Opinion
Civil Action Number 98A-09-008-JOH.
Submitted: May 16, 2000.
Decided: June 26, 2000.
Upon Motion of Claimant Below, Appellee for Attorneys' Fees- GRANTED in part, DENIED in part
Jeffrey L. Moyer, Esq., and Chad M. Shandler, Esq., of Richards, Layton Finger, attorneys for employer below, appellant.
Gary S. Nitsche, Esq., of Weik, Nitsche Dougherty, attorney for claimant below, appellee.
MEMORANDUM OPINION
Current counsel for claimant Nancy Parker has moved for an award of attorney's fees. Parker was initially represented by Philip E. Herrmann, Esquire, who died while this case was going back and forth between the Industrial Accident Board and this Court. Regrettably, this case has had a long and tortured history.
The Board conducted three hearings and issued three opinions. In each case, the employer, General Motors Corporation, appealed. In each instance, this Court reversed the Board and remanded the matter. Only after the third remand did the parties, on their own, reach a settlement. Despite the three appeals, however, Parker succeeded on only one issue. Her current counsel has not been able to locate some time records from Herrmann's files, including records he may have spent on that issue. Since the award of fees is dependent on success, counsel will need to provide some additional information, to the best of his ability, regarding time spent on that issue. The Court wishes to express the gratitude to current counsel in filing this motion and the time spent in tracking down whatever records Herrmann had on Parker's case.
FACTUAL BACKGROUND
Parker worked for General Motors for eleven years in a job on the assembly line that required repetitive activity. Parker was diagnosed with carpal tunnel syndrome in 1989 and was off work for eighteen months. She returned to work in May of 1991 and began the same repetitive motions. She started to experience a sore right wrist and pain in the neck, shoulder and arm.
Parker missed work on May 17, 20 and 21, 1991. In September 1991, she filed a petition to determine compensation due, stating the injury date as May 1991. Before there had been a hearing to determine whether compensation was due from the petition of the May 1991 injury, Parker filed a petition for determination of additional compensation due. This petition was filed because she had missed more days in addition to the days in May 1991.
She underwent surgery on July 15, 1992 to repair a rupture of the right rotator cuff. Her attorney amended the Board pretrial memorandum claiming that her right arm and wrist should be included as areas of injury in determining compensation, but the initial injury date of May 1991 was not changed. At the Board's first hearing, Parker's counsel tried to change the claim from one of a specific injury, in May 1991, to a cumulative process injury with an injury date of July 1992. General Motors objected to this change, but the Board continued with the hearing and issued a decision. It determined that the rotator cuff tear was caused by repetitive motion work at General Motors, but it made no finding regarding the May 1991 injury.
General Motors appealed on two different issues. The Court agreed with it on both and reversed the grant of Parker's petition to determine additional compensation due and remanded the matter to the Board. It issued a second decision which General Motors appealed. The issue of whether Parker had a compensable injury as of May 1991 was remanded to the Board by the first appeal. In the second Board decision, the Board failed again to decide this issue so the issue carried over into the second appeal. In the second appeal, this Court remanded this issue. In addition, there was a new issue. General Motors argued that Parker's worker's compensation claim was barred by the statute of limitations. The Court reversed and remanded both issues to the Board. In its third decision, the Board found that the claim was not barred by the statute of limitations and this Court affirmed the Board's decision on that issue. This is the only issue which was affirmed on appeal, but the case was again remanded to the Board. It was instructed to set forth and apply the factors necessary for recovery under cumulative detrimental effect and whether benefits should cease on Parker's return to work date of January 31, 1994.
DISCUSSION
Parker's current counsel has moved for attorney's fees on appeal under 19 Del. C. § 2350 (1). Herrmann began representing Parker in 1991 after she was injured while working at General Motors. He became ill during this representation and Gary S. Nitsche, Esquire, assumed the representation. He requests this Court to enter an order requiring General Motors to pay the attorney's fees for handling the appeals.
Because there are no available records to determine Herrmann's time spent from 1992 until April 1997, Nitsche has reviewed the file and, in good faith, has estimated ten hours time as a reasonable estimate for the work Herrmann performed. Nitsche argues a reasonable hourly rate for Herrmann of $200 an hour for a total of $2,000. For the time period following April 1997, however, records are available. Nitsche argues that, pursuant to statute, he is entitled to fees for the multiple appeals from the Board to this Court, and requests $16,520 on behalf of his office and Herrmann's estate.
The original Board decision, along with the second and third decisions, were all appealed to this Court by General Motors. In each case, the Court reversed and remanded the case to the Board. These decisions are referred to as Parker I, Parker II and Parker III . General Motors argues that each time they appealed the Board's decision, this Court reversed or remanded or found in favor of General Motors on all, or some of the issues presented. Therefore, General Motors argues, since it achieved success on most of the issues appealed, this precludes Parker from receiving the full amount of attorneys' fees requested. Furthermore, General Motors argues that Parker's fee application is also inadequate for failure to provide a detailed explanation of how the requested fees were calculated, especially for the period where there are no available time records and the fees were estimated.
General Motors Corp. v. Parker, Del.Super., C.A. No. 93A-02-014, Herlihy, J. (June 13, 1994).
General Motors Corp. v. Parker, Del.Super., C.A. No. 97A-04-013, Silverman, J. (January 30, 1998).
General Motors Corp. v. Parker, Del.Super., C.A. No. 98A-09-008, Herlihy, J. (September 1, 1999).
Also, General Motors argues that under the applicable statute, attorney's fees are limited to those fees incurred for the services rendered on an appeal from the Board to this Court, not for work performed by counsel before the Board. That is a correct statement of the law. Under the authority of 19 Del. C. § 2127, the Board may allow a fee to a successful claimant for services before the Board, but that is not the subject of this motion.
DiGiacomo v. Board of Pub. Educ., Del.Supr., 507 A.2d 542 (1986).
The Superior Court may award attorney's fees when the position of a person claiming workers' compensation benefits is affirmed, i.e., successful, on appeal. Title 19 Del. C. § 2350 (1) states:
Pollard v. The Placers, Inc., Del.Supr., 703 A.2d 1211, 1212 (1997).
The Superior 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.
This provision is intended to relieve one of the burdens of civil litigation by providing a mechanism for the payment of a successful employee's attorney's fees. It seeks to preserve the award by assessing the cost of attorney's fees at the appellate level against the unsuccessful employer. The issue before this Court is the effect of the numerous appeals, reversals, remands and the final affirmation of Parker's position on one issue, on calculating counsel fees under 19 Del. C. § 2350. Additionally, if fees are due, this Court must then determine the amount of the fees due.
DiGiacomo, 507 A.2d at 547 .
Id.
The original decision of the Board was appealed on two issues by General Motors, which resulted in the Court's decision in Parker I. General Motors argued that the Board erred in awarding "additional compensation due" when it failed to first decide on the original petition. Also, the Board erred when it allowed Parker to amend her allegation of the date of injury from May 1991 to July 1992.
Parker argued that the modification of her date of injury was made for purposes of administrative convenience and that her claim was the result of the May 1991 injury. Also, she argued that the Board's findings were supported by sufficient evidence. This Court agreed with General Motors on both issues and reversed the grant of Parker's petition to determine additional compensation due. The Court remanded and ordered the Board to address and clarify whether there was an injury, and second, address the fundamental change in the recovery theory.
In the Board's second decision, it awarded Parker disability benefits from July 15, 1992. Also, the Board found the injury discovered during the July 1992 surgery was the result of cumulative detrimental effect from her job. General Motors appealed this decision which resulted in Parker II, arguing first, that the Board exceeded the scope of remand and did not make factual findings regarding the May 1991 injury. Second, it argued the Board did not have authority to consider the July 1992 injury because Parker exceeded the two-year statute of limitations by waiting until August 1994 to file a July 1992 claim. Third, General Motors claimed that the cumulative detrimental effect theory was not in the original petition.
The Court reversed and remanded the case to the Board, holding that it still did not determine whether there was a compensable May 1991 injury. This issue was carried over from the first remand. The Court refused to consider the cumulative detrimental effect theory until the Board addressed the compensability of the May 1991 injury. Also, the Court stated that if the Board determined that the cumulative detrimental effect rule applied, it must also set forth the factors required to recover. Furthermore, the Court ordered the Board to address General Motors' statute of limitations argument.
In its third decision, the Board determined that Parker did not sustain a compensable injury in May 1991; she suffered an injury in July 1992. Additionally, it found that her claim for that injury was not barred by the statute of limitations and she was awarded benefits from July 15, 1992. The Board's third decision was appealed by General Motors and resulted in Parker III.
In the third appeal, General Motors argued the following: raising the cumulative detrimental effect issue for the first time in August 1994 was barred by the two-year statute of limitations, the Board ignored the explicit remand instruction of Parker II, when it failed to set forth and apply the factors necessary for recovery under cumulative detrimental effect, and the award of benefits should not continue beyond January 31, 1994, when Parker returned to work. In Parker III, this Court held that the Board's finding that Parker's claim was not barred by the statute of limitations was affirmed. The other issues were remanded to the Board.
The instant case is very similar to Cornish I, where the Board awarded benefits to the employee and it was appealed by the employer. This Court found that the Board's decision was not substantially supported on the issue of causation so the Court reversed and remanded the matter for further findings. On remand, the Board again granted benefits to the employee. The employer appealed again and the Court affirmed the Board's decision to grant benefits in Cornish II.
State of Delaware v. Cornish, Del.Super., C.A. No. 94A-05-002, Gebelein, J. (December 7, 1994).
State of Delaware v. Cornish, Del.Super., C.A. No. 95A-01-015, Gebelein, J. (June 8, 1995).
In Cornish III the Court considered attorney's fees under the statute. This Court agreed with the employer who argued that the appeal was not meritless because the Court reversed and remanded for further findings. The Court stated, "In other words, the employee was not successful in that the Board's decision was not affirmed on that appeal." Furthermore, in Murtha v. Contimental Opticians, Inc., employee appealed a Board decision granting her disfigurement benefits. As an issue of first impression, the Court considered whether a remand to the Board constituted an affirmance on appeal. It rejected the employee's argument that a remand to the Board, per se, constituted a successful appeal, reasoning instead, as Cornish III, that the remand was not an affirmance on appeal.
State of Delaware v. Cornish, Del.Super., C.A. No. 94A-05-002, Gebelein, J. (August 15, 1995).
Id. at 3.
Del.Super., 729 A.2d 312 (1997).
Under the reasoning of Cornish III and Murha, this Court finds the issues in the instant case, which were remanded, are not affirmations of Parker's position for purposes of 19 Del. C. § 2350 (1). She was successful on only one issue. In the third appeal ( Parker III), this Court affirmed the Board's finding that Parker's claim was not barred by the statute of limitations. She prevailed on that issue, which was raised by General Motors, initially, in the second appeal.
In the Cornish appeals, there was work in the first appeal, which, because it was remanded, carried over into the second appeal. This Court stated that counsel was entitled to compensation for the portion of the work performed during the first appeal which carried over into the second appeal. In this case, this Court finds that the attorneys' fees on the issue of the statute of limitations, both in the second and third appeal, should be covered by General Motors under the statute. In addition, current counsel may recover fees and costs incurred in this application.
The question now is the amount of the fees, based on a reasonable number of hours expended and a reasonable hourly rate. The amount awarded by the Court under 19 Del. C. § 2350 (1) is in the discretion of the Court. An award of counsel fees requires an exercise of judicial discretion in light of the factors set forth in General Motors Corp. v. Cox. Additionally, two other factors should be considered: the employer's ability to pay and whether the Board's award is the exclusive source of the attorney's fees.
DiGiacomo, 507 A.2d 547.
Del.Supr., 304 A.2d 55 (1973). The factors to be considered are: (a) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (b) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (c) the fees customarily charged in the locality for similar legal services (d) the amount involved and the results obtained; (e) the time limitations imposed by the client or by the circumstances; (1) the nature and length of the professional relationship with the client; (g) the experience, reputation and ability of the lawyer or lawyers performing the services; (h) whether the fee is fixed or contingent.
Id. at 57.
Current counsel requests a total sum of $16,500 based on 100.70 hours. The Court is unable to determine from the time records presented the amount of hours expended on the statute of limitations issue. Furthermore, from the information provided, it is impossible to determine whether the hourly rates listed for the personnel are reasonable. The Cox factor analysis was completed by Parker only as to Herrmann, not for the other personnel who worked on the appeal. These questions would best be resolved if counsel would present to the Court the amount of hours spent on the second and third appeal in regard to the statute of limitations issue so that this Court may determine if the hours expended are reasonable. In addition, complete the Cox factor analysis for each individual that worked on the statute of limitations issue so this Court may determine if the hourly rates presented are reasonable. This Court finds that the hourly rate should be lower for the hours devoted to the fee petition.
CONCLUSION
Based on the foregoing reasons, the motion of Nancy Parker for attorneys' fees is GRANTED in part. and DENIED, in part. Counsel to submit to the Court, within twenty days from the date of this decision, the amount of hours spent on the second and third appeal in regard to the statute of limitations issue.
IT IS SO ORDERED.