Missouri: Commission Caps Fees in an Undisputed Death Case

The Commission capped attorney’s fees on a death case and found a contract for a 25% contingency  fee was not fair and reasonable.

Bynum, dec.  v Bynum et al, 2016 MO WCLR Lexis 29 (May 3 2016) (Lexis Advance), 2016 MO WCLR Lexis 29 (May 3 2016) (lexis.com) involved a claimant who had a severe head injury when he fell from a ladder and died about two years later. The initial determination was that the death was not related and due to end-stage leukemia. The medical examiner later amended the cause of death to relate it to the head trauma.

The attorney claimed nearly $146,000 in attorney’s fees. The Commission affirmed an award of $10,000 in attorney’s fees, and affirmed the finding that the capped fee of $10,000  was fair and reasonable. The ALJ noted:  “It is not reasonable to suggest such a windfall should inure when an attorney cannot achieve a better result than the statutory death benefit. Here, Employer does not dispute liability and the weekly benefit is preordained. The only dispute before this court is the distribution of weekly benefits among three different persons."

Section 287.260.1 (Lexis Advance), Section 287.260.1 (lexis.com) and 8 C.S.R. 50-2.010(15) (Lexis Advance), 8 C.S.R. 50-2.010(15) (lexis.com)  provide for an attorney’s fee. "If the services of an attorney are found to be necessary in proceedings for compensation, the administrative law judge shall set a reasonable fee considering relevant factors which may include, but are not limited to, the nature, character and amount of services rendered, the amount in dispute, and the complexity of the case and may allow a lien on the compensation due to the claimant."

The ALJ declined further to  enforce an  agreement to allocate a  disproportionate share of survivor benefits to the surviving spouse, at the expense of two children born outside of the marriage, as the agreement was contrary to the statute that required proportionate distribution. The ALJ noted the biological relationship of the children was never contested and claimant was involved in a “plural marriage” based on his religion.

The Commission further awarded cremation expenses, which the employer did not contest.

The Commission has reduced or capped attorney’s fees in prior cases involving PTD or survivor benefits involving undisputed facts: Miller v St. Louis Housing Authority, 2006 Mo WCLR Lexis 194 (Lexis Advance), 2006 Mo WCLR Lexis 194 (lexis.com) (capped at 100 weeks), Lloyd v Ozark Cap, 1999 Mo WCLR Lexis 1 (Lexis Advance), 1999 Mo WCLR Lexis 1 (lexis.com) (variable cap depending whether employer appealed the case). See also Bennett v Schneider Electric, 2006 Mo WCLR Lexis 47 (Lexis Advance), 2006 Mo WCLR Lexis 47 (lexis.com). Duvall v IHP Industrial, 2001 Mo WCLR Lexis 54 (Lexis Advance), 2001 Mo WCLR Lexis 54 (lexis.com), reversed a cap on fees when there were no factual findings to explain why a contract fee was not reasonable.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

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