18R-11WC. Steven Matheny v. Best foods Baking Company.

• Court: Vermont

Vermont Workers Compensation 2011. 18R-11WC. Steven Matheny v. Best foods Baking Company Steven Matheny v. Best foods Baking Company(November 28, 2011)STATE OF VERMONT DEPARTMENT OF LABORSteven Matheny v. Best Food Baking CompanyOpinion No. 18R-11WCBy: Jane Woodruff, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. R-02092RULING ON DEFENDANT'S REQUEST FOR RECONSIDERATION OF AWARD OF COSTS AND ATTORNEY FEES Defendant seeks reconsideration of the Commissioner's October 26, 2011 award of costs and attorney fees to Claimant on three grounds, discussed below. Reimbursement for Services of Two Attorneys at Hearing Defendant argues that the Claimant's fee award should be reduced by $1,400.00, representing the amount charged by one of the two attorneys who appeared on his behalf at the formal hearing. I acknowledge that the Department has in the past declined to award fees for two advocates' appearance at a hearing. Smith v. Skyline Corp., Opinion No. 20-02WC (July 25, 2002). Rather than impose a blanket prohibition, however, the better approach is to consider whether the combined hours billed by both attorneys were "reasonably expended," and to remove only those that were "excessive, redundant or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). I do not find that the hours billed in this claim merit exclusion under this standard. Therefore, I will not reconsider my prior award as to these fees. Reimbursement for Fees Related to Withdrawn Back Injury Defendant argues that Claimant's fee award should be reduced to eliminate the hours his attorneys charged to oppose summary judgment as to lower back and rib injuries he suffered after falling in his bathtub in February 2009. Claimant alleged that the fall occurred as a result of leg weakness caused by his compensable March 2000 low back injury. Notably, a similar mechanism of injury - leg weakness causing a fall in December 2000 - was what precipitated Claimant's right shoulder injury and led ultimately to the current litigation. One of the issues raised by Defendant's summary judgment motion, and addressed in Claimant's opposition, was whether Claimant had "waived any and all claims related to his prior back injury" by withdrawing his claim for...