Opinion
C.A. No. 06A-05-005 (JTV).
Submitted: January 2, 2007.
Decided: May 2, 2007.
Upon Consideration of Claimant's Appeal From Decision of Industrial Accident Board AFFIRMED.
Craig T. Eliassen, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Appellant.
Michael R., Ippoliti, Esq., Wilmington, Delaware. Attorney for Claimant.
ORDER
Upon consideration of the briefs of the parties and the record of this case, it appears that:
1. The claimant below, Terri Pugh ("claimant"), is the Appellant in this action. She is appealing the amount of attorney's fees awarded by the Industrial Accident Board ("Board").
2. The claimant filed a Petition to Determine Compensation Due ("Petition") seeking to establish compensability of an injury sustained while employed by Wal-Mart Stores, Inc., ("Employer"). The Hearing on the matter was scheduled for December 30, 2005. Following negotiations between the parties, a settlement agreement was entered into on December 29, 2005. In reaching the settlement agreement, the Employer acknowledged the claimant's injury as compensable and agreed to pay $1,200 for a closed period of total disability between June 5, 2005 and July 18, 2005, as well as some outstanding medical expenses. Although the Employer agreed that attorney's fees were appropriate, the parties failed to agree on the reasonable amount of those fees; therefore, the issue was reserved for Board determination.
3. At the Board hearing on the issue of attorney's fees, the Employer argued that attorney's fees should be limited to 30% of the $1,200 settlement amount. The claimant contended that she should be awarded fees in excess of that amount. In support of her position, the claimant emphasized that the Employer acknowledged the claimant's work injury as compensable and paid all or some of the claimant's medical expenses. The claimant also argued that in determining the award of attorney's fees, the Board should consider the potential future benefits that the claimant may receive. Specifically, the claimant argued that she may be entitled to permanency or disfigurement benefits in the future, or benefits from any additional surgery that may be required.
Claimant's counsel produced a Fee Affidavit showing 13.6 hours on the claimant's Petition. The Board's award comes to less than $30 an hour for the time spent by claimant's counsel on the Petition.
4. The Board agreed with the employer and awarded $400 in attorney's fees. The Board noted that the $1,200 award for the closed period of total disability was the "ultimate result obtained" by the claimant and awarded what it felt was the "maximum allowable attorney's fee in this matter," $400, or 30% of the $1,200 benefit. In determining the reasonable attorney's fee to be awarded, the Board did not consider additional worker's compensation benefits that the claimant may or may not be entitled to in the future. Also, the Board, citing the claimant's violation of Industrial Accident Board Rule 9, did not consider outstanding medical expenses paid by the Employer in its attorney's fees calculation. Following the Board's decision, the claimant appealed to this Court.
Pugh v. Wal-Mart, IAB Hearing No. 1267833 (April 28, 2006).
Id.
The claimant, in her Opening Brief on Appeal, makes clear that she seeks a reasonable fee based upon current wage as well as future benefits and not counsel fees for obtaining reimbursement of medical expenses. Therefore, although the parties spent some time briefing the issue, it is unnecessary to address the Board's failure to consider paid medical expenses in its fee calculation.
5. The scope of review for an appeal of an IAB decision is limited to examining the record for errors of law and determining whether substantial evidence is present on the record to support the Board's findings of fact and conclusions of law. "Substantial Evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, the court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." The court is simply reviewing the case to determine if the evidence is legally sufficient to support the agency's factual findings.
Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Johnson, 213 A.2d at 66.
ILC of Dover, Inc. v. Kelley, 1999 Del. Super. LEXIS 573 at *3.
6. When the issue raised on appeal from the IAB is exclusively a question of the proper application of the law, review by this Court is de novo. Absent an error of law, the standard of review for a determination of the amount to award in attorney's fees, based on those issues on which the claimant is successful, is abuse of discretion. This Court will not find that the IAB abused its discretion unless its decision has "exceeded the bounds of reason in view of the circumstances."
Porter v. Insignia Mgmt. Group, 2003 Del. Super. LEXIS 360 at *8.
Id.; Friebel v. Nat'l Glass Metal, 2004 Del. Super. LEXIS 128 at *14.
Id. quoting Willis v. Plastic Materials, Co., 2003 Del. Super. LEXIS 9 at *2-3.
7. A claimant who is awarded compensation is entitled to payment of a reasonable attorney's fee "in an amount not to exceed 30% 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. . . ." An award of "compensation" for purposes of granting attorney's fees refers to "any favorable change of position or benefit, as the result of a Board decision, rather than just being limited to contemporaneous financial gain." Although the Board has discretion in calculating the amount of reasonable attorney's fees to be awarded, the Board must, in rendering its award, consider the factors set forth in General Motors v. Cox.
19 Del. C. § 2320(10)(a); (According to the Board, $8,152.90 was the maximum allowable award based on Delaware's average weekly wage at the time of the Hearing).
Willingham v. Kral Music, Inc., 505 A.2d 34, 36 (Del.Super. 1986).
Willis, 2003 Del. Super. LEXIS 9 at *3.
304 A.2d 55, 57 (Del. 1973) (Setting forth factors (1) through (8) enumerated below); see also Pollard v. The Placers, Inc., 1996 Del. Super. LEXIS 327. (Setting forth factors (9) and (10) enumerated below).
The factors are as follows:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fees customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;
(8) Whether the fee is fixed or contingent;
(9) The employer's ability to pay;
(10) Whether the attorney for the claimant has received or expects to receive from any other source.
8. On appeal, the claimant contends that the Board erred as a matter of law and abused its discretion in rendering its attorney's fee award. Specifically, the claimant argues that the Board should have considered the potential future benefits the claimant may receive in determining the appropriate attorney's fee to be awarded. She also argues that although the Board enunciated the Cox factors in its decision, it failed to apply them. For the following reasons, the Court disagrees.
9. The claimant contends that Vaughn v. Genesis Health Ventures is controlling. In Vaughn, the claimant was involved in an industrial accident and awarded total disability payments in the amount of $371.25 per week. Later, the Employer filed a Petition with the IAB seeking to terminate those benefits on the grounds that the claimant was physically able to return to work. The day before the scheduled hearing on the matter, the Employer withdrew its Petition for review. The Board awarded claimant $450 dollars in attorney's fees. The Employer appealed the Board's decision on attorney's fees. On appeal, this Court found that the Board failed to justify its attorney's fee award in light of the Cox factors.
2000 Del. Super. LEXIS 253.
10. Despite the claimant's contention that Vaughn is controlling, the case is materially distinguishable from this one. In Vaughn the court noted that the withdrawal of the employer's petition meant that the claimant would continue to receive her $371.25 per week for the indefinite future. The above-mentioned 30% cap on attorney's fees was not an issue and was never discussed. I infer that it was not discussed because reasonable fees in that case, whatever they may be, would be less than 30% of $371.25 per week for the indefinite future. It would appear that on the record of this case, the receipt of future benefits is completely speculative. The record contains no evidence that the claimant may receive future benefits from the Employer. Therefore, the Board's failure to consider potential future benefits in its calculation of attorney's fees is neither an error of law nor an abuse of discretion.
Id. at *5 ("Here, there is no question that the claimant is entitled to an award of attorney's fees. The claimant received from the Board continuing compensation in the form of ongoing temporary disability benefits in an amount of $371.25 per week. Thus, it appears reasonable that the claimant will receive disability benefits into the future of $371.25").
The record indicates that the only clear benefit the claimant is entitled to is the $1,200 award for the closed period of total disability running from June 5, 2005 through July 18, 2005.
11. Moreover, the court in Vaughn found that the Board's attorney fee award was unreasonable in light of its failure to address the factors enumerated in Cox when rendering the attorney's fee award. However, upon review of the Board's decision in the case at hand, it is evident that the Board adequately addressed each factor pronounced in Cox as required. 12. Since there was no evidence in the record that the claimant will receive any future benefits, the Board did not err in failing to consider future benefits when rendering its award. Further, it is clear from the record that the Board adequately addressed each factor enunciated in Cox as required. The only award or benefit of record obtained by the claimant is $1,200 for the closed period of disability between June 5, 2005 and July 18, 2005. Therefore, the Board did not err in reaching its attorney fee award of $400, or 30% of the $1,200 benefit.
Vaughn, 2000 Del. Super. LEXIS 253 at *6-7 (With regard to attorney's fees, the Board, in its entirety, held: "the issues before the Board were moderate to complex in nature and claimant's counsel spent approximately fourteen hours in preparation for the hearing. The Board finds $450 is a reasonable attorney's fee").
See Pugh, IAB Hearing No. 1267833 (April 28, 2006) at 4-6.
The claimant also cites GMC v. Alcaraz, 1998 Del. Super. LEXIS 412 for the proposition that the Board erred in failing to consider the claimant's future benefits when rendering its decision. The case is distinguishable however, in that the Board in Alcaraz determined that the claimant successfully secured a settlement agreement from the Employer that could potentially lead to the recovery of future medical expenses by the claimant. There is no such evidence in the case at hand and as discussed above, it was not inappropriate for the Board to fail to consider such benefits.
13. Consequently, the Board's decision is affirmed .
IT IS SO ORDERED.