NONA M. FREEMAN, Employee/Appellant, v. TRI COUNTY HOSP., SELF-INSURED, adm=d by BERKLEY RISK ADM=RS, Employer.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 10, 2002
ATTORNEY FEES - RORAFF FEES. Substantial evidence supports the compensation judge=s determination that no genuine dispute existed regarding the employee=s need for right shoulder surgery and the judge=s denial of the employee=s claim for Roraff-type attorney=s fees.
Determined by Johnson, C.J., Wilson, J. and Stofferahn, J.
Compensation Judge: Bradley J. Behr
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s finding that no genuine dispute existed regarding the employee=s need for right shoulder surgery and the judge=s denial of the employee=s claim for Roraff-type attorney fees. We affirm.
The facts in this case are essentially undisputed. Nona M. Freeman, the employee, sustained a personal injury to her right shoulder on January 19, 1999, while working for Tri County Hospital, the employer. The self-insured employer admitted liability for the employee=s injury and paid various benefits. On June 8, 1999, Dr. Daniel Buss performed an arthroscopic decompression of the right shoulder and a distal clavicle excision. Thereafter, the employee returned to work with the employer.
By report dated January 10, 2001, Dr. Buss opined the employee sustained a 13 percent permanent partial disability, and stated she might require a right rotator cuff hemiarthroplasty for pain relief. The employee returned to see Dr. Buss on January 17, 2001, complaining of increasing right shoulder pain over the past one to two months. An x-ray demonstrated rotator cuff tear arthropathy and Dr. Buss recommended the hemiarthroplasty surgery.
On January 23, 2001, Steven J. Drummond, the employee=s attorney, requested the Department of Labor and Industry (DOLI) certify the existence of a medical dispute regarding the surgery recommended by Dr. Buss. See Minn. Stat. ' 176.081, subd. 1(a). By letter dated January 25, 2001, Ms. Lilly R. Kumar, an employee of DOLI, declined to certify the dispute pending receipt of the employer=s independent medical evaluation (IME) report.
In the meantime, on January 11, 2001, the employee had been examined by Dr. Peter Daly on behalf of the self-insured employer. The doctor issued a report stating no further treatment was required. He opined, however, that surgery, including a right shoulder hemiarthroplasty, might be necessary if x-rays and a clinical examination documented worsening symptoms. Dr. Daly=s report was transcribed on January 30, 2001, served upon the employee and her attorney on February 12, 2001, and filed with DOLI on February 14, 2001. On February 15, 2001, Mr. Drummond again requested certification of a surgical dispute. On February 27, 2001, Ms. Kumar certified the employee=s surgical request as a medical dispute.
The employer had provided a copy of Dr. Buss=s report of January 17, 2001 to Dr. Daly. By report dated February 26, 2001, Dr. Daly stated he agreed with Dr. Buss=s recommendation for surgery. Dr. Daly=s supplemental report was received by Douglas J. Brown, the employer=s attorney, on March 2, 2001. On March 9, 2001, the employee=s attorney, Mr. Drummond, filed a Medical Request seeking authorization for a right shoulder hemiarthroplasty. There is no evidence Mr. Drummond had by then received or was aware of Dr. Daly=s supplemental report of February 26, 2001. On April 5, 2001, the employer filed a Medical Response agreeing to pay for the requested surgery. The employee underwent a right shoulder hemiarthroplasty on April 9, 2001, for which the self-insured employer paid medical expenses in the sum of $19,462.91. Following the surgery, the employer also commenced payment of temporary total disability benefits from which $1,450.83 had been withheld for attorney fees. Mr. Drummond has not petitioned for release of these fees.
In August 2001, Mr. Drummond filed a fee petition seeking Roraff-type attorney fees of $4,092.58 based upon application of the 25/20 formula of Minn. Stat. ' 176.081, subd. 1(a), computed upon the medical expenses paid for the surgery. The self-insured employer filed an objection to the fee petition. The case was heard by Compensation Judge Behr on November 19, 2001. In a findings and order filed January 14, 2002, the compensation judge found the employee=s request for authorization of shoulder surgery was prematurely certified as a medical dispute by DOLI and found there was no genuine dispute regarding the employee=s need for right shoulder surgery. Accordingly, the compensation judge denied the employee=s claim for Roraff fees. The employee appeals.
The employee argues the compensation judge=s finding that DOLI prematurely certified the employee=s surgical request as a medical dispute is clearly erroneous. She asserts the department representative had Dr. Buss=s report recommending surgery and Dr. Daly=s report recommending no further treatment. At this point, the employee argues, the department had sufficient information to certify a medical dispute and did not do so prematurely. The self-insured employer counters that by February 26, 2001 Dr. Daly had agreed that surgery was necessary. While Ms. Kumar of DOLI was unaware of this report when she certified the medical dispute on February 27, 2001, there was actually no dispute between the parties at that time. Accordingly, the respondent contends, substantial evidence supports the compensation judge=s conclusion that the surgical request was prematurely certified as a medical dispute.
We conclude that whether or not DOLI prematurely or properly certified a medical dispute is irrelevant in determining whether the employee=s attorney is entitled to Roraff fees. Minn. Stat. ' 176.081, subd. 1(c), provides that an attorney fee Amay not be charged@ for a medical issue Abefore the employee has consulted with the department and the department certifies that there is a dispute.@ By its plain langugage, this statutory requirement is relevant to a request for payment of Roraff fees only where there is no prior certification by the department.
Minn. Stat. ' 176.081(c), further states, in relevant part:
In no case shall fees be calculated on the basis of any undisputed portion of compensation awards. Allowable fees under this chapter shall be based solely on genuinely disputed claims or portions of claims . . . . The existence of a dispute is dependent upon a disagreement after the employer or insurer has had adequate time and information to take a position on liability. Neither the holding of a hearing nor the filing of an application for a hearing alone may determine the existence of a dispute.
The compensation judge found there was no genuine dispute regarding the employee=s need for right shoulder surgery. The employee also appeals this finding.
The employee argues her attorney properly followed the statutory pre-requisites by seeking certification of a medical dispute and, upon receipt of same, in filing a Medical Request. At the time Mr. Drummond filed the request for certification, there is no evidence he was aware of Dr. Daly=s supplemental report. Accordingly, the employee contends there was a genuine dispute on each of these dates entitling the employee to Roraff fees. Under the unusual facts of this case, we disagree.
In Ovall v. Haven Homes, 52 W.C.D. 139 (W.C.C.A. 1995), this court held that a genuine dispute existed (for the purpose of payment of subd. 7 attorney fees) where the employer and insurer filed an answer denying entitlement to the claimed benefits. In this case, the employer admitted liability for the proposed surgery in its Medical Response and agreed to pay for the surgery. We recognize the fact that the employer ultimately admitted liability is not always determinative on the issue of whether there existed a genuinely disputed claim. In some instances, the efforts of the employee=s attorney may lead to a voluntary payment of benefits by the employer or insurer, entitling the attorney to payment of fees. In other cases, an award of attorney fees may be appropriate where the insurer failed to timely pay a benefit. See, e.g., Solem v. Sysco Minn., 54 W.C.D 423 (W.C.C.A. 1996). Ultimately, however, the issue of whether there exists a genuinely disputed claim is a question of fact for a compensation judge. Biederman v. Win Stephens Buick, 58 W.C.D. 497 (W.C.C.A. 1998). On appeal, the question is whether the judge=s factual decision is supported by substantial evidence. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
In this case, when Dr. Daly examined the employee on January 11, 2001, he cautioned the employee might need a right shoulder hemiarthroplasty if x-rays and a clinical examination documented worsening symptoms. On January 17, 2001, the employee complained of worsening symptoms to Dr. Buss. An x-ray demonstrated rotator cuff tear arthropathy and Dr. Buss recommended a right shoulder hemiarthroplasty. Upon receipt of Dr. Buss=s surgical recommendation, the employer=s counsel sent the report to Dr. Daly who agreed the proposed surgery was necessary. Dr. Daly=s supplemental report was dated February 26, 2001, the day before the department certified the dispute. The compensation judge acknowledged Mr. Drummond acted professionally and properly in pursuing his client=s interests. However, the judge concluded that under the unique circumstances of this case, there was no genuine dispute as to the need for surgery.
Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 169, 201, 229 N.W.2d 521, 524 (1975). On these facts, the compensation judge=s findings are not clearly erroneous and must, therefore, be affirmed.