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Buckingham v. Health South Rehabilitation Hospital11/18/1997
ermining reasonable attorneys' fees for a claimant, the workers' compensation Judge shall consider only those benefits to the worker that the attorney is responsible for securing. The value of future medical benefits shall not be considered in determining attorneys' fees.
This statute quite clearly prohibits an attorneys' fee calculated upon "the value of future medical benefits." It has been quite clear for some time that, however attorneys' fees are calculated in workers' compensation cases, they may not be determined based upon a percentage of the value of future medical benefits. See ; .
{33} Worker suggests that this prohibition applies only when the award of future medical benefits is uncertain or speculative in amount, as indeed it oftentimes is. Worker relies on certain language in Quintana which notes the speculative nature of future medical costs in workers' compensation cases. Worker would have us contrast Quintana with the present case in which, she claims, both the cost and the likelihood of the future medical procedure is susceptible of more precise calculation. . We disagree with Worker on this point and suggest that Worker misperceives the reason that attorneys' fees may not be premised upon the value of future medical benefits.
{34} The uncertainty of a future medical award may be one factor. However, we believe the cases and the statutory history reflect a more fundamental opposition to calculating an attorney's fee based upon the value of future medical benefits. The reason has more to do with limiting the size of fee awards, especially when future medical benefits usually follow as a matter of course without a need for substantial attorney effort focussed on that issue alone. See id. ; . Therefore, we reject any claim that Worker is entitled to attorneys' fees based upon the present value of future medical benefits.
{35} On the other hand, Employer suggests that Worker can never recover any attorneys' fees, no matter how calculated, when incurred in obtaining future medical benefits. The answer to Employer's proposition is that the statute on its face does not prohibit an award of attorneys' fees for securing future medical benefits; it only stipulates that "the value of future medical benefits shall not be considered in determining attorneys' fees." Section 52-1-54(H) (emphasis added). This means no percentage contingency fee premised upon the "value" of future medical benefits. Why would the legislature make such a choice? To save money. As in the case before us, the value of future medical benefits may well be a sizable figure, and an attorneys' fee based upon a percentage of that amount would likely be large as well. The legislature is entitled to exclude that method of computing attorneys' fees. But this is not to say that the legislature expected attorneys to work for free, even while successfully gaining future medical benefits for their clients over employer opposition, as in this case. There are other ways for the WCJ to calculate an award which have been exhaustibly discussed in other opinions of our courts. See, e.g., (Fryar I). In our view, this means the WCJ may calculate a reasonable award of attorneys' fees for procuring future medical benefits as long as that calculation is based upon reasonable factors, such as those set forth in , but which do not include a percentage of "the value" of those future medical benefits.
{36} Our reading of Section 52-1-54(H) is consistent with the way attorneys' fees in workers' compensation cases have always been calculated. Perhaps as early as the first Workers' Compensation Act (the Act) in 1929, but surely beginning at least forty years ago, the legislature delegated the task of calcul
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