THOMAS KIBBIE
v.
KILLINGTON, LTD.
Opinion No. 11-19WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
June 21, 2019
State
File No. Z-58225
Stephen W. Brown, Administrative Law Judge.
RULING ON CLAIMANT’S MOTION FOR SANCTIONS AND
ATTORNEYS’ FEES
Lindsay H. Kurrle, Commissioner.
I.
Background
Claimant
fell while working at Defendant’s ski resort in 2008.
As a result of that fall, he suffered multiple physical
injuries and developed significant psychological conditions,
including depression. He settled his claims for several
physical injuries in 2010, but his settlement agreement left
open his claim for medical treatment for his head, including
depression. A 2014 hearing concerning the scope of that
settlement resulted in a decision by the Department dated
February 23, 2016 (Opinion No. 05-16WC), which ordered
Defendant to pay, among other things, for Claimant’s
prescription for paroxetine, or Paxil.
A
second hearing was held in 2018. The issues at that hearing
were whether Defendant was still required to pay for
Claimant’s prescription for Paxil, whether it was also
required to pay for Claimant’s prescription for Cialis,
and whether it was responsible for an outstanding balance on
a dental bill adjusted pursuant to Workers’
Compensation Rule 40.
In a
decision dated March 1, 2019 (Opinion No. 04-19WC), the
Department held that Defendant was still required to pay for
Claimant’s prescription for Paxil. Defendant provided
no credible reason for continuing to deny payment for that
previously-ordered benefit, produced no expert testimony
supporting its continued denial, and produced no evidence of
any relevant change in circumstances since the
Department’s February 23, 2016 Order. The Department
also held, however, that Defendant was not responsible for
Claimant’s Cialis or the disputed dental balance.
II.
Attorneys’ Fees
Vermont
law provides the Commissioner with discretion to award
reasonable attorneys’ fees to a prevailing claimant in
a workers’ compensation claim. 21 V.S.A. § 678(a);
Hodgeman v. Jard Co., 157 Vt. 461, 465–66
(1991). The determination of “reasonable attorney
fees” lies “within the commissioner’s
discretion, and counsel has the burden of providing evidence
to justify an award.” Hodgeman, 157 Vt. at
466. Attorneys’ fees may be based on either an hourly
or contingency basis. When fees are requested on an hourly
basis, the hourly rate may not exceed the amounts provided in
Workers’ Compensation Rule 20.1340.
As
stated in an earlier opinion in this case, the Department
“typically exercises the discretion granted by the
statute to award only those attorney fees that are
commensurate with the extent of the claimant’s
success.” Kibbie v. Killington, Ltd., Opinion
No. 05A-16WC (May 24, 2016). Other factors deserve
consideration as well, “such as whether the
attorney’s efforts were integral to establishing the
claimant’s right to compensation and whether the claim
for fees is proportional to the attorney’s efforts in
light of the difficulty of the issues raised and the skill
and time expended.” Id., p. 2.
A.
Hourly Rate
Claimant
seeks attorneys’ fees at the rate of $200.00 per hour
for work performed between December 22, 2017 and December 21,
2018. His request is within the allowable rate for attorney
fee awards, see Workers’ Compensation Rule
20.1300, and I find that a fee award at the rate of $200.00
per hour is reasonable and recoverable.
B.
Degree of Claimant’s Success at the Formal
Hearing
Claimant
prevailed on his claim for Paxil, but not on his claims for
Cialis or the outstanding dental bill. That said, the
evidence relating to his claims for Paxil and Cialis
overlapped significantly, particularly given that Claimant
relied upon the same expert witness in support of his claims
for both drugs. Additionally, the time expended at hearing on
the dental bill was quite minor in comparison to the other
issues, and Claimant does not seek an award of any time
attributable only to the dental issue. While Claimant was
only partly successful...
