SUELYNNE BENNETT, Employee/Appellant, v. TTC ILLINOIS, INC., and CREDIT GENERAL INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 11, 2003
ATTORNEY FEES - RORAFF FEES. Where the employer and insurer paid medical expenses and later withdrew their admission of primary liability at a hearing for wage loss benefits, the employee=s attorney was not entitled to Roraff fees for succeeding in re-establishing primary liability at that hearing for the medical expenses already paid and the employee=s right to claim future medical expenses when there was no current medical claims at issue at that hearing.
Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Donald C. Erickson
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s denial of attorney fees under Roraff v. State of Minn., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980). We affirm.
On January 15, 2001, Suelynne Bennett, the employee, sustained a work-related right knee injury while working as an over-the-road truck driver for TTC Illinois, Inc., the employer. The employee was injured while exiting the cab door of a semi-truck which she and her husband, a co-employee, were taking on a ten-day trip. The employer was insured for workers= compensation liability by Credit General Insurance Company. The employer and insurer admitted liability for the employee=s work injury and paid medical expenses and temporary total disability benefits. The employee remained off work from January 25, 2001, through August 28, 2001, and returned to work until November 22, 2001, when she could no longer perform her work activities. The employee testified that she discontinued physical therapy on December 18, 2001, because the employer and insurer refused to pay for the therapy. She continued to seek medical treatment for her condition.
On February 28, 2002, the employer and insurer filed a notice of intention to discontinue benefits (NOID), stating that they had ceased payment of temporary total benefits on August 28, 2001, since the employee had returned to work by that date, and alleging that the employee=s condition and disability were not causally related to her work injury and that benefits were paid under mistake of fact. As medical support for their discontinuance, the employer and insurer relied on the opinions of Dr. William Akins, who had examined the employee at their request on December 28, 2001. An administrative conference was held on March 25, 2002, to address the NOID. By Order on Discontinuance served and filed on March 26, 2002, the compensation judge found that the employee=s medical condition was causally related to her work injury and had prevented her from working from and after November 23, 2001, and therefore that the employee was entitled to reinstatement of temporary total disability benefits effective November 23, 2001.
On April 2, 2002, the employer and insurer filed a petition to discontinue workers= compensation benefits, in which they denied primary liability, again basing their arguments on the opinions of Dr. Akins. The employer and insurer argued that all benefits had been paid under a mistake of fact, that the employee needed no additional medical treatment as a result of her injury, and that the employer and insurer could discontinue payment of medical expenses and rehabilitation services. On April 9, 2002, the employer and insurer issued payment for temporary total disability benefits between November 23, 2001, and April 9, 2002, and apparently simultaneously withheld and paid attorney fees of $2,477.00 to the employee=s attorney. On April 9, 2002, the employer and insurer also filed an amended Notice of Insurer=s Primary Liability Determination, denying liability for the employee=s injury and asserting that they had paid benefits under mistake of fact.
On April 16, 2002, the employee=s attorney filed a statement of attorney=s fees, seeking approval for the payment of $2,477.00 in contingency fees, pursuant to Minn. Stat. ' 176.081, subd. 1(a), and reimbursement of $263.95 in costs and disbursements, based on his representation of the employee to quash the NOID. By letter to the compensation judge dated April 18, 2002, counsel for the employer and insurer advised that he had no objection to payment of attorney=s fees issued to-date as a result of the Order on Discontinuance. He also stated that
Additionally, however, given that my client is now issuing weekly benefit checks to the employee, I would appreciate it if any award of attorney=s fees includes additional payment of weekly attorney=s fees to the employee=s attorney through the date of any decision potentially extinguishing my client=s obligation to pay benefits to the employee. As you know from the defenses at the discontinuance conference, my client was denying liability for all wage loss benefits.
Counsel for the employer and insurer, however, objected to the employee=s attorney=s request for payment of taxable costs and disbursements, as it was not clear that the claimed costs were related to the payment of indemnity benefits ordered by the compensation judge, and because the employee=s attorney had not provided documentation of those costs. The employee=s attorney later provided documentation of those costs, and by Order Determining Attorney Fees, served and filed on May 3, 2002, the compensation judge ordered payment of $2,477.00 in attorney fees, payment to the employee for partial reimbursement of attorney fees pursuant to Minn. Stat. ' 176.081, subd. 7, and reimbursement of $263.95 in taxable costs and disbursements. The employer and insurer apparently issued payment of those fees and costs.
The employer and insurer continued to pay temporary total disability benefits to the employee and also continued to withhold and pay attorney fees to the employee=s attorney. A formal hearing was held on June 7 and July 1, 2002, to address the employer and insurer=s petition to discontinue benefits. No additional medical expenses were claimed by the employee at the time of the formal hearing.
In findings and order served and filed August 16, 2002, the compensation judge found that the employee had sustained a work-related right knee injury on January 15, 2001, and that she was entitled to receive the temporary total disability benefits paid from January 25, 2001, through August 27, 2001. However, the judge found that the employee was not entitled to temporary total disability benefits paid from November 23, 2001, through the date of the hearing since the employee was not totally disabled from all employment during that period of time and had not conducted a job search of any type for work she was capable of performing, even though she knew the employer was unable to provide her with light duty work. The compensation judge also found that the employer and insurer were entitled to a partial credit for indemnity benefits paid from and after November 23, 2001, pursuant to Minn. Stat. ' 176.179. No appeal was taken from the findings and order.
On October 2, 2002, the employee filed a claim petition for temporary total disability benefits from and after August 17, 2002, and for assignment of a qualified rehabilitation consultant. On October 21, 2002, the employee=s attorney filed a statement of attorney fees for Roraff fees of $3,667.87 (which was based upon an hourly fee of $160.00, for 53.05 hours, $8,488.00, less the contingency fees already paid). The employer and insurer objected on several bases, including that the employee=s attorney had been fully compensated for his services rendered in representing the employee, that the earlier litigation involved discontinuance of temporary total disability benefits, not medical expenses, that there was no certification of a medical dispute, that the employee=s attorney received contingency fees and had not shown that the contingent fee was inadequate, the request was premature since there was a pending claim petition for indemnity benefits, the hours claimed and hourly rate were excessive, and that the attorney had received fees on benefits that were paid under a mistake of fact or law. A hearing on the attorney fee claim was held on December 2, 2002. In his findings and order served and filed on December 12, 2002, the compensation judge found that medical expenses were not at issue at the hearing in June and July 2002, and dismissed the statement of attorney fees, denying the claim for Roraff fees. The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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.@ Id. A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers= Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).
The employee=s attorney argues that the compensation judge erred by denying his claim for Roraff fees he contends are due in addition to the contingency fees already paid. Generally, a contingent attorney fee for recovery of monetary benefits is presumed adequate to compensate for recovery of medical and rehabilitation benefits or services concurrently in dispute. The employer or insurer are liable for additional fees Aonly if the attorney establishes that the contingent fee is inadequate to reasonably compensate the attorney for representing the employee in the medical or rehabilitation dispute.@ Minn. Stat. ' 176.081, subd. 1(a)(1). In deciding a request for Roraff fees, the compensation judge must consider the statutory guidelines, the amount involved, the time and expense necessary to prepare for trial, the responsibility assumed by counsel, the experience of counsel, the nature of the proof involved and the results obtained. Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999); see also Irwin v. Surdyk's Liquor (Irwin II) 60 W.C.D. 150 (W.C.C.A. 2000).
In this case, however, the compensation judge found that medical expenses were not at issue at the hearing in June and July 2002 and denied the claim for Roraff fees without consideration of the Irwin factors. The employee argues that the compensation judge erred by not addressing the Irwin factors since primary liability was at issue and therefore the employee=s past and future medical expenses were at risk. The reasonableness and necessity of the medical treatment is not required to be an issue in a case in order for an attorney to receive Roraff fees for representing the employee; Roraff fees may be awarded in cases where primary liability for the employee=s injury is at issue. Peterson v. Everything Clean, Inc., 55 W.C.D. 126 (W.C.C.A. 1996) (affirmed an award of Roraff fees where the principal issue at hearing was whether the employee=s injury arose out of and in the scope of her employment).
In this case, the employer and insurer had withdrawn their admission of primary liability when they filed a petition to discontinue. At the hearing on discontinuance held in June and July 2002, the employer and insurer argued that all benefits had been paid under a mistake of fact, that the employee was in need of no additional medical treatment as a result of her work injury, and that the employer and insurer could discontinue payment of medical expenses and rehabilitation services. The employee=s attorney argues that as a result of his representation of the employee at the June and July 2002 hearing, primary liability had been re-established for the medical expenses already paid and that the employee has the right to seek future medical treatment, and therefore that the employee=s attorney is entitled to attorney fees. We disagree. The medical expenses already paid by the employer and insurer were no longer at issue, and a later withdrawal of the admission of primary liability did not affect those expenses already paid nor place them at issue, nor did the employee have any potential liability to repay past medical expenses paid by the employer and insurer. Regarding future medical expenses, an award of attorney fees Abased on speculative future medical benefits@ is inappropriate, and if future medical expenses are disputed, the employee=s attorney may seek reimbursement at that time. See Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 143, 59 W.C.D. 319, 337-38 (Minn. 1999). Finally, no medical expenses were claimed at the time of the June and July 2002 hearing. Under these circumstances, the compensation judge did not err by denying the employee=s claim for Roraff fees, and we affirm.
 According to the Notice of Benefit Payment filed on September 9, 2002, the employer and insurer paid temporary total disability benefits between November 23, 2001, through August 6, 2002. We note that in the compensation judge=s findings and order issued on August 16, 2002, the judge did not specify the amount of the credit due to the employer and insurer for benefits paid under mistake of fact. Should the amount of the credit become an issue in the future, the amount of that credit to be assessed against the employee should be carefully reviewed in light of the payment of contingency attorney fees earlier paid to the employee=s attorney based on benefits paid after November 23, 2001. However, as that issue is not before us, we take no position on that issue.