Delaware Supreme Court rejects the claimant's appeal and holds that board did not err in limiting award of counsel fees since it was not required to consider the non-monetary benefits gained for the claimant.

The claimant injured his shoulder and filed a petition to determine compensation due. After the hearing, the Board issued a decision in the claimant's favor and found the injury was compensable and awarded a period of total disability and medical expenses; the total value of those benefits as well as medical witness fees was $6,152.05. The Board also found that a reasonable counsel fee was in accordance with the statute the lesser of 30 percent of the award or $5,750. Since 30 percent of the award was $1,845.62, that was the fee owing to the claimant's counsel. The claimant appealed, and the Superior Court affirmed. The claimant then appealed to the Supreme Court, arguing the Board had erred in limiting the award of counsel fees. The Court did discuss case law that allows a fee award to be based on non-monetary benefits, such as the value of a finding of compensability. However, the Court emphasized that while the Board is permitted to consider the non-monetary benefits gained for the claimant by counsel, it is not required to do so in its fee calculation. Therefore, the Court rejected the claimant's appeal and held that here the Board was within its discretion in not considering the non-monetary benefits in making its fee calculation.

Case Law Alert - 1st Qtr 2010