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Holben v. Pepsi Bottling Ventures, LLC

Superior Court of Delaware, Kent

November 4, 2019

TERESA HOLBEN, Claimant-Below, Appellant,
PEPSI BOTTLING VENTURES, LLC, Employer-Below, Appellee.

          Submitted: September 9, 2019

          Walt F. Schmittinger, Esquire, & Candace E. Holmes, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware, Attorneys for the Appellant.

          Robert S. Hunt, Esquire, Franklin & Prokopik, Wilmington, Delaware, Attorney for the Appellee.



         Appellant Theresa Holben (hereinafter "Ms. Holben") appeals an Industrial Accident Board (hereinafter "IAB" or "the Board") decision. Ms. Holben challenges the amount of the attorneys' fee that the Board ordered Pepsi Bottling Ventures, LLC (hereinafter "Pepsi") to pay her. She focuses on the Board's application of the factors outlined in General Motors v. Cox.[1]

         In response, Pepsi cross-appeals and argues that the Board appropriately considered and applied the Cox factors. Pepsi also asserts that the attorneys' fee award was reasonable because the Board appropriately anchored it to the medical witness fees award. Nevertheless, Pepsi argues that the Board committed legal error by awarding her more than thirty-percent of the medical witness fees. Pepsi also challenges the Court's earlier decision holding that an attorneys' fee was available in any amount.[2] In seeking reargument on that issue, Pepsi cites authority that it did not provide to the Court in the first instance.

         For the reasons discussed below, Ms. Holben was entitled to an attorneys' fee. To the extent Pepsi seeks a different decision after reargument on that issue, its request is DENIED. Nevertheless, the Board's award exceeded the maximum amount recoverable under the statute. Accordingly, the Board's decision must be REVERSED as legal error as to the amount due. Based upon the uncontroverted record below, the fee should have been the statutory maximum of thirty-percent of the medical witness fees awarded by the Board.

         I. Facts of Record and Procedural Background

         Ms. Holben suffered a work injury on October 26, 2016. On July 25, 2017, Pepsi filed a Petition for Review, seeking to terminate her Temporary Total Disability ("TTD") benefits. Pepsi then sent a thirty-day rule offer[3] letter to Ms. Holben's attorney on January 24, 2018. In relevant part, Pepsi offered to settle the case by:

1. [p]lacing Claimant on an Open Agreement for temporary partial disability benefits at the weekly compensation rate of $146.42 . . .; and
2. [t]his offer is inclusive and does not include an award of an attorney's or medical witness' fees.[4]

         Prior to an IAB hearing and within the thirty-day period that Ms. Holben had to consider the offer, she incurred a non-refundable $1, 500 medical witness fee for Dr. Piccioni's deposition testimony. Accepting Pepsi's thirty-day rule offer would have required her to forgo payment of a medical witness fee that became non-refundable early within the thirty days. Pepsi excluded medical witness fees from its offer notwithstanding that Ms. Holben would receive them as a matter of right if she recovered any Temporary Partial Disability ("TPD") benefits after the hearing.

         After the hearing, the Board terminated her TTD benefits and awarded her TPD benefits at a weekly compensation rate of $132.86. The Board separately awarded Ms. Holben medical witness fees. It did not award her an attorneys' fee, however, because the amount of TPD benefits recovered were less than what Pepsi had offered for TPD benefits.

         Ms. Holben then appealed the IAB's decision contesting (1) the TPD compensation rate set by the Board, and separately (2) the Board's refusal to award an attorneys' fee because Ms. Holben recovered medical witness fees that Pepsi had excluded from its offer. On appeal, the Court affirmed the Board's finding regarding the amount of TPD benefits. However, the Court reversed the Board's denial of an attorneys' fee and remanded the matter.[5]

         Thereafter, on January 10, 2019, Pepsi appealed the Court's decision regarding the attorneys' fee. The Delaware Supreme Court dismissed the appeal as interlocutory because the matter had been remanded to the Board.[6] On January 11, 2019, Ms. Holben then filed an application for an attorneys' fee for legal services performed in this Court. The Court deferred Ms. Holben's application regarding any fee due for Superior Court litigation because the IAB had not yet concluded its findings on remand.[7]

         On April 17, 2019, at the remand hearing, the Board heard argument on the attorneys' fee matter and issued a written decision. In it, the Board addressed the difference between Pepsi's total settlement offer and the Board's total award.[8] The Board also addressed the Cox factors. It examined the difficulty of the case, fees customarily charged in the locality, the amounts involved, the result obtained, time limitations imposed upon Ms. Holben's counsel, and the experience and reputation of her counsel.[9] The Board awarded $500 "based on the results obtained, information and arguments presented, the Superior Court's decision, and the fact that [Ms. Holben] turned down a reasonable settlement offer that would have netted her more money than the Board's award."[10]

         Thereafter, Ms. Holben appealed the Board's decision. Pepsi, in turn, filed a cross-appeal.

         II. The Parties' Arguments

         In her appeal, Ms. Holben argues that the Board abused its discretion by basing its award upon an improper factor.[11] She further alleges that the Board failed to apply some of the Cox factors and did not explain the weight it gave to others. She also claims that the Board abused its discretion by relying on the fact that her total recovery was less than the total amount Pepsi had offered.

         In response, Pepsi argues that the Board appropriately considered the Cox factors. Additionally, it argues that the Board's attorneys' fee award is reasonable because the Board based it primarily upon Ms. Holben's success on one issue, the medical witness fees. In Pepsi's cross-appeal, it separately argues that the Board's fee award should be reduced pursuant to 19 Del. C. § 2320(10)a. That paragraph, Pepsi argues, limits it to thirty-percent of the $1, 500 award at issue. In this case, that would be $450.

         Finally, Pepsi seeks Court reconsideration of its prior decision recognizing the appropriateness of any attorneys' fee in this case.[12] Pepsi emphasizes that medical witness fees are taxed as a cost, and should not be considered compensation. It also argues that because Ms. Holben rejected an offer of TPD benefits that exceeded what she actually recovered, it would be against public policy to award them in this case. Germane to the Court's decision to readdress this issue is Pepsi's cite to allegedly mandatory authority that Pepsi did not raise before the Court's December 13, 2018 Opinion.

         In response to Pepsi's arguments on cross-appeal, Ms. Holben emphasizes that the Court's previous holding makes it the law of the case. In that regard, Ms. Holben argues that Pepsi attempts an untimely motion for reargument by asking the Court to reconsider its previous decision. Finally, she substantively argues that the new authority Pepsi cites predates relevant 1995 statutory amendments, and has been abrogated by statute.

         III. Standard of Review

         This Court's appellate review of an IAB decision is limited to determining whether the Board's decision was supported by substantial evidence and whether the Board committed an error of law.[13] Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[14]On appeal, the Court views the facts in the light most favorable to the prevailing party below.[15] Moreover, the Court does not weigh the evidence, determine questions of credibility, or make its own factual findings.[16] Absent any errors of law, which are reviewed de novo, a decision of the IAB supported by substantial evidence will be upheld unless the Board abused its discretion.[17] Questions of statutory interpretation, as questions of law, fall within the Court's de novo review.[18]

         IV. Analysis

         This appeal involves two issues: one previously decided and a new one arising after the IAB's decision on remand. With regard to the first issue, because Pepsi now cites a Delaware Supreme Court case that it alleges is controlling, the Court will address the matter in the interest of justice. The second issue on appeal involves the amount of the fee due. For the reasons that follow, the statute required an award of a fee. The IAB, however, exceeded the statutory maximum when awarding it.

         A. The 1995 Amendment to the Workers' Compensation Act included medical witness fees within the attorneys' fee provision; medical witness fees qualify as an issue that may trigger the right to recover an attorneys' fee.

         The Court provided its reasoning regarding the fee issue in its December 13, 2018 Opinion. Pepsi now cites additional authority that justifies a closer examination of the amendments to the Workers' Compensation Act ("Act").

         At the outset, pursuant to the thirty-day rule, an attorney's fee is mandatory when the claimant succeeds on an issue.[19] A claimant cannot recover the fee if, thirty days or more prior to the hearing, the employer sends a written settlement offer to the claimant or the claimant's attorney that is equal to or greater than the amount ultimately awarded to the claimant.[20] The rule requires that an attorney's fee be denied if the claimant does not exceed the employer's pre-hearing offer regarding an "issue."[21]

         Prior to a 1995 Amendment to the Act, the Act contained one provision that applied to medical witness fees. Namely, in what was then codified as 19 Del. C. § 2125, the General Assembly provided the following:

[w]itness fees . . . shall be computed at the rate allowed to witnesses in the Superior Court. Costs legally incurred may be taxed against either party or apportioned between the ...

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