Opinion
C.A. No. 02A-06-010 CHT.
Submitted: November 13, 2002.
Decided: April 2, 2003. Amended: April 3, 2003.
AMENDED
On The Claimant's Appeal from the Decision of the Industrial Accident Board
Michael P. Freebery, Esquire, FREEBERY HOUGHTON, Attorney for the Employer-Below/Appellant.
Robert H. Richter, Esquire, ELZUFON, AUSTIN, REARDON, TARLOV MONDELL, Attorney for the Claimant-Below/Appellee.
OPINION AND ORDER
STATEMENT OF FACTS NATURE OF PROCEEDINGS
This is an appeal from the decision of the Industrial Accident Board (hereinafter "IAB") arising out of cross-petitions filed by the Claimant-Below/Appellee, Jennifer Serpe, and Employer-Below/Appellant, Coventry Health Care ("Coventry"). Ms. Serpe was injured on December 20, 2000 while employed by Coventry, and began to receive total disability compensation benefits sometime thereafter. On January 7, 2002, Coventry filed a petition to terminate benefits, alleging Ms. Serpe's total disability had ceased. On January 23, 2002, Ms. Serpe filed a cross petition to determine additional compensation due, seeking payment of her outstanding medical expenses.
Since the nature, extent and origin of her injury are not at issue in this appeal, the Court will adopt an abbreviated statement of facts.
The IAB held a hearing on May 8, 2002, and issued its decision on May 20, 2002. It determined that Ms. Serpe was totally disabled and denied Coventry's petition to terminate disability benefits. It also granted Ms. Serpe's petition for outstanding medical bills, as well as attorney's fees and medical witness fees.
On September 16, 2002, Ms. Serpe timely appealed, in part, the IAB's decision making three arguments. First, Ms. Serpe argues that the IAB should have awarded her two distinct attorney's fees — one for the issue of termination of benefits and a second fee for the determination of additional compensation due. She claims that since the IAB granted her relief on distinct petitions, each award merits a separate attorney's fee. Second, she argues that the IAB's decision as to the attorney's fee award is devoid of meaningful analysis, and that it is in disregard of the affidavit submitted by her counsel in support of two separate fees. Lastly, Ms. Serpe contends that the IAB's decision fails to provide the Court with a sufficient basis upon which to determine whether a single attorney's fee award is appropriate. The Court should therefore and at a minimum, remand the case to the IAB for further action relative to the issue of attorney's fees awarded.
In its October 9, 2002 response, Coventry argues that not only did the Board provide ample explanation of its determination of the appropriate attorney's fee, its decision is also supported by substantial evidence in the record. Coventry contends that the IAB has broad discretion in its decisions. That discretion includes decisions regarding attorney's fees and how attorney's fees will be addressed when there are multiple issues arising out of the same controversy presented to the IAB. As such, Coventry argues that the IAB's decision does not represent an abuse of discretion and should be affirmed. That which follows is the Court's response to the issues so raised.
It is interesting to note that Coventry disputes the amount of the outstanding medical bills as presented by Ms. Serpe in her opening brief. Ms. Serpe identifies $14,112.39 in unpaid medical expenses and complains of related "factual distortions made by Coventry in that regard. Coventry argues that the figure is much lower at $2,446.00. As the dollar amount of Ms. Serpe's unpaid medical expenses were not challenged in her initial appeal, the Court declines to address that dispute at this time.
DISCUSSION
This Court is bound by the IAB's findings if they are supported by substantial evidence and absent abuse of discretion or error of law. "Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It "is more than a scintilla and less than a preponderance" of the evidence. This Court does not weigh the evidence, determine questions of credibility or make its own findings of fact. This Court's function is to determine if the evidence is legally adequate to support the factual findings below. The Court's review of alleged errors of law is plenary. An evaluation of the IAB's decision in light of these standards requires this Court to affirm that decision.
Ohrt v. Kentmore Home, 1996 Del. Super. LEXIS 356 at 8.
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); and Streett v. State, 669 A.2d 9, 11 (Del. 1995).
City of Wilmington v. Clark, 1991 Del. Super. LEXIS 118 at 6.
Johnson v. Chrysler, 213 A.2d 64, 66 (Del. 1965).
Brooks v. Johnson, 560 A.2d 1001 (Del. 1989).
In response to Ms. Serpe's first argument, the Court notes the IAB has wide discretion as to whether it will consider the issues before it separately for purposes of an attorney's fee. In the case at bar, Ms. Serpe filed a petition to determine additional compensation due for medical expenses arising out of an injury sustained while she was employed by Coventry. This was the same injury for which she was receiving the disability benefits that Coventry sought to terminate. As such, the two petitions arose out of the same occurrence, though one did not necessarily arise out of the other. Given the breath of the Board's discretion and the nature of these petitions, the Court does not find that the Board's abused its discretion or erred as a matter law by awarding one attorney's fee for the entire litigation.
Darnell v. BOC Group, Inc., 2001 Del. Super. LEXIS 283 at 28; Simmons v. Delaware State Hospital, 660 A.2d 384, 389 (Del. 1995).
Based upon the record, the Court must also reject Ms. Serpe's claim that the IAB provided no analysis to support its attorney's fee award or that its decision failed to take into account the affidavit of attorney's fees submitted by counsel. Under 19 Del. C. § 2320, a reasonable attorney's fee is:
. . . an amount not to exceed thirty percent of the award or ten times the average weekly wage in Delaware as announced by the Secretary of Labor at the time of the award, whichever is smaller.
According to the Board, at the time of its decision, the average weekly wage in Delaware was $703.65. Industrial Accident Board Decision in the matter of Jennifer Serpe v. Coventry Health Care, I.A.B. Hearing No. 1197120, May 20, 2002 at 11.
Further, the factors that must be considered when determining what fees are due, are set forth in General Motors Corp. v. Cox. These factors include:
304 A.2d 55 (Del. 1973).
(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 a 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 limitation imposed by the client or the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation and ability of a lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
Id. at 57.
Review of the record reveals that the IAB indicated its exercise of the Cox test, and the test's application to the relationship between Ms. Serpe and her counsel. After considering each factor in turn, the IAB concluded that an attorney's fee award of $7,036.50 (representing ten times the weekly wage at the time of the decision) was fair and reasonable. The IAB went so far as to break the award down into an hourly fee, which yielded approximately two hundred and three dollars per hour for the thirty-four and one-half hours that Ms. Serpe's counsel represented he devoted to preparation for, and attendance at, her hearing.
Not only did the IAB clearly engage in meaningful analysis to determine the amount of the attorney's fee award, the award appears to this Court to be reasonable in any event. Though Ms. Serpe's counsel did submit an affidavit in support of her application that indicated that he and Ms. Serpe had a contingency agreement, and that two petitions were contemplated in his hours of preparation, there is nothing in the affidavit that either indicates the hope of two separate fee awards, nor anything that merits two such awards. The Court must therefore again conclude that the IAB's award of a single fee does not constitute an abuse of discretion and is free from legal error.
Ms. Serpe's final argument is equally unpersuasive. Although the IAB could certainly have painted a clearer picture for the Court of the mathematical method by which it determined the appropriate attorney's fee award, the Court has adequate information upon which to review the IAB's decision. Unfortunately for Ms. Serpe, her belief that the unpaid medical expenses constituted a distinct issue, and her attendant dismay that the IAB chose not to incorporate that belief into its analysis, does not render the IAB's decision incomplete. The IAB completed the requisite analysis to the Court's satisfaction by correctly applying § 2320 and the factors set forth in the Delaware Supreme Court in Cox. Nothing more is necessary, and the Court rejects the notion that a separate analysis is required in this context.
She is also incorrect as to the proper standard of review to be applied in this case. Simply put, the correct standard of review of that award is whether there was an abuse of discretion. Darnell v. BOC Group, 2001 Del. Super. LEXIS 283, aff'd, 792 A.2d 188 (Del. 2002). It is not, as Ms. Serpe suggests, a de novo review.
CONCLUSION
Based upon the foregoing, the decision of the Industrial Accident Board is supported by substantial evidence, contains no legal error and therefore must be, and hereby is affirmed.
IT IS SO ORDERED.