Summary
holding that the decision on appeal affirmed the claimant's position before the Board where a remand was ordered for the Board's failure to give adequate consideration to the Cox factors
Summary of this case from McCabe v. Bayside Roofing, Inc.Opinion
C.A. No. 01A-07-002 — JTV
Submitted: October 25, 2002
Decided: December 24, 2002
Upon Consideration of Appellant's Motion for Attorney's Fees GRANTED
Walt F. Schmittinger, Esq. Dover, Delaware. Attorney for Claimant Below-Appellant.
J.R. Julian, Esq, Wilmington, Delaware. Attorney for Employer Below-Appellee.
ORDER
Upon consideration of the appellant's motion for attorney's fees, the appellee's response, and the record of the case, it appears that:
1. The Industrial Accident Board ("Board"), awarded the appellant, Gloria Woodall, $2,353.89 for disfigurement of her ankle caused by a work related injury. She was also awarded $250 for attorney's fees. She appealed the attorney's fee award, contending that an award of only $250 was an abuse of discretion. The Court concluded that the Board abused its discretion by failing to give adequate consideration to the factors set forth in General Motors Corporation v. Cox, factors which it must consider when making an award of attorney's fees. The Board's award of $250 was reversed and remanded for further proceedings on the issue of attorney's fees. Those proceedings have not yet taken place.
304 A.2d 55 (Del. 1973).
2. The claimant has now filed a motion seeking an award of attorney's fees for the work of her attorney on the appeal in this Court. She contends that the Court's decision affirmed her position before the Board and that an award of attorney's fees is appropriate at this time. The employer opposes her request. It contends that the claimant is entitled to attorney's fees for the appeal only if the Board subsequently awards her more than the $250 which it awarded originally. Therefore, the employer contends, the motion is premature. The amount of attorney's fees requested is also disputed.
3. The standard governing an allowance of attorney's fees for services of a claimant's attorney on appeal in this Court is set forth in 19 Del. C. § 2350(f). The statute provides, in relevant part, that the Court may allow a reasonable attorney's fee if "the claimant's position before the Board is affirmed on appeal." This language has been a part of the statute since 1994. Prior to that, a claimant could recover attorney's fees for an appeal only where the claimant both prevailed in the hearing before the Board and successfully defended against an appeal by the employer. The new language was intended to expand the cases where a claimant may seek attorney's fees at the appellate level to include those where the claimant appeals from an unfavorable or erroneous Board decision and his or her position before the Board is affirmed by the appellate court.
Murtha v. Continental Opticians, Inc., 729 A.2d 312, 317 (Del.Super. 1997).
Id. at 316.
Id. at 317.
4. Since the 1994 amendment, this Court has on several occasions discussed the issue of attorney's fees in cases where the claimant appealed from a Board decision and the Court remanded the case to the Board for further proceedings. In Murtha v. Continental Opticians, Inc. the court concluded, for reasons set forth therein, that, although the claimant was the appellant, its decision to remand the case for further proceedings was an affirmation of the employer's position before the Board, not the claimant's. Since the court did not affirm a position which the claimant had taken before the Board, the application for attorney's fees at the appellate level was denied, notwithstanding the fact that the claimant was "successful" on the appeal because she had achieved a remand. The Court also emphasized that attorney's fees are not recoverable if the position advanced by the claimant in the appeal was not advanced before the Board.
729 A.2d 312 (Del.Super. 1997).
5. In Lucas v. Leaseway Motorcar Transportation, the Board terminated a claimant's benefits. On appeal, the court remanded the Board's decision for clarification regarding the basis for decision. When the claimant then applied for attorney's fees for the appeal, the court denied the application on the grounds that a remand which simply sought clarification of a Board decision was not an affirmation of the claimant's position before the Board. It reasoned that only later, when the court finally decided the appeal after receipt of the Board's decision upon remand, could a judgment be formed as to whether the claimant's position before the Board was affirmed.
1999 Del. Super. LEXIS 312 (Del.Super. 1999).
6. In Bythway v. Super Fresh Food Markets, Inc., the Board denied a claimant's request that subpoenas be issued for certain witnesses. After the Board rendered its decision, the claimant appealed this and other issues. The appellate court ruled that the Board committed legal error when it denied the claimant's request for subpoenas and remanded the case to the Board for further proceedings. The claimant then moved for attorney's fees incurred in the appellate proceeding. The employer argued that the motion was premature, but the court rejected that contention. It having been established that the court had affirmed the claimant's position before the Board as to her right to subpoena witnesses, the court reasoned, a request for attorney's fees was not premature. Whether the claimant ultimately received a more favorable award in the remand proceeding or in a subsequent appeal was irrelevant.
1999 Del. Super. LEXIS 621 (Del.Super. 1999).
7. In Veid v. Bensalem Steel Erectors, the claimant sought compensation for disfigurement. At the Board level, his attorney pointed out that disfigurement was compensable at a range of between 0 and 150 weeks and argued that compensation should be based upon various factors such as social and psychological impact, the shape and location of the disfigurement, and the like. The Board awarded three weeks of benefits. The employee appealed and argued that the Board had committed error by comparing his disfigurement to disfigurement in other cases. The court agreed and remanded the case for further proceedings. The claimant then applied to the court for attorney's fees for the appeal. In concluding that attorney's fees could be awarded, the court observed that the claimant's position before the Board was that compensation should be based upon certain allowable factors. The court's decision that the Board had considered improper factors, it reasoned, affirmed the claimant's position by implication.
2000 Del. Super. LEXIS 398 (Del.Super. 2000).
8. In Thomason v. Temp Control, the claimant, like the claimant here, appealed an award of attorney's fees made by the Board, claiming it was too low. The Board had determined that 30 per cent of the amount of the compensation awarded was reasonable for attorney's fees, provided that 30 per cent was less than $2,400. On this basis the amount of attorney's fees allowed was apparently the sum of $2,400. On appeal, the court concluded that the Board had failed to consider the Cox factors adequately and reversed and remanded the Board's decision. Significantly, however, the court also concluded that the statutory maximum of attorney's fees recoverable by the claimant was $2,250. The claimant moved for attorney's fees for the appeal. The court denied the motion. In doing so, it noted that the motion was premature because it remained to be seen whether a final judgment would result in an increase in the original award of attorney's fees, a result possible only if the Superior Court's decision that $2,250 was the maximum amount recoverable was itself reversed on a future appeal to the Supreme Court. It also noted that the reversal of the Board's decision was not in the claimant's favor. The employer urges the court to follow this case and conclude that any award of attorney's fees on appeal is premature unless and until the Board awards an attorney's fee of greater than $250 on remand. That case is significantly distinguishable from this one, however. In Thomason the amount originally awarded the claimant by the Board was $2,400. Although the appeal was filed by the claimant, the result was a decision on appeal that the maximum recoverable attorney's fee was $2,250. The court's decision decidedly did not affirm the claimant's position before the Board.
2002 Del. Super. LEXIS 423 (Del.Super. 2002).
9. The above-mentioned cases demonstrate that each case must be examined on its own facts to determine whether a decision by this Court on appeal affirms the claimant's position before the Board. As stated in Veid, "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."
2000 Del. Super. LEXIS 398, at *7.
10. At the conclusion of the Board hearing in this case, counsel for the claimant handed his attorney's affidavit to the presiding officer without any oral elaboration. Counsel for the employer briefly stated the employer's position. The absence of an oral presentation of the request for counsel fees can be explained by the fact that the case was not complicated, the hearing was short, and the amount of fees involved was modest. Although the claimant's affidavit may have contained a request for the maximum allowable attorney's fee of $706 (30 per cent of $2,353.89), the Court believes that a request for attorney's fees is not narrowly confined to the precise amount of fees requested. It is also, by implication, a request that the Board award a reasonable fee based upon a due consideration of proper factors. It is well known that the Board should utilize the Cox factors in arriving at a reasonable attorney's fee. The Court's decision on appeal was a clear rejection of the Board's decision on attorney's fees because of the Board's failure to give adequate consideration to the Cox factors. The remand was not ordered to obtain a clarification of the basis for the Board's award of $250. Under the circumstances of this particular case, the Court concludes that its decision on appeal affirmed the claimant's position before the Board regardless of the precise amount of attorney's fees which may ultimately be awarded. As a result, an award of attorney's fees may be made at this time.
The affidavit was not included in the record transmitted to the Court.
See Thomason v. Temp Control, 2002 Del. Super. LEXIS 422, at *3 (Del.Super. 2002) (setting forth a portion of a Board decision that acknowledges that the Cox factors must be considered when determining a reasonable attorney's fee).
11. The claimant's attorney has filed a certificate stating that he spent 10.5 hours on the appeal and that his normal hourly rate is $165 per hour. He asks that the amount arrived at by multiplying those two figures be increased by a third, for a total fee of $2,310.00. The employer contends that the amount of time reported by claimant's counsel is excessive. It contends that the appeal is "simply a boiler plate appeal" filed by claimant's attorney in many different cases. It has included with its brief an opening brief submitted by claimant's counsel in one of the other cases. While there are clear similarities between the two opening briefs, there are also differences. In addition, the claimant's attorney filed a reply brief which included responses to issues first raised in the answering brief. A period of 10.5 hours for the filing of two briefs in this Court does not seem excessive, even where much of the work product for the opening brief could be taken from a previous case. The request for the one-third multiplier, however, is not warranted. The issues are not novel or difficult.
Meadows v. Linton, 2000 Del. Super. LEXIS 442, at *7; Quality Car Wash v. Cox, 1983 Del. Super. LEXIS 773 (Del.Super. 1983).
12. Therefore, the appellant's motion for attorney's fees is granted. The amount of $1,733 is awarded.
IT IS SO ORDERED.