                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 93-CC-00748-SCT
TONY W. BLANKENSHIP
v.
DELTA PRIDE CATFISH, INC.

DATE OF JUDGMENT:                                  04/20/93
TRIAL JUDGE:                                       HON. GRAY EVANS
COURT FROM WHICH APPEALED:                         SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            DANA J. SWAN
ATTORNEY FOR APPELLEE:                             CHARLES C. JACOBS, JR.
NATURE OF THE CASE:                                CIVIL - WORKERS' COMPENSATION
DISPOSITION:                                       AFFIRMED - 6/13/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                    7/8/96




     EN BANC.


     McRAE, JUSTICE, FOR THE COURT:


¶1. This appeal arises from a dispute over fees between Tony Blankenship and the attorneys who have
represented him in a workers' compensation claim against his employer, Delta Pride Catfish, which is not a
party to the case sub judice. Blankenship appeals an April 20, 1993 order of the Sunflower County Circuit
Court which reversed a December 22, 1992 order of the Workers' Compensation Commission and
awarded his former attorney, Charles Jacobs, attorney fees based on twenty-five percent of the temporary
total disability payments received by the claimant and expenses, asserting that the Commission's December,
1992 order was not final and the circuit court's April, 1993 order, therefore, is a nullity. We find, however,
that the Commission's order was final and properly before the circuit court, thus affirming the lower court's
decision.

                                                      I.

¶2. This appeal is concerned not with whether Tony Blankenship has received all of the Workers'
Compensation benefits to which he is entitled for a compensable injury which occurred on January 3, 1991,
but with whether his various attorneys, particularly Charles Jacobs, should be compensated for their efforts
in obtaining temporary total disability benefits for him. It should be noted, as the Commission has stated in
several of its orders, that the fee controversy consumes more of the record than does the compensability of
Blankenship's particular ailments.
¶3. Blankenship first retained Charles Jacobs on October 9, 1989, to represent him after he sustained an
on-the-job injury while working for Delta Pride Catfish on May 4, 1989. On March 19, 1991, the
Commission approved an order awarding Jacobs attorney fees in the amount of twenty-five percent of any
compensation received by Blankenship for those injuries.

¶4. On October 8, 1991, Blankenship retained Frank Shaw, Jr. to represent him in his efforts to obtain
compensation for still another on-the-job injury sustained on January 3, 1991. In addition to the standard
twenty-five percent attorney fees for compensation cases, the contract provided for the attorney's out-of-
pocket expenses in pursuing the claim, not to exceed $200.00.

¶5. By letter dated January 22, 1992, Blankenship notified Shaw that his services were no longer needed
because he was reinstating his former attorney, Charles Jacobs. Shaw ultimately was allowed to withdraw
by Commission order dated October 27, 1992.

¶6. Blankenship advised Jacobs of his reinstatement in January, 1992, also furnishing the attorney with an
appointment of representation form to represent him on a Social Security claim. According to Jacobs'
January 24, 1992 letter to the Commission, he was reinstated pursuant to his original October 9, 1989
contract, which provided for the customary twenty-five percent attorney fees and provided that "[i]t is
understood and agreed between the parties that the said attorneys shall be reimbursed for all reasonable
expenses incurred in the prosecution of said claim from any proceeds recovered in said claim." Blankenship
dismissed Jacobs in a letter dated October 26, 1992, asserting that Jacobs' billing was unfair.

¶7. The Workers' Compensation Commission entered an order on September 25, 1992 finding that
Blankenship had not sustained any permanent disability as a result of his May 4, 1989 accident. It further
found that he had sustained a compensable neck injury on January 3, 1991, entitling him to receive
temporary total disability benefits until such time as he reached maximum medical recovery. After becoming
aware of a dispute between Blankenship's attorneys over their respective claims to fees, the Commission
entered an order on November 19, 1992, requiring that seventy-five percent of the benefits awarded be
disbursed to Blankenship and the remaining twenty-five percent placed in an escrow account until the
attorneys settled their dispute.

¶8. Blankenship filed his "Petition to Have Full Commission Direct Disbursement of Funds Paid Pursuant to
Commission Order, for Return of Funds Withheld by Former Attorney, for Order Relieving Former
Attorney of Employment, and for Other Relief" on November 18, 1992. Home Insurance Company filed a
motion to compel Blankenship to reimburse it for $8,500.00 in advances made to him based on his claim of
financial hardship. Jacobs filed a motion for sanctions and attorney fees against Delta Pride, the employer.
He then filed a motion for recovery of attorney fees and expenses pursuant to his contract with Blankenship.
The Commission considered these motions together and entered an order on December 22, 1992,
finalizing, among other things, the compensation to which Jacobs and Shaw respectively were entitled. That
order, which is the subject of this appeal, is addressed in detail infra.

¶9. Neil White, who had contracted to represent the claimant on November 2, 1992, filed a Motion for
Leave to Withdraw on December 31, 1992, stating that Blankenship "has specifically attempted to instruct
his counsel in reference to the institution of additional litigation in this matter; undersigned counsel has
advised the Claimant that he will not undertake the litigation contemplated by the Claimant; accordingly the
Claimant states that he wants to obtain other counsel to represent him and he has asked to obtain his file
from his attorney; to this his attorney has agreed."

¶10. Jacobs filed a motion for the Commission to reconsider that part of its order disallowing attorney fees
on benefits payable to Blankenship after December 22, 1992, asserting that this was in contravention to his
contract with Blankenship and allowed the claimant to save on attorney fees by firing his lawyer. On
January 7, 1993, he filed an amended motion seeking recovery of reasonable expenses incurred pursuant to
his contract with Blankenship. He claimed expenses of $1,874.48. The Commission denied the motions on
January 14, 1993.

¶11. Jacobs filed his Notice of Appeal to Circuit Court on January 20, 1993, charging that the
Commission's decision violated his contract with Blankenship. Blankenship also filed a Notice of Appeal,
citing the Commission's refusals to award him sanctions against his employer in the form of attorney fees.
That pleading was signed by Dana Swan, his attorney on appeal.

¶12. The Sunflower County Circuit Court entered an order on April 20, 1993 reversing the Commission's
order with regard to attorney fees for Jacobs, awarding him fees as agreed in his contract with Blankenship.
Thus, Jacobs was awarded twenty-five percent of the total temporary disability benefits paid to Blankenship
subsequent to December 22, 1992, until those benefits are discontinued. The circuit court further ordered
that when the Commission decides the issue of permanent disability and lump sum benefits are adjudicated
for attorney fees, those shall be divided between Attorneys Jacobs and Swan on a quantum meruit basis.
The circuit court also found that Jacobs was entitled to recover the expenses incurred in pursuing
Blankenship's compensation claims. Finally, the circuit court ordered expenses and past due attorney fees
to be withheld from benefits accruing to Blankenship and granted a lien to Jacobs on future benefits to
secure these payments.

¶13. Except for the Commission's September, 1992 finding that Blankenship had not sustained a permanent
disability as a result of his 1989 injury, there is no evidence in the record that Blankenship had initiated
proceedings to secure any type of permanent disability benefits from the Commission at the time of the
December, 1992 Commission order or the April, 1993 circuit court order.(1)

                                                       II.

¶14. Blankenship asserts that the circuit court was without jurisdiction to entertain Jacob's appeal because
the Commission's December, 1992 order was not a final order. He bases his contention that the order was
not final on the fact that it dealt only with the matter of attorney fees, leaving unresolved issues such as
whether Blankenship's disability is permanent and the benefits to which he would entitled if it is, and whether
certain unpaid medical bills are related to his compensable injuries. Jacobs, on the other hand, argues that
as far as attorney fees were concerned, the order was final. He contends that allowing the circuit court's
order to stand would serve only to reward the claimant for firing the attorney who obtained for him the
benefits he has been receiving.

¶15. By statute, only final orders of the Workers' Compensation Commission are appealable. Miss. Code
Ann. § 71-3-51; Bickham v. Department of Mental Health, 592 So. 2d 96, 97 (Miss. 1991). "Thus,
where the commission, on review of a decision of its hearing officer, enters an order remanding the case to
the administrative judge for further proceedings or testimony, the order is interlocutory only and is not
appealable." Dunn, Mississippi Workmen's Compensation, § 285 (3d ed. 1982). "An order is
interlocutory when 'the substantial rights of the parties involved in the action remain undetermined and when
the cause is retained for further action.'" Freeman Truck Line, Inc. v. Merchants Truck Line, Inc., 604
So. 2d 223, 224 (Miss. 1992)(quoting 2 Am. Jur. 2d Administrative Law § 585 (1962)). At issue is
whether the December, 1992 Commission order was final or merely interlocutory in nature.

¶16. The December, 1992 order addressed a number of motions which the Commission stated sought "to
extend the useful life of this controversy. We hope these motions mark the beginning of the end of what has
become an exceedingly litigated controversy more concerned with payment of attorney's fees than any other
fact." A brief review of the matters raised -- and disposed of -- in the order answers to our satisfaction the
question of whether the order was final or interlocutory.

¶17. Paragraph I of the order addresses the Employer's and Home Insurance Company's "Motion to
Compel Claimant to Reimburse Home Insurance Company," wherein Home sought reimbursement of some
$8,500.00 in benefits it had advanced to Blankenship before a final determination was made for
compensation of claimant's January, 1991 injury. The Commission found that Home was entitled to
reimbursement for the $8,500.00 advance, but declined to award interest since the advancement was made
voluntarily and the Insurer made no claim for interest. Thus, that matter was finalized by the Commission's
order.

¶18. Paragraph II of the order considered Blankenship's motion to require Delta Pride to pay interest on
past due compensation and to pay medical bills, as well as to impose sanctions for the employer's wilful
failure to pay. The Commission dismissed Blankenship's claims as moot and denied the motion for
sanctions. This matter, too, therefore, was finalized by the Commission's order.

¶19. Paragraphs III and IV both address the matter of attorney fees and expenses that forms the basis of
this controversy; to wit: Jacob's motion for allowance of attorney fees and expenses and Blankenship's
"Petition to Have Full Commission Direct Disbursement of Funds Paid Pursuant to Commission Order, for
Return of Funds Withheld by Former Attorney, for Order Relieving Former Attorney of Employment, and
for Other Relief." The Commission denied Blankenship's request for a hearing and ordered the withdrawal
of his "so-called 'former attorney.'" Pursuant to Cumbest v. Manufacturing Co. v. Pinkney, 225 Miss.
318, 84 Miss. 421, 423 (1956), the Commission found that neither Jacobs nor Blankenship's occasional
stand-in attorney, Frank H. Shaw, were entitled to expenses in addition to attorney fees. The Commission
determined that based on the $23,390.32 in temporary total disability payments Blankenship had received
prior to November 4, 1992, when he entered in to a contract with still another attorney, Neil White, Jr.,
compensation for his former attorneys could not exceed twenty-five percent of the award or $5,847.58.
Considering the attorneys' itemized statements, the Commission further found that Shaw was entitled to
13.381% of that amount or $782.46 and Jacobs, to 86.619% or $5,065.12. Noting that Jacobs had
withheld $1,750.00 from the advances Blankenship received from Home, the Commission then found that
he was entitled to fees in the amount of $3,315.12. Finalizing distribution of the temporary total disability
benefits, the Commission stated:

     In the end, by this Order, of the $23,390.32 in accrued compensation benefits paid by Delta Pride,
     $8,500 is to be reimbursed to Home Insurance Company, $782.46 is to be paid to attorney Frank
     Shaw, and $3,315.12 is to be paid to attorney Charles Jacobs. The remainder ($10,792.74) is to be
     paid forthwith to Tony Blankenship.

¶20. Paragraph V of the order deals with attorney fees on current and future temporary total disability
benefits accruing after November 5, 1992. The Commission ruled that it was "fair and practical" to award
Jacobs a fee based on twenty-five percent of the benefits Blankenship received between November 5,
1992 and December 22, 1992, the date of the order allowing Jacobs' withdrawal from representation. As
to amounts accruing after that time, the Commission ruled that all temporary total benefits should be paid
directly to Blankenship only. This paragraph, too, evinces a final disposition.

¶21. Finally, Paragraph VI summarizes the order as follows:

     In sum, we grant Jacob's [sic] "Petition for Allowance of Attorney's Fee and Expenses, Etc." only to
     the extent provided in Parts IV and V of this order. In all other respects, the Petition is denied. We
     likewise grant Blankenship's "Petition to Have Full Commission Direct Disbursement of Funds Paid
     Pursuant to Commission Order, for Return of Funds Withheld by Former Attorney, For Order
     Relieving Former Attorney of Employment, and for Other Relief" only to the extent provided in parts
     IV and V above. In all other respects, Blankenship's Petition is denied.

We find that the order, particularly as summarized in Paragraph VI, establishes that all matters among the
parties currently before the Commission were determined by the order and further, that nothing had been
retained by the Full Commission or remanded to the Administrative Law Judge for further consideration.

¶22. Blankenship argues that the December 22, 1992 order is not final because there had been no final
determination of how long his temporary disability benefits would continue; whether his disability was
permanent; and whether certain medical bills were compensable. Although he asserts that these matters are
still being "hotly contested" at the Commission level, there is no evidence in the record that such alleged
controversies were alive at the time the Commission or circuit court orders were entered and the record has
not been supplemented to indicate any further developments on the Commission level. Blankenship also
contends that the circuit court "recognized that the cause was not final and remanded the remainder of the
cause to the Commission for further proceeding." There is no language whatsoever in the circuit court's
order remanding the cause for further proceedings. If anything, Blankenship may be relying on that part of
the order which states:

     It is further ordered that when the question of permanent disability is decided by the Commission, and
     when lump sum benefits are adjudicated for payment of attorney fees, then the Commission shall
     allocate such fees to Attorneys Jacobs and Swan on a quantum meruit basis.

The matter of permanent disability for Blankenship's 1989 or 1991 injuries was not before the Commission
when it entered the December, 1992 order. Only compensation for his temporary total benefits was at
issue. As Jacobs contends, as to the matter of attorney fees for Blankenship's temporary disability claims,
the order was final. When a temporary disability is involved, there is no authority for commuting an award
of attorney fees, as Blankenship appears to desire. Dunn, Mississippi Workmen's Compensation, § 316
(3d ed. 1982). The circuit court's order merely provided for Blankenship's inevitable pursuit of permanent
disability benefits, in a manner consistent with the practice of awarding lump sum attorney fees if and when a
disability is declared permanent. Dunn, Mississippi Workmen's Compensation, § 317 (3d ed. 1982).

                                                     III.

¶23. Although not framed as an issue on appeal and despite his assertion that the circuit court's order is a
nullity, Blankenship contends that circuit court erred in reversing that part of the Commission's order which
allows for payment of Jacobs' reasonable expenses in addition to attorney fees. He relies on Cumbest v.
Manufacturing Co. v. Pinkney, 225 Miss. 318, 84 Miss. 421, 423 (1956), wherein after awarding
attorney fees amounting to 33 and 1/3 percent of all benefits awarded to the claimant, the Court refused to
allow additional sums for "reasonable and necessary expenses." However, "fees are allowed on the basis of
fairness to attorney and client, and it is the declared policy of the law to approve voluntary contracts for
attorney fees within the stated limits." Mississippi Workmen's Compensation, § 350 (3d ed. 1982).
Jacobs and Blankenship had contracted that the attorney would be compensated for his reasonable
expenses. Further, as distinguished from Cumbest, Jacobs was awarded fees based on a twenty five
percent rate. Miss. Code Ann. § 71-3-63 (1995) states that "[a]lthough exceptions may be made in the
interest of justice, it shall be deemed conducive to the best interest of all concerned for the commission to
approve contracts for attorney fees voluntarily entered into between attorney and client, within limitations
hereinabove set out." Considering the aspects of fairness and the best interests of all parties involved, and
the fact that the "issue" is raised as an afterthought despite Blankenship's assertions that the circuit court
order was null and void and that Blankenship does not challenge the reasonableness of the expenses
submitted, we affirm the award of Jacobs' reasonable expenses pursuant to his contract with Blankenship.

                                                      IV.

¶24. In conclusions, we find that the order of the Commission was final, settling the rights of the parties
currently before it. The circuit court properly entertained the appeal. Although Blankenship asserts in
passing that the circuit court merely substituted its opinion for that of the Commission, he provides no
evidence thereof. We therefore affirm the circuit court decision.

¶25. JUDGMENT IS AFFIRMED.

LEE, C.J., ROBERTS, SMITH AND MILLS, JJ., CONCUR. BANKS, J., CONCURS IN
PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY
PRATHER AND SULLIVAN, P.JJ., AND PITTMAN, J.

      BANKS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:


¶26. While I agree that the judgment of the circuit court should be affirmed with respect to the allowance of
attorneys fees, I differ with the majority on the issue of an allowance for expenses to the extent that such
expenses would make the total allowance in excess of the twenty-five percent statutory limitation for an
appearance before the commission.

¶27. Blankenship's claim that this appeal is from an interlocutory order is correctly rejected. The order is in
all respects final as to the interests of Blankenship vis a vis Jacobs. With respect to attorneys fees on the
temporary total disability payments, it appears that the attorneys have earned the fee, that their contract calls
for such a fee, that there is nothing in the record which would indicate that requiring that the fee be paid
would be unfair to the claimant and that the commission expressed no basis for arriving at such a conclusion.
Under the circumstances, denial of the fee would appear to be an abuse of discretion. The claimed
allowance for expenses is a different matter.

¶28. The commission, relying on the decision of this Court in Cumbest Mfg. Co. v. Pinkney, 225 Miss.
318, 84 So. 2d 421 (1956), disallowed the expenses claimed. Neither the circuit court nor Mr. Jacobs has
suggested a rationale for the conclusion that the commission's reliance on Cumbest Mfg. Co. is misplaced.
The case has not been overruled or limited by this Court. It is the basis for the flat statement in Dunn that
"[n]o allowance . . . will be made for necessary expenses incurred by the attorney." Vardaman S. Dunn,
Mississippi Workmen's Compensation, § 350 (3d ed. 1982). The statute upon which it is based has
remained unchanged through several reenactments. Miss. Code Ann. § 71-3-63 (1995).

¶29. The majority points out that Cumbest Mfg. Co. involved an appeal to this Court where this Court set
the recovery at one-third. 84 So. 2d at 423. That fact, however, does not necessarily explain the decision
to include necessary expenses within the court adopted one-third limitation. Sunnyland Contract. Co.,
Inc. v. Davis, 221 Miss. 744, 755, 75 So. 2d 638 (1954). In Sunnyland Contract. Co., Inc. this Court
set one-third as the limitation on allowance for attorneys appearing for claimants through the level of this
Court. In Cumbest Mfg. Co., this Court allowed the one-third and precluded further recovery for
expenses. The legislature set the maximum recovery for appearance before the commission at twenty-five
percent. Following Cumbest Mfg. Co., when the twenty-five percent is allowed there is no additional
recovery for expenses.

¶30. If Cumbest Mfg. Co. is to be overruled or distinguished we should not do so sub silentio for this
case. If it is not to be overruled, the judgment of the circuit court must be reversed in that part which
reversed the commission on the issue of an allowance for expenses.

PRATHER AND SULLIVAN, P.JJ., AND PITTMAN, J., JOIN THIS OPINION.




1. Jacobs' brief indicates that Blankenship had been receiving Social Security disability benefits since
August 13, 1992.
