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Karen Hathaway v. C & S Wholesale Grocers Inc (March 13, 2012)

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Karen Hathaway v. C & S Wholesale Grocers Inc (March 13, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Karen Hathaway Opinion No. 39A-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
C & S Wholesale Grocers, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-58166
RULING ON CLAIMANT’S MOTION FOR AWARD OF INTEREST, PENALTIES AND ATTORNEY FEES
The Commissioner previously decided this claim in Claimant’s favor on November 17, 2011. As Claimant had prevailed, the Order included an award of attorney fees. Claimant had requested $13,168.00; from this amount the Commissioner deducted $500.00. Defendant was granted two weeks within which to decide whether to challenge the reasonableness of the remaining fees, totaling $12,668.00.
Defendant did not move to challenge the remaining fees within the two-week period. Therefore, I consider the award of $12,668.00 in attorney fees to have become final on December 1, 2011. To date, Defendant has failed to remit payment of that amount to Claimant.
Claimant now seeks an award of interest, penalties and attorney fees as a consequence of Defendant’s failure to pay.
Citing to 21 V.S.A. §650(e), Claimant requests that Defendant be assessed a ten percent penalty for failing to pay attorney fees as ordered. By its plain language, that section applies only to “weekly compensation benefits or weekly accrued benefits” that are not paid in a timely manner. It does not apply to unpaid attorney fees. There is no basis in the statute, therefore, for the penalty Claimant seeks.
As for Claimant’s claim for interest and for the attorney fees incurred in pursuing the current motion, the Commissioner lacks jurisdiction to make such an award given the circumstances presented here. Rather, under 21 V.S.A. §675(a) Claimant’s remedy lies “in any court of law having jurisdiction of the amount involved.”
For the foregoing reasons, Claimant’s Motion for award of interest, penalties and attorney fees is hereby DENIED.
DATED at Montpelier, Vermont this 13th day of March, 2012.
__________________
Anne M. Noonan
Commissioner

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.

Steven Matheny v. Best foods Baking Company (November 28, 2011)

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Steven Matheny v. Best foods Baking Company (November 28, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Steven Matheny Opinion No. 18R-11WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Best Food Baking Company For: Anne M. Noonan
Commissioner
State File No. R-02092
RULING ON DEFENDANT’S REQUEST FOR RECONSIDERATION OF AWARD OF COSTS AND ATTORNEY FEES
Defendant seeks reconsideration of the Commissioner’s October 26, 2011 award of costs and attorney fees to Claimant on three grounds, discussed below.
Reimbursement for Services of Two Attorneys at Hearing
Defendant argues that the Claimant’s fee award should be reduced by $1,400.00, representing the amount charged by one of the two attorneys who appeared on his behalf at the formal hearing.
I acknowledge that the Department has in the past declined to award fees for two advocates’ appearance at a hearing. Smith v. Skyline Corp., Opinion No. 20-02WC (July 25, 2002). Rather than impose a blanket prohibition, however, the better approach is to consider whether the combined hours billed by both attorneys were “reasonably expended,” and to remove only those that were “excessive, redundant or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). I do not find that the hours billed in this claim merit exclusion under this standard. Therefore, I will not reconsider my prior award as to these fees.
Reimbursement for Fees Related to Withdrawn Back Injury
Defendant argues that Claimant’s fee award should be reduced to eliminate the hours his attorneys charged to oppose summary judgment as to lower back and rib injuries he suffered after falling in his bathtub in February 2009. Claimant alleged that the fall occurred as a result of leg weakness caused by his compensable March 2000 low back injury. Notably, a similar mechanism of injury – leg weakness causing a fall in December 2000 – was what precipitated Claimant’s right shoulder injury and led ultimately to the current litigation.
One of the issues raised by Defendant’s summary judgment motion, and addressed in Claimant’s opposition, was whether Claimant had “waived any and all claims related to his prior back injury” by withdrawing his claim for benefits related to his bathtub fall. Defendant asserts that the waiver issue had no bearing on Claimant’s shoulder injury claim. Upon closer review of
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Claimant’s opposition motion, I must concur that the viability of his right shoulder claim was never questioned on waiver grounds.
I therefore agree that Claimant’s fee award should be reduced by $841.50, representing 9.35 hours charged for opposing Defendant’s summary judgment motion.
Costs Associated with Retrieval of Utah Medical Records
Defendant argues that because Claimant himself knew that he did not treat for his right shoulder injury after moving to Utah in 2006, it was not necessary for him to have obtained and disseminated his Utah medical records, and therefore the expenses associated with doing so should be disallowed. I disagree. Medical records often are relevant not only for what they do contain, but also for what they omit. For that reason, I can well understand why counsel for both sides in a workers’ compensation litigation typically find it necessary to obtain and review the records themselves. The incurred expenses were appropriate, and I will not disallow them.
Conclusion
Considering all of the foregoing, I conclude that it is appropriate to reduce Claimant’s prior award of costs and attorney fees by $841.50.
ORDER:
The Commissioner’s prior Order, dated October 26, 2011, is rescinded, and Defendant is hereby ORDERED to pay:
1. Costs totaling $3,896.27 and;
2. Attorney fees totaling $28,133.85.
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.

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.
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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.

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

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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.

Dzevad Zahirovic v. Super Thin Saws Inc (November 17, 2011)

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Dzevad Zahirovic v. Super Thin Saws Inc (November 17, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dzevad Zahirovic Opinion No. 38-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Super Thin Saws, Inc. For: Anne M. Noonan
Commissioner
State File Nos. S-6844 and CC-56257
RULING ON DEFENDANTS’ MOTIONS TO DISMISS CLAIMANT’S PETITION FOR ATTORNEY FEES AND COSTS
Background
Claimant has worked for Defendant Super Thin Saws, Inc. (“Super Thin Saws”) for many years. His job requires him to work with machine coolants, oils and motor fluids on a daily basis. As a result of this exposure, in October 2001 Claimant was diagnosed with contact dermatitis, for which he filed a claim for workers’ compensation benefits. The workers’ compensation insurance carrier on the risk at that time was the predecessor in interest to Defendant One Beacon Insurance Co. (“One Beacon”). It accepted Claimant’s claim as compensable and paid workers’ compensation medical benefits accordingly.
Claimant again sought workers’ compensation medical benefits for contact dermatitis nearly ten years later, in April 2010. One Beacon seasonably denied the claim on various grounds. Most notably, it alleged that Claimant’s current condition represented an aggravation for which Super Thin Saws’ current workers’ compensation insurance carrier, Defendant The Hartford Insurance Co. (“The Hartford”), was liable. Aside from asserting that Claimant had not treated for his condition in the intervening ten years since his 2001 claim, One Beacon offered no evidence in support of this contention.
Through his attorney, on July 27, 2010 Claimant filed a Notice and Application for Hearing in which he disputed One Beacon’s aggravation claim. Because the medical records available at the time recounted a ten-year history of the condition and referenced a 2001 date of injury, upon review the Department determined that One Beacon was liable. By interim order dated November 18, 2010 it directed One Beacon to pay workers’ compensation benefits accordingly.
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Medical records produced subsequent to the Department’s interim order clarified that in fact Claimant had neither sought treatment nor lost time from work on account of his condition for a period of years prior to April 2010. Accordingly, on December 7, 2010 the Department notified The Hartford of its potential liability for Claimant’s current claim. The Department’s Workers’ Compensation Specialist granted The Hartford a brief extension to investigate the claim, and also scheduled an informal conference for January 3, 2011. Although it had filed a denial on that same day, during the informal conference The Hartford accepted responsibility for the claim and agreed voluntarily to pay benefits. One Beacon was thereby relieved of any responsibility for Claimant’s April 2010 injury.
On May 6, 2011 Claimant’s attorney filed the pending Petition for Attorney Fees and Costs. Defendants One Beacon and The Hartford both have moved to dismiss the petition on various grounds, discussed below.
Discussion
In support of his petition for attorney fees and costs, which he asserts should be awarded against either One Beacon or The Hartford, Claimant cites to those provisions of the workers’ compensation statute and rules dealing with awards in claims that are resolved short of formal hearing. Specifically, 21 V.S.A. §678(d) provides:
In cases for which a formal hearing is requested and the case is resolved prior to formal hearing, the commissioner may award reasonable attorney fees if the claimant retained an attorney in response to an actual or effective denial of a claim and thereafter payments were made to the claimant as a result of the attorney’s efforts.
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Workers’ Compensation Rule 10.1300 provides further guidance:
Awards to prevailing claimants are discretionary. In most instances awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in a proceeding not requiring a formal hearing where the claimant is able to demonstrate that:
10.1310 the employer or insurance carrier is responsible for undue delay in adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in misconduct or neglect, and
10.1340 that legal representation to resolve the issues was necessary, and
10.1350 the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has been responsible for any unreasonable delay in resolving the issues.
As to the timeliness of a request for an award of attorney fees, the statute specifically provides that an attorney representing a claimant “shall submit a claim for attorney fees and costs within 30 days following a decision in which the claimant prevails.” 21 V.S.A. §678(e).
Claimant clearly has failed to meet the timeliness requirement, as against either Defendant. His petition for attorney fees was not submitted until May 2011, almost six months after the Department ordered One Beacon to pay benefits and some four months after The Hartford voluntarily agreed to do so. Claimant has offered no extenuating circumstances to justify the delay, nor can I discern any reason to overlook it. That being the case, Claimant’s petition for attorney fees deserves to be rejected on those grounds alone.
Even were I to overlook the fact that Claimant’s petition for fees was not timely filed, Rule 10 provides no basis for an award against either Defendant. As against One Beacon, Claimant asserts that his claim was denied without reasonable basis (Rule 10.1320), and that his attorney’s representation was necessary to resolve the issue (Rule 10.1350). I do not accept either of these assertions. The fact that The Hartford voluntarily accepted responsibility for the benefits owed Claimant is justification enough for One Beacon’s denial. That The Hartford was even in the case, furthermore, occurred as a result of One Beacon’s advocacy, not Claimant’s. Given the ultimate disposition of the claim in One Beacon’s favor, there is no basis for an award of fees against it.
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Claimant all but concedes that Rule 10.1300 provides no basis for an award against The Hartford. Instead he argues that by accepting Claimant’s claim for benefits The Hartford somehow stepped into One Beacon’s shoes and thereby inherited One Beacon’s responsibility for attorney fees. Claimant cites no legal authority for this proposition and I cannot accept it. Even if I could, having just determined that One Beacon is not liable for Claimant’s attorney fees, there is nothing for The Hartford to inherit.
The discretion granted by §678(d) to award fees in cases that are resolved prior to formal hearing is broad. Rule 13 directs that this discretion is to be exercised only in limited circumstances, and only when specific requirements are met. This is not one of those circumstances.
Last, as for The Hartford’s request that the attorney fees it has incurred in defending Claimant’s petition be assessed against Claimant, neither the statute nor the rule authorizes me to do so.
Defendants’ Motions to Dismiss Claimant’s Petition for Attorney Fees and Costs are GRANTED. Claimant’s Petition for Attorney Fees and Costs is DISMISSED.
DATED at Montpelier, Vermont this 17th 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.

Barbara Grimes v. City of Burlington (August 8, 2012)

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Barbara Grimes v. City of Burlington (August 8, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Barbara Grimes Opinion No. 17A-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
City of Burlington
For: Anne M. Noonan
Commissioner
State File No. AA-59038
RULING ON CLAIMANT’S PETITION FOR COSTS AND ATTORNEY FEES
The Commissioner previously decided this claim on June 6, 2012. The disputed issue was whether or not Claimant’s right shoulder pain and discomfort were causally related to her compensable work related injuries. Claimant prevailed on this claim and was awarded medical benefits.
In accordance with 21 V.S.A. §678(e), Claimant submitted an initial petition for costs totaling $3,372.40 and attorney fees totaling $7,544.00. 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.
Defendant objected to several expert witness costs, specifically:
• $675.00 for Dr. Davignon’s “Depo Prep/Depo-Balance not paid by OppAtty,” dated 12/19/2011;
• $1,400.00 for “Assoc in OrthopSurg [sic] –Prepay-Dr. Frenzen Prep & Depo,” dated 1/24/2012; and
• $787.50 for “Dr. PDavignon – Telephone Testimony and Prep,” dated 4/9/2012.
Defendant argued that these costs exceeded the maximum allowed by the Workers’ Compensation Fee Schedule (Rule 40). Defendant did not raise any objection to the amount of attorney fees.
Claimant responded to Defendant’s objection with a modified request of $2,684.90. Claimant revised her request for reimbursement for Dr. Frenzen’s discovery and preservation depositions to $300.00 per deposition. As those costs comply with Rule 40, they are allowed, for a total of $600.00.
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With respect to Dr. Davignon’s deposition preparation and testimony, I find that Dr. Davignon is entitled to be reimbursed for the time he spent reviewing Claimant’s lengthy medical file, 1.75 hours at the rate of $350.00 per hour, or $612.50.1 Clearly, Claimant also is entitled to recoup the costs associated with Dr. Davignon’s deposition testimony as well, a total of 1.25 hours at $300.00 per hour, or $375.00. The total amount awarded for Dr. Davignon’s deposition preparation and testimony, therefore, is $987.50.
With respect to the formal hearing, Dr. Davignon spent 1.25 hours reviewing the medical file and 45 minutes in actual testimony. He charged $350.00 per hour for his records review. I find that this is a recoverable cost and therefore award Claimant $437.50 for this preparation. In accordance with Rule 40, Claimant is entitled to reimbursement of $300.00 for Dr. Davignon’s hearing testimony.
The total allowable of the disputed costs is $2,325.00. When added to the undisputed costs of $509.90, the sum total of allowable costs is $2,834.90.
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Costs totaling $2,834.90; and
2. Attorney fees totaling $7,544.00.
DATED at Montpelier, Vermont this 8th day of August 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.
1 Such charges, for time spent reviewing a claimant’s medical file, are to be distinguished from charges for time spent discussing the expert’s anticipated testimony with the claimant’s attorney. The latter are considered a matter of litigation strategy, and are not recoverable. Hatin v. Our Lady of Providence, Opinion No. 21S-03WC (October 22, 2003).

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.
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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.

Debra Morrisseau v. Hannaford Brothers (August 9, 2012)

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Debra Morrisseau v. Hannaford Brothers (August 9, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Debra Morrisseau Opinion No. 21A-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Anne M. Noonan
Commissioner
State File No. BB-00676
RULING ON CLAIMANT’S PETITION FOR COSTS AND ATTORNEY FEES RELATED TO SETTLEMENT OF CLAIMED PSYCHOLOGICAL INJURY
Claimant seeks an award of costs and attorney fees incurred in reaching a pre-hearing settlement with Defendant regarding coverage for psychological treatment allegedly necessitated by her compensable physical injury.
When a claimant prevails at formal hearing, Vermont’s workers’ compensation statute, 21 V.S.A. §678(a), has long provided for an award of costs and attorney fees as follows:
Necessary costs of proceedings under this chapter shall be assessed by the commissioner against the employer or its workers’ compensation carrier when the claimant prevails. The commissioner may allow the claimant to recover reasonable attorney fees when the claimant prevails. Costs shall not be taxed or allowed either party except as provided in this section.
The commissioner has discretion to award costs and fees in claims that are resolved short of formal hearing as well. As to attorney fees specifically, 21 V.S.A. §678(d) provides:
In cases for which a formal hearing is requested and the case is resolved prior to formal hearing, the commissioner may award reasonable attorney fees if the claimant retained an attorney in response to an actual or effective denial of a claim and thereafter payments were made to the claimant as a result of the attorney’s efforts.
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As to both costs and attorney fees, Workers’ Compensation Rule 10.1300 provides further guidance:
Awards to prevailing claimants are discretionary. In most instances awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in a proceeding not requiring a formal hearing where the claimant is able to demonstrate that:
10.1310 the employer or insurance carrier is responsible for undue delay in adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in misconduct or neglect, and
10.1340 that legal representation to resolve the issues was necessary, and
10.1350 the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has been responsible for any unreasonable delay in resolving the issues.
There is no evidence here that Defendant was responsible for undue delay in adjusting Claimant’s psychological injury claim, that it denied the claim without reasonable basis or that it engaged in misconduct or neglect. On that basis alone, I conclude that Claimant has not proven her entitlement to an award of either costs or attorney fees.
Claimant would have me base an award of costs and fees solely on the fact that she retained an attorney to represent her, one whose efforts I agree likely contributed to the successful resolution of her psychological injury. To base an award on that criterion alone, however, would render fee awards in informal dispute resolution proceedings the norm rather than the exception. I do not consider that to be the intent of either §678(d) or Workers’ Compensation Rule 13. See, e.g., Yustin v. State of Vermont, Department of Public Safety, Opinion No. 08-12WC (March 20, 2012). Rather, the discretion granted to the commissioner should be exercised only when the statutory requirements are met. Id; Zahirovic v. Super Thin Saws, Inc., Opinion No. 38-11WC (November 17, 2011). This is not one of those circumstances.
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Claimant’s Petition for Costs and Attorney Fees is hereby DENIED.
DATED at Montpelier, Vermont this 9th day of August 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.

David Yustin v. State of VT, Dept. of Public Safety (March 20, 2012)

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David Yustin v. State of VT, Dept. of Public Safety (March 20, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
David Yustin Opinion No. 08-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
State of Vermont,
Department of Public Safety For: Anne M. Noonan
Commissioner
State File No. Y-03486
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to an award of costs and attorney fees for legal representation provided in securing the Department’s March 2008 interim order?
2. Was Claimant’s request for an award of costs and attorney fees timely filed?
FINDINGS OF FACT:
For the purposes of these cross motions, the following facts are not disputed:
1. Claimant was an employee and Defendant was his employer within the meaning of Vermont’s Workers’ Compensation Act.
2. On June 12, 2006 Claimant, a Vermont State trooper, injured his left shoulder. The injury occurred while he was working out at the Rutland County Sheriff’s Department gym in preparation for a physical fitness exam. Claimant was off duty at the time.
3. Initially Defendant denied that Claimant’s injury was compensable, on the grounds that it did not arise out of and in the course of his employment with Defendant.
4. While Claimant contested Defendant’s denial, he used accumulated sick leave to pay for his time out of work, and employer-provided health care benefits to cover his medical costs.
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5. On March 24, 2008 the Department issued an interim order requiring Defendant to pay both temporary total disability and medical benefits causally related to Claimant’s shoulder injury.
6. Defendant did not challenge the Department’s March 2008 interim order. However, rather than paying temporary disability benefits outright, instead it reinstated the sick leave Claimant had used to cover his time out of work.
7. Claimant objected to this reimbursement procedure. He argued that Defendant should have paid him the temporary disability benefits it owed in a lump sum rather than reimbursing his sick leave bank. If it had done so, then Claimant would have had funds available from the benefit award with which to pay his attorney fees.
8. Claimant pursued this issue to formal hearing. On July 17, 2009 the Commissioner ruled in Defendant’s favor, thus denying Claimant’s challenge to its sick leave reimbursement process. Claimant then appealed to the Vermont Supreme Court. On February 23, 2011 the Court issued its decision upholding the Commissioner’s determination. Yustin v. Department of Public Safety, 2011 VT 20.
9. In affirming Defendant’s right to offset Claimant’s sick leave wages against the temporary disability benefits the Department had ordered it to pay, the majority opinion in Yustin addressed the question whether the process was in fact “cost-neutral” to Claimant. Id., ¶14. Responding to the argument raised in the dissenting opinion – that the process was not cost-neutral because it deprived Claimant of a lump-sum award from which to pay his attorney fees – the majority stated:
Claimant’s argument overlooks his clear statutory right to seek from the Commissioner a reimbursement of reasonable attorney fees incurred in pursuing his claim, a right that applies even where – as here – the attorney fees are incurred prior to final hearing. See 21 V.S.A. §678(d) (authorizing an award of attorney fees incurred to secure payment of benefits in settlement after denial but before formal hearing).
Id.
10. In a footnote, the majority addressed in greater detail the dissent’s charge that Claimant’s right to seek attorney fees was “illusory,” because it was restricted by certain workers’ compensation rules limiting the circumstances under which fees could be awarded at the informal dispute resolution level. With specific reference to what is now Workers’ Compensation Rule 10.1320 – where a claim is denied “without reasonable basis” – the majority noted that there had been ample evidence in the record to support a request for attorney fees on those grounds. It concluded:
Thus, Claimant was afforded a reasonable opportunity, had he applied, to secure his attorney fees. Recovery of fees may not be guaranteed, but it is not illusory. Of course, Claimant cannot recover what he does not seek.
Id., ¶14, n.2.
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11. Claimant first sought an award of costs and attorney fees incurred in securing the Department’s March 24, 2008 interim order on April 14, 2009; however, his filing was not accompanied by a fee agreement and itemization of costs, as required by Workers’ Compensation Rule 10.7000. Although duly notified of these deficiencies, Claimant did not immediately supplement his filing, and therefore it was never ruled upon.
12. On May 9, 2011 Claimant again filed a request for an award of the costs and attorney fees associated with securing the Department’s interim order. In support of his request, Claimant asserted that in its February 23, 2011 decision the Supreme Court had enunciated a “newly discovered legal principle” – that the discretion granted by 21 V.S.A. §678(d) to award fees at the informal level could be applied to work injuries that had occurred prior to the statute’s effective date, June 11, 2008. Analogizing to the long-standing principle by which the date of a work-related injury is deemed to be the point when it becomes “reasonably discoverable and apparent,” Hartman v. Ouellette Plumbing, 146 Vt. 443, 447 (1985), Claimant argued that his right to request an award of fees and costs had only accrued as of the date when the Supreme Court’s decision was issued.
13. On November 4, 2011 the Department issued a preliminary ruling denying Claimant’s request for costs and attorney fees. It is in the context of Claimant’s appeal of this ruling that the parties have filed the pending cross motions for summary judgment.
14. Claimant has appended to his summary judgment motion a fee agreement that he executed on December 19, 2011. The agreement appears to cover his attorney’s representation for all aspects of his claim for benefits causally related to his left shoulder injury.
15. Claimant seeks an award of costs totaling $199.23 and attorney fees totaling $2,591.00. The latter amount represents 24.6 hours incurred to secure the Department’s March 24, 2008 interim order, and 2.6 hours incurred in preparing his fee request. In addition, Claimant seeks interest at the rate of 12 percent per annum from June 11, 2008 until the requested costs and fees are paid.
DISCUSSION:
1. The issue presented by these cross motions is fairly simple: whether Claimant is entitled to an award of costs and attorney fees for representation provided to secure the Department’s March 24, 2008 interim order. Resolving this question requires consideration of the statute, both as it existed at the time of Claimant’s injury and as amended in June 2008, and of Workers’ Compensation Rule 10.
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2. Vermont’s workers’ compensation statute has long provided for an award of costs and attorney fees as follows:
Necessary costs of proceedings under this chapter shall be assessed by the commissioner against the employer or its workers’ compensation carrier when the claimant prevails. The commissioner may allow the claimant to recover reasonable attorney fees when the claimant prevails. Costs shall not be taxed or allowed either party except as provided in this section.
21 V.S.A. §678(a).
3. Notably, in authorizing the award of costs and fees to a prevailing claimant §678(a) does not differentiate between the informal dispute resolution process and the formal hearing process. Both constitute “proceedings under this chapter.” Taft v. Central Vermont Public Service Corp., Opinion No. 03-11WC (January 25, 2011). In appropriate circumstances, therefore, the commissioner has long considered the discretion granted by §678(a) to extend to attorney fee awards at either level. Id.; see, e.g., Reed v. Leblanc, Opinion No. 08-05WC (January 19, 2005).
4. Indeed, it was under the authority granted by §678(a) that Workers’ Compensation Rule 10.1300 was promulgated. That rule deals specifically with attorney fee awards at the informal level, as follows:
Awards to prevailing claimants are discretionary. In most instances awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in a proceeding not requiring a formal hearing where the claimant is able to demonstrate:
10.1310 that the employer or insurance carrier is responsible for undue delay in adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in misconduct or neglect, and
10.1340 that legal representation to resolve the issues was necessary, and
10.1350 that the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has been responsible for any unreasonable delay in resolving the issues.
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5. Effective June 11, 2008 two additional subsections were added to §678, as follows:
(d) In cases for which a formal hearing is requested and the case is resolved prior to formal hearing, the commissioner may award reasonable attorney fees if the claimant retained an attorney in response to an actual or effective denial of a claim and thereafter payments were made to the claimant as a result of the attorney’s efforts.
(e) An attorney representing a claimant shall submit a claim for attorney fees and costs within 30 days following a decision in which the claimant prevails.
6. As noted above, Finding of Fact No. 9 supra, in its decision denying Claimant’s challenge to Defendant’s sick leave reimbursement process the Supreme Court specifically referenced §678(d) as an avenue Claimant could have pursued in order to recoup the costs and attorney fees he had incurred at the informal dispute resolution level. Yustin, supra at ¶14. Given that §678(d) had not yet been enacted at the time of Claimant’s 2006 injury, the reference is somewhat confusing. To decipher the Court’s intention, it is necessary to review how statutory amendments, whether substantive or procedural, are applied to pending workers’ compensation claims.
7. Vermont law provides that the amendment of a statutory provision “shall not affect any right, privilege, obligation or liability acquired, accrued or incurred” prior to the amendment’s effective date. 1 V.S.A. §214(b)(2); Myott v. Myott, 149 Vt. 573, 575-76 (1988). Phrased alternatively, this general rule of statutory construction prohibits legislative amendments that affect substantive rights from being applied retroactively. In contrast, amendments that are solely procedural can be given retroactive effect, and therefore can be applied to claims that already are pending at the time the new statute becomes effective. Id.
8. The Supreme Court has applied these well-established rules specifically to workers’ compensation claims. Citing to 1 V.S.A. §214, in Montgomery v. Brinver Corp., 142 Vt. 461, 463 (1983), the Court declared, “The right to compensation for an injury under the Workmen’s Compensation Act is governed by the law in force at the time of occurrence of such injury.” The date of an employee’s work-related injury is thus the controlling date for determining whether a substantive amendment to the statute will apply.
9. In Sanz v. Douglas Collins Construction, 2006 VT 106, the Court clarified what constitutes the “right to compensation” for the purposes of determining whether a statutory amendment is substantive or procedural. A post-injury amendment that “fundamentally changes the right to benefits or the obligation to pay them” is substantive, and cannot be applied retroactively. An amendment that does not fundamentally change pre-existing rights is procedural, and can be applied in a pending action. Id.
10. With this background, I now consider whether the statutory amendment to 21 V.S.A. §678, in which subsection (d) was added, was substantive or procedural in nature. I conclude that it was procedural.
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11. As noted above, the commissioner has long exercised the discretion granted by §678(a) to award costs and fees at the informal dispute resolution level. Workers’ Compensation Rule 10.1300 provided further clarification as to the circumstances under which this discretion would be exercised in such cases. Taft, supra. By adding subsection (d), the statute neither expanded nor contracted the commissioner’s discretion in any respect. It merely provided a more specific statutory base upon which to rest the requirements of the rule. See, Zahirovic v. Super Thin Saws, Inc., Opinion No. 38-11WC (November 18, 2011).
12. The Supreme Court’s prior ruling in this claim provides explicit support for this interpretation. As noted above, Finding of Fact Nos. 9-10 supra, at the same time that the Court referenced §678(d), it referred as well to Workers’ Compensation Rule 10. Considering both together, the Court concluded that even though the circumstances under which Claimant might qualify for an award of fees was limited by the rule, his right to attorney fees under the statute was not illusory. Yustin, supra at ¶14 and n.2.
13. Claimant argues that the addition of subsection (d) to §678 created a right to attorney fees at the informal dispute resolution level that is broader than that allowed by Workers’ Compensation Rule 10.1300. In his view, therefore, the amendment was substantive in nature. With that in mind, he asserts that when the Supreme Court in Yustin applied subsection (d) to his claim notwithstanding that his date of injury predated its enactment, in effect it signaled its intention to overrule long-standing precedent, enunciated in Montgomery and reaffirmed in Sanz, prohibiting substantive amendments from being given retroactive effect in the workers’ compensation context.
14. I will not infer from the Court’s brief reference to §678(d) its intent either to overrule prior precedent or to nullify the plain language of 1 V.S.A. §214(b)(2). It is far more plausible simply to infer from the Court’s reference that the addition of subsection (d) was procedural, not substantive.1
15. Having concluded that subsection (d) did not create any new substantive rights applicable to Claimant’s claim, I next consider whether his request for fees was timely filed.
16. Prior to the enactment of §678(e), neither the statute nor the rules imposed a specific time limit within which a prevailing claimant was to request an award of costs and attorney fees at the informal level.2 Absent any mandate, the commissioner’s discretion to award fees necessarily must be deemed to include an element of reasonableness as regards the timeliness of the request.
1 Defendant suggests that the Court may have overlooked the fact that §678(d) was not enacted until after Claimant’s injury occurred, and mistakenly referenced it without considering whether it was substantive or procedural. It is not for me to guess at the Court’s thought process in this regard.
2 Rule 10.4000 requires that evidence establishing the amount and reasonableness of a claimant’s request for an award of costs and attorney fees “shall be offered no later than the date upon which the proposed findings of fact and conclusions of law are filed with the Department.” Such filings are neither made nor required at the informal level; therefore that time limitation has no application here.
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17. That discretion since has been limited, and §678(e) now mandates that a prevailing claimant’s request for an award of fees and costs must be filed within 30 days after the favorable decision is rendered. Subsection (e) thus is analogous to a statute of limitation or repose. As such it cannot be applied retroactively to bar an action that would not yet have been barred under prior law. Sanz, supra at ¶9. In considering the timeliness of Claimant’s request in the current claim, therefore, I evaluate it not against the 30-day limit mandated by subsection (e) but rather against the more general reasonableness standard implicit in §678 and Rule 10.1300.
18. Even against this standard, however, Claimant’s request is untimely. The favorable decision upon which it was based – the Department’s March 2008 interim order – was issued more than three years ago. Without specifying a particular time frame beyond which a fee request should not be considered, In this matter I find that three years is too long.
19. As for Claimant’s argument that the delay is to be excused on the grounds that his request for attorney fees arose from a “newly discovered legal principle,” Claimant’s own actions belie this assertion. That he was well aware of his right to seek attorney fees at the informal level long before the Supreme Court reminded him of that remedy in Yustin is documented by the fact that he first requested them in 2009, two years before that decision issued.
20. Claimant’s analogy to the discovery doctrine in support of his timeliness argument is equally unavailing. It is one thing to allow that an injured worker’s obligation to seek redress for a work-related injury does not arise until the facts establishing its compensability become “reasonably discoverable and apparent,” Hartman, supra. I do not discern any basis for extending that rule to the discovery of legal remedies or principles, however, nor has Claimant cited to any legal precedent encouraging me to do so.
21. Having concluded that Claimant’s request was not timely, I need not consider whether he satisfied the criteria for an award under Rule 10.1300. Nevertheless, it is instructive to note that I do not necessarily equate the requisite finding for issuing an interim order under 21 V.S.A. §662(b) – that the employer’s denial lacks “reasonable support” – with the finding required for an award of attorney fees under Rule 10.1320 – that the employer had no “reasonable basis” for denying the claim.
22. For example, the circumstances of this case, involving as it did an off-premises, off-duty injury, justified both a complete factual inquiry and a considered legal analysis. That in the end the Department deemed Claimant’s claim to be compensable does not mean that Defendant acted unreasonably in denying it.
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23. Were I to accept the position Claimant advocates, the result would be to award attorney fees in virtually every case in which an interim order issues. This would directly contradict the language of Rule 10.1300, which authorizes an award of fees short of formal hearing only in “limited instances.” More importantly, it would unduly penalize an employer for exercising its right to thoroughly investigate the factual and legal circumstances surrounding an employee’s claim for benefits at the very stage of the proceedings when such investigation is most warranted. For these reasons, I find Claimant’s interpretation of Rule 10.1320 untenable, and I decline to adopt it.
ORDER:
Claimant’s Motion for Summary Judgment is hereby DENIED. Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s request for an award of costs and attorney fees associated with securing the Department’s March 24, 2008 interim order is DENIED.
DATED at Montpelier, Vermont this 20th day of March 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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