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TALLEY v. SZABO/ARA SERVICES

Court of Appeals of Virginia
Jun 21, 1994
Record No. 2548-93-1 (Va. Ct. App. Jun. 21, 1994)

Opinion

Record No. 2548-93-1

Decided: June 21, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

(Karen M. Rye, on brief), for appellant.

(William T. Fitzhugh; Midkiff Hiner, on brief), for appellees.

Present: Judges Benton, Coleman and Willis


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Russell E. Talley contends that the Workers' Compensation Commission abused its discretion by (1) reversing the deputy commissioner's award of attorney's fees and costs assessed against Szabo/ARA Services ("employer"); and (2) reducing the total amount of attorney's fees awarded to $1500.00. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.

I.

Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Code Sec. 65.2-713 authorizes the commission to assess the whole costs of the proceedings, including a reasonable attorney's fee, against an employer who has defended any proceeding without reasonable grounds. Assessment of costs is not required in every defense of a proceeding without reasonable grounds and is left to the sound discretion of the commission. The commission's decision will not be disturbed on appeal unless there is an abuse of discretion. Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 200-01, 336 S.E.2d 903, 906 (1985); Jensen Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 522, 525-26 (1985). In reversing the deputy commissioner, the full commission found that the employer defended the claim on reasonable grounds.

The record reveals that the employer attempted to schedule an independent medical examination of Talley, which was objected to by Talley's counsel. The brief report of Dr. John A. Cardea, which was submitted by Talley in support of his application for permanent disability benefits, made no reference to Talley's prior knee injuries and to what extent those injuries contributed to Talley's disability rating. The sole dispute between the parties was over what portion of the 53% permanent partial disability rating was properly attributable to the compensable injury by accident.

The employer was entitled to challenge the sufficiency of Talley's evidence. Moreover, although the commission found for Talley, it found that his evidence "was clearly marginal." Based upon this record, we cannot say that the commission abused its discretion in refusing to assess attorney's fees and costs against the employer for defending a "clearly marginal" claim.

II.

"Code Sec. 65.1-102 [now Code Sec. 65.2-714] provides that the fees of attorneys shall be subject to approval and award of the Commission." Hudock v. Industrial Comm'n, 1 Va. App. 474, 477, 340 S.E.2d 168, 171 (1986). The commission awarded attorney's fees in the amount of $1500.00. This case was resolved by the commission without the necessity of a formal evidentiary hearing. Although Talley's attorney obtained a favorable result for him, the issues were not complex and did not require extensive preparation. Accordingly, the commission did not abuse its discretion in fixing the fee at $1500.00.

For the reasons stated, we affirm the commission's decision.

Affirmed.


Summaries of

TALLEY v. SZABO/ARA SERVICES

Court of Appeals of Virginia
Jun 21, 1994
Record No. 2548-93-1 (Va. Ct. App. Jun. 21, 1994)
Case details for

TALLEY v. SZABO/ARA SERVICES

Case Details

Full title:RUSSELL E. TALLEY v. SZABO/ARA SERVICES, ET AL

Court:Court of Appeals of Virginia

Date published: Jun 21, 1994

Citations

Record No. 2548-93-1 (Va. Ct. App. Jun. 21, 1994)