Summary
holding that the claimant's position was affirmed where the appellate court concluded that the Board had considered improper facts
Summary of this case from Falconi v. Coombs Coombs, Inc.Opinion
C.A. No. 98A-08-005 WCC.
Submitted: July 25, 2000.
Decided: December 28, 2000.
On Employee-Appellant Kenneth Veid's Petition for Application of Attorney's Fees. Granted in part.
Harvey Bernard Rubenstein, Esquire; 824 Market Street, Suite 901, Wilmington, Delaware 19801. Attorney for Kenneth Veid, Sr., Employee-Appellant.
Susan A. List, Esquire; 300 Delaware Avenue, Eleventh Floor, P.O. Box 2092, Wilmington, Delaware 19899. Attorney for Bensalem Steel Erectors, Employer-Appellee.
ORDER
This 28th day of December, 2000, after considering Kenneth Veid's (the "Employee") petition for an application of attorney's fees, it appears that:
1. The Employee applies for attorney's fees under 19 Del. C. § 2350 (f) in connection with his appeal from the decision of the Industrial Accident Board (the "Board"), where the Court reversed and remanded the Board's decision in an Order dated September 29, 1999. According to 19 Del. C. § 2350 (f), the Court "may at its discretion allow a reasonable fee to claimant's attorney for services on an appeal from the Board to the Superior Court and from the Superior Court to the Supreme Court where the claimant's position in the hearing before the Board is affirmed on appeal." As such, the Employee seeks attorney's fees in the amount of $9,825 based on 32.75 hours at an hourly rate of $300 for the appeal, plus $1,425 for 4.75 hours spent on this application.
Veid v. Bensalem Steel Erectors, Del. Super., C.A. No. 98A-08-005, Carpenter, J. (Sept. 29, 1999) (ORDER).
2. Before addressing whether the requested fee is reasonable, several questions must be addressed. The first is whether the Employee is entitled to attorney's fees. The Court has discretion to award an attorney's fee in an appeal from the Board to the Superior Court. This discretion is statutorily limited to situations where the claimant's position in the hearing before the Board is affirmed on appeal. As such, in order to exercise its discretion, the Court must determine whether the Employee's position in the hearing before the Board was affirmed on appeal.
Murtha v. Continental Opticians, Inc., Del. Super., 729 A.2d 312, 315 (1997).
The Court requested supplemental letter memoranda with respect to this issue.
3. The issue of what constitutes an affirmance on appeal of the claimant's position before the Board as contemplated by 19 Del. C. § 2350 (f) was discussed in Murtha v. Continental Opticians, Inc. The Murtha Court examined the statutory history and the legislative intent of 19 Del. C. § 2350 (f), and it found that under the preamended version of 19 Del. C. § 2350 (f), the touchstone for an award of counsel fees evolved into determining whether the claimant was successful in defending the award. But, after the 1994 amendment to 19 Del. C. § 2350 (f), the Court stated that "[t]he clear legislative intent of the amendment is to create a right for a claimant to seek an attorney's fee for the time expended at the appellate level when a claimant appeals an unfavorable or erroneous Board decision and claimant's position before the Board is affirmed on appeal." Furthermore, the Court stated:
Del. Super., 729 A.2d 312 (1997).
Murtha, 729 A.2d at 317.
Id.
Based on the rules of statutory construction, the Court must reject the Employee's contention that the word "position" was used in the statute only as a term of art and the real touchstone continues to be success. This interpretation would render the new language meaningless and this Court must assume that the Legislature intended for every provision to have meaning. Additionally, courts "may not engraft upon a statute language which has been clearly excluded therefrom by the Legislature." If the Legislature intended that success be the only requirement for a claimant to receive an attorney's fee, it must be assumed that the Legislature would have drafted those terms into the statutory language.
Id. at 318 (citations omitted).
The Court further stated that while success of the appeal is an important factor, where the claimant was the appellant, the claimant must have pursued the specific position they were arguing on appeal at the Board proceeding. The Murtha Court subsequently found that the claimant's position before the Board was not affirmed on appeal and denied attorney's fees.
Id.
4. Turning to the case sub judice, on July 2, 1998, the Board held a hearing to determine whether additional compensation was due based on disfigurement. The Employee's counsel made the following closing statement:
I think the number of weeks, the maximum number of weeks here and the scale is 0 to 150, because we do not have permanency in this case. The doctor hasn't — there is no permanency; we have made no claim for permanency. So the residual of the accident is the scar. So the scale without permanency is then the statutory scale of 0 to 150 weeks. And of course, it is up to the Board to fix the appropriate number of weeks based on that maximum scale.
And of course, the Board considers the various factors: social, psychological impacts, the shape, the location of it, the severity of it, and any other matters the Board deems are relevant.
(Bd. Hr'g at 15-16.)
The Board concluded that the Employee sustained disfigurement of his right leg and awarded him three weeks of benefits. In his appeal of the Board award, the Employee argued that (1) the Board erred in light of Turbitt v. Blue Hen Lines, Inc., when it compared the Employee's scar to other scars; (2) it erred in its factual findings; (3) it provided no factual or legal basis for its award of three weeks, and 4) substantial evidence did not support the Board's decision. In reversing and remanding the Board's decision, the Court only addressed the Employee's first assertion regarding the implications of Turbitt, supra, and found that Turbitt was violated in the Board's comparison of the Employee's scar to others. Before the Board issued its decision on remand, the parties settled the disfigurement claim.
Del. Supr., 711 A.2d 1214 (1998).
See Veid v. Bensalem Steel Erectors, Del. Super., CA. No. 98A-08-005, Carpenter, J. (Sept. 29 1999) (ORDER).
5. The Employee argues that the General Assembly did not intend that attorney's fees be denied where the issue giving rise to the reversal arose from the Board's decision itself and defied any possibility of being raised in the Board hearing. But, this argument was raised and rejected in the Murtha decision.
Murtha, 729 A.2d at 316, 318.
6. There is no dispute than an alleged violation of Turbitt was not raised before the Board. In its closing arguments to the Board, the Employee's counsel argued that the number of weeks to award ranged from 0 to 150 weeks and was within the Board's discretion after consideration of various factors. But this does not end the inquiry. To determine whether the Employee's position has been affirmed on appeal, the Court is obligated to examine the Employee's arguments before the Board to determine whether they were consistent with the rulings of this Court on appeal. Under the unique facts of this case, the Court finds that they were.
During his argument, the Employee listed various factors that the Board should consider in determining the disfigurement award. They included social and psychological impacts and the shape, location and severity of the wound. On appeal, this Court found that the Board violated Turbitt when it went beyond consideration of these allowable factors to an improper comparison of the scar to others that they had reviewed. As such, by implication, the Court supported the Employee's argument as to the critical factors that should be appropriately considered in determining an award. Although the word " Turbitt" was never raised before the Board, another way to look at the Employee's argument on appeal is that the Board went beyond the allowable factors it could consider and the Court agreed. As a result, the Court finds that attorney's fees may be awarded under 19 Del. C. § 2350 (f).
7. The Court wants to emphasize to counsel that the intent of the amended legislation was to require a party to first raise issues before the Board and allow them an opportunity to address the matter before allowing the recovery of attorney's fees on appeal. This could have been easily accomplished here by filing for reargument in light of the apparent Turbitt violation. The failure to take such action has caused the Court to travel a much more difficult and windy road to reach its final conclusion. While one hopes that in the fine tradition of the Delaware bar, the issue of attorney's fees will never control the path of litigation, counsel should be careful to create a sufficient record if a request under 19 Del. C. § 2350 (f) is anticipated.
While the Court is aware that the Employee moved for reargument after the Board's decision, a violation under Turbitt was not raised.
8. Having found that the attorney's fees are warranted, the Court is now required to make a determination as to the reasonableness of the amount requested. The Employee has submitted to the Court a handwritten itemized billing reflecting 37.5 hours at $300.00 per hour for a total of $9,825.00. Shockingly, this is more than three times the amount awarded in the compensation case settled by the parties. While the Court appreciates the expertise of the Employee's counsel, it finds the amount requested is excessive and is not warranted in this litigation. While the Employee argues that the amount requested is appropriate because of the uniqueness of this appeal and the significance that the decision has had on this area of law, the Court believes there was nothing particularly unique or difficult regarding this litigation, and while the opinion may have gained significance after being raised, the Employee's arguments were not particularly novel or difficult to make. Only one of the issues on appeal was considered by the Court, and the matter was subsequently settled for an amount that was strikingly similar to that offered by the Employer even before the Board's hearing. As a result, after considering the factors set forth in General Motors Corporation v. Cox, the Court finds a reasonable expenditure of time in this litigation would have been 20 hours at a reasonable rate of $200.00 per hour for a total of $4,000.00.
Del. Supr., 304 A.2d 55, 57 (1973).
9. Finally, the Court realizes that neither counsel will be particularly satisfied with this ruling since both have suffered wins and losses. While not satisfied, the Court encourages counsel to put this litigation to rest. In monetary terms, this is a relatively minor case on which both sides have spent too much time and energy. It is arguable that the Court has gone to the limits of its discretion in making the findings set forth in this Order, and it is fair to say that additional litigation could result in either costing the Employer thousands of more dollars or eliminating the award altogether for the Employee. The Court's advice is to stop arguing about this litigation and move on to more significant matters.
10. Attorney's fees in the amount of $4,000.00 is hereby ORDERED.