Opinion
C.A. #97A-07-005.
Submitted: August 14, 1998.
Decided: March 1, 1999. Order Denied: February 8, 2000
OPINION AND ORDER
This is Clarence Lucas, employee below, Appellant ("Employee")'s application for attorney's fees covering his appeal to this Court from a decision of the Industrial Accident Board ("Board"). The issue is whether Employee was successful on appeal to this Court and is, therefore, entitled to attorney's fees under 19 Del. C. § 2350(f). Upon review of the aforementioned petition and the record in this case, it appears to this Court that a claimant is unsuccessful on appeal for purposes of being awarded attorney's fees where this Court remands for findings not inconsistent with the opinion on appeal.
I.
Clarence Lucas ("Employee") is a 67 year old man who was formerly employed as a commercial motorcar carrier driver with Leaseway Motor Freight ("Leaseway"). He earned $1234 weekly, or approximately $64,000 annually, as a Leaseway driver.
On November 7, 1995, Employee was stuck in the eye by the antenna of an automobile that he was unloading from his truck. The antenna caused significant trauma to Lucas' eye, including a retinal tear and hemorrhaging of the vitreous, or jelly, of the eye. The central contested issue in the appeal engendering this petition for attorney's fees was the existence and/or severity of the remaining effects of the injury and its impact on his ability to obtain certain types of employment.
Employee formally retired from Leaseway on May 1, 1996. In November of that year, one of his physicians formally discharged him from medical care. Employee obtained a job as a maintenance clerk with B.J.'s Wholesale Club where he is paid on an hourly basis, earning roughly 15% of what he earned with Leaseway. In May, 1996, began receiving a monthly pension from the Teamsters union and began receiving monthly Social Security benefits later that year.
Leaseway's petition to have Employee's worker's compensation benefits was heard by the Board on May 30, 1997. The Board found that Employee was medically able to work because: (1) he was not a prima facie displaced worker; (2) that whatever medical restrictions he might have were not so prohibitive so as to restrict him from finding work in the general labor market; and (3) that he had, in fact, returned to work.
In addition, the Board found that Employee could not show that he either made a reasonable job search or that such a search was unsuccessful due solely to his industrial injury. Instead, the Board found that he exaggerated his medical symptoms on the visual tests and concluded that his vision would meet the standards required for driving a commercial vehicle. The Board also found that Employee was not motivated, for financial reasons, to return to his work as a driver. Ultimately, the Board concluded that Employee sustained no lost earning capacity as a result of the industrial accident and that his benefits would be terminated.
On April 29, 1998, this Court issued a decision remanding the case back to the Board, stating "[i]t is unclear from the record whether the Board accurately interpreted the regulation's `each eye' language" when considering testimony that Employee "had a field of vision of at least 70 degrees in the horizontal meridian in both eyes. . . . [t]he Board needs to know what Employee [Lucas] is physically capable of doing before deciding if his job search has been reasonable under the circumstances."
Lucas v. Leaseway Motorcar Transp., C.A. No. 97A-07-005, Gebelein, J. (April 29, 1998); 49 C.F.R. § 391.41(b)(10)(3). The case on remand is C.A. No. 98A-11-006. The Board issued a decision on remand and the decision has been appealed. The briefing on appeal is not yet complete and has, therefore, not yet reached this Court for decision.
II.
Employee now argues that he is entitled to attorney's fees pursuant to 19 Del. C. § 2350(f) for costs associated with the Superior Court appeal and for the time spent in preparing and presenting the petition for attorney's fees. Employee contends that "[t]he results obtained on appeal . . . determined that the Board made a fundamental error in reviewing the medical evidence presented and that the Board erred as well in not undertaking a proper analysis of the displaced worker doctrine and its effect on the employee below, Appellant's status with reference to partial disability." Employee asserts that "[t]he Claimant's position before the Board was essentially recognized by the Superior Court and is, in part, the basis for the remand and the Claimant has pursued the specific position that was being argued on appeal." As such, Employee claims that he is entitled to fees.In response, Leaseway asserts that Employee's position was not affirmed on appeal and that Employee did not prevail before the Board on remand. As such, Leaseway maintains that attorney's fees should be denied under 19 Del. C. § 2350(f).
III.
The award of attorney's fees for a claimant on appeal from a Board decision favoring the claimant is controlled by 19 Del. C. § 2350(f). The section provides:
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 reads above. "[U]nder the pre-amended version of § 2350(f), the touchstone for an award of counsel fees [was] whether the claimant was successful in defending the award." Under the present reading of the provision, "a claimant may now initiate an appeal of an unfavorable Board decision and if successful, may petition the Court for an attorney's fee." The purpose of 19 Del. C. § 2350(f) is "to prevent depleting a claimant's compensation award through attorney's fees incurred where a claimant successfully resists and defends an employer's meritless appeal." Because the statute taxes the cost of services of the appeal against the unsuccessful employer, the statute effectively preserves the claimant-employee's award.
The Delaware General Assembly amended § 2350(f) effective with appeals filed after May 10, 1994. 69 Del. Laws 218, § 2350(f) (1994) (as amended). This opinion will not further discuss the differences between the pre-amended version and the present version.
Murtha v. Continental Opticians. Inc., C.A. No. 96A-02-012, Alford, J., (July 23, 1997).
Murtha, supra at 5, p. 3.
Resource Tech. Svcs. V. Hedden, C.A. No. 94A-04-008, Silverman, J., (Jan. 12, 1999), citing Digiacomo v. Board of Public Educ. in Wilmington, Del. Supr., 507 A.2d 542, 546 (1986); Aetna Cas. Sur. Co. v. Rodriguez, Del. Supr., 399 A.2d 1289, 1292 (1979).
In Heddon, the Board found that the employee failed to prove a 15% permanent partial disability to the brain, but that the employee did sustain a four percent permanent impairment to his brain. On appeal, this Court determined that the Board's conclusion of a four percent brain impairment was not supported by substantial evidence. Accordingly, the Board's decision was reversed and the matter was remanded. On remand, the Board determined that the employee suffered a two percent impairment to his skin as a result of the work-related accident. This Court determined that the employee in Heddon did not successfully resist the employer's meritless appeal, but rather, the appeal did have merit as demonstrated by this Court's decision to reverse and remand for lack of substantial evidence.
Further, Heddon states that its holding "is based solely on facts where the Court reversed the Board's decision. The Court does not address an employee's entitlement to attorney's fees during an employer's appeal where the Court merely remands for further findings and does not reverse the Board's decision."
In the case sub judice, this Court did not reverse the Board's decision.
Digiacomo, 507 A.2d at 547.
For this Court to exercise its discretion in awarding attorney's fees, it must first determine whether the reviewing Court affirmed on appeal the appellant's position before the Board. In other words, this Court determines employee's success on appeal by considering this Court's ruling on appeal. It must first be determined whether the remand sub judice constituted an affirmance on appeal of the claimant's position before the Board as contemplated by § 2350(f). The question, therefore, is whether Lucas was successful on appeal to this Court.
See Bedwell v. Brandywine Carpet Cleaners, C.A. No. 95A-12-001, Barron, J., (Sept. 30, 1996) (stating claimant can seek attorney fees on appeal from Board even when Board decided against claimant and claimant initiated appeal before this Court).
The Murtha Court held that the remand of the case to the Board did not constitute an ""affirmance on appeal' as contemplated by § 2350(f)." This Court did not reverse the Board's decision or comment on its adequacy, but simply remanded the decision to the Board for clarification regarding the basis of the award and instructed the Board to compute the disability award according to discrete factors and to indicate the factors on which it relied in determining the award amount.
Murtha, supra at 5, p. 6.
Murtha, supra at 5, p. 5, 6.
Moreover, Murtha held that prior to the Board's decision upon remand, until there is a final judgment in the case, it was premature to award an attorney's fee before ascertaining whether the award was increased. "Thus, an application for an award of an attorney's fee should not be filed simply because the court remanded."
Id at 6. Compare Murtha, supra at 5, with Bedwell, supra at 9. In Bedwell, Appellant-employee's position before the Board was affirmed on appeal to this Court. Appellee-employer did not appeal this Court's decision to the Delaware Supreme Court.
Similar to the decision on appeal to this Court in Murtha, the decision in the case sub judice by this Court on April 29, 1998 did not reverse the Board's decision. This Court simply remanded the case to the Board, instructing it to make an additional finding regarding Employee's vision which may or may not have changed the Board's determination regarding the non-entitlement to compensation. Before this Court will make a decision regarding the final adequacy of the Board's decision, it required an additional finding of fact from the Board, the fact finder. As such, it cannot be said that this Court's prior decision affirmed Employee's position when it remanded the decision to the Board "for findings not inconsistent with this opinion." Thus, the application for attorney's fees pursuant to 19 Del. C. § 2350(f) is DENIED.
IT IS SO ORDERED.