Submitted: May 28, 2019
F. Wasserman, Esquire Ciconte Serba LLC.
L. Wilson, Esquire Marshall Dennehey Warner Coleman &
A. KARSNITZ JUDGE
Opinion dated April 23, 2019 I reversed the decision of the
Industrial Accident Board. I did so because I found the Board
process to be in violation of Board Rules and principles of
due process. In short I determined that the Board decided the
case by addressing and resolving an issue that was not fairly
raised in the pleadings. Because claimant succeeded on appeal
I am required by Delaware Workers' Compensation Law to
consider claimant's application for attorney's fees
for work on the appeal.
counsel to submit letter memoranda addressing the
attorney's fee issue, and they have done so. The matter
is ripe for resolution.
2350 (f) gives me substantial discretion to award
attorney's fees to a successful claimant on appeal from
the Board. I have discretion to allow a reasonable fee where
the claimant's position in the hearing before the Board
is affirmed on appeal. I "affirmed" the position
taken by claimant concerning the lack of proper pleading on
the primary issue upon which the Board decided the case. The
only limit to the fee award is that it be reasonable.
has seemed with all issues in this case the parties are in
substantial and unfortunately, liverish disagreement.
Claimant asks that I award almost $62, 000 in fees, and
supports the request with an affidavit testifying to a time
expenditure of 225 hours, and an hourly rate of $275.00. Employer
asserts emphatically that I should exercise my discretion and
award nothing. In addition in a footnote in its letter
addressing attorney's fees, Employer seems to reargue my
position was accepted by me, and my decision will result in
another hearing before the Board. It is exactly this
circumstance which to me justifies an award of attorney's
fees to a Claimant. The rub is what is reasonable.
seminal case in awarding fees to a workers' compensation
Claimant is General Motors Corp. v.
Cox. In Cox the Delaware Supreme Court
articulated the following factors to consider, most of which
come from the Delaware Rules of Professional Conduct:
(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 that acceptance of the case would preclude
other employment opportunities for the attorney.
(3) fees customarily charged in the community for similar
(4) the amount involved and the results obtained.
(5)time limitations imposed by the client or by the
(6)the nature and length of the professional relationship.
(7)the experience, reputation, and ability of the lawyer or