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Lowell v. Rutland Area Visiting Nurses5/2/2000
reatment approximately three weeks after the automobile accident. Furthermore, the absence of prejudice is also demonstrated by evidence that the claimant did indeed receive adequate and sufficient medical care. This conclusion is bolstered by the fact that the current course of treatment, based upon the MRI findings, is for conservative measures, which was the same type of medical care provided to claimant at the recommendation of Dr. Diercksen and Dr. Bell prior to 1997.
20. Challenging the adequacy of the medical care, defendant cites to the fact that claimant did not receive a diagnostic study, specifically a MRI, until recently. However, this challenge must fail. The relevant time period for determining prejudice is measured from the date claimant should have provided notice to her employer until the time when the notice was actually received. Since the diagnostic study was not recommended until June 1998, well after defendant was placed on notice of the injury and claim, the fact that the claimant actually did not undergo the MRI until a year later plays no part in determining whether defendant suffered prejudice due to delayed reporting. Moreover, since the MRI actually confirmed that the prior conservative treatment measures were the more appropriate treatment plan, as opposed to surgical intervention, an earlier diagnostic study would not have altered claimant's overall medical care.
21. In addition, defendant also challenges the sufficiency of claimant's evidence, maintaining that claimant has failed to prove an essential element on this case. Specifically, relying upon the Lapan standard, defendant insists that expert evidence must be proffered to establish that the employer was not prejudiced by the delay in notice. However, expert testimony is only required when "a layman could have no well-grounded opinion" as to the ultimate contested issue. See Lapan v. Berno's Inc., 137 Vt. 393, 395 (1979). Based upon the record in this case, it is clearly within the purview of the "layman" to determine if the claimant received reasonable medical care between the date of her injury and the time when she provided notice to her employer. Therefore, expert evidence is neither necessary nor required.
22. Accordingly, as evidenced by the preceding conclusions of law, the claimant has sufficiently demonstrated that the defendant did not suffer any prejudice as a result of the two-year delay in reporting her work-related injury . Even if claimant had provided notice to defendant at an earlier date, the resulting treatment would have remained the same. As such, having satisfied the requirements of 21 V.S.A. ยง 660, claimant may proceed with her workers' compensation claim.
ATTORNEY FEES
23. In regards to an award of attorney fees and costs, claimant submitted evidence of her one- third contingency fee agreement with her attorney. In addition, claimant has also submitted an itemized accounting of her attorney's 31.25 hours of representation in this workers' compensation case. Finally, claimant has also submitted as evidence an itemized list of necessary expenses, which totaled $98.24.
24. Upon reviewing claimant's fee request, defendant objected to portions of the itemized billing. Specifically, defendant described multiple .25 hour charges, which were allocated to correspondence preparation and review, as excessive, unreasonable and indiscriminate. In response, claimant's counsel specifically explained the process she utilizes in reviewing and sending correspondence. In addition, claimant's counsel unequivocally stated that she was entirely comfortable in characterizing the billing as reasonable and appropriate.
25. As evidenced by the l
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