H. S. McCLUSKEY, Petitioner,
The INDUSTRIAL COMMISSION of the State of Arizona, and B. F. Hill, A. R. Kleindienst and F. A. Nathan, Members of the Commission, Respondents.
[80 Ariz. 257] H. S. McCluskey, Phoenix, in pro. per.
Robert K. Park, Phoenix, for respondent Industrial Commission, John R. Franks, Donald J. Morgan and John F. Mills, Phoenix, of counsel.
Certiorari to the Industrial Commission of Arizona to review a decision allowing petitioner, H. S. McCluskey, an attorney's fee of $750 in the workmen's compensation case of Kelsey v. Industrial Commission.
The rights of the injured workman were determined by our decision in the case of Kelsey v. Industrial Commission, 79 Ariz. 191, 286 P.2d 195. The problem of when the Commission must fix an attorney's fee was recognized therein, but we held that an interpretation of the Act governing attorney's fees must necessarily await a review when such matter was properly before us. That time has now arrived. It will not be necessary to again set out at length the governing statute, Chap. 112, L. '53-now appearing as Sec. 23-1069, A.R.S.1956, as same appears in the Kelsey opinion, supra.
Procedurally speaking, in fixing the attorneys' fees the following steps were taken, viz.:
1. Petitioner on December 6, 1954, filed with the Commission a letter signed by him and his client, claimant Kelsey, which reads in part:
'Please enter an order * * * fixing and allowing H. S. McCluskey, as an attorney's fee, 25% of all compensation (excluding medical benefits) from May 20, 1953, and pay the same directly to him * * * in installments, out of my award * * * as the same become due and payable.
'The said fee is to be based upon the difference between the $145.80 monthly wage fixed in the award of March 24, 1953, and the 'average monthly wage', prior to injury, which shall be determined in the pending proceeding.'
Their basic agreement was entered into before the enactment of the statute in question. As pointed out in the Kelsey opinion, supra, no fee was fixed in the final award.
In that case we held this court had no jurisdiction on certiorari to require the Commission to take affirmative action.
[80 Ariz. 258] 2. In response to the above demand-no formal hearing having been requested-the Commission on August 4, 1955, entered an order wherein it found that $750 was a just and reasonable fee for the services rendered by petitioner McCluskey, and it was ordered that said sum be paid forthwith to him and charged against and deducted from the amount of compensation theretofore accrued under said award.
3. The petitioner promptly filed an application for rehearing wherein it was alleged that the fee fixed 'was unjust, unreasonable and inadequate'. In an effort to clarify and narrow the issues, letters were exchanged between petitioner McCluskey and chief counsel for the Commission, which are included in the record before us. Petitioner therein stated that the application presented only questions of law and that he had no other evidence to submit.
4. The Commission thereafter entered an order on rehearing affirming its decision of August 4, 1955.
5. Petition for certiorari was filed on October 7, 1955; the writ issued, a response was made by the Commission, and its complete file, insofar as the ...