      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


TERESA HOLBEN,                          :        K18A-05-003 JJC
                                        :        In and for Kent County
                  Claimant-Below,       :
                  Appellant,            :
                                        :
                  v.                    :
                                        :
PEPSI BOTTLING VENTURES, LLC,           :
                                        :
                  Employer-Below,       :
                  Appellee.             :

                 MEMORANDUM OPINION AND ORDER

                         Submitted: September 9, 2019
                          Decided: November 4, 2019



Walt F. Schmittinger, Esquire, & Candace E. Holmes, Esquire, Schmittinger &
Rodriguez, P.A., Dover, Delaware, Attorneys for the Appellant.


Robert S. Hunt, Esquire, Franklin & Prokopik, Wilmington, Delaware, Attorney for
the Appellee.




Clark, J.
         Appellant Theresa Holben (hereinafter “Ms. Holben”) appeals an Industrial
Accident Board (hereinafter “IAB” or “the Board”) decision. Ms. Holben challenges
the amount of the attorneys’ fee that the Board ordered Pepsi Bottling Ventures, LLC
(hereinafter “Pepsi”) to pay her. She focuses on the Board’s application of the
factors outlined in General Motors v. Cox.1
         In response, Pepsi cross-appeals and argues that the Board appropriately
considered and applied the Cox factors. Pepsi also asserts that the attorneys’ fee
award was reasonable because the Board appropriately anchored it to the medical
witness fees award. Nevertheless, Pepsi argues that the Board committed legal error
by awarding her more than thirty-percent of the medical witness fees. Pepsi also
challenges the Court’s earlier decision holding that an attorneys’ fee was available
in any amount.2 In seeking reargument on that issue, Pepsi cites authority that it did
not provide to the Court in the first instance.
         For the reasons discussed below, Ms. Holben was entitled to an attorneys’ fee.
To the extent Pepsi seeks a different decision after reargument on that issue, its
request is DENIED.           Nevertheless, the Board’s award exceeded the maximum
amount recoverable under the statute. Accordingly, the Board’s decision must be
REVERSED as legal error as to the amount due. Based upon the uncontroverted
record below, the fee should have been the statutory maximum of thirty-percent of
the medical witness fees awarded by the Board.


                  I.      Facts of Record and Procedural Background
         Ms. Holben suffered a work injury on October 26, 2016. On July 25, 2017,
Pepsi filed a Petition for Review, seeking to terminate her Temporary Total



1
    304 A.2d 55, 57 (Del. 1973).
2
    Holben v. Pepsi Bottling Ventures, LLC, 2018 WL 6603792, at *9 (Del. Super. Dec. 13, 2018).
                                                2
Disability (“TTD”) benefits. Pepsi then sent a thirty-day rule offer3 letter to Ms.
Holben’s attorney on January 24, 2018. In relevant part, Pepsi offered to settle the
case by:
                 1. [p]lacing Claimant on an Open Agreement for
                    temporary partial disability benefits at the weekly
                    compensation rate of $146.42 . . .; and
                 2. [t]his offer is inclusive and does not include an award
                    of an attorney’s or medical witness’ fees.4

          Prior to an IAB hearing and within the thirty-day period that Ms. Holben had
to consider the offer, she incurred a non-refundable $1,500 medical witness fee for
Dr. Piccioni’s deposition testimony. Accepting Pepsi’s thirty-day rule offer would
have required her to forgo payment of a medical witness fee that became non-
refundable early within the thirty days. Pepsi excluded medical witness fees from
its offer notwithstanding that Ms. Holben would receive them as a matter of right if
she recovered any Temporary Partial Disability (“TPD”) benefits after the hearing.
          After the hearing, the Board terminated her TTD benefits and awarded her
TPD benefits at a weekly compensation rate of $132.86. The Board separately
awarded Ms. Holben medical witness fees. It did not award her an attorneys’ fee,
however, because the amount of TPD benefits recovered were less than what Pepsi
had offered for TPD benefits.
          Ms. Holben then appealed the IAB’s decision contesting (1) the TPD
compensation rate set by the Board, and separately (2) the Board’s refusal to award
an attorneys’ fee because Ms. Holben recovered medical witness fees that Pepsi had
excluded from its offer. On appeal, the Court affirmed the Board’s finding regarding




3
    See 19 Del. C. § 2320(10)b. (providing for the thirty-day rule).
4
    Appellant Holben Opening Br., Ex. D (emphasis added).
                                                   3
the amount of TPD benefits. However, the Court reversed the Board’s denial of an
attorneys’ fee and remanded the matter.5
       Thereafter, on January 10, 2019, Pepsi appealed the Court’s decision
regarding the attorneys’ fee. The Delaware Supreme Court dismissed the appeal as
interlocutory because the matter had been remanded to the Board. 6 On January 11,
2019, Ms. Holben then filed an application for an attorneys’ fee for legal services
performed in this Court. The Court deferred Ms. Holben’s application regarding any
fee due for Superior Court litigation because the IAB had not yet concluded its
findings on remand.7
       On April 17, 2019, at the remand hearing, the Board heard argument on the
attorneys’ fee matter and issued a written decision. In it, the Board addressed the
difference between Pepsi’s total settlement offer and the Board’s total award. 8 The
Board also addressed the Cox factors. It examined the difficulty of the case, fees
customarily charged in the locality, the amounts involved, the result obtained, time
limitations imposed upon Ms. Holben’s counsel, and the experience and reputation
of her counsel.9        The Board awarded $500 “based on the results obtained,
information and arguments presented, the Superior Court’s decision, and the fact
that [Ms. Holben] turned down a reasonable settlement offer that would have netted
her more money than the Board’s award.”10
       Thereafter, Ms. Holben appealed the Board’s decision. Pepsi, in turn, filed a
cross-appeal.

5
  Holben v. Pepsi Bottling Ventures, LLC, 2018 WL 6603792, at *1 (Del. Super. Dec. 13, 2018).
6
  Pepsi Bottling Ventures, LLC v. Holben, No. 16, 2019, at *4 (Del. Feb. 1, 2019).
7
  Holben v. Pepsi Bottling Ventures, LLC, 2019 WL 549036, at *1 (Del. Super. Feb. 11, 2019).
8
  Holben v. Pepsi Bottling Ventures, LLC, No. 1449337, at 2 (Del. I.A.B. May 1, 2019). The Board
calculated its TPD award to Ms. Holben as totaling $39,858.00, or $41,358.00 when adding the
medical witness fees. It compared this amount to the total of Pepsi’s settlement offer, $43,926.00,
and noted the settlement offer was still greater than the amount Ms. Holben received.
9
  Holben v. Pepsi Bottling Ventures, LLC, No. 1449337, at 3 (Del. I.A.B. May 1, 2019).
10
   Id. at 4.
                                                4
                           II.    The Parties’ Arguments
       In her appeal, Ms. Holben argues that the Board abused its discretion by
basing its award upon an improper factor. 11 She further alleges that the Board failed
to apply some of the Cox factors and did not explain the weight it gave to others.
She also claims that the Board abused its discretion by relying on the fact that her
total recovery was less than the total amount Pepsi had offered.
      In response, Pepsi argues that the Board appropriately considered the Cox
factors. Additionally, it argues that the Board’s attorneys’ fee award is reasonable
because the Board based it primarily upon Ms. Holben’s success on one issue, the
medical witness fees. In Pepsi’s cross-appeal, it separately argues that the Board’s
fee award should be reduced pursuant to 19 Del. C. § 2320(10)a. That paragraph,
Pepsi argues, limits it to thirty-percent of the $1,500 award at issue. In this case,
that would be $450.
      Finally, Pepsi seeks Court reconsideration of its prior decision recognizing the
appropriateness of any attorneys’ fee in this case.12 Pepsi emphasizes that medical
witness fees are taxed as a cost, and should not be considered compensation. It also
argues that because Ms. Holben rejected an offer of TPD benefits that exceeded what
she actually recovered, it would be against public policy to award them in this case.
Germane to the Court’s decision to readdress this issue is Pepsi’s cite to allegedly
mandatory authority that Pepsi did not raise before the Court’s December 13, 2018
Opinion.
      In response to Pepsi’s arguments on cross-appeal, Ms. Holben emphasizes
that the Court’s previous holding makes it the law of the case. In that regard, Ms.


11
  Appellant Holben Opening Br. at 19, 21.
12
  Holben v. Pepsi Bottling Ventures, LLC, 2018 WL 6603792, at *8–10 (Del. Super. Dec. 13,
2018).
                                           5
Holben argues that Pepsi attempts an untimely motion for reargument by asking the
Court to reconsider its previous decision. Finally, she substantively argues that the
new authority Pepsi cites predates relevant 1995 statutory amendments, and has been
abrogated by statute.


                              III.   Standard of Review
      This Court's appellate review of an IAB decision is limited to determining
whether the Board's decision was supported by substantial evidence and whether the
Board committed an error of law. 13 Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” 14
On appeal, the Court views the facts in the light most favorable to the prevailing
party below. 15    Moreover, the Court does not weigh the evidence, determine
questions of credibility, or make its own factual findings. 16 Absent any errors of
law, which are reviewed de novo, a decision of the IAB supported by substantial
evidence will be upheld unless the Board abused its discretion. 17 Questions of
statutory interpretation, as questions of law, fall within the Court’s de novo review. 18


                                     IV.    Analysis
      This appeal involves two issues: one previously decided and a new one arising
after the IAB’s decision on remand. With regard to the first issue, because Pepsi
now cites a Delaware Supreme Court case that it alleges is controlling, the Court

13
   Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing General
Motors v. Freeman, 164 A.2d 686, 689 (Del. 1960)).
14
   Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm'n, 383
U.S. 607, 620 (1966)).
15
   Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965).
16
   Bullock, 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.
1965)).
17
   Hoffecker v. Lexus of Wilmington, 2012 WL 341714, at *1 (Del. Feb. 1, 2012).
18
   Delaware Bay Surgical Servs., P.C. v. Swier, 900 A.2d 646, 652 (Del. 2006).
                                            6
will address the matter in the interest of justice. The second issue on appeal involves
the amount of the fee due. For the reasons that follow, the statute required an award
of a fee. The IAB, however, exceeded the statutory maximum when awarding it.


       A. The 1995 Amendment to the Workers’ Compensation Act
          included medical witness fees within the attorneys’ fee
          provision; medical witness fees qualify as an issue that may
          trigger the right to recover an attorneys’ fee.
       The Court provided its reasoning regarding the fee issue in its December 13,
2018 Opinion.        Pepsi now cites additional authority that justifies a closer
examination of the amendments to the Workers’ Compensation Act (“Act”).
       At the outset, pursuant to the thirty-day rule, an attorney’s fee is mandatory
when the claimant succeeds on an issue.19 A claimant cannot recover the fee if, thirty
days or more prior to the hearing, the employer sends a written settlement offer to
the claimant or the claimant’s attorney that is equal to or greater than the amount
ultimately awarded to the claimant. 20 The rule requires that an attorney’s fee be
denied if the claimant does not exceed the employer’s pre-hearing offer regarding
an “issue.”21
       Prior to a 1995 Amendment to the Act, the Act contained one provision that
applied to medical witness fees. Namely, in what was then codified as 19 Del. C. §
2125, the General Assembly provided the following:
       [w]itness fees . . . shall be computed at the rate allowed to witnesses in
       the Superior Court. Costs legally incurred may be taxed against either
       party or apportioned between the parties at the sound discretion of the
       Board.22

19
   Blythe v. VPI Mirrex, LLC, 2004 WL 1102438, at *6 (Del. Super. May 10, 2004).
20
   19 Del. C. § 2320(10)b.; Blythe, 2004 WL 1102438, at *6.
21
   19 Del. C. § 2320(10)b.
22
   19 Del. C. § 2125 (repealed 1997) (current version at 19 Del. C. § 2320(8)); see 71 Del. Laws
ch. 84, §§ 1, 11 (1997).
                                               7
       Furthermore, prior to 1995, 19 Del. C. § 2127 provided for the recovery of
attorneys’ fees. That section did not address medical witness fees. In total, it
provided:
       (a) A reasonable attorney’s fee in an amount not to exceed 30% of the
       award or $2,250, whichever is smaller, shall be allowed by the Board
       to any employee awarded compensation under this chapter and Chapter
       23 of this title and taxed as costs against a party.
       (b) No compensation, other than the fee provided by subsection (a) of
       this section, may be received by an attorney for services before the
       Board; provided, however, that this limitation shall not apply to any fee
       for services rendered by an attorney on appeal from an award or a denial
       of an award by the Board. 23
       In its briefing, Pepsi now relies on a 1969 Delaware Supreme Court decision,
Case v. City of Wilmington.24        In that case, the Supreme Court held that because
medical witness fees were taxed as a cost to the employer, “[t]he amount of the fee
cannot be said to be a part of the award for disability.”25 The then existing Act (1)
included one section that treated all “witness fees” as costs, (2) did not address
medical witness fees in the attorneys’ fee provision, and (3) did not delineate matters
as “issues” for fee award purposes. Given that construct, the Supreme Court held
that a medical witness fee could not be considered part of an award for the purpose
of computing an attorneys’ fee.26
       In addition, Pepsi also cites a pre-1995 Superior Court case, Dennis v.
Pennsylvania Manufacturers Association Insurance Co,27 in support of its argument.
There, in reliance upon the Case decision, the Superior Court similarly held that


23
   19 Del. C. § 2127 (amended 1995) (repealed 1997) (current version at 19 Del. C. § 2320(10));
see 70 Del. Laws ch. 129, § 1 (1995); 71 Del. Laws ch. 84, §§ 1, 11 (1997).
24
   260 A.2d 703 (Del. 1969).
25
   Id.
26
   Id.
27
   1992 WL 240458, at *2 (Del. Super. Aug. 14, 1992).
                                              8
“[c]osts and fees which are costs are not part of the award for compensation to a
claimant. . . The attorney's fees, medical witness fees, and transcript costs are all
costs [,] not a part of the award of compensation.”28 In its decision, the Dennis Court
recognized that absent statutory authorization, a claimant could not recover interest
on costs, including on unpaid medical witness fees.29 Pepsi argues that, by analogy,
the Dennis decision’s reasoning applies to attorneys’ fees in the same way as it does
to interest.
       The General Assembly, however, amended the statute after the 1969 Case
decision and the 1992 Dennis decision. When doing so, it restructured the attorneys’
fee provision and included a reference to medical witness fees. When revising the
attorneys’ fee provision, the General Assembly did not include any cost other than
medical witness fees within the section. It also, for the first time, included language
providing that success on separate issues warrant separate awards of attorneys’ fees.
Finally, it included the requirement that the employer state in the offer “whether or
not the offer on each issue is severable.”
       As opposed to the version considered by the Delaware Supreme Court in the
Case decision, 19 Del. C. § 2320(10) now provides:
       (10) – Attorneys’ Fee
       (a) A reasonable attorneys' fee in an amount not to exceed 30 percent
       of the award or 10 times the average weekly wage in Delaware as
       announced by the Secretary of Labor at the time of the award, whichever
       is smaller, shall be allowed by the Board to any employee awarded
       compensation under Part II of this title and taxed as costs against a
       party.30
       (b) In the event an offer to settle an issue pending before the Industrial
       Accident Board is communicated to the claimant or the claimant's

28
   Id. (citing Case, 260 A.2d at 703).
29
   Id.
30
   19 Del. C. § 2320(10)a. This version of the 30-day rule was first enacted as 19 Del. C. § 2127
in 1995. 70 Del. Laws ch. 129, § 1 (1995). In a 1997 amendment, the General Assembly
                                               9
       attorney, in writing, at least 30 days prior to the trial date established
       by the Board on such issue and the offer thus communicated is equal
       to or greater than the amount ultimately awarded by the Board at the
       trial on that issue, the provisions of paragraph (10)a. of this section
       shall have no application. If multiple issues are pending before the
       Board, said offer of settlement shall address each issue pending and
       shall state explicitly whether or not the offer on each issue is severable.
       The written offer shall also unequivocally state whether or not it
       includes medical witness fees and expenses and/or late cancellation
       fees relating to such medical witness fees and expenses.31
       It is well-settled that the goal of statutory construction is to give effect to
legislative intent.32      As the Delaware Supreme Court recognized, “[i]n the
construction of a statute, this Court has established as its standard the search for
legislative intent.     Where the intent of the legislature is clearly reflected by
unambiguous language in the statute, the language itself controls.” 33
       As discussed in the Court’s previous decision, the thirty-day rule provisions
found in Paragraph b. provide the penalty of preclusion of an attorneys’ fee.
Paragraph b., by negation, incorporates Paragraph a.34 For there to be a loss of a
right to an attorneys’ fee in the manner provided in Paragraph b., there must have
first been a right to seek one pursuant to Paragraph a.                The General Assembly
included (1) language linking success on an issue to attorneys’ fees, (2) while
addressing only one type of cost in the attorneys’ fee provision — medical witness
fees. This demonstrates the General Assembly’s intent that medical witness fees
constitute an issue for purposes of the thirty-day rule.


subsequently redesignated the provision at its current location, 19 Del. C. § 2320(10). 71 Del.
Laws ch. 84, §§ 1, 11 (1997).
31
   19 Del. C. § 2320(10)b. (emphasis added).
32
   Richardson v. Bd. of Cosmetology & Barbering of State, 69 A.3d 353, 357 (Del. 2013).
33
   Zambrana v. State, 118 A.3d 773, 775–76 (Del. 2015) (quoting Spielberg v. State, 558 A.2d
291, 293 (Del.1989)).
34
   19 Del. C. § 2320(10)b. (providing that “the provisions of paragraph (10)a. of this section shall
have no application” if the thirty-day rule’s consequences are imposed).
                                                10
       In the alternative, to the extent that this statute contains an ambiguity, the same
conclusion follows from reading the two paragraphs in pari materia.35 If there is
more than one reasonable interpretation of a statute, “the Court must apply accepted
standards of statutory interpretation to arrive at what the legislature intended.” 36
Furthermore, as “‘[t]o that end, the statute must be viewed as a whole, and literal or
perceived interpretations which yield mischievous or absurd results are to be
avoided.’ [The Court] must read each section in light of all others to produce a
harmonious whole and achieve a ‘sensible result.’”37
       In this case, Paragraph a. provides for the award of an attorneys’ fee and sets
a cap on the permissible amount. Paragraph b. creates the thirty-day rule that defines
when the fees are unavailable based on an offer/acceptance mechanism. Paragraph
b. requires specificity from the employer regarding whether issues are to be
considered separate or combined for settlement purposes. It also includes a specific
reference to medical witness fees by requiring the settlement offer to “state whether
or not it includes medical witness fees and expenses[.]” 38
       Pepsi argues that applying the statute in this manner offends good public
policy. The Court disagrees. The two-fold policy behind the thirty-day rule is “(1)
to encourage early settlement by employers before claimants’ attorneys must engage
in substantial prehearing preparation, and (2) to prevent abuses by claimants’
attorneys, who do not accept valid settlement offers, and thereby force unnecessary



35
   Holben v. Pepsi Bottling Ventures, LLC, 2018 WL 6603792, at *9 (Del. Super. Dec. 13, 2018)
(explaining that when read in pari materia, 19 Del. C. § 2320(10)a. and b. are understood to require
an award of attorney’s fees regarding each issue where a claimant recovers an amount greater than
an employer offered).
36
   Zambrana, 118 A.3d at 776 (quoting Hudson Farms, Inc. v. McGrellis, 620 A.2d 215, 217–18
(Del.1993)).
37
   Id. (quoting Spielberg, 558 A.2d at 293) (citing Zhurbin v. State, 104 A.3d 108, 113 (Del. 2014));
Taylor v. Diamond State Port. Corp., 14 A.3d 536, 538 (Del. 2011)).
38
   19 Del. C. § 2320(10)b.
                                                11
Industrial Accident Board Hearings.”39 This two-fold policy includes, for the
claimant’s benefit, the mitigation of costs necessary to prepare for hearings. For a
litigant receiving less than $150 per week in lost wage benefits, the cost of a medical
witness’s deposition fee is a significant item. Accepting Pepsi’s argument that
medical witness fees are not subject to thirty-day rule consequences would
incentivize employers to never offer them. Claimants must often pay these fees prior
to the thirty-day period. They also often become non-refundable during the thirty
days that the claimant is statutorily entitled to consider the offer.40 In this regard,
the General Assembly’s choice to include medical witness fees within subsection
(10) of Section 2320 does not contravene good public policy.


       B.    The Board’s award of an attorneys’ fee for Ms. Holben’s success
       on the issue of medical witness fees was subject to the statutory
       limitations of 19 Del. C. § 2320(10)a.

       Ms. Holben challenges the amount of the award. She argues that when
considering her entire award, including TPD benefits and medical witness fees, the
Board’s fee award was unreasonably low. Pepsi counters that if Ms. Holben is due
a fee, the award should be based only upon Ms. Holben’s success on the single issue.
       Ms. Holben focuses primarily on the Board’s consideration of the Cox
factors.41 In this instance, the Court’s decision does not turn on their application.

39
   State v. Drews, 491 A.2d 1136, 1139 (Del. 1985) (emphasis added).
40
   Pepsi misunderstands the Court’s reference to a separate statute and an unrelated Court rule that
provide settlement incentives in other contexts. See Holben v. Pepsi Bottling Ventures, LLC, 2018
WL 6603792, at *9–10 (Del. Super. Dec. 13, 2018) (referencing 6 Del. C. § 2301(d) and Super.
Ct. Civ. R. 68’s requirements to keep settlement offers open for a stated period). The Court
included those references in its December 2018 Opinion for the sole purpose of illustrating why a
workers’ compensation claimant must be provided a full thirty days to consider a thirty-day rule
offer.
41
   General Motors Corp. v. Cox, 304 A.2d 55, 57 (Del. 1973) (holding that factors to be considered
in determining attorneys’ fees include: “(1) The time and labor required, the novelty and difficulty
of the questions involved, and the skill requisite to perform the legal service properly. (2) The
                                                12
Rather, it involves review for a legal error based upon whether the Board should
have considered the entirety of the award (including TPD benefits),42 or limited its
consideration solely to the amount of fees justified by the successful recovery of
medical witness fees.
       Ms. Holben argues broadly that her receipt of TPD benefits should be
considered an award for purposes of her attorneys’ fee award. She claims that
despite her TPD benefits award being less than the settlement offer, the Board still
awarded those benefits to her. She further argues that her attorneys’ fee should be
awarded based upon her “benefits . . . as a whole and not just on the basis of her
success on the medical expert witness fees.” 43
       The Court disagrees. The same issue specific language in § 2320(10)b. that
controlled the first part of the Court’s analysis also demonstrates what award her
attorneys’ fee must be linked to. Pepsi sought to rely upon pre-1995 cases regarding
the appropriateness of an attorneys’ fee award; in regard to the amount due, Ms.
Holben also seeks to rely upon a number of pre-1995 cases that make an award all
or nothing.44 The cases Ms. Holben relies upon, as the Case and Dennis decisions,


likelihood, if apparent to the client, that the acceptance of the particular employment will preclude
other employment by the lawyer. (3) The fees customarily charged in the locality for similar legal
services. (4) The amount involved and the results obtained. (5) The time limitations imposed by
the client or by the circumstances. (6) The nature and length of the professional relationship with
the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the
services. [and] (8) Whether the fee is fixed or contingent” and requiring the IAB or the Court to
provide its reasoning regarding its application of these factors).
42
   Holben v. Pepsi Bottling Ventures, LLC, No. 1449337, at 16 (Del. I.A.B. May 18, 2018). In its
decision on Employer Pepsi’s Petition for Review to Terminate Benefits, the Board found Ms.
Holben entitled to payment of TPD benefits at the rate of $132.86 per week and medical witness
fees.
43
   Appellant Holben Reply Br. at 8.
44
   See Acme Markets, Inc. v. Fry, 1991 WL 22370, at *4 (Del. 1991) (TABLE) (citing Willingham
to find 19 Del. C. § 2127(a) entitles claimants to an attorneys’ fee for any beneficial change in the
total amount awarded); Willingham v. Kral Music, 505 A.2d 34, 36 (Del. Super. 1986) (analyzing
the issue of attorneys’ fee under 19 Del. C. § 2127(a) to determine an “award” or “compensation”
is any favorable change of position or benefit as the result of a Board decision); See also Pugh v.
                                                13
were also abrogated by statute. Namely, as opposed to the statute that was applicable
to the pre-1995 cases she cites, the current thirty-day rule consequences flow from
success or failure on an “issue.”45 Paragraphs a. and b. of Subsection (10), when
read together, provide that a claimant’s attorneys’ fee recovery is issue specific.46
Here, Pepsi’s total pre-hearing offer was not relevant regarding whether the Board
should have awarded a fee. Likewise, the combined amount the Board actually
awarded was not relevant to the amount of the fee.
       Accordingly, after the remand, the Board’s error lies in the amount it awarded.
Namely, Ms. Holben recovered $1,500 in medical witness fees.47 Pursuant to 19
Del. C. § 2320(10)a., she could receive no more than thirty-percent of that amount.
In its Answer to Ms. Holben’s Opening Brief, Pepsi requested that the Court reduce
the Board’s award from $500 to $450. The IAB, after addressing the Cox factors,
awarded an amount in excess of the statutory maximum. It therefore exercised its
discretion sufficiently for the Court to conclude that it believed the Cox factors
justified an award higher that the amount permitted by statute. Because the Board
demonstrated and adequately supported that finding, the Court will reduce the award
to the maximum permitted by statute, $450.




Wal-Mart Stores, Inc., 945 A.2d 588 (Del. 2008) (relying on the interpretations of 19 Del. C. §
2127(a) in Acme and Willingham when § 2127 was still applicable). Ms. Holben’s reliance on
these cases for her purposes is inconsistent with her arguments elsewhere. Namely, she
emphasized 19 Del. C. § 2127’s present inapplicability and how it precluded reliance on the Case
and Dennis decisions cited by Pepsi. On the issue of amount of fees due, she now inconsistently
argues that attorneys’ fees should not be awarded on an individualized, issue-driven basis.
45
   See 70 Del. Laws ch. 129, § 1 (1995). For the first time, this amendment to 19 Del. C. § 2127
added the term “issue” to be considered in the context of the thirty-day rule.
46
   See 19 Del. C. § 2320(10).
47
   Holben v. Pepsi Bottling Ventures, LLC, No. 1449337, at 16 (Del. I.A.B. May 18, 2018).
                                              14
                                V.     Conclusion

      Because the Board properly awarded an attorneys’ fee, Pepsi’s request for
reconsideration of the Court’s decision regarding the availability of the fee is
DENIED. Nevertheless, because the Board committed legal error when awarding
an amount in excess of the statutory maximum, the Board’s decision must be
REVERSED, in part. The Court’s final order will include $450 as that award.
Furthermore, the Court will schedule a hearing to address the attorneys’ fee due Ms.
Holben for prosecuting this single successful issue in Superior Court.

      IT IS SO ORDERED.



                                                    /s/Jeffrey J Clark
                                                          Judge




                                        15
