James Pawley v. Booska Movers/Zurich North America and York Risk Services Group (March 5, 2014)

James Pawley v. Booska Movers/Zurich North America and York Risk Services Group (March 5, 2014)
James Pawley Opinion No. 02R-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Booska Movers/Zurich North
America and York Risk Services For: Anne M. Noonan
Group Commissioner
State File Nos. CC-52769 and DD-576
The Commissioner’s Opinion and Order in the above claim issued on February 19, 2014. In it, the
Commissioner denied Claimant’s claims for temporary partial disability benefits referable to either of the
periods for which he sought them. Having thus failed to prevail, the Commissioner determined that
Claimant was not entitled to an award of costs or attorney fees under 21 V.S.A. §678.
Because the Commissioner already had determined that the facts did not support an award of temporary
partial disability benefits, it was not essential to address the legal issue the parties had disputed – whether,
if proven, any such benefits would have been subject to a maximum weekly compensation cap, as is the
case with temporary total disability benefits. Nevertheless, so as to clarify the Department’s position in
the event Claimant prevailed on appeal, the Commissioner offered additional guidance, and in effect
adopted Claimant’s stance on the question. Claimant now asserts that because he “prevailed” on this
issue, the Commissioner should “invite” him to submit a request for an award of costs and attorney fees.
Claimant cites to the Supreme Court’s ruling in McNally v. Department of PATH, 2011 VT 93, as support
for his position. The Court in that case had reversed the commissioner’s prior ruling against the claimant
and remanded the claim for further proceedings. In upholding the claimant’s subsequent claim for an
award of costs and attorney fees even though the proceedings on remand had not yet concluded, the Court
relied on the legislative intent behind §678, that is, to allow an award of attorney fees “to claimants who
prevail in appellate proceedings, even in the absence of a final judgment on the underlying claim.” Id. at
In this case, should Claimant successfully appeal the Commissioner’s denial of benefits, consistent with
the Court’s holding in McNally he will be entitled to an award of costs and attorney fees. That the
Commissioner accepted as convincing his position on a broader legal issue does not change the fact that,
at least for now, he has left this forum empty-handed. Unless and until that outcome changes, he has not
prevailed and therefore is not entitled to attorney fees.
Claimant’s Motion for Reconsideration is hereby DENIED.
DATED at Montpelier, Vermont this 5th day of March 2014.
Anne M. Noonan