Delaware Superior Court will overturn the Board’s award of attorney’s fees only for an abuse of discretion.

After a serious work injury, the claimant received compensation benefits that included several permanencies. He later filed a petition seeking to add the back as an additional body part, which was withdrawn without prejudice since the medical bills at issue were already paid by the carrier. The claimant then had additional treatment to his back with Dr. X, which the employer refused to pay, leading the claimant to file a DACD Petition, which was granted in its entirety by the Board and included the claimant’s counsel being awarded a reasonable attorney’s fee that was computed to be the lessor $9,400 or 30% of the value of the award. The Board created some confusion by not specifying the amount of the medical bills that were to be paid or the amount on which the award of attorney’s fees was to be based.

Claimant’s counsel demanded from employer’s counsel the payment of an attorney’s fee of $9,400. The employer refused and then filed a motion for re-argument to have the award of attorney’s fees reduced. The Board modified the amount of the counsel fee to $5,417.87, which it indicated was a reasonable fee and not in excess of 30% of the value of the award. The claimant appealed to the Delaware Superior Court, arguing the Board failed to conduct a proper analysis of the relevant factors under Cox v. General Motors Corp., 304 A.2d 55(Del.1973), which are:

1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3. The fees customarily charged in the locality for similar legal services;
4. The amount involved, and the results obtained;
5. The time limitations imposed by the client or by the circumstances;
6. The nature and length of the professional relationship with the client;
7. The experience, reputation and ability of the lawyer or lawyers performing the services;
8. Whether the fee is fixed or contingent;
9. The employer’s ability to pay; and
10. Whether fees and expenses have been received, or will be received, from any other source.

In considering the Cox factors, the court stated that, based on prior case law, the Board need not isolate and analyze each of them individually. Further, if the Board does not discuss each of the factors in its written decision, it does not constitute an abuse of discretion. Rather, it is sufficient that the record establish that the Board did consider the Cox factors in reaching its decision on the fee issue.

In this appeal, claimant’s counsel asked the court to find that he was due an award of attorney’s fees based on all of the medical bills the employer had ever paid in relation to the back injury, not just those from Dr. X that were at issue on the DACD petition. However, the court determined that those prior bills had never really been in dispute and that, accordingly, the claimant had not received a favorable change or benefit from the mere recognition of past bills the carrier had already paid. The court concluded that the Board’s decision on appeal had only awarded the claimant payment for the medical bills of Dr. X, which were in the amount of $2,095, as opposed to the previously paid bills, which were in the much higher amount of $10,072. The court concluded that the claimant failed to show that the Board had abused its discretion in reducing the counsel fee. Further, the court reasoned that, since there was no award for those previously paid bills, the Board was likewise correct in refusing to award an attorney’s fee for those bills. Accordingly, the Board’s decision awarding the reduced counsel fee of $5,417.87 was affirmed.

_{Case Law Alerts, 3rd Quarter, July 2016}

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