Thomas Kibbie v. Killington, Ltd Opinion No. 05A-16WC



Thomas Kibbie v.Killington, Ltd. Opinion No. 05A-16WC

  1. By: Jane Woodruff, Esq.

Administrative Law Judge

For: Anne M. Noonan


State File No. Z-58225



The Commissioner previously decided this claim on February 23, 2016. Two disputed

issues were presented: (1) whether ongoing treatment for Claimant’s neck pain was within the

terms of the medical benefits foreclosed by the parties’ Modified Form 15 Settlement Agreement;

and (2) to what other medical benefits, if any, was Claimant entitled.

The Commissioner ruled in Claimant’s favor as to Defendant’s responsibility to pay for

treatment referable to his vision deficits, dental injuries, headaches and psychological condition.

She ruled against him on his claim that the Settlement Agreement did not foreclose treatment for

his cervical injury, and also on his claim for mileage reimbursement.

In accordance with 21 V.S.A. §678(e), Claimant now submits his petition for costs

totaling $719.00 and attorney fees totaling $14,752.00.

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.

The Supreme Court has held that a claimant does not automatically forfeit entitlement to

costs and fees under §678(a) merely because he or she did not prevail as to every issue litigated

at formal hearing. Hodgeman v. Jard, 157 Vt. 461, 465 (1991). With that in mind, where the

claimant only partially prevails, the commissioner typically endeavors to award only those costs

that relate directly to the successful claims. See, e.g., Hatin v. Our Lady of Providence, Opinion

No. 21S-03 (October 22, 2003).


It is not always possible to separate out the costs that are attributable to a successful claim

as opposed to an unsuccessful one, however. Here, for example, all of the costs Claimant

incurred were for Dr. Miller’s expert witness deposition. Although some portion of this

deposition was devoted to issues upon which he failed to prevail, it was a necessary component

of his success with respect to the claims he won. With that in mind, I conclude that it is

appropriate to award Claimant all of the costs he has requested, totaling $719.00.

As for attorney fees, the commissioner typically exercises the discretion granted by the

statute to award only those attorney fees that are commensurate with the extent of the claimant’s

success. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003). Other

factors deserve consideration as well, such 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. Id., and cases cited therein.

Claimant submitted a request for attorney fees totaling $14,752.00. His request was

supported by detailed time entries documenting a total of 64.5 attorney hours expended in

pursuing his claim. At $145.00 per hour, the maximum rate at which attorney fees can be

awarded to a prevailing claimant under Workers’ Compensation Rule 10.1210,1 I consider the

total amount of his fee request to be $9,352.50.

The issues upon which both parties concentrated most of their efforts were Claimant’s

entitlement to treatment for his cervical injuries, which he lost, and Defendant’s responsibility to

pay for his vision deficits, dental injuries, headaches and psychological treatment, which he won.

In monetary terms, the treatment for Claimant’s dental injuries alone are quite substantial.

Combining that treatment with ongoing treatment for his headaches, vision deficits and

psychological treatment may well exceed the costs for the cervical treatment that he also sought,

but did not prevail on.

Weighing all of these considerations, and acknowledging that the exercise of discretion in

these matters is at best an imperfect science, I find it appropriate to award Claimant one-half of

the hours he sought, or 32.25 hours. At the appropriate reimbursement rate of $145.00 per hour,

this yields a total award of $4,676.25.

Given the particular circumstances of this case, I therefore conclude that it is a proper

exercise of the discretion granted by §678(a) to apportion Claimant’s entitlement to attorney fees

with reference to the extent of his success on the various claims he litigated.

1 Rule 10.1210 is now re-codified as Rule 20.1310.



Defendant is hereby ORDERED to pay:

  1. Costs totaling $719.00; and
  2. Attorney fees totaling $4,676.25.

DATED at Montpelier, Vermont this 24th day of May 2016.


Anne M. Noonan



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.