Opinion
C.A. No. 04A-04-001 WLW.
Submitted: July 6, 2004.
Decided: October 7, 2004.
Upon Appeal of the Decision of the Industrial Accident Board. Affirmed.
J.R. Julian, Esquire of J.R. Julian, P.A., Wilmington, Delaware; attorneys for the Employer-Below/Appellant.
Walt F. Schmittinger, Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware; attorneys for the Claimant-Below/Appellee.
ORDER
Upon consideration of the parties' briefs and the record below, it appears to this Court that:
1. Playtex Products, Inc. ("Appellant") appeals the decision of the Industrial Accident Board ("Board") that awarded Gloria Woodall ("Appellee") attorney's fees in the amount of $706.17. Appellant contends that the Board erroneously considered time spent on the remand hearing and arbitrarily and capriciously awarded excessive attorney's fees. Appellant also contends that the Order from the Board was procedurally deficient and therefore invalid. Appellee contends that the Board did not err as a matter of law and did not abuse its discretion in awarding attorney's fees. For the reasons set forth below, this Court agrees with Appellee and the judgment from the Industrial Accident Board is hereby affirmed.
2. As a result of a leg injury suffered by Appellee in 1994 while employed by Appellant, Appellee and Appellant entered into an agreement whereby Appellee received compensation for her permanent impairment. Subsequently, Appellee filed a Petition to Determine Disfigurement seeking compensation for her remaining scars. On July 20, 2001, the Industrial Accident Board awarded Appellee seven weeks of benefits plus an auxiliary award of $250.00 for attorney's fees. The Board did not recite any factors upon which it relied in determining reasonable attorney's fees.
Appellee subsequently filed an appeal contesting the amount of attorney's fees awarded. The trial judge reversed and remanded the Board's decision instructing the Board to use the enunciated factors in General Motors Corp. v. Cox in determining and awarding a reasonable attorney's fee. On March 3, 2004, two days after conducting a remand hearing, the Board awarded Appellee $706.17 for attorney's fees.
304 A.2d 55 (Del.Super. 1973).
Woodall v. Playtex Products, Inc., 2002 WL 749188 (Del.Super.).
Appellant filed this appeal contending the Board's award on remand is excessive in comparison to the work required and should also be limited to the time required for the first hearing. Appellant also claims that the Board's decision was arbitrary and capricious and that actual time records are required to support Appellee's Affidavit. Finally, Appellant contends the Board's failure to sign the order is a fatal procedural defect.
3. This Court's review of an administrative agency's decision is limited to determining whether the agency's decision is free from legal error and whether substantial evidence exists to support the agency's factual findings. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." This Court will not weigh the evidence, determine questions of credibility, or make its own factual findings. Further, in reviewing this agency's decision, this Court must consider the expertise and experience of the Industrial Accident Board in accordance with the legislative purpose of the Workers' Compensation Act.
General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corp., 213 A. 2d 64, 66 (Del. 1965).
Olney v. Cooch, 425 A. 2d 610, 614 (Del. 1981).
Johnson, 213 A.2d at 66.
State v. Cephas, 637 A. 2d 20, 23 (Del. 1994).
4. The first issue this Court must decide is whether the Board erred in considering time spent on the remand hearing in its award of attorney's fees to Appellee. Appellant contends that any time spent on the remand hearing is beyond the scope of Appellee's appeal to the Superior Court and would automatically result in a greater fee. Appellant further suggests State v. Steen, the case relied on by Appellee, is inapplicable because that case was more complex and required the taking of additional testimony on remand.
719 A.2d 930 (Del. 1998).
The Supreme Court in Steen, interpreting 19 Del. C. § 2348(d) and 19 Del. C. § 2350(b) in pari materia, held parties have a right to participate and present new evidence in a remand hearing. More important, however, is 19 Del. C. § 2350(b) that provides:
Id. at 934.
In case any cause shall be remanded to the Board for a rehearing, the procedure and the rights of all the parties shall be the same as in the case of the original hearing before the Board.
Accordingly, after the case was remanded to the Board for further proceedings, Appellee retained the same rights regarding attorney's fees as held in the original hearing.
5. 19 Del. § 2320(10) allows an employee to collect reasonable attorney's fees if they were awarded compensation. The legislative purpose of this section was to relieve a successful claimant of the legal fees and expenses necessary to obtain his just compensation. Compensation under the statute has been defined broadly as to include any benefit or favorable change in the employee's position. Here, an increase in the initial award of attorney's fees would certainly be a beneficial change for Appellee. Accordingly, Appellee should be awarded reasonable attorney's fees for expenses incurred on a remand hearing if Appellee successfully increases the Board's deficient award of attorney's fees. The purpose of the statute and Workers' Compensation Act would be frustrated if Appellee was required to incur the legal expenses necessary to obtain the reasonable attorney's fees mandated by 19 Del. C. § 2320(10).
19 Del. C. § 2320(10) (a) states: A reasonable attorney's fee in an amount not to exceed 30 percent of the award . . . shall be allowed by the Board to any employee awarded compensation under Part II of this title and taxed as costs against a party.
See Ham v. Chrysler Corp., 231 A. 2d 258 (Del. 1967).
Willingham v. Kral Music, Inc., 505 A. 2d 34, 36 (Del.Super.Ct. 1985).
Appellant is correct in his assertion that employees would always be successful on remand if the time spent on the remand hearing was automatically included in the Board's calculation of reasonable attorney's fees. However, the issue on remand is whether the Board properly applied the Cox factors and awarded reasonable attorney's fees initially at the original hearing. If a Court determines that reasonable attorney's fees were awarded at the original hearing, then attorney's fees should not be awarded for legal services dedicated to the remand hearing because the employee has received no additional benefit. However, if the Board determines that the original award of attorney's fees was deficient, the Board should award reasonable attorney's fees for the time devoted to the remand hearing.
The Board's award of $706.17 to Appellee on remand is nearly three times the amount of the original award. Although the Board did not conduct an independent Cox analysis on the attorney's fees awarded based exclusively on the time and expense dedicated to the original hearing, the grave disparity between the original award and award on remand clearly indicates the Board found its original award of attorney's fees to be deficient. In other words, there is still a difference between the original award and award on remand even if the Board awarded the full 1.8 hours at $200 an hour for legal expenses incurred on remand. On remand, the Board concluded its initial award of attorney's fee was deficient and awarded Appellee reasonable attorney's fees pursuant to 19 Del. C. § 2320 (10). Appellee was also properly awarded reasonable attorney's fees for her legal expenses incurred on remand. If reasonable legal fees for the remand hearing were not recoverable, Appellee would be forced to deplete her compensation simply to obtain her statutorily mandated award of reasonable attorney's fees. This result would defeat the very purpose of the statute. Accordingly, the Board did not err in considering the legal expenses incurred on the remand hearing in calculating reasonable attorney's fees.
6. Appellant, relying on Pugh v. Dover Housing Authority, next contends the Board erred by failing to require Appellee to support his Affidavit with underlying time sheets. Under certain circumstances, as exemplified in Pugh, the Court may require attorneys to submit their underlying time sheets to support their affidavits. However, a Board may be able to determine reasonable attorney's fees based upon the record and affidavit without detailed time sheets. The Board may demand but is not required to request time sheets in evaluating reasonable attorney's fees. Accordingly, this Court rejects Appellant's notion that the Board is required to request the underlying time sheets.
1999 WL 169393 (Del.Super.).
7. The next issue this Court must decide is whether the Board's award was arbitrary, capricious, or excessive. The Board has discretion in calculating the amount of reasonable attorney's fees. However, the Board must exercise this discretion in a manner consistent with the underlying purposes of the Worker's Compensation Act. The purpose of 19 Del. C. § 2320 (10) is to preserve the benefits and awards of successful employees by decreasing the amount of attorney's fees that employees must pay from the proceeds of their awards. Absent an abuse of discretion or an error of law, an award of attorney's fees shall not be disturbed by this Court. The Board abuses its discretion when it exceeds "the bounds of reason in view of the circumstances" and ignores "recognized rules of law or practice so as to produce injustice." Further, in awarding attorney's fees, the Board must consider all of the Cox factors. These factors include:
See Simmons v. Delaware State Hosp., 660 A. 2d 384, 389 (Del. 1995).
Histed v. E.I. Du Pont de Nemours Co., 621 A. 2d 340, 342 (Del. 1993).
See DiGiacomo v. Board of Pub. Educ., 507 A. 2d 542, 547 (Del. 1986).
Id. at 546.
Firestone Tire and Rubber Co. v. Adams, 541 A. 2d 567, 570 (Del. 1988).
Cox, 304 A. 2d at 57.
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;
9. The employer's ability to pay; and
10. Whether the employee's counsel has received, or expects to receive, compensation from any other source.
Id.
8. The record indicates the Board addressed all of the Cox factors as required. The record further indicates Appellant's arguments made on appeal regarding time spent (i.e. travel time) were also argued before the Board on remand. Appellant correctly asserts that an award of reasonable attorney's fees should be based upon the Cox factors and a reasonably hourly rate as opposed to the contingency rate that Appellee ultimately agreed to pay. The record indicates the Board based its determination, at least in part, by considering the 4.8 hours expended at $200 per hour. Although this Court may not have awarded the same amount as the Board, this Court does not find the Board's award of $706.17 to be irrational or unreasonable. Accordingly, the Board did not abuse its discretion in awarding reasonable attorney's fees to Appellee. Further, after reviewing the record, this Court finds the Board did not act unreasonably or capriciously. The Board's efficient and expeditious resolution in this case should not be misconstrued as an indicator that its decision was arbitrary or capricious.
9. Appellant's final argument is that the Board's order is procedurally defective and therefore invalid because it has not been signed. The Board signed the Order "/s/" followed by their respective typed names. Appellant argues that the "/s/" refers to "conformed copy" and that the Board's Order cannot be conformed but must be an original. Appellee argues that this is the modern typewritten substitution for a handwritten signature that is intended to represent the imprimatur of the individual. This Court agrees with Appellant that "/s/" or "s/name" are used in documents that are conformed copies to enable parties to know that the original document has been signed. Accordingly, there should be an original Order containing the Officers' signatures. However, considering the modern day usage of "/s/" in e-filing, this Court concludes the Board intended "/s/" followed by their typed names to be their signatures. Further, the Hearing Officer, certifying that it is a true and correct Order of the Board, indisputably signed the Order. Accordingly, this Court finds the Board's Order to be procedurally sufficient to be valid.
Although the Court finds this Order to be valid, the better practice for the Board would be to file with the Court an Order containing handwritten signatures from each Board member.
Based on the aforementioned reasons, the Industrial Accident Board's Order dated March 3, 2004 awarding an attorney's fee of $706.17 to Appellee is hereby affirmed.
IT IS SO ORDERED.