JOAN LANGLOIS, Employee, v. UNIVERSITY OF MINN., SELF-INSURED, Employer/Appellant, and RUTH RYAN, Employee, v. UNIVERSITY OF MINN., SELF-INSURED, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 6, 2003
ATTORNEY FEES - IRWIN FEES. Applying the factors set forth in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), to the facts peculiar to these medical expense cases, the compensation judge=s award of $21,000 in attorneys is reversed, and an award of $7,500 is substituted.
Determined by Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Cheryl LeClair-Sommer
THOMAS L. JOHNSON, Judge
The self-insured employer appeals from the compensation judge=s award of $21,000.00 in attorney fees in these consolidated cases. We reverse and substitute an award of $7,500.00.
Joan Langlois, Ruth Ryan, and Brenda Johnson were all employed by the University of Minnesota, the employer, self-insured for workers= compensation liability. Dean M. Salita, Esquire, represented all three and filed workers= compensation claims against the employer seeking wage loss and permanent partial disability benefits and the payment of medical expenses. The cases were consolidated for hearing on the issues of primary liability and medical expenses. The claims of the employees for wage loss and permanent partial disability benefits were reserved for a later hearing. The cases were heard by Compensation Judge Cheryl LeClair Sommer on November 27, November 28 and December 14, 2001.
In a Findings and Order filed May 30, 2002, the compensation judge found Ms. Langlois sustained an occupational disease on or about October 1, 1995, arising out of and in the course of her employment with the employer in the nature of Sick Building Syndrome. The compensation judge further found this work injury had resolved by July 9, 1996. The judge ordered the self-insured employer to pay for certain medical treatment in the amount of $161.01 and denied the employee=s claim for other medical care.
In a second Findings and Order also served May 30, 2002, the compensation judge found Ms. Ryan sustained an occupational disease on October 10, 1994, arising out of and in the course of her employment for the employer in the nature of Sick Building Syndrome. The judge found this injury was temporary and ended on September 11, 1996. The compensation judge ordered payment of $643.28 in medical expenses but denied liability for other medical expenses. In a third Findings and Order, the compensation judge found Ms. Johnson was not an employee of the employer and denied her claim in its entirety. There was no appeal from any of the three Findings and Order.
Thereafter, Mr. Salita sought payment of Roraff attorney fees for his representation of Ms. Langlois and Ms. Ryan. The self-insured employer filed an objection to the requested fees. The consolidated cases were submitted to the compensation judge on stipulated facts. In a Findings and Order filed February 21, 2003, the court awarded Mr. Salita $11,000.00 for representing Ms. Langlois and $10,000.00 for representing Ms. Ryan. The employer appeals both Findings and Orders. By order dated April 23, 2003, the two appeals were consolidated.
A reasonable attorney fee in cases involving medical expense claims is determined by considering both the statutory guidelines on fees contained in Minn. Stat. ' 176.081, subd. 1, and Athe amount involved, the time and expense necessary to prepare for trial, the responsibility assumed by counsel, the experience of counsel, the difficulties of the issues, the nature of the proof involved and the results obtained.@ Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 142, 59 W.C.D. 319, 336 (Minn. 1999). The express purpose of the Irwin decision is to afford a reasonable fee to an attorney for legal services provided to the employee. McCarthy v. Al Baker=s, 61 W.C.D. 805 (W.C.C.A. 2001). The determination of what constitutes a reasonable fee requires the judicious exercise of discretion, and the judge=s decision must be affirmed absent an abuse of discretion. John v. Suburban Air Conditioning, 62 W.C.D. 285 (W.C.C.A. 2002).
The compensation judge found Mr. Salita expended 86.55 hours of legal services relating to primary liability issues regarding the three consolidated cases. In addition to this time, Mr. Salita expended 33.96 hours of legal services on the Langlois case and 28.45 hours on the Ryan case. The parties stipulated the amount of time spent by Mr. Salita was reasonable except for duplicate entries of time. The parties further stipulated Mr. Salita is experienced in workers= compensation matters. Finally, the parties stipulated a rate of $200.00 per hour for legal services was reasonable.
In both the Langlois and the Ryan cases, the compensation judge made the following finding:
The nature of the proof required was very complex. Multiple narrative reports, medical records, and itemized bills were necessary to prove up the claim for medical expenses. Medical opinions were obtained regarding whether exposure to the air in WDH (Weaver Densford Hall) resulted in an occupational disease and, if so, whether the various conditions the employee claimed were a result of the occupational disease. The issues were very difficult requiring testimony from expert witnesses in industrial hygiene and occupational medicine. Records and reports regarding indoor air quality, mold and fungal counts, material data sheets, and chemical storage were obtained, reviewed, and analyzed.
The appellant agrees the employees= counsel assumed significant responsibility and invested substantial time and expense in the litigation. The appellant further acknowledges the causation and medical issues were complex requiring significant and sophisticated proof. The employer argues, however, that given the results obtained in the litigation an attorney fee of $21,000.00 is unreasonable and an abuse of discretion.
Mr. Salita expended 86.55 hours of combined legal services relating to primary liability issues. These hours were, however, devoted to the prosecution of claims for three employees and he was successful in obtaining medical benefits for only two. Some portion of the 86.55 hours must be allocated to the claim of the unsuccessful employee and no Roraff fee may be awarded on that portion.
In analyzing the results obtained in the litigation, a compensation judge may consider whether liability for future benefits has been established. See Dally v. ConAgra-Peavy Co., slip op. (W.C.C.A. Oct. 18, 2000). In these cases, the compensation judge found both injuries were temporary. Based upon the existing record, we cannot determine whether either employee may be entitled to wage loss benefits during the period of the temporary aggravation. Since, however, the injuries to both employees are temporary, neither will be entitled to permanent partial disability benefits. Ms. Langlois=s temporary injury resolved by July 9, 1996, and Ms. Ryan=s temporary injury resolved by September 11, 1996. Thus, neither employee will be entitled to wage loss benefits thereafter. The employees claimed their work activities with the employer were a substantial contributing cause of the development of hair loss, Hashimoto=s thyroiditis, hypothyroidism, chronic fatigue syndrome, chlamydia psittaci, chlamydia pneumoniae, cognitive difficulties, impaired memory, fibromyalgia, chest pain and tightness, attention deficit disorder, numbness and tingling of the hands, loss of concentration, lightheadedness, spasms and body pain. In both cases, the compensation judge found the employees failed to prove these conditions were caused by their work with the employer. Ms. Langlois sought reimbursement of $13,938.21 in medical expenses. The compensation judge awarded medical expenses of $161.01. Ms. Ryan sought reimbursement of $5,222.60 in medical expenses and was awarded $643.23. On these facts, the appellant contends the compensation judge abused her discretion in awarding a Roraff fee of $21,000.00. We agree.
The appellant argues an award of attorney fees more than twenty-six times the amount of the benefits awarded is unreasonable per se, and asserts the 25/20 formula set forth at Minn. Stat. ' 176.081, subd. 1, is adequate. Alternatively, the appellant contends the employees recovered only 4.2 percent of the benefits at issue so are entitled to only 4.2 percent of the fees requested, which would total $1,222.70. We disagree.
This court has rejected the use of a simple mathematical formula in cases involving Roraff-type attorney fees. See McCarthy v. Al Baker=s, 61 W.C.D. at 805. Rather, the issue is what fee is reasonable taking into consideration the Irwin factors. Each case is dependent on its particular facts. Duda v. Pizza Hunt, Inc., slip op. (W.C.C.A. July 12, 2002). On the facts peculiar to these cases, we reverse the judge=s award of $21,000.00 in Roraff attorney fees and substitute an award of $7,500.00.
 See Roraff v. State, Dep=t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).