Hodgeman v. Jard Co.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-263


Patricia Hodgeman                            Supreme Court

     v.                                      On Appeal from
                                             Commissioner of Labor
                                               and Industry
Jard Company
                                             June Term, 1991




Jeanne Van Vlandren, Commissioner

David W. Lynch of Miller, Cleary & Faignant, Ltd., Rutland, for defendant-
   appellant



PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     GIBSON, J.    Defendant Jard Company, Inc. appeals an award of
attorney's fees to plaintiff Patricia Hodgeman by the Commissioner of Labor
and Industry in a workers' compensation proceeding.  Defendant argues that
the controlling statute, 21 V.S.A. { 678(a), violates Chapter I, Article 7
of the Vermont Constitution.  Alternatively, defendant argues (1) that
workers' compensation claimants must prevail on all claims in order to be
awarded attorney's fees, (2) that the commissioner abused her discretion in
awarding fees without finding that defendant was responsible for
unreasonable delay, and (3) that there was no evidentiary basis for the
award of fees.  We affirm.
     In 1984, plaintiff worked for defendant as a riveter, but was
transferred to the transformer room when defendant experienced an employee
shortage there.  The new job required heavy lifting and repetitive handwork.
After the transfer, a ganglion was discovered on plaintiff's right wrist and
was surgically removed.  Subsequently, plaintiff underwent further wrist
surgery, most recently in 1989.  Plaintiff also has received extensive
treatment for headaches and neck and shoulder pain caused by a cervical
spine injury.  Defendant paid plaintiff's medical expenses related to the
wrist injury, not including the 1989 surgery, but discontinued disability
compensation in 1987.
     After a workers' compensation hearing in 1989, the commissioner found
that plaintiff's wrist injury was caused by her work for defendant, and that
the work had caused or aggravated her back and neck problems.  The
commissioner did not find that plaintiff's headaches, related to a jaw
disorder, arose from her work.  The commissioner ordered defendant to pay
temporary total disability payments for the wrist injury and permanent
partial disability payments for the spine injury.  The commissioner also
awarded plaintiff attorney's fees totaling twenty percent of the award,
excluding payments related to the 1989 wrist surgery, not to exceed $3,000.
The award of attorney's fees is the basis of this appeal.
     Title 21 V.S.A. { 678(a) authorizes the commissioner to award
reasonable attorney's fees to prevailing claimants in workers' compensation
cases. (FN1) Defendant argues that this authorization violates Chapter I,
Article 7 of the Vermont Constitution because it creates an economic
preference to a specified group of individuals.  Article 7 provides "[t]hat
government is, or ought to be, instituted for the common benefit, protection
and security of the people . . . ."  This language offers citizens
protection from unjustifiable government discrimination in a manner similar
to that of the Fifth and Fourteenth Amendments to the United States
Constitution.  Defendant concedes that { 678(a) most likely would withstand
scrutiny under the Fourteenth Amendment, but urges a broader reading of
Article 7 that would strike down the statute as granting an unconstitutional
economic advantage to employee-claimants.  Defendant is correct that the
Vermont Constitution is freestanding and may require this Court to examine
more closely distinctions drawn by state government than would the
Fourteenth Amendment.  State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 267-
68, 448 A.2d 791, 794-95 (1982).  In this case, however, equal protection is
not violated under either the federal or state constitution.
     This Court recently held that 21 V.S.A. { 678(b), which entitles
prevailing workers' compensation claimants to attorney's fees in appeals to
superior courts or the Supreme Court, does not violate equal protection of
the laws.  Fleury v. Kessel/Duff Constr., 149 Vt. 360, 361-63, 543 A.2d 703,
704-05 (1988).  We are persuaded that the rationale of Fleury extends to {
678(a), which differs from { 678(b) only in that it applies to an earlier
stage of workers' compensation cases.  Absent a suspect classification or
violation of a fundamental right, (FN2) a legislative distinction is valid under
both the federal and Vermont constitutions if it rationally furthers a
legitimate public purpose.  Choquette v. Perreault, 153 Vt. 45, 51, 569 A.2d 455, 458-59 (1989); Fleury, 149 Vt. at 361, 543 A.2d  at 704.  The workers'
compensation statute is remedial and is to be construed broadly to further
its purpose of making employees injured on the job whole.  Montgomery v.
Brinver Corp., 142 Vt. 461, 463, 457 A.2d 644, 646 (1983).  We are satisfied
that the Legislature could reasonably have determined that the allocation of
fees set out in { 678(a) furthers the purpose of workers' compensation
because employers and their insurance carriers are better able to bear the
expense of hearings than employees.  Fleury, 149 Vt. at 363, 543 A.2d  at
705.  Section 678(a) is thus constitutionally justified.
     Defendant next argues that plaintiff should not have been awarded
attorney's fees because she did not prevail on all her claims.  Although
the Legislature did not define "prevail" in the workers' compensation
statute, we are not troubled by any ambiguity.  In her hearing before the
commissioner, plaintiff was awarded additional compensation for her wrist
injury, compensation for her spine injury, and attorney's fees.  She was
denied relief for her jaw disorder.  On this record, we are satisfied that
plaintiff "prevailed," as the word is used in { 678(a).  The Court will not
attempt to construe a term whose meaning is obvious within the context of a
statute.  Vincent v. State Retirement Bd., 148 Vt. 531, 535-36, 536 A.2d 925, 928 (1987).
     Defendant also argues that the commissioner abused her discretion by
awarding fees solely on the basis that plaintiff had prevailed and was not
responsible for any delay.  Defendant accurately cites authority
illustrating that the principal objective of the fee provisions of { 678 has
been to prevent defendants, not claimants, from causing unreasonable delay
and unnecessary expense in workers' compensation cases.  Morrisseau v.
Legac, 123 Vt. 70, 79, 181 A.2d 53, 59 (1962).  Defendant argues that this
rationale is controlling and, therefore, the commissioner should not have
awarded fees absent a showing that its defense caused unreasonable delay or
unnecessary expense.  We decline to lay this requirement on top of the
statute as it is written.  Section 678(a) provides that the commissioner
"may allow the claimant to recover reasonable attorney fees when he
prevails."  This language gives considerable discretion to the commissioner.
Defendant may be correct that to award fees when a defendant has not caused
unreasonable delay may undercut the deterrence of a defendant's delay
tactics; however, we believe that such an award is consistent with the
statute's underlying purpose to make claimants whole and is within the
discretion of the commissioner.
     Finally, defendant challenges the commissioner's award of fees on the
basis that plaintiff offered no evidence to support the award.  The
determination of "reasonable attorney fees" lies within the commissioner's
discretion, but counsel has the burden of providing evidence to justify an
award.  See Bruntaeger v. Zeller, 147 Vt. 247, 254, 515 A.2d 123, 128
(1986).  When an award of attorney's fees is not supported by the evidence,
it cannot stand, Fine Foods, Inc. v. Dahlin, 147 Vt. 599, 605-06, 523 A.2d 1228, 1232 (1986), unless the award is not large and can be calculated in
light of a court's experience and knowledge.  Gokey v. Bessette, 154 Vt.
560, 567, 580 A.2d 488, 493 (1990).  We think the commissioner can calculate
reasonable fee awards under such circumstances, and we uphold her decision
herein.  We note that the commissioner calculated the award to plaintiff on
a percentage basis and that the the award was not to exceed $3,000.  These
limitations bolster our conclusion that the award was within the
commissioner's sound discretion.
     Affirmed.







                                        FOR THE COURT:



                                        ___________________________________
                                        Associate Justice




FN1.    21 V.S.A. { 678(a) provides:
          (a)  Necessary costs of proceedings under this chapter shall
          be assessed by the commissioner against the employer or its
          workers' compensation carrier when the claimant prevails.
          The commissioner may allow the claimant to recover reasonable
          attorney fees when he prevails.  Costs shall not be taxed or
          allowed either party except as provided in this section.

FN2.    We reject defendant's argument that the fee provision of { 678(a)
violates a fundamental right guaranteed by Chapter I, Article 4 of the
Vermont Constitution.  To be charged with attorney's fees is not to be
forced to purchase justice, and this Court has stated, conversely, "that a
denial of a right to recover attorney's fees ... will prevent many
individuals including workers' compensation claimants from having access to
justice."  Fleury v. Kessel/Duff Constr. Co., 149 Vt. 360, 364, 543 A.2d 703, 705 (1988).