IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MICHAEL TEDESCO, )
)

) C.A. No. K14A-09-002 NEP
Claimant Below, )

Appellant, ) In and For Kent County
)
V )
)
BAYHEALTH MEDICAL )
CENTER, )
)
)
Employer Below, )
Appellee. )
ORDER

Submitted: June 20, 2017
Decided: September 21, 2017

This matter comes before the Court following a dispute between Michael
Tedesco (hereinafcer “Mr. Tedesco”) and defendant Bayhealth Medical Center
(hereinafter “Bayhealth”) that Was initiated before the Industrial Accident Board
(hereinafcer the “Board”). Mr. Tedesco now requests attomey’s fees. No response
Was filed. The facts recited are those as found by the Court.

l. Mr. Tedesco Was injured in an industrial accident in 2010. Mr.
Tedesco initially received total disability benefits as a result of the accident. His
employer, Bayhealth, later filed a petition for review alleging that his total
disability benefits should be terminated. Prior to the Board hearing, the parties
resolved Bayhealth’s petition in an agreement that substituted partial disability

Tedesco v. Bayhealth l\/ledica/ Center
K14A-09-002 NEP
September 21, 2017

benefits in place of Mr. Tedesco’s total disability benefits. The agreement made no
mention of attomey’s fees.

2. At the hearing, Mr. Tedesco argued that the settlement entitled him to
attomey’s fees, but the Board did not address the issue or determine whether an
award was proper. Mr. Tedesco appealed to the Superior Court and in his opening
brief complained that the Board should have awarded him attomey’s fees. This
Court declined to review an issue that the Board had not first considered, and
remanded the issue of attorney’s fees to the Board so that the Board could make a
determination1 Following remand, the Board awarded Mr. Tedesco with fees for
legal services rendered to him before the Board. As yet, Mr. Tedesco has not
received any award for his legal fees incurred while pursuing his claims in
Superior Court. Mr. Tedesco makes clear that he is seeking fees only for
representation relating to the 2010 accident.

3. 19 Del. C. § -2350(f) states:

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. Such fee shall be taxed in the costs and become a
part of the final judgment in the cause and may be recovered against
the employer and the employer's insurance carrier as provided in this
subchapter.

4. It appears from the statute that an award of fees is not proper in this
case. In order for a claimant to be awarded attomey’s fees, “claimant’s position in
the hearing before the Board [must be] affirmed on appeal.” Mr. Tedesco’s

position before the Board has not been affirmed on appeal. The Superior Court did

not consider, and thus did not affirm, Mr. Tedesco’s claim that he was entitled to

 

1 Tedesco v. Bayhealth Med. Ctr., 2015 WL 1199356, at *4 (Del. Super. Mar. 13, 2015).
2

Tedesco v. Bayhealth Medical Center
Kl4A-09-002 NEP
September 21, 2017

attomey’s fees because the Board did not address the issue.2 For this reason, 19
Del. C. § 2350(f) does not entitle Mr. Tedesco to attorney’s fees.3

Wherefore, Mr. Tedesco’s motion for attorney’s fees and costs is DENIED.

IT IS SO ORDERED.

 

NEP/sz
Via. File&ServeXpress

 

2 Tedesco, 2015 WL 1199356, at *4.

3 East v. Int'l Game Tech., 2011 WL 3568457, at *1 (Del. Super. June 30, 2011) (holding that
there was “no basis for Appellant to contend that his position before the Board was affirmed
upon appeal” when the issue appealed was remanded due to Board’s failure to adequately
address the issue).

