Opinion
C.A. No. 08A-07-006 RRC.
Submitted: December 30, 2009.
Decided: March 23, 2010.
On Appeal from a Decision of the Industrial Accident Board.
David C. Malatesta, Jr., Esquire, David A. Arndt, Esquire, Kent McBride, P.C., Wilmington, Delaware, Attorneys for Appellant/Employer.
Jessica Lewis Welch, Esquire, Tara E. Bustard, Esquire, Doroshow, Pasquale, Krawitz Bhaya, Wilmington, Delaware, Attorneys for Appellee/Employee.
Dear Counsel:
Before this Court is the appeal of Pepsi Bottling Group, Inc. ("Employer") from a June 26, 2008 decision of the Industrial Accident Board ("the Board") awarding workers' compensation benefits to Robin Meadow ("Employee"). Pepsi previously had appealed the Board's decision granting Employee's request for a continuance, but this Court remanded the case so that the Board could "explain on the record its reasons for granting the continuance in accordance with 19 Del. C. § 2348(h)."
Pepsi Bottling Group, Inc. v. Meadow, 2009 WL 3532274, at * 4 (Del. Super.).
The Board has since provided this Court with the transcript of the April 3, 2008 hearing where the continuance was granted. After reviewing the transcript, this Court has determined that Employee demonstrated "good cause" and "extraordinary circumstances," and the Board appropriately granted a continuance after specifically finding "good cause" for the continuance and properly determining that a "continuance rather than the use of other case management measures . . . [was] necessary in the interests of justice."
Previously, the parties and the Court had a mistaken understanding that the audiotape of the hearing and of the Board's decision granting the continuance was lost. After the Court's remand, the audiotape was located, transcribed, and furnished to the Court.
Additionally, this Court has determined that the Board properly awarded attorneys' fees in this case in that it did not "abuse its discretion" in awarding the fees and appropriately addressed the requisite factors before awarding attorneys' fees.
Accordingly, for all the reasons discussed below, the Board's decision is AFFIRMED.
I. FACTS AND PROCEDURAL HISTORY
The following set of facts is quoted verbatim from this Court's August 28, 2009 letter opinion:
Employee had worked for Employer in various positions relating to Employer's bottling operations since 1990. Employee first noticed a pain in his right arm, the injury giving rise to this appeal, in December 2005. Shortly thereafter, Employee reported his injury to Employer and was referred to Occupational Health. After showing signs of carpal tunnel and ulnar nerve problems, Employee was referred to Dr. Leo Raisis, an orthopedic doctor. In January 2006 Employee visited Dr. Raisis who confirmed the diagnosis of carpal tunnel and ulnar nerve entrapment, and surgery was recommended. A few days later, Employee received a second opinion from Dr. George Namey who concluded that Employee's injury was directly related to repetitive wrist and hand movements required by his jobs with Employer. At that time, Employee took no action and continued to work.
On December 14, 2007, Employee filed a Petition to Determine Compensation Due alleging a compensable work injury, as well as seeking payment for Dr. Raisis' recommended surgery. A Pre-Trial Hearing was held in January 2008. On February 5, 2008, a Notice of Hearing was mailed to the parties, and the hearing was scheduled for April 23, 2008. On March 19, 2008, Employee emailed Employer's counsel and advised that Dr. Raisis would not be available for a deposition prior to the hearing date, and requested that Employer stipulate to a continuance. However, Employer was unwilling to agree to a continuance. Employee then filed a Motion for Continuance, and a hearing on the motion was heard before the Board on April 3, 2008.
After considering the parties' filings and hearing oral argument on the parties' positions regarding Employee's request to continue the April 23rd hearing, the Board granted Employee's motion . . . The hearing on the merits of Employee's claim for benefits was rescheduled for June 24, 2008. The hearing proceeded on that date, and two days later the Board issued a decision in favor of Employee. Employer's appeal followed.
Pepsi Bottling Group, 2009 WL 3532274, at * 2 (Del. Super.) (citations omitted).
On August 28, 2009, this Court remanded the case to the Board "so that it [could] explain on the record its reasons for granting the continuance in accordance with 19 Del. C. § 2348(h)."
Id. at * 4.
Although the parties and the Court were erroneously informed that no transcript or audio record of the April 3, 2008 hearing existed, the Board has since provided this Court and the parties with a transcript of the April 3, 2008 hearing. In that transcript, the Board's conclusion stated in toto:
The Board has considered the request to grant a continuance under Board Rule 12B1F [sic] for Dr. Raisis who is the treating physician for the Claimant and his inability to be deposed on the initial date in question. The Board is going to grant the continuance for that showing good cause. And the Board will proceed to sign the motion and the order.
Trans. of April 3, 2009 hearing at 6.
II. PERTINENT FINDINGS OF THE BOARD
The transcript of the April 3, 2008 hearing (in addition to Employee's written submission to the Board) indicates that Employee's counsel was having trouble scheduling the deposition of Dr. Leo Raisis, the treating physician. Although counsel had contacted Dr. Raisis early on, Dr. Raisis was not available on any of the proposed dates before the original hearing date of April 23, 2008. Plaintiff's counsel stated at the hearing that:
[w]e usually wait for a period of time because sometimes things get cancelled. I mean quite often we will have depositions scheduled with our own office with Dr. Raisis that may mean if that hearing comes off there will be availability. So Mr. Malatesta is correct, I do not immediately when I first hear that Dr. Raisis is unavailable immediately ask for a continuance because I try to avoid asking for continuances whenever I can.
Id. at 4.
According to Employee's counsel, several attempts were made to schedule Dr. Raisis's deposition, but the doctor was not available until June. Based on that information, the Board stated that:
The Board has considered the request to grant a continuance under Board Rule 12B1F [sic] for Dr. Raisis who is the treating physician for the Claimant and his inability to be deposed on the initial date in question. The Board is going to grant the continuance for that showing good cause. And the Board will proceed to sign the motion and the order.
Id. at 6.
Thereafter, a hearing on the merits of Employee's petition was held before the Board on June 24, 2008 at which time the Board found in favor of Employee:
With respect to attorney's fees, the Board analyzed the factors set forth in General Motors Corp. v. Cox in calculating a reasonable fee. In determining the fee, the Board considered the following Cox factors: that Employee's counsel spent had 16.25 hours preparing for the hearing, and that the hearing itself lasted less than three hours; that Employee's counsel had represented Employee since February 2006, and that Employee's counsel had been a member of the Delaware Bar since 1996 with experience representing clients in workers' compensation disputes; that the case involved straightforward questions of law, but did involve questions of fact; that Employee's counsel was not subject to unusual time limitations in connection with this case, although counsel could not simultaneously work on this case and other cases; that the fee arrangement was that counsel would charge thirty percent of the gross amount recovered plus costs; and that counsel was not precluded from accepting other employment accept for representation of the Employer. The Board further found that Employee's counsel did not expect to receive compensation from any other source in connection with this litigation, and that there was no evidence that the Employer lacked the financial ability to pay the attorney's fee. Taking those factors into consideration, the Board determined that a reasonable fee in this case would be the lesser of $5,225 or thirty percent of the value of the award to be paid by Employer.
Pepsi Bottling Group, 2009 WL 3532274, at * 2 (Del. Super.) (citations omitted).
III. CONTENTIONS OF THE PARTIES
Employer has not appealed the Board's ultimate decision granting workers' compensation benefits to Employee, but only argues on appeal that the Board erred as a matter of fact and law when it granted Employee's request for a continuance to a date more than 180 days after the filing of the petition and also when awarding attorney's fees. In support of its contentions, Employer has reasserted the arguments made in its original opening brief to this Court:
Employer asserts that the Board incorrectly found that there was "good cause" to grant the continuance because, according to Employer, Employee did not offer any evidence that due diligence was used in order to have timely scheduled Dr. Raisis' deposition before April 23, 2008. Further, Employer argues that the Board did not apply 19 Del. C. § 2348(h)(2) because no evidence was offered by Employee that "extraordinary circumstances" prevented Employee from proceeding with the hearing on April 23, 2008.
Employer also argues that the Board did not satisfy its requirements under 19 Del. C. § 2348(h)(2)(a) because the Board did not explain its reasons for granting the continuance. Further, Employer argues that the Board did not follow 19 Del. C. § 2348(h)(2)(b) because the Board did not make a specific finding or inquiry as to whether Employee prosecuted his claim with due diligence. Employer also alleges that the Board's calculation of attorney's fees was erroneous because when it considered the time Employee's counsel spent on this case, it included the time counsel spent in connection with seeking a continuance. Employer contends that it "cannot be the legislative intent" to award attorney's fees for the time a party spends seeking a continuance or other "collateral issues arising outside the employer's control."
Id. (citations omitted).
In response, Employee argues that:
the Board's decision should be affirmed because the Board acted within its discretion when it granted the continuance. Employee claims that "substantial evidence" was submitted to the Board that prompt and due diligence were used in effort to take Dr. Raisis' deposition before April 23, 2008. Moreover, Employee argues, the Board gave both parties an opportunity to present argument in consideration of the motion for continuance, and that the Board reached its decision to grant the continuance only after deliberation and consideration of the parties' arguments. Employee further represents that the Board orally explained its reasons for granting the continuance shortly after its deliberations on the matter; therefore, Employee contends, the Board fulfilled its obligations under 19 Del. C. § 2348(h).
Further, Employee argues that substantial evidence was presented to the Board showing that there were extraordinary circumstances that merited the continuance because Dr. Raisis, whose testimony was essential to Employee, was unable to give a deposition prior to April 23, 2008. Employee also contends that the Board met its obligation under 19 Del. C. § 2348(h)(2) and 2348(h)(2)(b) because it gave its reasons for finding the existence of extraordinary circumstances and that Employee exercised due diligence in prosecuting his claim during the April 3, 2008 hearing.
With respect to the award of attorney's fees, Employee argues that the Board properly applied the Cox factors, and that the Board considered and rejected the same argument Employer makes here. Thus, Employee contends, the Board's award was reasonable.
Id. (citations omitted).
IV. STANDARD OF REVIEW
A decision by the Industrial Accident Board to grant a continuance will not be set aside unless it is unreasonable or capricious. In determining whether to grant a continuance, the Board must apply Section 2348(h), which states that "[r]equests for continuance may be granted only upon good cause shown by the party requesting the continuance."
Electronic Hose Rubber Co. Dravo Corp. v. Nai, 2004 WL 304356, *4 (Del. Super.) (citing In re Kennedy, 472 A.2d 1317, 1331 (Del. 1984) (holding that the Board did not abuse its discretion in denying Appellants' request for a continuance)). Both parties incorrectly argue that the "substantial evidence" standard applies with respect to the issue of the continuance, but the appropriate standard of review is whether the Board's decision was "unreasonable or capricious".
19 Del. C. § 2348(h) specifically provides that:
(2) With respect to any request for an extension of a hearing beyond 180 days from the date of the petition, the party seeking the continuance must demonstrate that good cause for such an extension exists under a specific rule of the Industrial Accident Board and extraordinary circumstances exist which warrant the award of such continuance in the interests of justice. If such extension is to be granted, the Board's order shall be accompanied by the following:
a. A specific finding stating that good cause for such an extension exists under a Rule of Procedure of the Industrial Accident Board and stating the reasons why a continuance, rather than the use of other case management measures (including, but not limited to, precluding the presentation of certain witnesses or other evidence by the party responsible for the delay), is necessary in the interests of justice;
b. In any instance where such a continuance is sought by the petitioner, a specific finding that the petitioner has demonstrated that the petitioner has prosecuted its petition with due diligence . . .
With respect to the Board's award of attorneys' fees, "[a]bsent an error of law, the standard of review for a determination of the amount to award in attorney's fees . . . is an abuse of discretion." "If the record reflects that the Board based its decision on improper or inadequate grounds, an abuse of discretion has occurred and the decision must be reversed."
Pugh v. Wal-mart Stores, Inc., 2007 WL 1518970, at * 2 (Del. Super).
Lofland v. Econo Lodge, 2009 WL 3290450, at * 2 (Del. Super.).
V. DISCUSSION
A. The Board's Decision to Grant a Continuance to a Date More than 180 Days After the Petition was Filed was Not "Unreasonable or Capricious" and was Free From Legal Error
The Board may grant a continuance to a date more than 180 days after the filing of the petition only if the party requesting the continuance can demonstrate "good cause" and "extraordinary circumstances."
"Good cause" is defined as, among other things, "the unavailability of a previously scheduled witness." "Extraordinary circumstances" includes situations where there are "unforeseen circumstance[s] beyond the control of the party seeking the continuance which would prevent the party from having a full and fair hearing."
Pepsi Bottling, 2009 WL 3532274, at * 3 (citations omitted).
Pursuant to 19 Del. C. § 2348(h)(2), if a party requests an "extension of a hearing beyond 180 days from the date of the petition . . . [and] such extension is to be granted," the Board must take additional steps and state a "specific finding" that "good cause" exists and also state why a "continuance rather than the use of other case management measures . . . is necessary in the interests of justice[.]" 19 Del. C. § 2348(h)(2)(b) also states that when the continuance is sought by the petitioner, the Board's ruling must contain "a specific finding that the petitioner has demonstrated that the petitioner has prosecuted its petition with due diligence . . ."
Id. at § 2348(h)(2)(b).
Here, Employee requested "an extension of a hearing beyond 180 days from the date of the petition," so 19 Del. C. § 2348(h)(2) applies. Therefore, Employee, as the party requesting the continuance, must first demonstrate that "good cause" and "extraordinary circumstances" exist to warrant a continuance.
An examination of the record demonstrates that Employee has demonstrated "good cause" and "extraordinary circumstances."
Dr. Raisis was the treating physician, and presumably he was in the best position to assess Employee's medical condition. Additionally, counsel for Employee stated that scheduling Dr. Raisis for deposition was difficult. Counsel stated:
[w]e usually wait for a period of time because sometimes things get cancelled. I mean quite often we will have depositions scheduled with our own office with Dr. Raisis that may mean if that hearing comes off there will be availability. So Mr. Malatesta is correct, I do not immediately when I first hear that Dr. Raisis is unavailable immediately ask for a continuance because I try to avoid asking for continuances whenever I can.
Trans. of April 3, 2009 hearing at 4.
Additionally, counsel's petition to the Board requesting a continuance stated that "the first available deposition date for Dr. Raisis [was] June 12, 2008, which [was] tentatively reserved."
Ans. Br. Ex. D.
The importance of Dr. Raisis's testimony combined with counsel's representations and the evidence that he tried with sufficient diligence to schedule Dr. Raisis's deposition with no success demonstrates that Employee met his burden of establishing "good cause" and "extraordinary circumstances" as those terms are defined in the Industrial Accident Board Regulations.
See 19 Del. Admin C. § 1331-12.2.1.1, available at http://regulations.delaware.gov/ AdminCode/title19/1000/1300/1330/1331.shtml#TopOfPage.
Additionally, the Board's decision to grant the continuance complied with 19 Del. C. § 2348(h)(2)(a) and (b). The written decision signed by the Board on April 3, 2008 states that the Board found "good cause" to grant the continuance based on the unavailability of Dr. Raisis, and stated that Employee acted with "due diligence" in attempting to secure the deposition. The Board's decision stated that "despite due diligence on behalf of the Claimant in attempting to obtain acceptable deposition dates for their medial witness, Dr. Raisis, no deposition dates were available for Dr. Raisis prior to the April 23, 2008 hearing[.]" These findings satisfy what was required for the Board's decision to comply with the statute.
Interestingly, 19 Del. C. § 2348(h)(2) provides that the "party seeking the continuance" must demonstrate "good cause" and "extraordinary circumstances," but 19 Del. C. § 2348(h)(2)(a) only requires that the Board's decision address "good cause" and "why a continuance, rather than the use of other case management measures . . . is necessary in the interests of justice." The statute does not appear to require that the Board address "extraordinary circumstances."
"Due diligence" has been defined as "[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." Black's Law Dictionary (8th Ed. 2004).
See Ans. Br. Ex D.
Finally, the Board's decision, although minimal, implicitly expresses why a "continuance rather than the use of other case management measures . . . is necessary in the interests of justice[.]" This Court finds significant the fact that the Board stated that Dr. Raisis was the treating physician. The obvious importance of Dr. Raisis's testimony implicitly demonstrates that a "continuance . . . is necessary in the interests of justice[.]" and that no explicit discussion of any "other case management measures" was necessary under the circumstances.
19 Del. C. § 2348(h)(2)(a). The Board's decision only inferentially stated that the reason to grant a continuance was based, at least in part, on the fact that Dr. Raisis was the treating physician and that his testimony was necessary. In the future, the Board should state in at least somewhat more detail its reasons granting or denying a continuance pursuant to 19 Del. C. § 2348(h)(2).
Therefore, this Court holds that Employer has not met its burden of showing that the Board's decision to grant a continuance was "unreasonable or capricious" and holds that the Board's decision complied with 19 Del. C. § 2348(h).
Although many cases state that a discretionary ruling by the Board will not be overturned unless that decision is "arbitrary or capricious," the standard of review for overturning a grant of a continuance appears to be whether the Board's decision was "unreasonable or capricious." Compare Atwell v. Delaware Violent Crimes Comp. Bd., 1994 WL 750326, at * 3 (Del. Super.) (stating that "[w]hen an agency is given wide discretionary powers by the legislature, as here, unless the agency exercises its discretionary powers fraudulently or in an arbitrary or capricious manner without giving proper consideration to all matters which are pertinent to its decision, the judgment of the agency should not be superseded by the judgment of the [Superior] Court.") (citations omitted), with Shortess v. New Castle County, 2002 WL 388116, at * 1 (Del. Super.) (stating that "[a] discretionary ruling by a trial court or administrative body on a motion for a continuance will not be set aside unless that decision is unreasonable or capricious.") (citations omitted).
B. The Board Acted Within its Discretion in Awarding Attorneys' Fees and the Board's Decision is Free From Legal Error
The Board's authority to grant attorneys' fees is established by 19 Del. C. § 2320(10), which states in pertinent part:
a. A reasonable attorney's fee in an amount not to exceed 30 percent 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, shall be allowed . . .
In determining an appropriate award of attorneys' fees, the Board must consider the factors established by the Supreme Court in General Motors v. Cox. 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;
Gen. Motors Corp. v. Cox, 304 A.2d 55, 57 (Del. 1973). "[T]he Board should [also] consider the employer's ability to pay, and whether the Board's award is the exclusive source of the attorney's fees." Lofland v. Econo Lodge, 2009 WL 3290450, at n. 16 (Del. Super.) (citing Cox, 304 A.2d at 57).
Here, Employer argues that fees should not be awarded for the time Employee's counsel spent in moving to continue the original hearing date. Employer asserts that "it cannot be the legislative intent to award attorneys fees generated by scheduling delays and other collateral issues arising outside the employer's control."
Op. Br. at 10.
Despite Employer's assertion, the Board did address the requisite Cox factors in its decision and appropriately considered Employer's argument that the hours spent preparing for the continuance were not billable.
Board Member: Everything is billable do you have any case law that says it is not?
Mr. Malatesta: Well I would contest the Employer having to pay for a continuance that was required at no reason of their own doing. Board Member: Alright we are going to take that into consideration and we will make that determination when we decide the case . . .
Ans. Br. at 19 (citing Trans. of June 24. 2008 hearing).
Therefore, there is evidence in the record that the Board considered Employer's request and declined to adopt Employer's position. The Board appropriately considered the Cox factors and awarded a "reasonable" fee. The Board did not abuse its discretion in awarding fees for time spent preparing for the continuance.
An alternative basis for holding against Employer on this issue is that Employer has not cited a single authority in support of its position on this issue, either before the Board or on appeal to this Court. See Gonzalez v. Caraballo, 2008 WL 4902686, at * 3 (Del. Super.) ("The failure to cite any authority in support of a legal argument constitutes a waiver of the issue on appeal.") (emphasis retained).
VI. CONCLUSION
For all the reasons stated, the decision of the Board is AFFIRMED.