Brand v. Department of Labor & Industries

139 Wash. 2d 659
CourtWashington Supreme Court
DecidedDecember 16, 1999
DocketNo. 67319-5
StatusPublished
Cited by116 cases

This text of 139 Wash. 2d 659 (Brand v. Department of Labor & Industries) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brand v. Department of Labor & Industries, 139 Wash. 2d 659 (Wash. 1999).

Opinions

Madsen, J.

Catherine Brand seeks review of a published Court of Appeals decision ordering a reduction and recalculation of the attorney fees awarded to her in a workers’ compensation case. Brand argues that an award of attorney fees under RCW 51.52.130 should be calculated without regard to the worker’s overall recovery on appeal, and should not exclude fees for work done on unsuccessful claims. We agree, and hold that attorney fees awarded under RCW 51.52.130 should not be limited by the worker’s degree of success. However, we agree with the Court of Appeals’ conclusion that the trial court failed to make adequate written findings justifying the award of attorney fees in this case. Accordingly, we remand to the trial court to make specific findings regarding the attorney fees award in a manner consistent with this opinion.

FACTS

Catherine Brand injured her left knee in 1978 while working as an assistant manager at the Sherwood Apartments. The Department of Labor and Industries (Department) found her injury to be work related and, accordingly, granted Brand’s workers’ compensation claim. Over the course of the next few years, Brand underwent seven knee surgeries and received physical therapy. In 1991, the Department closed Brand’s claim on the basis that treatment was no longer necessary and there was no additional permanent partial disability.

Ms. Brand then appealed to the Board of Industrial Insurance Appeals (Board). The Board found that, as of 1992, Brand’s knee condition was fixed and stable, and she would not benefit from any further curative treatment. The Board affirmed the Department’s award for a permanent partial impairment of 30 percent of the value of the left lower leg. [663]*663In addition to Brand’s knee injury, the Board determined that Ms. Brand suffered from a “Category l”1 low back strain that was causally related to her knee injury. Clerk’s Papers (CP) at 83.

Ms. Brand appealed the Board’s decision to the Superior Court, claiming to be totally disabled and incapable of gainful employment. In the alternative, Brand asserted that the partial disabilities to her knee and back were more severe than the Board and Department had found. Ms. Brand sought $113,583 in pension benefits and/or additional time-loss compensation.

The jury affirmed the Board’s finding that Brand was not totally permanently disabled and did not need further treatment for either her knee or back. Additionally, the jury rejected Brand’s argument that she was temporarily disabled between May 1987 and October 1990 and between May 1991 and January 1992. However, the jury disagreed with the Board’s assessment of the degree of Brand’s injury. The jury increased Ms. Brand’s partial disability award for her knee from 30 percent to 40 percent and her low back injury from category one to category two.2 The verdict resulted in a one-time benefit for Ms. Brand in the amount of $3,120.

Ms. Brand’s attorneys requested attorney fees under RCW 51.52.130, which provides that the court shall fix a reasonable fee for the services of a worker’s attorney if the Board’s decision is reversed or modified and additional relief is granted to the worker on appeal. RCW 51.52.130. Tacoma attorney David Vail, Ms. Brand’s first attorney who represented Brand before the agency and prepared her case for trial, claimed 42.85 hours at $200 an hour for himself and 17.5 hours at $125 for his associate, for a total [664]*664of $10,757.50. Christine Foster, Ms. Brand’s Seattle attorney who took over the case at trial, requested fees totaling $29,637.3

The trial court awarded Brand $25,000 in attorney fees, together with $1,949.09 in taxable costs for legal services performed on all the issues before the court. The court allocated $6,000 to Brand’s first attorney, and $19,000 to her second attorney. The trial court did not enter any written findings or conclusions regarding the attorney fees award, but provided this general explanation:

The total fee — and I’m going to split it out and just tell you where I would come out — would be $25,000. And I would allocate 19,000 of that to [Ms. Foster] and 6,000 of that to Mr. Vail, because even though he had time sitting around in the courtroom, he in fact didn’t do it, but turned it over to [Ms. Foster] ....
Basically what I did — and I’ll be honest with you. I tend to round things off. I took your $185 an hour. You had 98.8 and you had 12 and a half, and I just don’t think that’s all there. I took 100 hours at $185 an hour. I put it at a little more than that. I came to 19,000. And like I said, I rounded it.
On the other side, I went down. I took [Mr. Vail’s associate] at less than that, and I also reduced Mr. Vail’s, when I did my initial calculation, and I did that kind of arbitrarily. I did not put his full hours in. But in any event, the hours would not have been more than $185 an hour. It would not have been more for him than any of the prevailing trial attorneys.
Within the parameters of that, using his numbers, I put arbitrarily $100 an hour for [Mr. Vail’s associate] and I came out to a little over 10,000. I, frankly, reduced those, because of all the stand-around time that was not productive time.

Verbatim Report of Proceedings (RP) at 17-19 (June 21, 1996).

When asked by the Department whether Ms. Brand could [665]*665recover attorney fees for all issues, including those on which she failed to prevail, the trial court responded: “On all issues, yes. I don’t think that they have to win on all of them to do it.” RP at 19 (June 21, 1996). The Department appealed the award of attorney fees.

The Court of Appeals reversed and remanded the case for a recalculation of the attorney fees award. Brand v. Department of Labor & Indus., 91 Wn. App. 280, 959 P.2d 133 (1998). According to the Court of Appeals, the trial court’s explanation of the basis for the attorney fees award was inadequate and failed to contain detailed findings about the hourly rate and total hours for each attorney. Id. at 293. On remand, the Court of Appeals directed the trial court to consider Brand’s “very limited success at trial,” and to segregate costs and fees attributable to Brand’s successful claims from those costs and fees attributable to Brand’s unsuccessful claims. Id. at 294, 297. The court concluded that any award of attorney fees for the unsuccessful claims should be supported by reasons included in the trial court’s written findings. Id. at 297. Brand petitioned for review.

ANALYSIS

This court reviews the reasonableness of attorney fees awards under an abuse of discretion standard. Progressive Animal Welfare Soc’y v. University of Wash., 114 Wn.2d 677, 688-89, 790 P.2d 604 (1990).

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Bluebook (online)
139 Wash. 2d 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brand-v-department-of-labor-industries-wash-1999.