Opinion
No. 97C-06-036 HDR.
Submitted: December 22, 1999.
Decided: March 27, 2000.
Upon Plaintiff's Supplemental Motion in Support of Summary Judgment — GRANTED in part. DENIED in part.
John J. Schmittinger, Esq. R. Stokes Nolte, Esq., Walt F. Schmittinger, Esq. Nolte Brodoway, P.A. Schmittinger Rodriguez, P.A. Three Mill Road, Suite 304 414 South State Street Wilmington, Delaware 19806 Dover, Delaware 19903.
Nancy E. Chrissinger, Esq., Chrissinger Baumberger BY FAX U.S. Mail Three Mill Road, Suite 301 Wilmington, Delaware 19806.
Counsel:
The Court has considered your supplemental memoranda regarding Plaintiff's Motion for Summary Judgment.
In the appeal of the present case, the Delaware Supreme Court reversed the Board's award of 15% permanent partial disability after finding that it was not supported by substantial evidence. The Supreme Court then remanded the matter to the Board for additional proceedings. In this context the "matter" or subject of disagreement is the award of permanent partial disability benefits. If the Supreme Court had intended to limit the issue on remand to whether the Plaintiff was entitled to a 34% impairment or a 15% impairment, it would have included such an instruction in its opinion. When a matter is remanded to the Board for a rehearing, the procedure and the rights of all parties are the same as in the case of the original hearing before the Board. The Board must decide the matter on the basis of the evidence from the prior hearing plus any new evidence and legal arguments that the parties decide to present. The Supreme Court's decision in the present case to reverse the Board's finding of a 15% disability leads this Court to conclude that the percentage of the plaintiff's disability is fully in issue on remand. No final order exists with respect to the permanent partial disability award, because, at the new hearing on remand, the Board could decide to grant less than 15% impairment. At the rehearing, the parties will be permitted to present new evidence and legal argument to prove the percentage of the plaintiff's permanent partial disability.
Turbitt v. Blue Hen Lines, 711 A.2d 1214, 1216 (1998).
Id.
See Keeler v. Metal Masters, Del. Super., C.A. No. 97C-09-005, Ridgely, P.J. (Aug. 16, 1999).
State v. Steen, Del. Supr., 719 A.2d 930, 934 (1998).
A disagreement also exists concerning the issue of attorneys' fees. The Board awarded the plaintiff attorneys' fees at the December 5, 1996 IAB hearing. $2,250 of these attorneys' fees remain unpaid. These fees were awarded once claimant established his entitlement to a permanent partial disability award which is not yet a final order. Therefore, defendants are not presently liable for this fee award.
19 Del. C. § 1113 (c) and 2357 allow the recovery of attorneys' fees for all work necessary to the pursuit of an action to collect unpaid workers' compensation benefits and liquidated damages. While the appeal of the present case was pending, Defendants neglected to pay any of the benefits awarded by the Board. The present Huffman action was necessary to collect the plaintiff's unappealed Board awards. However, the action was premature and unnecessary with respect to the permanent partial disability award, which has not yet become final and binding. The plaintiff's attorneys are therefore entitled to reasonable attorneys' fees for their work in recovering the unappealed IAB awards.
Pugh v. Dover Housing Authority held that, in order to recover attorneys' fees, the plaintiff's attorney must submit an affidavit with time sheets showing the amount of time spent on the matter and a reasonable hourly rate. In accordance with Pugh, Plaintiff's attorneys shall submit the appropriate affidavits within five days. If Defendants object to the amount claimed, a hearing will be scheduled.
Del. Super., C.A. No. 98A-03-004, 1999 WL 169393 at *3, Steele, V.C. (Mar. 17, 1999).
For the reasons stated above, Plaintiff's Supplemental Motion in Support of Summary Judgment is GRANTED in part and DENIED in part. Counsel shall confer and submit a final order in accordance herewith within 10 days.
IT IS SO ORDERED.
Very truly yours, ___________________
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