Opinion
C.A. No. 04A-04-002.
Submitted: November 29, 2004.
Decided: February 24, 2005.
Upon Appeal of Decision of the Industrial Accident Board. Reversed and Remanded.
Walt F. Schmittinger, Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware; attorneys for the Appellant.
David G. Culley, Esquire and Jennifer S. Naylor, Esquire of Tybout Redfearn Pell, Wilmington, Delaware; attorneys for the Appellee.
ORDER
This 24th day of February, 2005, upon consideration of the parties' briefs and the record below, it appears to the Court:
On July 1, 2002, Patricia Jepsen ("Claimant") filed a Petition to Determine Additional Compensation Due as a result of a work-related neck injury that occurred on January 13, 2000. The Industrial Accident Board ("Board") conducted a hearing on October 28, 2002 where the University of Delaware ("Employer") argued that Claimant's current symptoms were not causally related to her previous work injury. By a decision dated November 8, 2002, the Board concluded that Claimant had failed to prove that her total disability commencing in August of 2001 was causally related to her work injury sustained on January 13, 2000. The Board's conclusion hinged heavily upon its finding that Dr. Fink, Employer's expert medical witness, was more credible than Claimant's three treating physicians, Dr. Koyfman, Dr. Nisnisan, and Dr. Sommers. Because the opinions of Dr. Koyfman and Dr. Nisnisan were couched in terms of possibilities instead of probabilities, the Board discounted their opinions believing that such testimony did not satisfy the legal standard of medical probability. Claimant appealed the Board's decision.
Jepsen v. State of Delaware, IAB Hearing No. 1161730 (November 8, 2002).
Id. at 16.
Id.
The Superior Court reversed the Board's decision finding that the Board erroneously implemented a higher legal standard for medical expert testimony. The Superior Court held that expert medical opinions couched in terms of possibilities are sufficient to establish a causal connection when such testimony is consistent with the claimant's statements and could have resulted therefrom. The Court also concluded that the Board erred by refusing to consider the medical expenses at issue. On remand, the Board accepted the opinions of Claimant's treating physicians and concluded that Claimant is entitled to ongoing total disability benefits and other related medical expenses. The Board did not address awards for reasonable attorney's fees or medical witness fees and declined to determine the specific amount of medical expenses that were compensable contending that such amount was indeterminable based upon the evidence presented.
Jepsen v. University of Delaware, 2003 Del. Super. LEXIS 320, at *7.
Id.
Id. at *9.
Jepsen v. State of Delaware, IAB Hearing No. 1161730 (March 19, 2004).
Claimant has appealed the Board's decision contending that the Board erred as a matter of law by failing to award medical witness fees and reasonable attorney's fees. Claimant also contends that the Board erroneously refused to determine the specific amount of medical expenses that are compensable. For the reasons set forth below, this Court agrees with Claimant and the Board's decision must be reversed and remanded for further proceedings consistent with this opinion.
Standard of Review
The review of an Industrial Accident Board's decision is limited to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the board's findings of fact and conclusions of law. Substantial evidence equates to "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." This Court will not reweigh the evidence nor make its own factual findings. Errors of law are reviewed de novo. Absent error of law, the standard of review for a Board's decision is abuse of discretion. The Board has abused its discretion only when its decision has "exceeded the bounds of reason in view of the circumstances."
Histed v. E.I. Dupont de Nemours Co., 621 A.2d 340, 342 (Del. 1993); Willis v. Plastic Materials, 2003 Del. Super. LEXIS 9; Robinson v. Metal Masters, Inc., 2000 Del. Super. LEXIS 264.
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) ( quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966)).
Id.
Digiacomo v. Board of Public Education, 507 A.2d 542, 546 (Del. 1986).
Willis, 2003 Del. Super. LEXIS at *2-3.
Witness Fees and Attorney's Fees
Claimant contends that the Board erred as a matter of law by failing to award medical witness fees and reasonable attorney's fees relating to her successful Petition to Determine Additional Compensation Due. The two relevant statutes governing medical witness fees and attorney's fees are 19 Del. C. § 2322 (e) and 19 Del. C. § 2320 (10), respectively, which provide:
§ 2322. Medical and other services, and supplies as furnished by employer
(e) The fees of medical witnesses testifying at hearings before the Industrial Accident Board in behalf of an injured employee shall be taxed as a cost to the employer or the employer's insurance carrier in the event the injured employee receives an award.
§ 2320. Subpoena of witnesses; oaths; service of process; medical examination and testimony; various fees
(10) Attorney's fee.
a. A reasonable attorney's fee in an amount not to exceed 30 percent of the award or 10 times the average weekly wage in Delaware as announced by the Secretary of Labor at the time of the award, whichever is smaller, shall be allowed by the Board to any employee awarded compensation under Part II of this title and taxed as costs against a party.
Reasonable attorney's fees and reasonable medical witness fees are mandatory and must be awarded by the Board to a successful claimant. Although awards for such fees are mandatory, the Board does retain broad discretion in determining the reasonableness of the attorney's fees requested by Claimant. Similarly, the Board has broad discretion in determining the reasonableness of medical witness fees and may decline to award certain witness fees should the Board determine that the number of witnesses called was unreasonable or that the testimony provided by such witnesses was redundant or cumulative.
ILC of Dover, Inc. v. Kelley, 1999 Del. Super. LEXIS 573, *9 ( stating "The Board has discretion as to the amount of the fee awarded, but does not have discretion as to whether a fee will be awarded.").
Brandywine School District v. Hoskins, 492 A.2d 1247, 1252 (Del. 1985).
In the case sub judice, the Board granted Claimant ongoing total disability benefits along with other related medical expenses. Although the Claimant was successful before the Board, the Board did not award nor even address the issues of reasonable attorney's fees and medical witness fees. Considering the procedural posture of this case, it does not appear that the Board declined to award such fees but merely neglected to address these issues. Nevertheless, the Board committed legal error by failing to award reasonable attorney's fees and medical witness fees to the Claimant for her successful petition before the Board.
Employer does not dispute Claimant's entitlement for such awards but contends that these issues are not properly before the Court. Employer contends that attorney's fees and medical witness fees are only due when the Claimant is successful and the judgment thereon is final. Because Employer has a pending appeal in this Court, Employer contends that the judgment is not final. Employer relies upon the decision in Pollard v. The Placer, Inc. to support its contention.
692 A.2d 879 (Del. 1997).
In Pollard, the claimant appealed a Board's decision to the Superior Court which subsequently reversed and remanded the proceedings back to the Board for additional findings. Pursuant to 19 Del. C. § 2350 (f), Claimant petitioned the Superior Court forthwith for an award of attorney's fees for the legal services incurred on its successful appeal to have the case remanded to the Board. This section provides:
(f) 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. Such fee shall be taxed in the costs and become part of the final judgment in the cause and may be recovered against the employer and the employer's insurance carrier as provided in this subchapter.
Although Claimant was awarded attorney's fees for the time spent on the successful appeal, Claimant was discontented with the Superior Court's award and immediately appealed its decision. The Supreme Court held that awards for attorney's fees pursuant to 19 Del. C. § 2350 are interlocutory and not immediately appealable. The Supreme Court stated:
Pollard v. The Placers, Inc., 692 A.2d 879, 881 (Del. 1997).
An order is deemed final when the trial court has declared its intention that the order is the court's final act in a case. Since the adoption of Rule 42, this Court has consistently ruled that Superior Court orders of remand directed to decisions of administrative agencies, including the Industrial Accident Board, except remands for purely ministerial functions, are interlocutory, not final, orders. Because orders of remand directed to the Board are interlocutory and because an award for attorney's fees pursuant to 19 Del. C. § 2350 (f) becomes part of the final judgment, the Supreme Court held that the award for attorney's fees pursuant to this section is interlocutory and may only be appealed when it becomes part of the final judgment upon resolution of the underlying cause.
Id. at 880-881.
Id. at 881.
This Court finds Employer's reliance upon the decision in Pollard unpersuasive. Whereas the issue in Pollard involved an award of attorney's fees pursuant to 19 Del. C. § 2350, this case concerns an award of attorney's fees pursuant to 19 Del. C. § 2320. Reasonable attorney's fees pursuant to this section are mandatory and must be awarded by the Board to a successful claimant. Contrary to a Superior Court order that remands an action to the Board for further proceedings, a Board's order following the remand is deemed final. Therefore, the Board's final judgment of the underlying cause is presently before this Court and all issues including reasonable attorney's fees and medical witness fees are thus readily appealable. Employer's pending appeal does not invalidate Claimant's right to file a timely appeal to contest the Board's findings regarding attorney's fees and medical witness fees.
Because the issues of reasonable attorney's fees and medical witness fees are properly before this Court and because the Board erred by failing to address such awards as mandated by 19 Del. C. § 2320 and 19 Del. C. § 2322, the Board's decision must be reversed and remanded for further proceedings.
Specific Medical Expenses
Claimant contends that the Board's failure to determine the specific amount of medical expenses that were compensable was erroneous as a matter of law and noncompliant with the Superior Court's prior remand order. The Board's order addressed the issue of medical expenses as follows:
Jepsen v. University of Delaware, 2003 Del. Super. LEXIS 320, at *11 ( holding that the Board "erred in its refusal to consider the medical expenses at issue.").
The total amount of those medical expenses cannot be determined based on the evidence presented to the Board. Claimant's exhibit regarding the medical expenses included bills that were already paid by the State and bills for treatment that was unrelated to her cervical spine injury (e.g., hemorrhoids).
In summary, the Board finds that Claimant has suffered a recurrence of total disability since August 15, 2001, and that Claimant's medical expenses for her cervical spine condition are reasonable, necessary and causally related to her industrial injury, based on the medical testimony of the treating physicians.
Jepsen v. State of Delaware, IAB Hearing No. 1161730 (March 19, 2004).
Claimant asserts that the Board's refusal to determine the specific amount of medical expenses which are compensable solely because the Board concluded that some of the medical bills submitted were paid or unrelated to her work injury completely avoids the precise responsibility of the Board which is to determine whether each medical bill is related, reasonable, and necessary to the cause of action. This Court agrees.
The Board correctly stated that Claimant was entitled to medical expenses that are reasonable, necessary, and causally related to her cervical spine condition. However, such holding is insignificant unless accompanied by a determination of which specific medical bills are compensable. Although the Board decided that such amount was indeterminable based upon the evidence presented, the Board's original order stated that the medical bills submitted by Claimant were "for the most part . . . related to her condition after August 15, 2001, and are not compensable for lack of causal relationship. . . ." It appears to the Court that, based upon the package of bills submitted by Claimant, the Board was capable of distinguishing between medical bills that were reasonable, necessary, and causally related to Claimant's work injury versus bills that were unrelated or paid. The Board's refusal to determine whether any of the medical bills were compensable simply because it concluded that a few of the bills submitted were unrelated or paid was erroneous as a matter of law and its decision must be reversed and remanded for further proceedings. The Board should consider the specific medical expenses at issue to determine whether such medical expenses are compensable and should exclude any medical bills not shown by Claimant to have been causally related to her work injury or left unpaid by the employer.
Jepsen v. State of Delaware, IAB Hearing No. 1161730 (November 8, 2002).
See Guy J. Johnson Transportation Company v. Dunkle, 541 A.2d 551, 553 (Del. 1988).
Based upon the aforementioned reasons, the decision of the Board is hereby reversed and remanded for further proceedings in accordance with this opinion.
IT IS SO ORDERED.