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Brand v. Department of Labor and Industries of the State of Washington12/16/1999
Oral Argument Date: 05/27/1999
EN BANC
Catherine Brand seeks review of a published Court of Appeals decision ordering a reduction and recalculation of the attorney fees awarded to her in a workers' compensation case. Brand argues that an award of attorney fees under RCW 51.52.130 should be calculated without regard to the worker's overall recovery on appeal, and should not exclude fees for work done on unsuccessful claims. We agree, and hold that attorney fees awarded under RCW 51.52.130 should not be limited by the worker's degree of success. However, we agree with the Court of Appeals' conclusion that the trial court failed to make adequate written findings justifying the award of attorney fees in this case. Accordingly, we remand to the trial court to make specific findings regarding the attorney fees award in a manner consistent with this opinion.
FACTS
Catherine Brand injured her left knee in 1978 while working as an assistant manager at the Sherwood Apartments. The Department of Labor and Industries (Department) found her injury to be work related and, accordingly, granted Brand's workers' compensation claim. Over the course of the next few years, Brand underwent seven knee surgeries and received physical therapy. In 1991, the Department closed Brand's claim on the basis that treatment was no longer necessary and there was no additional permanent partial disability.
Ms. Brand then appealed to the Board of Industrial Insurance Appeals (Board). The Board found that, as of 1992, Brand's knee condition was fixed and stable, and she would not benefit from any further curative treatment. The Board affirmed the Department's award for a permanent partial impairment of 30 percent of the value of the left lower leg. In addition to Brand's knee injury , the Board determined that Ms. Brand suffered from a "Category 1" low back strain that was causally related to her knee injury. Clerk's Papers (CP) at 83.
Ms. Brand appealed the Board's decision to the Superior Court, claiming to be totally disabled and incapable of gainful employment. In the alternative, Brand asserted that the partial disabilities to her knee and back were more severe than the Board and Department had found. Ms. Brand sought $113,583 in pension benefits and/or additional time-loss compensation.
The jury affirmed the Board's finding that Brand was not totally permanently disabled and did not need further treatment for either her knee or back. Additionally, the jury rejected Brand's argument that she was temporarily disabled between May 1987 and October 1990 and between May 1991 and January 1992. However, the jury disagreed with the Board's assessment of the degree of Brand's injury . The jury increased Ms. Brand's partial disability award for her knee from 30 percent to 40 percent and her low back injury from category one to category two. The verdict resulted in a one-time benefit for Ms. Brand in the amount of $3,120.
Ms. Brand's attorneys requested attorney fees under RCW 51.52.130, which provides that the court shall fix a reasonable fees for the services of a worker's attorney if the Board's decision is reversed or modified and additional relief is granted to the worker on appeal. RCW 51.52.130. Tacoma attorney David Vail, Ms. Brand's first attorney who represented Brand before the agency and prepared her case for trial, claimed 42.85 hours at $200 an hour for himself and 17.5 hours at $125 for his associate, for a total of $10,757.50. Christine Foster, Ms. Brand's Seattle attorney who took over the case at trial, requested fees totaling $29,637.
The trial court awarded Brand $25,000 in attorney fees, together with
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