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Tag Archive for: MOTION FOR ATTORNEY FEES AND COSTS

Sarah Mariani v. Kindred Nursing Home (January 18, 2012)

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Sarah Mariani v. Kindred Nursing Home (January 18, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Sarah Mariani Opinion No. 34A-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Kindred Nursing Home
For: Anne M. Noonan
Commissioner
State File No. X-51262
RULING ON CLAIMANT’S MOTION FOR ATTORNEY FEES AND COSTS
This claim initially came before the Commissioner by way of Defendant’s Motion to Determine Future Credit. In that motion, Defendant sought an order determining the amount of the workers’ compensation “holiday” to which it was entitled on account of Claimant’s third-party settlement, in accordance with 21 V.S.A. §§624(e) and (f). Essentially, Defendant advocated that the Commissioner establish its future credit as a fixed sum, with no further diminution for any increased share of Claimant’s third-party recovery expenses if and when the credit was spent down.
To the extent that the fixed-sum order Defendant sought made no provision for paying its future share of her third-party recovery expenses, Claimant argued against it. Instead, Claimant asserted that every time Defendant tapped into the credit – by not having to pay a workers’ compensation benefit that it otherwise would have owed – it would have to pay an additional share of the recovery expenses. This view generally comported with legal precedent both in Vermont and in other jurisdictions as well. Barney v. Paper Corporation of America, 1988 WL221243 (D.Vt.); Griggs v. New Generation Communication, Opinion No. 29-02WC (July 10, 2002); Franges v. General Motors Corp., 274 N.W.2d 392 (Mich. 1979).
The Commissioner’s ruling (a) acknowledged the amount of the credit as it currently stands, but (b) established the rate at which Defendant will have to reimburse Claimant for its additional share of her third-party recovery expenses as the credit is spent down. By doing so, in essence the Commissioner rejected Defendant’s approach to the problem and accepted Claimant’s analysis instead.
Having substantially prevailed in the proceedings before the Commissioner, Claimant now seeks an award of costs and attorney fees pursuant to 21 V.S.A. §678(a). Defendant objects on two grounds, discussed below.
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Defendant first argues that because the issue raised by its motion was decided on the basis of the parties’ legal briefs rather than following an evidentiary hearing, Claimant’s fee request is governed by Workers’ Compensation Rule 13.1300. That rule, which establishes the requirements for awarding fees “in a proceeding not requiring a formal hearing,” typically is applied to review fee requests in disputes that are concluded at the informal dispute resolution level. See, e.g., Zahirovic v. Super Thin Saws, Inc., Opinion No. 38-11WC (November 17, 2011). The rule’s requirements, which are fairly stringent, reflect the Department’s long-standing policy against awarding fees at that level except under extraordinary circumstances.
Admittedly here there was no “formal hearing” – no witnesses were sworn, no testimony was taken, no live evidence was introduced. Instead, the parties stipulated to the relevant facts and submitted the dispute for formal resolution by the commissioner on the basis of their legal arguments alone. It was, therefore, a “formal hearing resolution procedure” governed not by the specific requirements of Rule 10.1300 but by the more general mandate of §678(a). Defense counsel’s argument to the contrary is wholly without merit.
Defendant next asserts that Claimant’s request for an award of costs and fees should be denied because she did not in fact prevail. I disagree. The dispute that Defendant itself brought forward was grounded in its insistence that it had no future obligation to pay any additional third-party recovery expenses, and Claimant’s insistence that it did. By her ruling, the Commissioner adopted Claimant’s reasoning and rejected Defendant’s. Claimant thus prevailed and is entitled to an award of costs and fees.
Claimant has requested an award of costs totaling $155.53 and attorney fees totaling $4,547.00. These amounts include not only the costs and fees incurred in opposing Defendant’s original motion, but also those related to responding to Defendant’s opposition to the instant motion for costs and fees. I find that the costs and fees that Claimant incurred up to and including her initial response to Defendant’s opposition are reasonable and appropriate, and therefore these are allowed.
Claimant’s sur-reply to Defendant’s opposition stands on a different footing, however. This filing amounted to a reiteration of the same arguments she already had presented in her two previous memoranda. I find that the costs (totaling $58.90) and attorney fees (totaling $539.00) related to this filing were unnecessarily incurred and therefore are disallowed.
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ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay Claimant’s litigation costs, totaling $96.63, and attorney fees, totaling $4,008.00.
DATED at Montpelier, Vermont this 18th day of January 2012.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Enoch Rowell v. Northeast Kingdom Community Action (August 31, 2011)

Categories: Workers' Compensation Hearing DecisionTags: , , , Author:

Enoch Rowell v. Northeast Kingdom Community Action (August 31, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Enoch Rowell Opinion No. 25-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Northeast Kingdom
Community Action For: Anne M. Noonan
Commissioner
State File No. Y-58698
RULING ON CLAIMANT’S MOTION FOR ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on July 6, 2011. Among the disputed issues were (1) whether Claimant is permanently and totally disabled as a consequence of his February 2007 compensable work injury; and (2) alternatively, whether Claimant is entitled to any permanent partial disability benefits causally related to that injury.
The Commissioner ruled that although Claimant successfully established the causal relationship between his current condition and his work injury, he failed to prove that he has yet been rendered permanently and totally disabled as a result. She thus denied Claimant’s claim for permanent total disability benefits. As to permanent partial disability benefits, the Commissioner ruled entirely in Claimant’s favor.
The Commissioner also ruled that Claimant had at least partially prevailed on his claims and therefore was entitled to an award of costs and attorney fees commensurate with the extent of his success. In accordance with that ruling, Claimant now seeks an award of costs totaling $3,121.23 and attorney fees totaling $11,607.25. Defendant objects to the request on various grounds.
With the exception of the costs related to obtaining Claimant’s prior income tax returns ($171.00), I conclude that the costs he has requested are sufficiently related to the claims upon which he prevailed to merit reimbursement. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003). I therefore award Claimant costs totaling $2,950.23.
As for attorney fees, Defendant argues that the fees requested are disproportionate to the value of the permanent partial disability benefits Claimant was awarded, particularly in light of the fact that if he had prevailed on his permanent total disability claim his award would have been much greater. I disagree.
In exercising the discretion granted by 21 V.S.A. §678 the commissioner typically considers such factors as whether the attorney’s efforts were integral to establishing the claimant’s right to compensation and whether the claim for fees is proportional to the attorney’s efforts in light of the difficulty of the issues raised and the skill and time expended. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003), and cases cited therein.
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Defendant mischaracterizes the issues in this case as involving only whether Claimant was entitled to permanent total or permanent partial disability benefits. The fact is, however, that a critical issue underlying both of those claims was whether Claimant’s current condition is causally related to his compensable work injury. Against the testimony of Defendant’s own expert witness, Claimant established that it is. His claim for attorney fees must be considered in light of his success on this important issue, not solely on the basis of his permanent partial disability award.
I do agree with Defendant that more than half of the testimony at formal hearing, including that of both vocational rehabilitation experts as well as that of Mr. Tatum and Ms. Wiseman, was relevant only to Claimant’s unsuccessful claim for permanent total disability. For Claimant’s attorney to allocate only fifty percent of her pre-hearing, hearing and post-hearing hours to the issue upon which Claimant failed to prevail is questionable. A sixty-forty allocation of these fees is more equitable. Of the 65.5 hours expended, therefore, I allocate 26.2 to the claims upon which Claimant prevailed. Aside from this modification, I conclude that the remaining time entries upon which Claimant’s fee request is based are sufficiently substantiated to merit reimbursement.
Last, I note that Claimant’s fee request is based on a billing rate of $145.00 per hour for all services rendered since May 2008. This is incorrect. As the amendment to Workers’ Compensation Rule 10.1210, which raised the billing rate from $90.00 per hour to $145.00, was procedural in nature, it applies only to fees incurred after its effective date, June 15, 2010. Erickson v. Kennedy Brothers, Inc., Opinion No. 36A-10WC (March 25, 2011).
Claimant’s fee request reflects a total of 27.7 hours expended prior to June 15, 2010, which at the $90.00 rate in effect at the time amounts to $2,493.00. The hours expended after June 15, 2010 total 45.8, which at $145.00 per hour totals $6,641.00. The total awarded, therefore, is $9,134.00.
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ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Costs totaling $2,950.23; and
2. Attorney fees totaling $9,134.00.
DATED at Montpelier, Vermont this 31st day of August 2011.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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