McNally v. DEPARTMENT OF PATH

2011 VT 93, 31 A.3d 333, 190 Vt. 590, 2011 Vt. LEXIS 95

• Court: Supreme Court of Vermont
• Decided: August 11, 2011
• Docket: 09-450
• Status: Published

Opinions

¶ 1. Claimant Joanna. McNally seeks costs and attorney’s fees that she incurred in her appeal to this Court, which resulted in our remanding the matter for the Commissioner of Labor to make necessary findings and conclusions and to apply the appropriate law. McNally v. Dep't of PATH, 2010 VT 99, 189 Vt. 515, 13 A.3d 656 (mem.). Upon consideration of the parties’ arguments, we grant claimant’s request for an award of $1079 in costs and $13, 599 in attorney’s fees.

¶2. Before examining claimant’s request, we review the history of this ease. In 2007 and 2008, claimant experienced pain in her hands, apparently related to her job, which involved typing at a computer all day. In February 2008, claimant’s hands became swollen and painful after shoveling snow off of her roof. She went to the doctor and was diagnosed with bilateral enthesopathy. After six months of treatment and reduced work, claimant returned to work full-time. She sought workers’ compensation benefits to compensate her for her medical treatment and disability following the snow-shoveling incident. The Commissioner concluded that although claimant most likely had a chronic underlying condition before the snow-shoveling incident, she first sought treatment based on a nonwork-related event and thus was not eligible for benefits. On appeal, claimant argued that the Commissioner erred by failing to rule on whether her underlying hand injury was work-related and a contributing cause to her injury, and whether the snow-shoveling incident was a normal activity of daily living that could not be considered an intervening cause of the injury.

¶ 3. On appeal, we concluded that the Commissioner failed to make the necessary findings and conclusions to support her decision and erred in her application of the law by not addressing the critical question at issue. McNally, 2010 VT 99, ¶¶ 8-10. Accordingly, we reversed the Commissioner’s order and remanded the matter for the Commissioner to determine “whether claimant’s hand pain arose out of and in the course of her employment, how it was or was not causally related to her snow shoveling, and, if related, whether the shoveling was a normal activity of daily living.” Id. ¶ 10.

¶ 4. Relying on her status as the prevailing party in this appeal, claimant now seeks costs and attorney’s fees incurred in the appeal. The general rule regarding costs on appeal is found in § 2131 of Title 12, which provides: “In all causes of a civil nature disposed of in the supreme court, the prevailing party shall be entitled to costs, unless in its discretion, the court shall apportion costs as equity may require.” Similarly, Rule 39(a) of the Vermont Rules of Appellate Procedure provides that costs on appeal shall be taxed against the appellee if a judgment is reversed “with directions for entry of judgment for the appellant” or “with directions for a new trial.” Section 678(a) of Title 21 also allows for costs to be awarded to the prevailing party specifically in workers’ compensation cases, but that section addresses costs in proceedings before the Commissioner, as opposed to proceedings on appeal to the superior court or the Supreme Court, which are governed by § 678(b) of Title 21. See Fleury v. Kessel/Dujf Constr. Co., 149 Vt. 360, 364, 543 A.2d 703, 705-06 (1988) (noting that § 678 has two subsections, subsection (a) governing assessment of costs and attorney’s fees before Commissioner and subsection (b) governing allowance of attorney’s fees in superior and supreme courts).

¶ 5. Employer argues that because § 678(a) provides that costs “shall not be taxed or allowed either party except as provided in this section” and because § 678(b) is silent on costs, we should assume that litigants are not entitled to reimbursement for costs incurred on appeal in workers’ compensation eases. We reject this reasoning. The language in § 678(a) quoted above refers only to proceedings before the Commissioner, and not to proceedings on appeal in the superior court or this Court. Moreover, although § 678(b) does not address costs, neither does it preclude them, and nothing in Rule 39(a) limits the assessment of costs incurred on appeal in workers’ compensation cases. Cf. Perez v. Travelers Ins., 2006 VT 123, ¶ 18, 181 Vt. 45, 915 A.2d 750 (holding that, given § 678(b)’s silence as to costs, claimant cannot obtain costs on appeal in superior court beyond those allowed by Rule 54(d) of Vermont Rules of Civil Procedure, which governs the award of costs in superior court proceedings). Rule 39 implements for proceedings before the Supreme Court the basic principle set forth in § 2131 of Title 12 that prevailing parties are generally entitled to costs in civil causes. Reporter’s Notes, V.R.A.P. 39; see also 16AA C. Wright et ah, Federal Practice & Procedure: Jurisdiction § 3985, at 566 (4th ed. 2008) (“The general principle established by Rule 39(a) is that the prevailing party on the appeal is entitled to costs as a matter of course unless the law provides or the court orders otherwise.” (footnotes omitted)). Nothing in § 678 negates that rule here.

¶ 6. Employer argues, however, that even if costs incurred on appeal are not precluded by § 678, Rule 39(a) applies only when a judgment is either reversed outright or reversed with directions for entry of judgment or for a new trial — and neither situation occurred here. Again, we disagree. We find meaningless the distinction employer seeks to make between reversed and remanded with directions for a new trial and, as in this case, reversed and remanded with directions to make necessary findings and conclusions and to address the salient legal issue. On remand, the Commissioner must sift through the facts and apply those facts to a different legal standard from the one she applied below. Whether the matter was remanded for a new hearing or a new judgment based on new findings and conclusions, the outcome from the appeal is the same. See Reporter’s Notes — 1981 Amendment, V.R.A.P. 39 (“If the Supreme Court reverses the lower court but orders further proceedings, the party prevailing in the Supreme Court is awarded costs on the appeal . . . .”). Rule 39(a) allows costs for claimant in this instance, where the matter was reversed with directions for further proceedings before the Commissioner.

¶ 7. As for claimant’s specific enumeration of costs in this case, employer has not disputed the amount or nature of the costs claimed, which include the filing fee, the transcript, and copies of the briefs and printed case. Accordingly, we award claimant her costs incurred on appeal in the amount of $1079.

¶ 8. We now turn to claimant’s request for attorney’s fees. Section 67803) provides as follows: “In appeals to the superior or supreme courts, if the claimant prevails, he or she shall be entitled to reasonable attorney fees as approved by the court....” In support of its argument that claimant is not entitled to any attorney’s fees, employer cites various courts holding that attorney’s fees are warranted only when a party “prevails” on the merits of the case or at least achieves some success on a significant legal issue in the ease. See Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Human Res., 532 U.S. 598, 603-04 (2001) (holding that fee-shifting provisions of Fan Housing Amendments Act and of Americans with Disabilities Act require party to secure either judgment on merits or court-ordered consent decree to qualify as “prevailing party”); Farrar v. Hobby, 506 U.S. 103, 109 (1992) (holding that “prevailing party” for purposes of Civil Rights Attorney’s Fees Awards Act is one who succeeds “on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit” (quotations omitted)); In re Green, 751 N.E.2d 913, 916 (Mass. App. Ct. 2001) (citing test used in federal civil rights statute as standard for determining “prevailing party” with respect to statute requiring insurers in workers’ compensation cases to pay attorney’s fees to employees who prevail in hearings in which insurers contest claim for benefits); cf. Wagenseller v. Scottsdale Mem’l Hasp., 710 P.2d 1025, 1048-49 (Ariz. 1985) (holding that “successful party” entitled to attorney’s fees in contractual action may include one “who achieve[s] reversal of an unfavorable interim order if that order is central to the case and if the appeal process finally determines an issue of law sufficiently significant that the appeal may be considered as a separate unit”), superseded by statute in other respects by Ariz. Rev. Stat. Ann. § 23-1501 (1996).

¶ 9. These cases, however, like the cases relied upon by the dissent, are distinct from the case before us because they do not concern workers’ compensation appeals and, more importantly, do not involve statutes pertaining to attorney’s fees exclusively for proceedings on appeal. The dissent considers these to be “distinction[s] without a difference,” post, ¶ 31, but our role is to construe the particular workers’ compensation statute at issue here, and thus what other jurisdictions hold in unrelated areas of the law based on completely different statutes carries little weight. As noted, § 678(a) concerns only proceedings before the Commissioner and specifically gives the Commissioner the discretion to grant reasonable attorney’s fees to claimants prevailing in those proceedings. On the other hand, § 678(b) concerns only proceedings on appeal to either the superior court or the Supreme Court. Under § 678(b), a party who “prevails” in “appeals to the superior or supreme courts” is entitled to reasonable attorney’s fees. Our workers’ compensation statute does not define the word “prevails,” but § 678(b) plainly concerns the imposition of attorney’s fees only in the limited context of proceedings on appeal to the superior court or Supreme Court. See Hodgeman v. Jard Co., 157 Vt. 461, 464, 599 A.2d 1371, 1373 (1991) (noting that “§ 678(a) . . . differs from § 678(b) only in that it applies to an earlier stage of workers’ compensation cases”); Jackson v. True Temper Corp., 156 Vt. 247, 249, 590 A2d 891, 893 (1991) (“Clearly 21 V.S.A. § 678(b), rather than § 678(a) or the rules adopted thereunder, applies to fee awards for judicial appeals and gives the courts authority to set reasonable hourly rates.”).

¶ 10. Accordingly, we must construe the word “prevails” in the limited context of the appellate proceedings rather than the case as a whole. Cf. Prime Ins. Syndicate, Inc. v. Soil Tech Distribs., Inc., 270 F. App’x 962, 963-64 (11th Cir. 2008) (per curiam) (holding that statute allowing attorney’s fees “in the event of an appeal in which the insured or beneficiary prevails” did “not require an insured party to succeed on the merits of a case in order to recover attorney’s fees”). As we stated long ago in Pollard v. Wheelock, in referring to costs: “The trials in the different courts are distinct proceedings; and costs are to be taxed for the party prevailing, when he prevails, in either court, as a distinct matter.” 20 Vt. 370, 372-73 (1848). In that case we determined that it “is certainly equitable” to consider proceedings on appeal to the Supreme Court as a distinct matter and to “allow the party prevailing in them to tax costs, without reference to the final event of the case.” Id. at 372. The same reasoning applies to attorney’s fees when a statute awards such fees to the prevailing party specifically for proceedings on appeal.

¶ 11. As the United States Supreme Court noted in Buckhannon Board & Care Home, a “prevailing party” is generally defined as a “ ‘party in whose favor a judgment is rendered, regardless of the amount of damages awarded.’ ” 532 U.S. at 603 (quoting Black’s Law Dictionary 1145 (7th ed. 1999)). In this case, claimant was plainly the prevailing party in the appeal. As noted, our mandate reversed the Commissioner’s judgment and remanded the matter for the Commissioner to make necessary findings and apply the appropriate law, neither of which the Commissioner had done in the administrative proceedings from which claimant appealed. Although we do not know if claimant will ultimately prevail on her claim for benefits, her appeal was necessary to keep her claim alive and compel the Commissioner to consider the salient facts and apply the correct legal standard. Given these circumstances, claimant prevailed in the distinct proceeding before this Court and thus is entitled to reasonable attorney’s fees under § 678(b).

¶ 12. In support of its position that a claimant may obtain attorney’s fees only following a final judgment on the merits of its workers’ compensation claim, the dissent relies on the language of § 678(b) and Sargent v. Town of Randolph Fire Department, 2007 VT 56, 182 Vt. 546, 928 A.2d 525 (mem.). But the fact that claimants who prevail in appellate proceedings are entitled to — in addition to reasonable attorney’s fees — interest on “any” contested award does not demonstrate that attorney’s fees cannot be awarded absent a final judgment on the underlying claim. 21 V.S.A. § 678(b). As for Sargent, that case unsurprisingly holds that a claimant prevailing on appeal may also be reimbursed for attorney’s fees incurred at the underlying administrative proceeding in which the Commissioner rejected the claim. 2007 VT 56, ¶ 15. Sargent did not arrive at this holding by concluding that the administrative and appellate proceedings in workers’ compensation cases are one and the same for purposes of § 678, but rather by relying upon 21 V.S.A. § 671, which provides that a decision resulting from an appeal to the superior court or Supreme Court “supersedes” the Commissioner’s underlying order. 2007 VT 56, ¶ 15. Indeed, Sargent acknowledged the distinction that § 678 makes between the award of attorney’s fees in administrative as opposed to appellate proceedings by noting that such fees are discretionary before the Commissioner under § 678(a). Id.

¶ 13. Awarding attorney’s fees to parties who prevail in appellate proceedings without obtaining a final judgment on the merits does not “simply penalize[] employers” who lose appeals because of “a procedural or substantive gaffe by the Commissioner,” as the dissent posits. Post, ¶ 20. Our sole purpose is to construe § 678 to carry out the legislative intent. The plain language of the statute indicates that the Legislature intended to allow the award of attorney’s fees to claimants who prevail in appellate proceedings, even in the absence of a final judgment on the underlying claim. We cannot be sure why the Legislature intended such a result, but presumably it was to compensate claimants who incur expenses on appeal because of the Commissioner’s errors at the administrative level — not to penalize employers.

¶ 14. Our remaining task, then, is to determine which body has the responsibility to award attorney’s fees incurred by the prevailing party on appeal. In 1996, this Court added subsection (f) of Rule 39, which states the general rule that a claim for “attorney’s fees and other nontaxable expenses arising on appeal shall be made by motion in the trial court,” where it “may be joined with a motion for fees or expenses in the trial court.” This rule change is not particular to requests for attorney’s fees in workers’ compensation appeals, however, and both the workers’ compensation statute and our case law strongly suggest that the courts are to award any attorney’s fees to prevailing parties in such appeals.

¶ 15. Parties prevailing in appeals to the superior court or this Court are entitled to reasonable attorney’s fees “as approved by the court.” 21 V.S.A. § 678(b). In Coleman v. United Parcel Service, we stated that § 678(b) “plainly places responsibility for allowing attorney’s fees for an appeal on the court.” 155 Vt. 646, 647, 582 A.2d 151, 153 (1990) (mem.). In Jackson, the employer appealed the superior court’s award of attorney’s fees to the claimant in a workers’ compensation case, arguing that the award was improperly based on an hourly rate that exceeded the $35 hourly rate set by department rule. We upheld that portion of the award representing fees incurred in the appeal to the superior court, holding that “[njothing in § 678(b) suggests that the court should be limited to the maximum rate set by the Commissioner for matters before her.” 156 Vt. at 249, 590 A.2d at 893. With respect to that portion of the award representing fees incurred in proceedings before the Commissioner, however, we remanded the matter to the Commissioner for consideration, holding that “[t]he superior court had no knowledge of the nature and extent of representation before the Commissioner” and that “[ajttorney’s fees for work at the administrative level should be determined, in the first instance, by the Commissioner.” Id. at 250, 590 A.2d at 893. Similarly, in Sargent, we stated, without specifically addressing the issue in the context of a claim of error, that § 678(b) allows the superior court or this Court to award attorney’s fees to successful claimants in cases before it, but does not authorize either court on appeal to determine a request for attorney’s fees for services rendered at administrative proceedings before the Commissioner. 2007 VT 56, ¶ 12. As these cases demonstrate, determining an award of attorney’s fees should be the role of the tribunal in which they were incurred.

¶ 16. Rule 39(f)’s requirement that a request for attorney’s fees arising on appeal be considered, in the first instance, by the trial court is not applicable in the special case of workers’ compensation appeals, given that those appeals go to either the superior court or this Court and that the Legislature has conferred upon both courts the responsibility to consider requests for attorney’s fees generated on appeal in those forums. Hence, we find no basis for remanding the matter of appellate attorney’s fees to the Commissioner, who in fact has neither specific knowledge nor special expertise concerning such fees. Indeed, the courts are better positioned than the Commissioner to address requests for attorney’s fees incurred in proceedings before them.

¶ 17. Because of our limited fact-finding function, we reserve the right in appeals to this Court to retain a master, if necessary, to review factual disputes over attorney’s fees. See Fleury, 149 Vt. at 360, 543 A.2d at 703 (noting that claimant sought attorney’s fees under § 678(b) and that the “matter was referred to a master”). We assume, however, that in most instances a master will not be necessary. In this case, employer has not contested the reasonableness of attorney’s fees claimed for this appeal. Accordingly, attorney’s fees will be awarded in the amount set forth by claimant.

Claimant’s request for costs and attorney’s fees is granted. Costs are awarded in the amount of $1079. Attorney’s fees are awarded in the amount of $13,599.