Wayne Dill v. First State Construction, IAB Hearing No. 1314167 (March 4, 2011) (Order)
Employer filed a Petition for Review seeking to terminate Claimant's temporary total disability benefits. After presenting several medical and vocational witnesses through prior deposition testimony, Employer's counsel notified the Board that Claimant, who was present in the hearing room, was not the subject of surveillance video upon which Employer intended to rely to establish an improvement in Claimant's work capabilities. Accordingly, Employer moved to withdraw the Petition. Claimant's counsel acknowledged that he was aware, probably prior to the depositions of Employer's medical witnesses, that the surveillance video depicted the wrong person. However, he insisted that he had no duty to notify opposing counsel of the error. The Board allowed Employer to withdraw the Petition, over Claimant's objection. The Board held that, pursuant to Lattis v. Blackwell and Son, Inc., 1992 WL 53435 (Del. Feb. 28, 1992), Claimant was entitled to an attorney's fee award for time spent defending against a withdrawn termination petition. However, it awarded a nominal attorney's fee of $100, noting that Claimant's counsel's failure to disclose the surveillance video error prevented good faith settlement negotiations prior to the hearing; wasted administrative resources; and amounted to impermissible "trial by surprise."