            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    MAGDALENA GUARDADO,                        §
                                               §      No. 576, 2018
          Claimant Below,                      §
          Appellant,                           §      Court Below: Superior Court
                                               §      of the State of Delaware
          v.                                   §
                                               §      C.A. No. S15A-05-002
    ROOS FOODS, INC.,                          §
                                               §
          Employer Below,                      §
          Appellee.                            §


                                 Submitted: May 15, 2019
                                  Decided: July 24, 2019

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

                                         ORDER

         On this 24th day of July 2019, upon consideration of the parties’ briefs and the

record on appeal, it appears that:

         (1)    The appellant, Magdalena Guardado, appeals from the Superior Court’s

denial of her request for attorneys’ fees incurred in a previous appeal to this Court.1

She contends that the Superior Court erred as a matter of law in denying her request

for attorneys’ fees because the court’s short ruling is premised on its finding that

“Guardado’s position at the hearing before the Industrial Accident Board was not




1
    See Roos Foods v. Guardado (Guardado I), 152 A.3d 114 (Del. 2016).
affirmed by the Supreme Court.”2 Under 19 Del. C. § 2350(f), the Superior Court

is authorized, but not required, to award appellate fees “where the claimant’s

position in the hearing before the [Industrial Accident] Board is affirmed on

appeal.”3

         (2)    In 2010, Guardado injured her left wrist in a work-related accident

while working as a machine manager for Roos Foods. Thereafter, she received

workers’ compensation total disability benefits. Two years after the accident, she

had a left wrist fusion performed by Dr. Richard DuShuttle, and shortly thereafter,

Dr. DuShuttle released her to light-duty one-handed work.

         (3)    Following Dr. DuShuttle’s release, Roos Foods filed a petition for

review with the Industrial Accident Board (the Board) alleging that Guardado was

able to return to work. At the hearing before the Board in March 2015, the parties

generally agreed that Guardado could return to light-duty one-handed work, but

disagreed as to whether she was a displaced worker and the extent to which her

undocumented status should be considered, if at all, in making that determination.

Roos Foods argued that Guardado was not a prima facie displaced worker and that,

even if she were, its labor market survey, which did not take into account her

undocumented status, was sufficient to demonstrate that there were jobs available



2
    Appellant’s Opening Br. Ex. A.
3
    19 Del. C. § 2350(f).
                                          2
for her.      Guardado argued that she was prima facie displaced based on her

undocumented status, as well as the traditional factors, 4 and that because Roos

Foods’s labor market survey failed to consider her undocumented status, it could not

(and did not) show that there were jobs actually available to her. In its rebuttal,

Roos Foods argued that undocumented status does not equate to being prima facie

displaced and that the Board could infer that the jobs in its labor market survey were

available to undocumented workers because “[u]ndocumented workers are hired all

the time.”5

       (4)     Following the hearing, the Board denied Roos Foods’s petition for

review. First, the Board found that Guardado was no longer totally disabled. It

next determined that she had not demonstrated actual displacement: “Claimant

testified that she had only applied to a few jobs; however, she had not heard back

from any of those. Based on this little evidence, there is no basis to find ‘actual’

displacement. The sole issue is whether she should be considered displaced on a

prima facie basis.” 6 The Board concluded that “Claimant qualifies as a [prima

facie] displaced worker based upon her undocumented status and Employer has

failed to present a Labor Market Survey that shows regular employment




4
  Age, mental capacity, education, and training. E.g., Chrysler Corp. v. Duff, 314 A.2d 915, 916
(Del. 1973).
5
  App. to Appellant’s Opening Br. at A74.
6
  App. to Appellee’s Answering Br. at B8.
                                               3
opportunities within Claimant’s capabilities as an undocumented injured worker.”7

“While Employer did prepare a Labor Market Survey of prospective jobs that could

be available to Claimant with her physical restrictions,” the Board continued, “it did

not address all of Claimant’s restrictions; and therefore, [it] cannot be considered

reliable evidence of jobs actually available to Claimant.”8

       (5)    The Board’s decision was affirmed by the Superior Court. Roos Foods

then appealed to this Court. We described the appeal as presenting two questions:

(1) “whether an injured worker’s immigration status alone renders her a prima facie

displaced worker” and (2) “whether the Board properly found that the employer

failed to meet its burden of showing regular employment opportunities within the

worker’s capabilities because its evidence failed to take into account the worker’s

undocumented status.” 9 As to the first issue, we held that “an undocumented

worker’s immigration status is not relevant to determining whether she is a prima

facie displaced worker, but it is a relevant factor to be considered in determining

whether she is an actually displaced worker.”10 As to the second issue, we held that

“the Board correctly rejected the employer’s evidence of regular employment




7
   Id. at B11.
8
   Id.
9
   Guardado I, 152 A.3d at 116.
10
    Id.
                                          4
opportunities for the worker because that evidence failed to consider her

undocumented status.”11

         (6)    Because the Board committed legal error in finding Guardado to be

prima facie displaced based on her undocumented status alone, we reversed the

judgment of the Superior Court and remanded the matter for a new hearing before

the Board. 12 The remand placed back before the Board the issues of whether

Guardado was, or was not, a prima facie displaced worker, and, if so, whether Roos

Foods could meet its burden of showing that regular employment opportunities were

available to her, taking into account her undocumented status.

         (7)    Following the rehearing, the Board granted Roos Foods’s petition for

review and terminated Guardado’s total disability benefits. Although the Board

again found Guardado to be prima facie displaced (without considering her

undocumented status), Roos Foods successfully convinced the Board that there were

jobs actually available to Guardado by presenting a revised labor market survey and

expert testimony that showed a high prevalence of undocumented workers in the

types of jobs identified in the survey. Guardado appealed this decision to the

Superior Court, which affirmed the Board’s decision.13 Guardado then appealed to




11
     Id.
12
     Id. at 122.
13
     Guardado v. Roos Foods, Inc., 2018 WL 776422 (Del. Super. Feb. 7, 2018).
                                               5
this Court, and “we affirm[ed] the judgment of the Superior Court on the basis of its

opinion.”14

      (8)     Following our ruling in Guardado II, Guardado filed an application for

attorneys’ fees with the Superior Court pursuant to 19 Del. C. § 2350(f) in which she

sought fees for her counsel’s work on the first appeal to this Court, Guardado I. In

her application for fees, she contended that she was eligible for fees under the statute

because, in Guardado I, this Court affirmed her position before the Board that Roos

Foods failed to meet its burden of showing the availability of regular employment

for her because its evidence did not take into account her undocumented status.15

      (9)     The Superior Court denied Guardado’s request in a two-sentence letter:

                     I have denied Magdalena Guardado’s application
              for attorneys’ fees pursuant to [19] Del. C. §2350(f) for
              appellate work done by her attorneys before the Supreme
              Court because Ms. Guardado’s position at the hearing
              before the Industrial Accident Board was not affirmed by
              the Supreme Court. While the fact that Ms. Guardado’s
              undocumented status properly became a relevant
              consideration on the question of her employability, that
              does not, in my view, justify an award of attorneys’ fees
              to her.16




14
   Guardado v. Roos Foods, Inc. (Guardado II), 194 A.3d 906, 2018 WL 4378709, at *1 (Del.
Sept. 14, 2018) (en banc) (Table).
15
   See Guardado I, 152 A.3d at 120-22.
16
   Appellant’s Opening Br. Ex. A.
                                           6
         (10) This Court reviews a grant or denial of nonmandatory attorneys’ fees

for abuse of discretion.17 Questions of law, including the interpretation of a statute,

are reviewed de novo.18

         (11) Guardado contends that the Superior Court erred as a matter of law in

denying her request for attorneys’ fees because her position before the Board (that

her status as an undocumented worker was relevant to a determination of her

employability) was affirmed by this Court in Guardado I.

         (12) To be eligible for a fee award under § 2350(f), the claimant’s position

at the hearing before the Board must have been affirmed on appeal. The statute

provides: “The Superior Court may at its discretion allow a reasonable fee to

claimant’s attorney for services on an appeal from the Board to the Superior Court

and from the Superior Court to the Supreme Court where the claimant’s position in

the hearing before the Board is affirmed on appeal.”19 Thus, only after the court

determines that “the claimant’s position in the hearing before the Board is affirmed

on appeal,”20 may it exercise its discretion in deciding whether to award fees.

         (13) In Guardado I, we found that a worker’s undocumented status was not

relevant in deciding whether she was a prima facie displaced worker, but we agreed




17
     DiGiacomo v. Bd. of Pub. Educ., 507 A.2d 542, 546 (Del. 1986).
18
     City of Wilm. v. Nationwide Ins. Co., 154 A.3d 1124, 1127 (Del. 2017).
19
     19 Del. C. § 2350(f).
20
     Id.
                                                 7
with Guardado’s position that where an undocumented worker is determined to be a

prima facie displaced worker, the employer’s burden of showing that regular

employment opportunities are available to the worker must take into account her

undocumented status.21 In so ruling, we affirmed Guardado’s position before the

Board that the employer’s evidence of employment opportunities available to her

was insufficient because that evidence failed to take into account her undocumented

status.22 Because we affirmed her position on the employer’s burden of showing

available employment opportunities where a prima facie displaced worker is

undocumented, we find that she was eligible to receive fees under the statute.

       (14) Although the Superior Court could have awarded Guardado attorneys’

fees under the statute, we find no abuse of discretion in its decision not to do so.

The statute provides that the Superior Court “may at its discretion” award attorneys’

fees to an eligible claimant.23 “An abuse of discretion occurs when a court has

exceeded the bounds of reason in light of the circumstances, or so ignored

recognized rules of law or practice so as to produce injustice.”24

       (15) In its letter explaining its denial of Guardado’s fee application, the

court’s second sentence stated, “[w]hile the fact that Ms. Guardado’s undocumented


21
   Guardado I, 152 A.3d at 120 (“[W]here the employer has the burden of establishing that jobs
are actually available to a claimant, that burden must take into account the claimant’s
undocumented status.”).
22
   Id. at 120-22.
23
   19 Del. C. § 2350(f).
24
   McNair v. State, 990 A.2d 398, 401 (Del. 2010).
                                              8
status properly became a relevant consideration on the question of her employability,

that does not, in my view, justify an award of attorneys’ fees to her.” 25 Although

the court’s reasoning was not a sound analysis of Guardado’s eligibility for fees, it

was a permissible exercise of the court’s discretion to deny fees.                  The court

recognized the issue upon which Guardado did prevail on appeal, but it concluded

that an award of fees was not justified. Denying fees for the reason given in the

second sentence is consistent with the statute’s purpose.                   Prior case law has

explained that the statute’s purpose is “to prevent depletion of a claimant’s

compensation award by attorney’s fees incurred in successfully resisting an

employer’s meritless appeal.”26 The employer’s appeal was not meritless. The

issues raised on appeal in Guardado I were legitimate issues.                    Moreover, no

depletion of a claimant’s award occurred because the employer ultimately prevailed.

         NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                                 BY THE COURT:

                                                 /s/ James T. Vaughn, Jr.
                                                 Justice




25
     Appellant’s Opening Br. Ex. A.
26
     Aetna Cas. & Sur. Co. v. Rodriguez, 399 A.2d 1289, 1292 (Del. 1979).
                                                9
