Sylvia Marie Schenck v. Winchester Golf Club, Inc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia
WINCHESTER GOLF CLUB, INC. AND
ST. PAUL FIRE AND MARINE INSURANCE COMPANY
v. Record No. 2943-02-4
SYLVIA MARIE SCHENCK MEMORANDUM OPINION* BY
JUDGE LARRY G. ELDER
JUNE 17, 2003
SYLVIA MARIE SCHENCK
v. Record No. 2944-02-4
WINCHESTER GOLF CLUB, INC. AND
ST. PAUL FIRE AND MARINE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael E. Ollen (Rhatigan, Ollen,
Carleton, & Costabile, on briefs), for
Winchester Golf Club, Inc. and St. Paul Fire
and Marine Insurance Company.
R. Craig Jennings (Brandt, Jennings, Snee,
Dupray & Parrish, PLLC, on briefs), for
Sylvia Marie Schenck.
Sylvia Marie Schenck (claimant) and Winchester Golf Club,
Inc., and its insurer, St. Paul Fire and Marine, (hereinafter
collectively employer) both appeal from a decision of the
Workers' Compensation Commission (the commission) holding
employer liable, pursuant to Code § 65.2-713, for $3,000 of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
attorney's fees incurred by claimant in her efforts to secure
benefits under the Workers' Compensation Act. On appeal,
claimant contends employer defended her claim without reasonable
grounds and that the commission should have held employer
responsible for the entire amount of her attorney's fees. 1
Employer, by contrast, contends that all disputed issues were
resolved prior to the hearing and, thus, that the award of
attorney's fees constituted an abuse of discretion. We hold the
record supported employer's payment of a fee in the amount
ordered, and we affirm.
Code § 65.2-713 provides in relevant part as follows:
A. If the Commission or any court
before whom any proceedings are brought or
defended by the employer or insurer under
this title shall determine that such
proceedings have been . . . defended without
reasonable grounds, it may assess against
the employer or insurer . . . the whole cost
of the proceedings, including a reasonable
attorney's fee, to be fixed by the
Commission.
B. Where the Commission finds that an
employer or insurer has delayed payment
without reasonable grounds, it may assess
1
On brief on appeal, claimant seeks "at a minimum the
reinstitution of the [deputy's] larger [fee] award [of $5,000],
or payment of all fees and costs incurred," presumably meaning
the $8,933.28 in fees and costs for which claimant had submitted
a fee statement to the commission. However, pursuant to the
commission's authority under Code § 65.2-714 to approve all
attorney's fees, the commission concluded that $5,000 was a
reasonable fee for the work performed by claimant's attorney,
without regard to who might be responsible for that fee.
Claimant's counsel provides no argument as to why a total fee of
$5,000 is inappropriate or an abuse of discretion. Thus, we do
not consider this issue on appeal.
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against the employer or insurer the whole
cost of the proceedings, including a
reasonable attorney's fee to be fixed by the
Commission. . . .
"[W]hether the employer defended a proceeding without reasonable
grounds is to be judged from the perspective of the employer,
not the employee." Lynchburg Foundry Co. v. Goad, 15 Va. App.
710, 716, 427 S.E.2d 215, 219 (1993).
Assessment of fees is proper where a claimant obtained the
assistance of counsel to request a hearing due to the employer's
unilateral decision to withhold benefits due under an open
award. See Murphey v. Xerox Corp., No. 187-61-8, 2001 WL
1169778, at **7 (Va. Workers' Comp. Comm'n Sept. 21, 2001).
Assessment of fees also is proper where the carrier
unjustifiably suspended payment for medical treatment and then
reinstated such payments one day prior to a scheduled hearing.
Nuske v. Campbell County Sch. Bd., No. 607-346, 1981 WL 182099,
at *1 (Va. Worker's Comp. Comm'n June 16, 1981) (decided under
§ 65.1-101). Whether the employer or carrier authorized or
suspended treatment with a particular physician is an issue that
may be open to dispute on the facts of a particular case. See,
e.g., Flanegin v. Hechingers Corp., No. 170-42-20, 1996 WL
1075861, at **3 (Va. Workers' Comp. Comm'n July 9, 1996).
Further, as indicated by the legislature's use of the word
"may" in Code § 65.2-713, the commission is not required to
assess costs and attorney's fees in every case in which the
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employer delays payment or defends a proceeding without
reasonable grounds. See, e.g., Volvo White Truck Corp. v.
Hedge, 1 Va. App. 195, 200-01, 336 S.E.2d 903, 906 (1985)
(decided under predecessor statute, § 65.1-101). Whether to
assess fees or costs rests in the sound discretion of the
commission and will be reversed only for an abuse of that
discretion. Id.
Here, on the afternoon prior to the hearing, employer
conceded all disputed issues except its liability for (1) cab
fare to and from claimant's place of employment, (2) expenses
for claimant to travel from her new home in Hawaii to attend a
medical appointment in Baltimore, Maryland, and (3) attorney's
fees and costs based on its claimed "unreasonable delay in
defense of [the] matter." The deputy commissioner found in
claimant's favor on all disputed issues and awarded her
attorney's fees of $5,000. On review, the commission held that
employer did not "unreasonably defend all of the claimant's
numerous claims" and ordered employer to pay $3,000 of the
$5,000 fee. It found that employer's repeated late payment of
temporary partial disability benefits due under an outstanding
award, even after the entry of two prior penalty awards based on
late payment, "was responsible to some extent for the
litigation" and that "the insurer was not as responsive to the
claimant's request for authorization [for medical treatment] and
a panel [of Hawaiian physicians] as it should have been."
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However, it found the record failed to establish that employer
unreasonably delayed payment for medical treatment, ground
transportation to obtain that medical treatment, or airfare to
obtain medical treatment or to attend the hearing before the
deputy commissioner.
A careful review of the record, viewed from the perspective
of the employer, confirms that credible evidence supports the
commission's findings and order that employer pay $3,000 of
claimant's attorney's fees for unreasonably defending and
delaying payment. Thus, we hold the commission did not abuse
its discretion, and we affirm the award.
Affirmed.
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