30A-10WC. Arnold Griggs v. New Generation Communication.

• Court: Vermont

Vermont Workers Compensation 2010. 30A-10WC. Arnold Griggs v. New Generation Communication Arnold Griggs v. New Generation Communication(December 29, 2010)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 30A-10WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Valerie Rickert Acting CommissionerState File No. P-15250RULING ON CLAIMANT'S PETITION FOR ATTORNEY FEES AND COSTSThe Commissioner previously decided this claim on October 1, 2010. Among the issues presented were Claimant's entitlement to temporary total disability benefits for a three-month period following his February 2006 fusion surgery, the extent of the workers' compensation "holiday" Defendant enjoyed following Claimant's settlement of two third-party actions, and Claimant's entitlement to penalties and interest. The Commissioner ruled in Claimant's favor on the issues relating to the extent of Defendant's workers' compensation "holiday." She awarded him temporary disability benefits for one-half of the period he had sought, and declined to award either penalties or interest. In accordance with 21 V.S.A. §678(e), Claimant now has submitted his petition for costs totaling $3,112.01 and attorney fees totaling $20,481.50.(fn1) According to 21 V.S.A. §678(a), when a claimant prevails after formal hearing necessary litigation costs "shall be assessed" against the employer. The commissioner has discretion to award attorney fees to a prevailing claimant as well. The Supreme Court has held that a claimant does not automatically forfeit entitlement to costs and fees under §678(a) merely because he or she did not prevail as to every issue litigated at formal hearing. Hodgeman v. Jard, 157 Vt. 461, 465 (1991). With that in mind, where the claimant only partially prevails, the Commissioner typically endeavors to award only those costs that relate directly to the successful claims. See, e.g., Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003). It is not always possible to separate out the costs that are attributable to a successful claim as opposed to an unsuccessful one, however. Here, for example, the costs incurred in pursuing Claimant's claim for three months' worth of temporary disability benefits were no more or less than they would have been had he only sought the six weeks' worth that he was awarded. The same is true of Claimant's unsuccessful claim for...