JEREMY HARRIS, Claimant
v.
CRST EXPEDITED, INC., Employer,
and
AIG INSURANCE COMPANY, Insurance Carrier, Defendants.
No. 5051280
Iowa Workers Compensation
Before the Iowa Workers' Compensation Commissioner
January 9, 2020
ATTORNEY FEE DECISION
JOSEPH
L. WALSH, DEPUTY WORKERS’ COMPENSATION COMMISSIONER
STATEMENT
OF THE CASE
This is
a contested case proceeding brought by Martin Ozga, attorney
of Jeremy Harris, against Erik Luthens, a former attorney who
represented Mr. Harris, to resolve a dispute over
attorneys’ fees between both of these attorneys arising
from a claim for Iowa workers’ compensation benefits by
Jeremy Harris against CRST Expedited, Inc., employer, and its
insurer, AIG Insurance Company, for an alleged work injury on
July 3, 2014.
Prior
to hearing, attorney for CRST Expedited filed a Motion for
Summary Judgment. While the Motion for Summary Judgment was
denied, the parties agreed and I ruled that the employer and
insurance carrier are not involved in this attorney fee
dispute and were not required to appear for hearing. On
September 6, 2018, a hearing was held on this attorney fee
dispute.
Oral
testimony was received at hearing from both attorneys. The
claimant did not participate. The record in this matter is
voluminous. Attorney Luthens submitted Exhibits AA through
KK. Attorney Ozga submitted Exhibits 1 through 43. Attorney
Luthens sought to submit records of various communications
with the claimant which were excluded. Administrative notice
was taken of the agency file. Following hearing, Attorney
Ozga retired from the practice of law and a partner, Jason
Neifert filed an appearance.
The
parties in interest, Jeremy Harris, Martin Ozga and Erik
Luthens will be referred to in this decision by their last
names.
ISSUE
Reasonable
apportionment of attorney fees under Iowa Code section 86.39
(2017).
FINDINGS
OF FACT
Harris
suffered an injury to his low back and right knee on July 3,
2014, in a serious trucking accident. Claimant was a
passenger in a truck which was rolled by his co-driver.
Defendants provided treatment to Harris. Eric Loney filed a
petition on behalf of Harris and hearing was set. Prior to
hearing, the case was voluntarily dismissed and then refiled
in January 2016. Loney withdrew from the case in March 2016,
and Luthens subsequently appeared in the same month.
Luthens
and Harris entered into a one-third contingent fee contract
for attorney fees. (Luthens Exhibit A-A) The contract
specified that if Harris terminated Luthens:
Client agrees to pay Office a fee based on the fair and
reasonable value of the services performed by the Office
before termination at the greater of: (1) Office’s time
involved billed at the rate of two hundred fifty dollars
($250.00) per hour; or, (2) contingency fee of the last
settlement offer at applicable percentage identified in
paragraph 1 herein: “FEE (contingent).”
(Luthens Ex. A-A, p. 3)
Hearing
was then set for April 12, 2017. The matter proceeded,
although Harris did not reach maximum medical improvement
(MMI) and was still in an active healing period during this
time. In reality, Luthens could perform very little
meaningful work during this period of time because the case
was not ripe. On March 13, 2017, Luthens moved to continue
the hearing because Harris was not at MMI. The motion was
granted and the parties were instructed to appear before the
deputy commissioner for a prehearing status conference in
July 2017. On June 7, 2018, Harris terminated...
