Opinion
C.A. No. 00A-04-010-JEB.
Date Submitted: May 12, 2000.
Date Decided: August 21, 2000.
Letter Opinion and Order on Claimant's Appeal of an Award of Attorney's Fees — REVERSED and REMANDED
Dear Counsel:
This is an appeal of Ms. Mentore Vaughn's award of attorney's fees given by the Industrial Accident Board ("IAB" or the "Board"). For the reasons stated herein, the decision of the IAB is REVERSED and REMANDED.
FACTS
On August 3, 1999 Ms. Mentore Vaughn was involved in an industrial accident. She was thereafter placed on total disability. On October 11, 1999, the employer filed a petition with the Industrial Accident Board claiming that Ms. Mentore Vaughn was physically able to return to work. A hearing was scheduled for March 14, 2000 on the employer's petition. Ms. Mentore Vaughn then hired an attorney who prepared for the hearing by exchanging discovery requests and taking the deposition of the treating physician.
On the day before the scheduled hearing, the employer sought a continuance of the hearing because its expert witness was unavailable to testify due to scheduling issues. Bd. Op. at 1. The Industrial Accident Board denied the request for a continuance because the employer had never identified their doctor as a witness prior to its request for a continuance. After the request for a continuance was denied, the employer withdrew its petition for review.
The Board, in its Order, awarded the Plaintiff attorney's fees and medical expert fees as a result of the employer's failure to get an expert witness prior to the hearing. The Board held: "[t]he 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." Bd. Op. at 2.
The Plaintiff has appealed the award of attorney's fees, claiming that the Board erred as a matter of law in only awarding $450.00 for attorney's fees. The employer has chosen not to reply to this appeal.
STANDARD OF REVIEW
The Supreme Court and this Court have repeatedly emphasized the limited review of the factual findings of an administrative agency. Carpenter v. Mattes Electric, C.A. No. 96A-07-005, Quillen, J. (April 9, 1997). The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence and free from legal error. General Motors Corp. v. Freeman, Del. Supr., 3 Storey 74, 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corp., Del. Supr., 9 Storey 48, 213 A.2d 64, 66-67 (1965). Substantial evidence means such relevant evidence as a reasonable mind might accept "as adequate to support a conclusion. Oceanport Ind. Inc. v. Wilmington Stevedores Inc., Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986). On appeal from the Board, the Superior Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions. Johnson, 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142 (d). If substantial evidence exists and the Board made no error of law, its decision must be affirmed. Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1104 (1988) (citing 29 Del. C. § 10142 (d); A. Mazzetti Sons, Inc. v. Ruffin, Del. Supr., 437 A.2d 1120 (1981); MA. Hartnett, Inc. v. Coleman, Del. Supr., 226 A.2d 910 (1967)).
DECISION
The heart of the Claimant's appeal is that an award for 14.5 hours of work by her counsel at $450.00 is ridiculously low. In fact, this award computes to a sum total of $32.00 per hour.
19 Del. C. § 2320 (g) gives statutory authority for the Board to award an attorney's fee in this case.
(1) A reasonable attorney's fee in an amount not to exceed 30 percent of the award or $2,250, whichever is smaller, shall be awarded by the Board to any employee awarded compensation under Part II of this title and taxed as costs against a party.19 Del. C. § 2320 (g).
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. Indeed, an award of compensation under the statute is intended to refer to any favorable change of position or benefit rather than just being limited to contemporaneous financial gain. See Scott v. E.I DuPont de Nemours Co., Del. Super., C.A. No. 97A-06-008, Lee, J. (Mar. 30, 1998); Willingham v. Kral Music, Inc., Del. Super., 505 A.2d 34, 36 (1985). Here, it cannot be said that Ms. Mentore Vaughn failed to benefit from the Board's decision and a reasonable attorney's fee is appropriate.
An attorney's fee must be reasonable in relation to the benefit to the client but the fee is not dependent on the amount of the award. Pollard v. The Placers, Inc., Del. Super., 95A-09-021, Cooch, J. (Aug. 9, 1996), aff'd, Del. Supr., 703 A.2d 1211 (1998). In determining the appropriateness of the fee, the Board should consider:
(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.
General Motors Corp. v. Cox, Del. Supr., 304 A.2d 55, 57 (1973).
The Board should also consider two other factors: the employer's ability to pay and whether the employee's attorney has or will receive any fees and expenses from any source other than the Board's award. Pollard v. The Placers, Inc., Del. Super., 95A-09-021, Cooch, J. (Aug. 9, 1996).
In this case, the Board did not adequately explain is reasons for awarding the fee that it did. The Board held:
The Board further finds Claimant is entitled to an attorney's fees [sic] taxed as costs against Employer pursuant to 19 Del. C. § 2320(g). Counsel has represented Claimant since August 1999. The issues before the Board were moderate to complex in nature and Claimant's counsel spend approximately fourteen hours in preparation for the hearing. The Board finds $450 is a reasonable attorney's fee.
Bd. Op. at 2.
Thus, the Board did not attempt to justify the reasons for its award, as required in Cox. It appears that the Board did not take into account the legal fees customarily charged in the locality for similar service; the amount of the award involved; the experience, reputation and ability of the lawyer performing the service; and whether or not the fee was contingent. Also, the Board did not appear to adequately consider the fact that the Claimant's attorney spent a total of 14 hours in preparation for the hearing. The Court agrees with the Claimant that the award of attorney's fees given by the Board is totally out of proportion to the benefit incurred by the Claimant.
In sum, it appears that, as a matter of law, the Board failed to justify its award of $450.00 in attorney's fees in light of the Cox factors. See General Motors Corp. v. Alcaraz, Del. Super., 97A-03-009, Gebelein, J. (July 22, 1998). Therefore, the decision of the IAB is REVERSED and REMANDED on the issue of the calculation of attorney's fees.
IT IS SO ORDERED .