OPINION AND ORDER

TOLIVER, Judge

Before the Court is the application for attorneys' fees filed by the attorney for Michael Falconi, the claimant, pursuant to 19 Del. C. § 2350(f). Employer, Certified Auto, opposes the application, arguing generally that it is premature. That which follows is the court's response to the issues so presented.

STATEMENT OF FACTS AND PROCEDURAL POSTURE

The facts upon which the Board relied are not complicated and set forth in an abbreviated manner here given the nature of the issues presently before the Court.

Joseph and Carol Coombs owned Certified Auto, an automotive service station in Wilmington, Delaware. Micheal Falconi began working at Certified Auto as an auto repairman in September 2003. Certified Auto listed Falconi as "contracted labor" on its tax forms and did not withhold payroll taxes; opting instead to send Falconi a Form 1099 for 2003. While employed, Falconi used his own tools and set his own work schedule. However, Certified provided Falconi a uniform with a Certified Auto logo, just as it did for others performing automotive services at the establishment. Falconi repaired cars as assigned by Coombs and was occasionally sent on errands for Certified Auto to get parts for repairs. His wages were fixed by the days he worked and paid routinely, rather than as a lump sum for work completed. Further, a mechanic's use of his own tools under similar circumstances was established as the industry custom.

Falconi's alleged workplace related injury took place on January 28, 2004, after which he did not return to work at Certified Auto. He subsequently filed a petition to determine compensation due with the Board on March 4, 2004, and a hearing was held on June 10, 2004, during which both Coombs and Falconi testified. The two issues for resolution in Falconi's petition were whether Falconi was an employee as contemplated by the worker's compensation statute and entitled to compensation as a result.

By opinion dated July 12, 2004, the Board concluded that under the circumstances, Falconi failed to show by a preponderance of the evidence that he was an employee of Certified Auto rather than an independent contractor. The Court affirmed that decision on August 5, 2005. However, the Supreme Court in its July 11, 2006 opinion adopted a position akin to that argued by Falconi. That Court's reasoning was as follows:

Certified Auto was a business engaged in automotive service that hired Falconi to fix cars for an undefined period at a single location. Falconi was not hired to complete a finite number of tasks before leaving for another position with someone else. Falconi did not hold himself out as the owner of a distinct business. Falconi never submitted an invoice seeking payment for services rendered and had no written contract. Falconi was not responsible for any unfinished work after the relationship ended. Simply put, Falconi's only livelihood was his job to fix cars at Certified Auto. . . .

While Coombs believed Falconi was an independent contractor, "[i]t is not determinative that the parties believe or disbelieve that the relation of master and servant exists, except insofar as such belief indicates an assumption of control by the one and submission to control by the other. . . ." Notwithstanding Coombs' belief, Falconi submitted to control by Certified Auto.

The Supreme Court concluded therefore that the Board erred as a matter of law when it declared Falconi ineligible for workers' compensation and directed that the case be returned for further proceedings consistent with the Supreme Court's decision. This Court then remanded the case to the Board where it awaits resolution.

On August 22, 2006, Falconi's counsel filed the instant application for attorneys' fees pursuant to 19 Del. C. § 2350(f). Reduced to its essence, counsel for Falconi argues that the application can be ruled on now because the claimant was successful in reversing the Board as a matter of law. Waiting on the Board to opine on the merits is therefore not necessary. In support of that proposition, counsel cites Bythway v. Super Fresh Food Markets, Inc. In Bythway, the court in dicta referenced a "rule of thumb" that:

[W]here the appellate court reverses the Board's decision due to legal error and where the reversal is in the claimant's favor, then an application for attorneys' fees may be filed after the determination of the legal error occurs.

Here, the fee applied for is $28,800 based on ninety-six hours of work by counsel at an hourly rate of $300 plus costs of $253.19. Counsel also requests that a one-third multiplier be added to reflect the difficulty of the issue involved, bringing the total request to $38,652.23. According to counsel, the application satisfies the factors set forth in General Motors v. Cox and are therefore reasonable.

The Coombs oppose the motion as premature. In support of this proposition they cite Thomason v. Temp Control and Murtha v. Continental Opticians, Inc., which concluded that § 2350(f) contemplates that fee applications and awards await resolution of the underlying issue. Until there is a final judgment in the case, a fee award therefore would be premature. The Coombs further contend that the fees are not reasonable under Cox where one of the factors, the employer's ability to pay, is not satisfied. It is unreasonable according to the Coombs to direct them to pay fees where the dissolving corporation has no assets nor worker's compensation insurance. Lastly, even if the Court were to conclude that fees were appropriate, they argue that the one-third multiplier is not warranted since the issues involved were neither novel nor complex.

DISCUSSION

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 a 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.

In 1994, the Delaware General Assembly amended § 2350(f) to read as it does currently. The purpose of § 2350(f) is "to prevent depleting a claimant's compensation award through attorneys' fees incurred where a claimant successfully resists and defends an employer's meritless appeal."

For this Court to exercise its discretion in awarding fees to counsel for Falconi, it must first determine whether the Supreme Court on appeal affirmed Falconi's position before the Board as contemplated by § 2350(f). Otherwise the application for fees made by counsel is premature. A host of similar cases demonstrate that settling the instant question requires that each case be examined on its own facts.

In this regard, relevant guidance can be taken from Bythway. In that case, claimant's total disability claim was rejected by the Board, affirmed by the Superior Court, then remanded by the Supreme Court. Claimant's counsel sought attorneys' fees under § 2350(f) while the case remained pending before the Board. Although the Supreme Court classified the Board's refusal to subpoena witnesses to impeach the testimony of employer's expert witness as "harmless error," the Superior Court held that the error rendered claimant eligible for attorneys fees.

There are apparent similarities between Bythway and the matter sub judice which warrant a similar outcome. Here, the Supreme Court found that the Board committed legal error when it decided that Falconi was not an employee of Certified Auto and declared him ineligible for worker's compensation benefits as a result. Based on precedent, the remand constituted an affirmance on appeal of Falconi's position before the Board. The logical conclusion as a result is that fees may be awarded under § 2350(f).

Having found that the application for fees is appropriate, the Court is now required to make a determination as to the reasonableness of the fees requested. An award of counsel fees under § 2350 requires an exercise of judicial discretion in light of the factors set forth in Cox. These eight factors are listed in what is now Delaware Lawyers' Rule of Professional Conduct 1.5(a). Also, the Court must take into account the employer's ability to pay and whether the attorney will receive any fees and expenses from any source other than the Board's award. As stated, Falconi's counsel initially seeks $28,800 based on ninety-six hours of work at an hourly rate of $300 plus costs of $253.19. He seeks to increase that amount by application of a one-third multiplier, for a total of $38,652.23.

The Coombs raise little in the way of argument in connection with the application of the Cox factors to Mr. Goldlust's application. In any event, I find that Mr. Goldlust has been a member of the Delaware Bar for over twenty-five years and committed much of that time to worker's compensation cases. I further find that under the circumstances the time expended briefing and arguing Mr. Falconi's case as well as the $300 hourly rate are reasonable given the nature of the case, counsel's experience and community custom. In addition, counsel agreed to represent Falconi on a contingency basis and expects payment from the fees awarded by the Court and no other source.

The only contention raised by the Coombs in this regard is that the requested fees are unreasonable given their inability to pay them. They point to their lack of assets and worker's compensation insurance in support of that position. However, they have not supplied any evidence of that alleged poverty beyond counsel's assertions in that regard. Under the circumstances, awarding reasonable attorneys' fees is warranted.

As noted above, Mr. Falconi also seeks to have the Court increase the sum representing the hourly rate times the number of hours expended on his behalf by Mr. Goldlust, by a multiplier of one-third. That increase, he argues, is based on the complexity of the issue involved. The Court concludes however, that the application of such a multiplier is not justified under the circumstances of this case.

The issue before the Board considered was whether Falconi was an employee of Certified Auto as contemplated by the worker's compensation statute. If the issue involved was complex at all, it was factually and not legally complex. The decision of the Delaware Supreme Court turned on an interpretation of the facts and the application of those facts to the existing law. The fact that the Supreme Court reversed the decisions of the Board and this Court along with the fact that multiple oral arguments were held is not determinative of whether the issue was either novel or complex. Indeed the issue involved fit into neither category.

After examining the record to date in this case against the factors upon which an award of attorneys fees may be granted as are set out in 19 Del. C. § 2350(f), the Court finds Mr. Falconi is entitled to an award of $29,053.19 against Certified Auto. That award is based upon the hourly rate charged by Mr. Goldlust, $300, multiplied by the amount of time he worked on this matter, ninety-six hours, plus costs of $253.19. There is no basis to increase or decrease that amount in the record before this Court.

CONCLUSION

In light of the foregoing, the Court concludes that counsel for Falconi is entitled to an award of attorney's fees pursuant to 19 Del. C. § 2350(f) in the amount of $29,053.19.

IT IS SO ORDERED.