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Decembre v. Perdue Farms, LLC

Superior Court of Delaware

July 25, 2017

Milourde Decembre
v.
Perdue Farms, LLC

          David A. Boswell, Esquire Ann P. Boswell, Esquire Hudson, Jones, Jaywork & Fisher, LLC

          Amy M. Taylor, Esquire Heckler & Frabizzio

         Dear Counsel:

         This is my decision on Milourde Decembre's appeal of the Industrial Accident Board's finding that her counsel was not entitled to an attorney's fee lien on monies that Decembre claimed were payable by her employer directly to her for certain of her medical bills pursuant to 19 Del. C. §2322(b). Decembre was an employee of Perdue Farms, LLC. Decembre injured her right hand at work on November 12, 2013. Decembre was treated at Milford Memorial Hospital. Perdue paid Decembre's lost wages and medical bills relating to her treatment at Milford Memorial Hospital in accordance with the Workers' Compensation Act. Decembre was then admitted and treated for chest pain and high blood pressure at Kent General Hospital on November 16, 2013. Decembre was released from Kent General Hospital on November 19, 2013. Kent General Hospital sent its bills to Decembre. Decembre was not able to pay them.

         Decembre retained counsel on January 6, 2014. Decembre signed a Contingent Fee Agreement with her counsel providing that she would pay one-third of any recovery by her to her counsel. On March 7, 2014, Decembre's counsel sent a letter of representation to Perdue's workers' compensation claims adjuster. Decembre's counsel demanded temporary total disability benefits for a short period of time. Decembre's counsel also asserted an attorney's fee lien on any recovery by Decembre and directed that all disbursements be made out jointly to Decembre and her counsel.

         On April 28, 2014, Decembre's counsel sent a demand letter to Perdue's adjuster with all of the related medical records and bills, seeking payment of $17, 827.92 in medical expenses for Decembre's in-patient stay at Kent General Hospital, and temporary total disability benefits for a few days. Decembre's counsel also told Perdue's adjuster that the cost of the medical expenses for services procured by Decembre were to be paid directly to her pursuant to 19 Del. C. §2322(b). Decembre's counsel once again asserted that he had an attorney's fee lien on any recovery by Decembre and directed that all disbursements be made out jointly to Decembre and her counsel.

         Perdue then retained counsel. Perdue's counsel sent a letter to Decembre's counsel on April 29, 2014. Perdue's counsel noted that Decembre's hospitalization at Kent General Hospital appeared to be unrelated to Decembre's injured hand and requested that Decembre's counsel identify Decembre's treating physicians for the two years preceding her accident at work. Decembre's counsel complied with that request on May 19, 2014. Decembre's counsel made several inquiries to Perdue but received no response to her demand letter of April 28, 2014.[1]

         Decembre's counsel then obtained a report from Dr. Irwin L. Lifrak linking Decembre's hand injury to her hospital stay at Kent General Hospital. Decembre's counsel provided Dr. Lifrak's report to Perdue's counsel on April 17, 2015, and informed Perdue's counsel by letter that if she did not receive a response within 60 days she would file a petition to determine compensation due. Decembre's counsel also reminded Perdue that all costs and medical bills were to be paid directly to Decembre and her counsel's law firm under 19 Del.C. § 2322(b) and that Decembre's counsel had an attorney's fee lien on all recoveries by Decembre.

         On May 22, 2015, Perdue paid Decembre's medical providers directly and without notice to Decembre's counsel. On June 8, 2015, Decembre's counsel again sought an answer from Perdue's counsel on whether or not Perdue was accepting Decembre's claim. On June 11, 2015, Perdue's counsel told Decembre's counsel that he would review the matter with Perdue.

         Decembre filed a Petition to Determine Compensation Due on October 13, 2015. Decembre filed an additional Petition for Compensation Due on October 28, 2015. Decembre's two petitions were consolidated for a single hearing scheduled for February 18, 2016. Decembre's combined petition sought (1) payment of the Kent General Hospital bills totaling $17, 827.92, (2) an acknowledgment by Perdue that Decembre's hand injury was compensable, (3) one week of temporary total disability benefits, and (4) payment of three other medical bills totaling $1, 901.06. Perdue and Decembre then began to prepare for the hearing before the Board.

         Somewhere along the way Perdue's counsel learned that Kent General Hospital's bills had been paid. Perdue's counsel told Decembre's counsel on July 12, 2016, that most of Decembre's medical bills had been paid, including Kent General Hospital's bills. On January 14, 2016, more than thirty days prior to the scheduled hearing, Perdue agreed to pay the three remaining medical bills totaling $1901.06 directly to Decembre's counsel. Perdue also acknowledged that Decembre's hand injury was compensable and agreed to pay her temporary total disability for a week. Perdue paid the week of temporary total disability and $1, 901.06 in medical bills to Decembre and her counsel on January 18, 2016. Decembre's counsel still sought payment of his attorney's fee lien from Perdue in the amount of $4694.81, which represented one-third of Decembre's medical bills Perdue paid directly to the medical providers. Perdue rejected Decembre's counsel's demand for attorney's fees.

         On January 26, 2016, Decembre asked the Board to cancel the scheduled hearing on her combined Petition to Determine Compensation Due. Instead, the parties requested a Legal Hearing in front of the Board on the issue of attorney's fees. Specifically, Decembre's counsel sought attorney's fees of $4, 694.81, representing one-third of the medical bills that Perdue had paid on May 22, 2015, five months before Decembre filed a petition seeking recovery of the same medical bills.

         The Board held a Legal Hearing on March 16, 2016. During the hearing, Perdue conceded that Decembre's heart issues were not automatically deemed compensable. Perdue also admitted that it paid Kent General Hospital's bills on May 22, 2015, because it accepted Dr. Lifrak's report. In its Order dated April 25, 2016, the Board found that Decembre was not entitled to an award of attorney's fees because Perdue paid Decembre's medical bills prior to Decembre filing her Petition to Determine Compensation Due, thereby making her Petition moot at its inception. The Board denied Decembre's request to have it honor her counsel's attorney's fee lien because the Board felt that it only had jurisdiction to determine awards for petitions pending before it. Moreover, the Board found that the medical service providers were the proper parties to be paid because there was no dispute as to the compensability of the medical services provided. Thus, according to the Board, there was no award for Decembre's counsel's attorney's fee lien to attach to. Lastly, the Board also criticized Decembre's counsel for a lack of diligence in determining if the bills had in fact been paid before he filed the petition. Decembre then filed this appeal.

         STANDARD OF REVIEW

         The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the Superior Court on appeal from a decision of the Industrial Accident Board is to determine whether the agency's decision is supported by substantial evidence and whether the agency made any errors of law.[2] Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[3] The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings.[4] It merely determines if the evidence is legally adequate to support the agency's factual findings.[5] We review errors of law de novo.[6] Absent an error of law, the Board's decision will not be disturbed where there is substantial evidence to support its conclusions.[7]

         DISCUSSION

         Decembre argues that the Board erred when it 1) found that Decembre's counsel failed to exercise due diligence and caused the Board to hold unnecessary proceedings, 2) found that payment was due to the medical service providers and not Decembre, and 3) failed to enforce her express attorney's fee lien against the recovery made through the efforts of her counsel.[8]

         Decembre's ...


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