widow. Clearly the widow is not responsible to counsel for any fee in this connection.” We think that on the facts assumed by the board, which could have been found by it on the evidence, this ruling was wrong. On these facts, the right to have the insurer “pay for legal services rendered in connection with the appointment” of the widow as administratrix was her right against the insurer to be enforced as a part of the right to compensation of the deceased employee, the word “employee” including “his legal representatives, dependents and other persons to whom compensation may be payable.”
While we hold that the ruling of the board herein considered was erroneous upon the facts assumed by the board., we express no further opinion as to when the appointment *588of a legal representative “is required to comply with this chapter” within the meaning of these words as used in said § 39, as amended.
The erroneous ruling by the board may have affected its findings with respect to the amount of the attorney’s fees and consequently vitiated its finding “that counsel is not entitled to be paid by the claimant for services rendered by him in-having her appointed administratrix” and also its finding “that a fair’ fee for the services rendered by counsel in connection with this compensation case is $185.”
The finding of the board “that counsel is not entitled to be paid from her compensation proceeds for any services rendered to her by him in connection with other matters” refers to certain services described in the decision which clearly on the findings warranted by the evidence were not a part of the services rendered by him in connection with the compensation case.
In view of the legal error of the board .in excluding from the attorney’s fees, upon an erroneous ruling of law, any amount for legal services rendered by the attorney in connection with the appointment of the widow as administratrix of the estate of the deceased employee, the case must be recommitted to the board to make a finding as to the fees, if any, to be allowed to the attorney for such services, if any, rendered by him — ■ unless upon other grounds the decree is erroneous — a matter hereinafter considered.
2. As was pointed out in Gritta’s Case, 241. Mass. 525, 529-530, “The board had discretionary power not merely to approve the . . . [attorney’s] fees, but to fix his compensation at a sum which met with their approval .... If no money had been received by the •. . . [attorney], he could lawfully demand and collect only the fees awarded. But the fact that he had charged and been paid a greater sum before the petition was brought, cannot defeat the purpose of the statute. It was a payment which could be reviewed and set aside. The board, although its members are . not judicial officers, had been given authority in the administration of the statute to pass upon the entire subject and to do complete justice between the parties, and it is no ground *589for reversal that the order also requires the . . . [¡attorney] to repay to the claimant the difference between the fees allowed and the amount he received.” See also Silva’s Case, 305 Mass. 380.
The authority of the board under
3. The attorney contends that the order for repayment *590by him to the claimant was erroneous for the reason that the amount collected by fyim. was voluntarily paid to him by the claimant. The board made no express finding with respect to the voluntary or involuntary nature of the payment although it made certain findings as to the circumstances of such payment. These facts do not show whether the payment was voluntary. But we think that the principles ordinarily applicable to voluntary payments between persons at arm’s length, see Carey v. Fitzpatrick, 301 Mass. 525, 527; Kirchner v. Pittsfield, 312 Mass. 342, 345-346, are not applicable to payments of attorney’s fees by an “employee” to his attorney in excess of the amount thereof later fixed by the board. In Gritta’s Case, 241 Mass. 525, 528, the purpose of
4. Neither the board nor the Superior Court in entering a decree in accordance with the decision of the board was precluded from ordering repayment on the ground that the attorney , was entitled to a set-off against money received ■ by him for his services in the compensation case of other claims for services rendered by him to the claimant. Compare Newell v. West, 149 Mass. 520, 526; Blake v. Corcoran, 211 Mass. 406, 407; In re G. F. Redmond & Co. Inc. 17 Fed. (2d) 501, 502. The authority of the board under
5. There was error in the Superior Court in ordering “that said appeal be dismissed.” Obviously the word “appeal” refers to the certification of copies of the decision of the board authorized by
. The result is that the decree is reversed and that the case is to be recommitted to the Industrial Accident Board (a) to make a finding as to the fees, if any, to be allowed to the attorney for services, if any, rendered by him in connection with the appointment of the widow as administratrix of the estate of the deceased employee, (b) to determine the amount received by the attorney from, the claimant solely for attorney’s fees in the compensation case, and *592(c) to make such correction, if any, in its order for a refund by the attorney to the claimant as may be required by its findings.
So ordered.