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Doucette v. Pathways et al.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 164
Docket:	WCB-99-550
Argued:	September 7, 2000
Decided:	September 28,  2000


	[¶1]  Keith B. Quattrocchi, M.D. appeals from a decision of a
Workers' Compensation Board Hearing Officer requiring that he pay a
portion of his medical fees, for treatment of Judith Doucette, to her attorney
pursuant to a "common fund" doctrine.  Because the Hearing Officer lacked
authority to require medical service providers to pay a portion of their fees
to the employee's attorney, we vacate the decision.
	[¶2]  The facts are not in dispute.  The employee, Judith Doucette,
alleged to her employer, Pathways, Inc., that she suffered work-related
injuries in 1995, 1996, and 1997.  Doucette underwent medical treatment,
including surgery, by Dr. Keith Quattrocchi and Dr. Bruce Chaffee as a result
of a neck condition which she alleged to have been the result of her work-
	[¶3]  Doucette obtained the services of attorney Ronald Ducharme to
represent her with respect to various matters, including the payment of
medical bills.  As a result of this representation, Pathways' insurer
voluntarily paid Dr. Quattrocchi a medical fee of $9,084.90 and Dr. Chaffee a
medical fee of $2,168.18. 
	[¶4]  Attorney Ducharme filed a motion for award of fees with the
Board seeking a payment of the employee's attorney's fees in the amount of
30% of Dr. Quattrocchi's medical fee ($2,725.47).  The hearing officer
granted the motion for fees in part stating: "I am of the view that pursuant
to Chapter 10 of the Board's rules[{1}] and Maine's 'common fund doctrine,'
employee counsel is entitled to a fee to be paid by the medical providers in
this case."{2}  The Hearing Officer requested further written arguments on
the issue of the amount of the fee. 
	[¶5]  On August 23, 1999, the hearing officer denied a motion for
further findings of fact filed by Dr. Quattrocchi.  On the same day, the
hearing officer issued a second decision concluding that Attorney Ducharme
may recover $1,080 in attorney's fees, plus costs of $117.40, against Dr.
Quattrocchi, and $270, plus costs of $29.35, against Dr. Chaffee. 
	[¶6]  We granted Dr. Quattrocchi's petition for appellate review
pursuant to 39-A M.R.S.A. § 322 (Pamph. 1999), which provides that: "[a]ny
party in interest may present a copy of the decision of a hearing officer or a
decision of the board, if the board has reviewed a decision pursuant to
section 320, to the Clerk of the Law Court. . . ."  39-A M.R.S.A. § 322(1)
(emphasis added).
	[¶7]  The common fund doctrine is inapplicable to this case.  The
common fund doctrine applies "when a fund is created to which more than
one party is entitled . . . " then, and only then, "each party must pay a share
of the expenses incurred in creating the fund, including reasonable attorney
fees."  See York Ins. Group of Maine v. Van Hall, 1997 ME 230, ¶ 4, 704
A.2d 366, 368.  See also 24-A M.R.S.A. § 2910-A (2000) (making an
insurance carriers' subrogation rights subject to a pro rata share of certain
attorney's fees).
	[¶8]  Here there is no common fund, such as a settlement or
judgment against which many may be entitled to make claims.  Instead the
two doctors were paid individual medical fees to which they were entitled
pursuant to 39-A M.R.S.A. § 209 (Pamph 1999).{3}  Section 209 makes no
provision for reimbursement of attorney's fees out of the medical fees.
	[¶9]  A hearing officer for the Workers' Compensation Board "'has
only such authority as is conferred upon it by express legislative grant or
such as arises therefrom by implication as incidental to full and complete
exercise of the powers granted.'"  See Clark v. International Paper Co., 638
A.2d 65, 66 (Me. 1994) (quoting Hird v. Bath Iron Works Corp., 512 A.2d
1035, 1038 (Me. 1986)).  The employee's right to attorney's fees is solely
governed by 39-A M.R.S.A. § 325 (Pamph. 1999).
	[¶10]  39-A M.R.S.A. § 325 provides in pertinent part: 
	§ 325.  Costs; attorney's fees allowable
	1. Costs and attorney's fees.  Except as otherwise
provided by law, by the Maine Rules of Civil Procedure or by
rule of court, each party is responsible for the payment of the
party's own costs and attorney's fees.  In the event of a
disagreement as to those costs or fees, an interested party
may apply to the board for a hearing.

	2. Restriction on attorney's fees.  An attorney
representing an employee in a proceeding under this Act
may receive a fee from that client for an activity pursuant to
the Act only as provided in this section.  The fees and
payment of fees to all attorneys for services provided to
employees under this Act are subject to the approval of the
board.  The board may approve the payment of attorney's fees
by the employee for services provided to the employee
pursuant to this Act.  Any attorney who violates this section
must forfeit any fee in the case and is liable in a court suit to
pay damages to the client equal to 2 times the fee charged to
that client.

	3. Rules.  The board shall adopt rules to prescribe
maximum attorney's fees and the manner in which the
amount is determined and paid by the employee.  The
maximum attorney's fees prescribed by the board in a case
tried to completion may not exceed 30% of the benefits
accrued, after deducting reasonable expenses incurred on
behalf of the employee, or be based on a weekly benefit
amount after coordination that is higher than 2/3 of the state
average weekly wage at the time of the injury.  The board may
by rule allow attorney's fees to be increased above or
decreased below the amount specified in the rule when in
the discretion of the board that action is determined to be

. . . . 

	[¶11]  Section 325 was enacted in 1991.  P.L. 1991, ch. 885, § A-8. 
The Statement of Fact with the legislation provides, in pertinent part:
"Section 325 provides that each party is responsible for the payment of its
own attorney's fees and costs.  An attorney representing an employee under
this Act may receive a fee from that client only as provided and fees and
payment are subject to the approval of the board."  Statement of Fact, L.D.
2464 (115th Legis. 1991) (emphasis added).   	
	[¶12]  Subsection 1 of section 325 provides that each party is
responsible for his or her own attorney fees.  39-A M.R.S.A. § 325(1).  There
is nothing in subsection 1 requiring a medical provider or any other third
party to pay a portion of an employee's attorney's fees.
	[¶13] Subsection 3 provides: "The maximum attorney's fees
prescribed by the board in a case tried to completion may not exceed 30%
of the benefits accrued . . . ."  39-A M.R.S.A. § 325(3).  Subsection 3 provides
a limitation on the amount of an attorney's fee collectible from an employee. 
Subsection 3 provides no substantive right to obtain an attorney's fee from a
third party's reimbursement for services.  Chapter 10 of the W.C.B. Rules is
designed to implement, but does not expand, the statutory authority in
subsection 3.	
	[¶14]  Because the common fund doctrine is inapplicable to the
medical fees at issue here, and because there is no statutory authorization,
express or implied, to order doctors to pay portions of their fees to
employee's attorneys, the decision of the hearing officer must be vacated.
	The entry is:
The decision of the Workers'
Compensation Board Hearing Officer is
vacated.  Remanded to the Workers'
Compensation Board for proceedings
consistent with this opinion.

Attorneys for the appellant: Gordon H. Smith, Esq. Andrew B. MacLean, Esq. (orally) Maine Medical Association P.O. Box 190 Manchester, Maine 04351 (for Keith B. Quattrocchi, party-in-interest) Attorneys for the appellee: Christopher J. Cotnoir, Esq. (orally) Ronald Ducharme, Esq. Wheeler & Arey P.O. Box 376 Waterville, Maine 04903-0376 Attorneys for the amici curiae: Richard O'Meara, Esq. Murray, Plumb & Murray 75 Pearl St. Portland, Maine 04104 (for Maine Trial Attorneys Association) Allan Muir, Esq. (orally) Pierce Atwood One Monument Square Portland, Maine 04101 (for Maine Employers' Mutual) Sandra L. Parker, Esq. 150 Capitol St. Augusta, Maine 04330 (for Maine Hospital Association) James W. Case, Esq. McTeague, Higbee, Case, Cohen, Whitney & Toker 4 Union St. Topsham, Maine 04086-5000 (for Maine AFL-CIO)
FOOTNOTES******************************** {1} . The attorney's fees section of Chapter 10 states: § 1. Attorney's Fees 1. An attorney may charge an employee a fee for services, capped at 30% of benefits accrued. 2. If an attorney wishes to collect more than 30% of the benefits accrued, he or she may do so only with pre-approval of a hearing officer. 3. "Benefits accrued" includes benefits past due, benefits paid without prejudice acquired and/or retained through the services of an attorney and unpaid medical bills. In no case, shall the employer/insurer be required to pay an amount for medical services in excess of the medical fee schedule regulations or the provider's charges, whichever is less. 4. If a case in litigation and the lump sum settled prior to decree, attorney's fees may be collected from the employee as follows, subject to the approval of the hearing officer: the attorney's fee capped at 30% of benefits accrued in addition to the designated percentage set forth in 39-A M.R.S.A. § 325(4)(B). W.C.B. Rule Ch. 10 § 1 (Me. 1999). {2} . The hearing officer noted that at least one other hearing officer reached a similar conclusion with respect to the common fund doctrine in Lacroix v. Tempo, Inc., WCB-97000010 (July 9, 1998). {3} . 39-A M.R.S.A. § 209 (2) & (3) (Pamph. 1999) states as follows: § 209. Medical fees; reimbursement levels . . . 2. Payment for services. A health facility or health care provider must be paid either its usual and customary charge for any health care services or the maximum charge established under the rules adopted pursuant to subsection 1, whichever is less. 3. Limitation on reimbursement. In order to qualify for reimbursement for health care services provided to employees under this Title, health care providers providing individual health care services and courses of treatment may not charge more for the services or courses of treatment for employees than is charged to private 3rd-party payors for similar services or courses of treatment. An employer is not responsible for charges that are determined to be excessive or treatment determined to be inappropriate by an independent medical examiner appointed pursuant to section 312 or by the insurance carrier, self-insurer or group self-insurer pursuant to section 210, subsection 7 or the board pursuant to section 210, subsection 8. Id.