New Jersey Criminal Law Article By Jeffrey Hark, Esq.

The issue here is whether a judge of compensation must award counsel fees in addition to a penalty when an employer fails to make timely payment of temporary disability benefits and the appropriate standard to fashion the reasonable attorneys' fees allowed by statute.

The holding is the award of attorneys' fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits.
 

The facts are as follows. The employer failed to timely pay the temporary benefits as required by a previous order. The judge then assessed a penalty on the original award but did not award additional attorney fees. The Appellate Court found that the judge must award reasonable attorneys' fees when a petitioner has to incur legal fees to obtain the wrongfully or negligently withheld funds.

With respect to the size of the award of attorneys' fees, the court compared the statutory language of § 64 and § 28.1. The court noted that in § 64 there was a specific limit on the size of the award and in § 28.1 there was no corresponding limit. The language of § 28.1 suggests that reasonableness is bounded by the causal relation of the need to incur an attorney's fee to obtain previously award and expected benefits. The legislative history also supports this interpretation.