Opinion
C.A. No. 06A-09-001-ESB.
Date Submitted: September 18, 2007.
December 12, 2007.
Eric M. Doroshow, Esquire, Nicole M. Evans, Esquire, Doroshow, Pasquale, Krawitz Bhaya, Milford, DE.
William D. Rimmer, Esquire, Heckler Frabizzio, The Corporate Plaza, Wilmington, DE.
Dear Counsel:
This is my decision on the Application For Attorneys' Fees filed by Melvin Phillips ("Phillips") after his successful appeal of the Industrial Accident Board's (the "Board") decision to terminate his total disability benefits. Phillips is a night manager for Delhaize America, Inc., which does business as Food Lion ("Food Lion"). He hurt his back at work and was receiving total disability benefits. Phillips returned to light-duty work for 11.73 hours over a week, but was unable to continue because the work hurt his back. When Phillips did not go to a medical examination, Food Lion asked the Board to hold a Legal Hearing to sanction Phillips for not going to the medical examination. The attorneys for Phillips and Food Lion then exchanged a number of phone calls and letters arguing over the proper procedure for Food Lion's plan to terminate Phillips' total disability benefits. Food Lion's attorney wanted the Board to use the Legal Hearing to terminate Phillips' benefits. Phillips' attorney argued that at the only thing that could be considered by the Board at the Legal Hearing was Food Lion's request to sanction Phillips for not attending the medical examination. The Board went ahead and terminated Phillips' total disability benefits at the Legal Hearing. Phillips then filed an appeal with the Superior Court. I reversed the Board's decision, finding that it violated Phillips' right to due process. I also remanded the matter to the Board to conduct an evidentiary hearing on the issue of whether Phillips' brief return to work amounted to a consensual termination of his benefits.
Phillips v. Delhaize America, Inc., 2007 WL 2122139 (Del.Super. July 20, 2007).
Phillips seeks attorneys' fees of $6,975.00. He argues that the Superior Court affirmed his position before the Board and that an award of attorneys' fees is appropriate at this time. Phillips' request is opposed by Food Lion. Food Lion argues that Phillips' application for attorneys' fees is premature because he has not yet been awarded anything by the Board. The award of attorneys' fees is governed by 19 Del. C. § 2350(f), which states:
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 an appeal 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 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 subschapter.
The Court may, in its discretion, award attorneys' fees where the claimant's position before the Board is affirmed on appeal. Moreover, where an appellate court reverses the Board's decision due to a legal error and where the reversal is in the claimant's favor, then the claimant may file an application for attorneys' fees.
Murtha v. Continental Opticians, Inc., 729 A.2d 312, 315 (Del.Super. 1997). Lucas v. Leaseway Motorcar Transportation, 1999 WL 1568383 (Del.Super. March 1, 1999).
Bythway v. Super Fresh Food Markets, Inc., 1999 WL 1568615 at *3 (Del. Super). See Pollard v. The Placers, Inc., 1996 WL 527211 (Del.Super.).
Phillips argued that Food Lion could not terminate his total disability benefits at the Legal Hearing. I agreed and concluded that Phillips was entitled to notice and an evidentiary hearing before his total disability benefits could be terminated. Thus, Phillips' position before the Board has been affirmed on appeal, entitling him to his attorneys' fees.
I have reviewed the factors listed in the Delaware Lawyers' Rules of Professional Conduct and determined that the amount for attorneys' fees sought by Phillips is reasonable. Therefore, I have granted Phillips' Application for Attorneys' Fees in the amount of $6,975.00.
IT IS SO ORDERED.