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Gloria Crowe v. The Fonda Group, Inc. (May 2, 2011)

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Gloria Crowe v. The Fonda Group, Inc. (May 2, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gloria Crowe Opinion No. 02A-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Fonda Group, Inc.
For: Anne M. Noonan
Commissioner
State File No. S-13358
RULING ON CLAIMANT’S MOTION FOR ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on January 25, 2011. Two issues were presented: first, whether Claimant was entitled to permanency benefits in accordance with Dr. Backus’ 18% whole person rating or Dr. Johansson’s 5% rating; and second, whether Defendant was obligated to sign a treatment authorization form that it felt was overly broad and therefore objectionable.
As to the first issue, the Commissioner ruled that Dr. Backus had applied a more appropriate analysis to determining Claimant’s impairment than Dr. Johansson had, but that his rating still was deficient because it relied on outdated electrodiagnostic test results. As an alternative to awarding benefits, the Commissioner ordered Defendant to pay for repeat electrodiagnostic testing so that her permanent impairment could be rated more accurately.
As to the second issue, the Commissioner ruled in Defendant’s favor.
The Commissioner also ruled that Claimant had at least partially prevailed on her claims and therefore was entitled to an award of costs and attorney fees commensurate with the extent of her success. In accordance with that ruling, Claimant now seeks an award of costs totaling $536.83 and attorney fees totaling $8,885.50.1
Defendant objects to any award of costs or fees. It argues that because the Commissioner did not grant the relief Claimant sought – permanency benefits based on Dr. Backus’ 18% impairment rating – Claimant cannot be said to have prevailed at all.
Defendant ignores an important component of the Commissioner’s Opinion. The Commissioner did find that Dr. Backus’ analysis was more credible than Dr. Johansson’s, and in that sense Claimant did prevail. The Commissioner also found that Defendant’s failure to pay for repeat diagnostic testing when Dr. Backus first requested it was improper. Had Defendant chosen otherwise, possibly a formal hearing on the permanency issue could have been avoided. From this perspective as well, it is appropriate to consider an award of costs and fees.
1 This is in accordance with Claimant’s Amended Petition for Fees and Costs, filed on April 14, 2011.
2
Defendant is correct that Claimant has not yet proven her entitlement to an award of permanency benefits based on Dr. Backus’ 18% impairment rating. It was on those grounds that Claimant was deemed to have only partially prevailed. Commensurate with the extent of her success, she is entitled to only a partial award of costs and/or fees. See, e.g., Hill v. CV Oil Co., Opinion No. 15-09WC (May 26, 2009); Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
I conclude that Claimant is entitled to an award of her costs as submitted, totaling $536.83.
As for attorney fees, 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. Where, as here, the case has not yet reached final resolution, it is appropriate as well to consider whether the fees sought bear a reasonable relationship to the position of the case overall. Wilson v. Black, Opinion No. 54-03WC (January 28, 2004). With that factor particularly in mind, I conclude that it is appropriate to award Claimant 40% of the fees requested, or $3,554.20.
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Costs totaling $536.83; and
2. Attorney fees totaling $3,554.20.
DATED at Montpelier, Vermont this 2nd day of May 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.

Anthony Pelissier v. Hannaford Brothers (November 28, 2011)

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Anthony Pelissier v. Hannaford Brothers (November 28, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Anthony Pelissier Opinion No. 26A-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Anne M. Noonan
Commissioner
State File No. AA-03847
RULING ON CLAIMANT’S PETITION FOR ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on September 9, 2011. Claimant had presented two issues for determination: first, whether his May 2010 fusion surgery was reasonable, necessary and causally related to his 2009 work injury; and second, whether Defendant’s contribution to his group health insurance premium should have been included in his average weekly wage and compensation rate calculation. The Commissioner ruled in Claimant’s favor on the first issue, and against him on the second issue.
In accordance with 21 V.S.A. §678(e) and Workers’ Compensation Rule 10, Claimant now has submitted his petition for costs totaling $2,910.60 and attorney fees totaling $18,203.50.
According to 21 V.S.A. §678(a), when a claimant prevails after formal hearing necessary litigation costs “shall be assessed” against the employer. The commissioner has discretion to award attorney fees to a prevailing claimant as well. Id. Where the claimant prevails on some, but not all of the disputed issues, the award of fees and costs typically is tailored to cover only those costs that relate directly to the successful claims, and only those fees that are commensurate with the extent of his or her success. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003); Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
From reviewing Claimant’s petition, it does not appear that any of the requested costs reasonably can be attributed to the failed health insurance premium issue as opposed to the successful fusion surgery issue. All of the requested costs are allowed, therefore.
2
As for attorney fees, I conclude that it is both appropriate and within my discretion to reduce Claimant’s petition by ten percent, representing that portion of the time expended that is attributable to matters other than the claim upon which he prevailed. The total fee awarded, therefore, is $16,383.15.
ORDER:
Defendant is hereby ORDERED to pay:
1. Costs totaling $2,910.60; and
2. Attorney fees totaling $16,383.15.
DATED at Montpelier, Vermont this 28th day of November 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.

Patricia Jacobs v. Metz and Associates Ltd dba Valley Vista (May 14, 2012)

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Patricia Jacobs v. Metz and Associates Ltd dba Valley Vista (May 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Patricia Jacobs Opinion No. 02A-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Metz and Associates, Ltd. For: Anne M. Noonan
d/b/a Valley Vista Commissioner
State File No. Z-01481
RULING ON CLAIMANT’S PETITON FOR COSTS AND ATTORNEY FEES
The Commissioner previously decided this claim on January 11, 2012. The disputed issues were first, whether Claimant suffered from chronic regional pain syndrome causally related to her accepted work injury; and second, whether a spinal cord stimulator trial constituted reasonable and necessary medical treatment for her accepted work injury. Claimant prevailed on both issues.
In accordance with 21 V.S.A. §678(e), Claimant now has submitted her petition for costs totaling $17,571.56 and attorney and paralegal fees totaling $19,637.00.1
According to 21 V.S.A. §678(a), when a claimant prevails after formal hearing necessary litigation costs “shall be assessed” against the employer. The commissioner has discretion to award attorney fees to a prevailing claimant as well.
Objections to Costs
Defendant objects to the fees for various expert witnesses’ testimony on the grounds that they were billed at a rate in excess of $300.00 per hour, the maximum allowed by Workers’ Compensation Rule 40.110(A). The parties agreed that the billing rate for Dr. Lake’s deposition testimony could exceed that amount, and therefore Claimant is entitled to recover the total billed for that deposition. In order to conform to the requirements of Rule 40.110(A), however, the bill for Dr. Lake’s formal hearing testimony, however, is reduced to $825.00.
1 Claimant seeks reimbursement for a total of 116.6 hours of attorney time and 36.6 hours of paralegal time. The reimbursement rate is $145.00 per hour for the attorney fees and $75.00 per hour for the paralegal fees, which yields a total fee request of $19,637.00.
2
To conform to the requirements of Rule 40.110(A), the fees charged for the testimony of Claimant’s other expert witnesses must be reduced as well. Claimant is entitled to reimbursement as follows:
• For Dr. Ericson’s January 11, 2012 billing, $750.00;
• For Dr. Bucksbaum’s March 24, 2011 billing, $750.00;
• For Dr. Benoit’s June 6, 2011 billing, $300.00;
• For Dr. Bucksbaum’s September 2011 billings, $1,200.00; and
• For Dr. Zweiber’s September 22, 2011 billing, $600.00.
The total reduction in costs from those requested, therefore, is $3,250.00.
Objections to Attorney and Paralegal Fees
Out of a 42-page fee request submission, Defendant objects to twelve attorney fee entries and two paralegal fee entries. Its objections as to attorney fees center on billing entries relating to prescription drug and/or occupational therapy issues. These issues were a necessary component of Claimant’s claim to a spinal cord stimulator trial. To establish that claim, she needed to show that she had exhausted all other conservative treatment measures, including both prescription drug treatment and occupational therapy. Therefore, I conclude that the attorney fees relating to these issues are recoverable.
The two paralegal entries to which Defendant objects involved correspondence relevant to this case with Defendant’s paralegal. I conclude that they are recoverable.
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Costs totaling $14,321.56; and
2. Attorney and paralegal fees totaling $19,637.00.
DATED at Montpelier, Vermont this 14th day of May 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.

Deborah Lydy v. Trustaff Inc (April 27, 2012)

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Deborah Lydy v. Trustaff Inc (April 27, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Deborah Lydy Opinion No. 05A-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Trustaff, Inc. For: Anne M. Noonan
Commissioner
State File No. Z-63780
RULING ON CLAIMANT’S PETITION FOR ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on February 8, 2012. Claimant had presented four issues for determination. Three of the four issues related to the extent of the injuries she suffered as a result of her May 21, 2008 work accident, specifically, whether she had suffered (1) a psychological injury; (2) a left ankle injury; and/or (3) a left knee injury. The fourth issue addressed whether Defendant’s contribution to Claimant’s group health insurance premium should have been included in her average weekly wage and compensation rate calculation.
The Commissioner ruled in Claimant’s favor on the first issue, and against her on the other issues.
In accordance with 21 V.S.A. §678(e) and Workers’ Compensation Rule 10, Claimant now has submitted her petition for costs totaling $3,975.25 and attorney fees totaling $26,839.50. This amount represents a total of 194.2 hours billed, minus a 5 percent proposed reduction in consideration of the claims upon which she failed to prevail.
Defendant objects to Claimant’s fee request on the grounds that the proposed fee reduction does not adequately reflect the number of hours billed on account of her unsuccessful claims. It notes that Claimant’s attorney began representing her in July 2008 but did not allege a psychological injury until February 11, 2010. Defendant argues that any fee award should reflect this fact, and should not include the 60.2 hours billed prior to that date.
For the same reason, Defendant objects to any costs incurred prior to February 11, 2010. Last, Defendant objects to $412.41 in costs incurred after that date on the grounds that these were unrelated to Claimant’s psychological claim.
According to 21 V.S.A. §678(a), when a claimant prevails after formal hearing necessary litigation costs “shall be assessed” against the employer. The commissioner has discretion to award attorney fees to a prevailing claimant as well. Id. Where the claimant prevails on some, but not all of the disputed issues, the award of fees and costs typically is tailored to cover only those costs that relate directly to the successful claims, and only those fees that are commensurate with the extent of his or her success. Lyons v. American Flatbread, Opinion No.
2
36A-03WC (October 24, 2003); Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
I conclude from reviewing Claimant’s petition that all of the requested costs reasonably can be attributed to her successful psychological claim rather than to the claims upon which she failed to prevail. All of the requested costs are allowed, therefore.
As for attorney fees, I conclude that although Claimant’s attorney did not allege a psychological injury prior to February 11, 2010 it would be unfair to ignore entirely his work up until that date. Given the complexity of her psychological claim, Claimant would have had a much more difficult time proving her entitlement to benefits had her attorney not already been intimately familiar with the facts of her case. With this in mind, I conclude that it is reasonable to award Claimant 50 percent of the hours her attorney expended prior to February 11, 2011, or 30.1 hours.
I conclude that 18 of the attorney hours billed after February 11, 2011 were not related to Claimant’s psychological claim, and therefore these are excluded as well.
The total amount of attorney fees awarded, therefore, is $21,184.50, representing 146.1 hours billed.
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Costs totaling $3,975.25; and
2. Attorney fees totaling $21,184.50.
DATED at Montpelier, Vermont this 27th day of April 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.

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