Opinion
C.A. No 05A-06-001 RBY.
Submitted April 24, 2006.
Decided: May 4, 2006.
Upon Consideration of Appellant's Appeal from Decision of the Industrial Accident Board AFFIRMED.
Walt F. Schmittinger, Esq., Schmittinger Rodriguez, P.A., Dover, Delaware, Attorney for Claimant-Below, Appellant.
David G. Culley, Esq., Tybout, Redfearn Pell, Wilmington, Delaware, Attorney for Employer-Below, Appellee.
OPINION
Appellant, Donna Tucker, appeals the May 18, 2005 decision of the Industrial Accident Board ("Board"), granting her Petition to Determine Additional Compensation Due. Tucker's appeal is limited to the Board's award of a single attorney's fee in the amount of $6,250.00. For the following reasons, the Board's decision is AFFIRMED.
STATEMENT OF FACTS
On May 29, 1997, Tucker was employed as a Licensed Practical Nurse at the Delaware Home and Hospital for the Chronically Ill, when she was injured by a combatant patient, who kicked Tucker in the knee. Tucker had a prior right knee injury in 1996, not caused by trauma or specific injury, which required arthroscopic surgery. Following the industrial accident, Tucker treated conservatively with orthopaedic surgeon, Richard P. DuShuttle, M.D. with medication and injections. When conservative treatment did not relieve Tucker's pain, Dr. DuShuttle performed two arthroscopic surgeries on Tucker's right knee. Ultimately, Dr. DuShuttle recommended that Tucker undergo right knee replacement. Tucker's employer, the State of Delaware, acknowledged and paid for Tucker's right knee injury. However, the State refused to pay for the right knee replacement and outstanding medical bills, as unrelated to the work injury.As a result, Tucker filed a Petition to Determine Additional Compensation, seeking $452.00 in medical bills, payment for the right knee replacement, and total disability benefits following the surgery. A hearing was convened on Tucker's Petition, and in a decision, dated May 18, 2005, the Board granted Tucker's Petition. The Board also ordered the State to pay for Plaintiff's medical witness fees, and awarded Plaintiff a single attorney's fee in the amount of $6,250.00.
STANDARD OF REVIEW
The standard of review on appeal from a decision of the Industrial Accident Board is to determine whether the Board's decision was supported by substantial evidence and free from legal error. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." This Court reviews the Board's award of a single attorney's fees for abuse of discretion.
Methodist Country House v. Wright, 2005 Del. Super. LEXIS 167, at *5.
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) ( quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966)).
Scheers v. Independent Newspapers, 832 A.2d 1244, 1248 (Del. 2003).
DISCUSSION
Tucker argues that the Board erred by making a single award of attorney's fees, and not awarding a fee for each award of worker's compensation benefits made to Tucker. A successful claimant is entitled to "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." Although the statute gives the claimant a right to an award of attorney's fees, the Board does have some discretion in determining the amount of the award. The Board's exercise of that discretion, however, must be done "in a manner consistent with the purposes of the Worker's Compensation Act."To provide additional guidance, the Delaware Supreme Court established the following list of ten factors that the Board must consider when determining an award of attorney's fees:
(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.
(10) Affidavit of the employee's attorney as to the fees and expenses, if any, received or to be received from any other source.
Id. at *8 ( citing General Motors Corp. v. Cox, 304 A.2d 55, 57 (Del. 1973)).
The Board is required to consider each factor when determining the amount of attorney's fees to award, and must "provide the Court with sufficient information on appeal to make an informed decision." The Board's "[f]ailure to consider all the factors or basing a decision on improper or inadequate grounds is an abuse of discretion." In addition, if there are multiple awards of compensation, then the Board is required to award "an attorney's fee for each separate award of compensation." If the Board grants one attorney's fee, when there are multiple awards of compensation, then the Board's decision must "clearly and unambiguously disclose how the attorney's fee award was determined." However, it is within the Board's discretion to determine how many issues exist for the purpose of awarding separate attorney's fees.
Porter, 2003 Del. Super. LEXIS, at *16.
Id. ( citing Willis v. Plastic Materials, 2003 Del. Super. LEXIS 9, at *5).
Scheers, 832 A.2d at 1248 ( citing Simmons v. Delaware State Hospital, 660 A.2d 384, 391-392 (Del. 1995)).
Id.
Darnell v. BOC Group, Inc., 2001 Del. Super. LEXIS, at *28 (Del.Super.) ( citing Simmons, 660 A.2d at 391 n. 5); see also Mountaire of Delmarva, Inc. v. Glacken, 487 A.2d 113, 1142 (Del. 1984) (holding that the Board was within its discretion to conclude that "the central issue before it was the claimant's right to continued total disability payments," and any other issues were "subsidiary to or arose from that dispute.").
In Darnell, the Superior Court upheld the Board's single award for attorney's fees, because the Board's decision explained that the matter only involved one issue. The claimant in Darnell petitioned the Board for medical expenses and disability benefits, which were related to his neck and low back injuries. Claimant's treatment immediately following the work accident was limited to his low back injury. A year after the accident, however, claimant was diagnosed with degenerative changes in his cervical spine for which he underwent surgery. The employer not only disputed the extent of claimant's low back injury, but also rejected the neck injury as not related to the accident. Ultimately, the Board awarded claimant medical expenses and disability benefits for his low back injuries, but denied any benefits for his neck injury. The Board held, and the Superior Court agreed, that a single attorney's fee for the award related to the low back injury was sufficient, because the "question of medical expenses was subsumed within the issue of causation."
Id. at *29.
Id. at *5,6.
Id. at *4.
Id. at *4,5.
Id. at *29.
Id. at *6,7.
Id. at *8.
In the present matter, Tucker argues that the Board erred by failing to make a clear, unambiguous statement, explaining why one award of attorney's fees was appropriate in a case in which multiple worker's compensation benefits were awarded. Tucker suggests that the Board's award of $452 for medical expenses, authorization for the total knee replacement surgery, and post-operative period of total disability represents three separate issues. Accordingly, Tucker argues that the Board should have awarded a separate attorney's fee for each of these items.
In support of her argument, Tucker cites Porter v. Insignia and Scheers v. Independent Newspapers. However, those are distinguishable from the case at bar. In Scheers, the employee suffered a low back injury at work, and five years later, experienced knee pain while attending physical therapy for his low back complaints. The Board considered two petitions, one filed by the employer to terminate the employee's total disability for the low back injury. The Board also considered the employee's petition for additional compensation related to the knee injury. The Board awarded the employee partial disability for the low back injury, and awarded benefits attributable to the knee injury. Factually, the issues presented to the Board in Scheers were clearly more complex in nature, and present a situation ripe for consideration of multiple issues and multiple awards of attorney's fees. In addition, the Court in Scheers explained that one attorney's fee was inappropriate, because the Board provided no guidance as to how many issues existed for the purposes of assessing attorney's fees. Porter is also distinguishable from the present case, because the Court's reversal of the Board's single award for attorney's fees was based on the Board's failure to articulate its reasoning. The Court further distinguished Darnell, finding it significant that the Board in Darnell specifically addressed the multiple awards of compensation.
2003 Del. Super. LEXIS 360.
832 A.2d 1244 (Del. 2003).
Id. at 1245.
Id.
Id.
Id. at 1246.
Id. at 1248-1249.
2003 Del. Super. LEXIS 360, at *20.
Id. at 19.
In the present matter, the Board was within its discretion to determine the number of issues for purposes of assessing attorney's fees. In considering the merits of Tucker's petition, the Board indicated that "[t]he dispute involved causation only." Therefore, any further inquiry regarding multiple issues and multiple attorney's fees is not required, because the Board indicated that only one issue existed. As in Darnell, the Board had the authority to find that the only issue was whether Tucker's knee injury was caused by the work accident. Any other related awards for medical expenses, the cost of the knee surgery, and post-surgery period of disability were subsumed within the broader issue of causation.
Darnell, 2001 Del. Super. LEXIS 283, at *28 ( citing Simmons, 660 A.2d at 391 n. 5).
Tucker v. State of Delaware, IAB Hearing No. 1107646 (May 18, 2005), at 12.
Finally, Tucker argues that the Board's treatment of the Cox factors is insufficient; because the Board merely recited, but did not provide a thorough analysis, of each factor. Tucker's argument is not persuasive. The Board's decision clearly considered each factor when determining the award of attorney's fees, as required by Cox. There is no requirement that the Board provide a detailed analysis of each factor, or give equal weight to all the factors. Rather, the Board's decision must give the Court on appeal sufficient information to make an informed decision. In this case, the Board considered each factor, and indicated that the award for attorney's fees was most influenced by the results obtained, information presented, Claimant's counsel's experience, and the nature of the task. On appeal, the Board provides sufficient information to explain the amount of attorney's fees awarded. The Board did not abuse its discretion by selecting these factors as the ones that weighed most heavily in its calculations.
CONCLUSION
After reviewing the record, this Court is satisfied that the Board did not abuse its discretion by awarding Appellant, Donna Tucker, a single attorney's fee for the disability benefits and medical expenses related to the single issue of causation. In addition, the Board properly applied the Cox factors when calculating the amount of attorney's fees. Accordingly, the Board's decision is AFFIRMED.
SO ORDERED.