IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JASON BRISTOR, ;
: C.A. No. K19A-07-001 WLW
Claimant Below -
Appellant,
Vv.
DOVER DOWNS,
Employer Below -
Appellee.
Submitted: January 4, 2021
Decided: March 31, 2021
ORDER
Upon Appellant’s Application for Attorney’s Fees
Deferred.
Walt F. Schmittinger, Esquire and Candace E. Holmes, Esquire of Schmittinger &
Rodriguez, P.A., Dover, Delaware; attorneys for Appellant.
John J. Ellis, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorney f or
Appellee.
WITHAM, R.J.
Jason Bristor v. Dover Downs
C.A. No. K19A-07-001 WLW
March 31, 2021
Before the Court is Appellant’s, Jason Bristor (hereafter Appellant”),
Application for Attorney’s Fees Pursuant to 19 Del. C. § 2350(f). The application
is opposed by Appellee, Dover Downs (hereafter “Appellee”), and, after
consideration of the record, this Court defers Appellant’s application for the
following reasons:
Facts and Procedural Background
1. Appellant seeks an award of attorney’s fees in relation to an appeal brought
before this Court of an Industrial Accident Board (hereafter “the Board”) decision
that this Court remanded to the Board for clarification. After ordering the remand,
Appellee moved for reargument.! On October 16, 2020, this Court heard oral
argument on the motion for reargument, and, on October 20, 2020, Appellant filed
the present Application for Attorney’s Fees. The Board has yet to issue its
conclusion in response to this Court’s remand for clarification.
2. Appellant’s appeal was brought on the grounds that an exhibit that was
submitted to the Board before the hearing was erroneously disregarded by the Board
in its decision. This Court’s Order of May 18, 2020 remanding the case sought
clarification as to whether the Board did consider the Exhibit. This Court noted that
“[i]fthe Board did, in fact, consider the document and made its decision not to award
payment based on the way it resolved conflicting evidence, this Court would affirm
the Board’s decision absent legal error.”
* This Court denied the motion for reargument on January 4, 2021. See Bristor v. Dover Downs,
Inc., C.A. No. K19A-07-001 (Del. Super. Jan. 4, 2021) (ORDER).
* Bristor v. Dover Downs, Inc., C.A. No. K19A-07-001 at J 8 (Del. Super. Jan. 4, 2021) (ORDER).
2
Jason Bristor v. Dover Downs
C.A. No. K19A-07-001 WLW
March 31, 2021
Parties’ Contentions
3. Appellant argues that this Court’s remand of the Board’s finding equated
to an affirmation of Appellant’s position presented to the Board, and, because of this,
attorney’s fees are appropriate at this time. Appellee’s argument is that, since the
Board has not issued its findings in accordance with the remand, Appellant’s
application for attorney’s fees is premature.
Standard of Review
4. Pursuant to 19 Del. C. § 2350(f), the Superior Court has the discretion to
award reasonable attorney’s fees for an appeal from an Industrial Accident Board
decision conditioned on the Superior Court affirming the claimant’s position
presented before the Board.’ The statute’s purpose is to allow recovery of attorney’s
fees for claimants who successfully appeal unfavorable Board decisions.* When
exercising its discretion after ordering a remand of the claimant’s appeal, the Court
must make a determination that the remand constituted an affirmance of the
claimant’s position before the Board.”
5. This determination is made under the confines of the language of the statute
and the discernable intent of the Legislature. “[T]he Legislature intended that while
the success of the appeal continues to be an important factor, in cases where the
claimant is the appellant, the claimant must have pursued the specific position they
are arguing on appeal at the Board proceeding.”® Where there is a remand for
° Holben v. Pepsi Bottling Ventures, LLC, 2019 WL 549036 at *1 (Del. Super. Feb. 11, 2019);
citing 19 Del. C. § 2350(f).
‘Id.; citing Elliot v. State, 2012 WL 7760033 at *1 (Del. Super. Dec. 24, 2012).
* Murtha v. Continental Opticians, Inc., 729 A. 2d 312 at 315 (Del. 1997).
6 Id. at 318.
3
Jason Bristor v. Dover Downs
C.A. No. K19A-07-001 WLW
March 31, 2021
clarification, and not a reversal of the Board’s decision or a comment on the
adequacy of the Board’s decision, the claimant cannot claim to have been affirmed
on appeal.”
Discussion
6. Appellant brought his appeal on the basis that the Board erred in its
decision when it did not consider the full record containing the Exhibit in question.
However, the remand order from this Court sought to clarify whether the Exhibit in
question was considered at all. The Appellant makes an unsupported assumption at
this stage. The fact that this Court’s order explicitly stated that, had the Board’s
decision been clear as to whether it did consider the Exhibit in question, it would
have affirmed the Board absent any error of law speaks to the heart of the matter in
this application for attorney’s fees by Appellant.
7. As is made plain in the decision of Holben v. Pepsi Bottling Ventures, LLC,
“[jJudicial economy and the statute’s structure require [the Board] to first issue its
final decision...After receiving [the Board’s] decision on remand, the Superior
Court will consider the pending application and issue its final order.”8
Conclusion
8. Appellant’s application for attorney’s fees is premature at this juncture.
The issue Appellant brought on appeal before this Court was not affirmed. The
Court’s remand was for a clarification from the Board, and, depending on the
Board’s final decision addressing that request for clarification, this Court’s final
order on this matter could go against Appellant. As such, any requests for attorney’s
7 Id. at 320.
* Holben v. Pepsi Bottling Ventures, LLC, 2019 WL 549036 at *1 (Del. Super. Feb. 11, 2019),
4
Jason Bristor v. Dover Downs
C.A. No. K19A-07-001 WLW
March 31, 2021
fees by the Appellant should wait until the Board has presented its final decision and
this Court has had a chance to reach its ultimate conclusion.
WHEREFORE, because of the reasons explained above, this Court
DEFERS Appellant Jason Bristor’ s Application for Attorney’s Fees Pursuant to 19
Del. C. § 2350(f) pending decision of the Board Below.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh