KATHLEEN D=COSTA, Employee/Appellant, v. EDELWEISS HOME HEALTH, and MINNESOTA ASSIGNED RISK PLAN/BERKLEY ADM'RS, Employer-Insurer, and THOMAS A. KLINT.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 15, 2006
ATTORNEY FEES - CONTINGENT FEES. The compensation judge properly concluded that the employee=s former attorney was entitled to a $13,000.00 contingent fee, in view of the attorney=s experience, the complexity of the issues, the time and expense necessary to prepare the case, and the result obtained.
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Carol A Eckersen
Attorneys: Kathleen D=Costa, pro se Appellant. Thomas A. Klint, Babcock, Neilson, Mannella, Klint, Anoka, MN, for the Respondent.
DEBRA A. WILSON, Judge
The pro se employee appeals from the compensation judge=s award of attorney fees. We affirm.
The employee retained attorney Thomas Klint to represent her on August 3, 2003. At that time, she signed a retainer agreement providing that Mr. Klint would be paid attorney fees of 25% of the first $4,000.00 recovered and 20% of the next $60,000.00, for a maximum fee of $13,000.00.
On August 18, 2003, Mr. Klint filed a claim petition and an affidavit of financial hardship on the employee=s behalf. According to the claim petition, the employee was alleging an injury date of April 2003 and an average weekly wage of $1,750.00, and she was seeking payment of temporary total disability benefits and medical expenses. In their answer, the employer and insurer denied primary liability and objected to the request for an expedited hearing. At the pretrial hearing on hardship, held on December 1, 2003, the employee prevailed.
On December 2, 2003, a notice of hearing on claim petition was sent to the parties, setting the hearing for February 26, 2004. Mr. Klint moved for and scheduled the depositions of two doctors in anticipation of trial.
On December 11, 2003, the employer and insurer had the employee examined by independent medical examiner Dr. Mark Thomas. About a month later, on January 13, 2004, Dr. Thomas issued a report in which he opined that the employee=s medical condition was causally related to her work injury, that the employee had not yet reached maximum medical improvement, and that the employee was able to work within certain restrictions. Sometime in late February, the employer and insurer agreed to pay the employee=s claims for temporary total disability benefits and medical expenses. On February 24 or 25, 2004, Mr. Klint informed the employee that her claim had been accepted. In a letter sent to Mr. Klint on February 25, 2004, attorney Patrick Mahoney, representing the employer and insurer, confirmed that the employer and insurer would pick up the claim. Mr. Mahoney forwarded a rough draft of a stipulation for settlement to Mr. Klint on February 26, 2004. On March 5, 2004, after reviewing the stipulation, Mr. Klint forwarded it to the employee for her signature.
Mr. Klint had a conference with the employee about the stipulation for settlement on April 5, 2004. On April 16, 2004, Mr. Klint wrote to the employee, indicating his understanding that she was going to review the stipulation with some other people and reiterating that the stipulation needed to be signed. Mr. Klint or Shelley Haas, Mr. Klint=s legal assistant, repeatedly attempted to contact the employee during the period from April 2004 through December 3, 2004, to have her come in and discuss the stipulation. In a letter dated May 27, 2004, Mr. Klint informed the employee that he knew that she had an issue with the average weekly wage and its possible impact on potential employment claims, and he suggested changes to the stipulation to protect those claims. The employee did not respond to Mr. Klint=s repeated requests for a meeting.
In January of 2005, Mr. Klint withdrew from representation of the employee and filed an attorney=s lien. On January 12, 2005, a stipulation status conference was held at the Office of Administrative Hearings, attended by Mr. Mahoney, Mr. Klint, the employee, and the employee=s new attorney, William G. Moore. An agreement was eventually reached whereby the employee signed the stipulation for settlement prepared by Mr. Mahoney, with an addendum that changed the stipulated average weekly wage from $1,438.50 to $1,503.25, changed the dollar amount of the accumulated temporary total disability benefits (and consequently the amount to be withheld in attorney fees), and provided for a change of QRC to the employee=s choice rather than the employer and insurer=s choice. All parties signed, including Mr. Klint, and an award on stipulation was filed on April 19, 2005.
On April 19, 2005, Mr. Klint filed a statement of attorneys fees, seeking $13,000.00. The employee objected, and the matter proceeded to a hearing on August 12, 2005. The employee was represented at the fee hearing by attorney Gregg Nelson. In a findings and order filed on October 11, 2005, the compensation judge found that Mr. Klint was entitled to attorney fees in the amount of $13,000.00. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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. 196, 201, 229 N.W.2d 521, 524 (1975).
The employee was represented by counsel at the attorney fee hearing but filed her appeal pro se. In her notice of appeal, she raises several issues, including, but not limited to, fraud, Arefusal to seek other counsel,@Arefusal to copy her file,@ obstruction of justice, malpractice, perjury, Adenial of cooperation and communication,@ abandonment, retaliation, coercion, and conflict of interest. Her Abrief@ on appeal consists of a two-inch thick notebook with numerous handwritten pages, Acopies of evidence,@ medical reports, mileage logs, letters to the court from her son and other clients of Mr. Klint, rehabilitation records, and various other documents. This court=s function is to review the record created at the hearing before the compensation judge and to determine whether substantial evidence supports the judge=s decision. On appeal, this court may generally not consider evidence not contained in the record below. Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986). We have reviewed the record in its entirety.
The employee is clearly unhappy with Mr. Klint. In the Aargument@ portion of her brief, she points to his tardiness to meetings and court proceedings, his refusal to give her a ride to court, his charges for reviewing her file, and his refusal to accept her phone calls as bases for denying Mr. Klint any more than $5,500.00 or $5,600.00 in attorney fees. Ultimately, this court must determine whether there was substantial evidence in the record to support the judge=s award of attorney fees to Mr. Klint. We find that there is.
The compensation judge analyzed the claim for attorney fees using the criteria set forth in Minn. Stat. '176.081, subd. 5(d) (1994). She first found that the parties did not dispute Mr. Klint=s expertise or experience in the workers= compensation field or his hourly wage. This is supported by the transcript from the hearing. While the employee=s brief suggests that she is contesting Mr. Klint=s expertise, a party may not raise on appeal issues that were not before the compensation judge at the hearing.
Secondly, the judge found that the degree of complexity of this case was Agreater than average@ and required more than average time and effort on Mr. Klint=s part. Substantial evidence, in the form of the pleadings, supports that finding. Not only were primary liability, causation, average weekly wage, nature of the injury, and temporary total disability benefits at issue, but the employee was also claiming hardship, and everything was handled on an expedited basis. In addition, we think it is fair, when evaluating the degree of difficulty of the issues, to look at the level of cooperation that the attorney receives from his client. While the employee alleges that Mr. Klint failed to respond to her phone calls, she testified at hearing that she did not leave voice messages when she was unable to reach him. The employee also failed to respond to repeated written requests from Mr. Klint to set up an appointment to come in and discuss her concerns with the stipulation for settlement. This failure resulted in additional attorney time and billings that could have been avoided.
The compensation judge also found that the results obtained by Mr. Klint were favorable. Again, substantial evidence supports this finding. Specifically, the stipulation indicates that the employer and insurer were to pay all temporary total disability benefits and medical expenses and to provide rehabilitation services. This was the totality of the employee=s claim at the time the claim petition was filed. While the employee had some dispute as to the average weekly wage negotiated by Mr. Klint ($1,438.50), that negotiated wage resulted in payment of wage loss benefits at the maximum compensation rate. In addition, in a letter dated May 27, 2004, Mr. Klint suggested possible changes to the stipulation to deal with the wage issue, but the employee failed to respond to that letter.
The judge also looked at the time and expense involved in this matter. In response to the employee=s contention that Mr. Klint overstated his time, the judge found Mr. Klint=s and Ms. Haas=s contemporaneous time records to be more convincing than the employee=s recollections and estimates of the time needed or expended. Assessment of a witness=s credibility is the unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). Furthermore, Mr. Klint=s cross examination of the employee at hearing revealed that, with respect to disputed billings involving meetings with her, the employee factored in only the actual time she spent meeting with Mr. Klint and not his preparation time or work afterward.
Finally, the employee argues that she had an agreement with Mr. Klint to pay an attorney fee of $5,500.00 or $5,650.00. While she contends that this representation was made to her at the time of her initial meeting with Mr. Klint, we could find no evidence to support that contention. Instead, the employee=s signature appears on an attorney fee agreement of that date, providing that Mr. Klint was to be paid statutory attorney fees up to a maximum of $13,000.00.
The bulk of the employee=s arguments on appeal raise issues not properly before this court. On the issue of reasonable attorney fees payable to Mr. Klint for his representation of the employee, we find that substantial evidence supports the judge=s findings, and we affirm those findings in their entirety.
 While Minn. Stat. ' 176.081, subd. 5, was repealed in 1995, the criteria contained therein were adopted by the Minnesota Supreme Court as a means of determining a reasonable attorney fee in the case of Irwin v. Surdyks Liquors, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999). Those criteria have subsequently been applied by this court to contested contingent fees cases. Schmidt v. Nortel Networks, Inc., slip op (W.C.C.A. July 11, 2003).
 The parties= ultimate agreement as to weekly wage, as it appears in the addendum to the stipulation, was only $64.75 more.
 These figures apparently come from the first two drafts of the stipulation for settlement. The employee fails to note, however, that, while the first draft provided for payment of $5,500.00 and the second draft provided for payment of $5,650.00, both drafts provided for ongoing withholding of attorney fees from ongoing payments of temporary total disability benefits. By the time the stipulation for settlement was finally signed and an award issued, over $70,000.00 in temporary total disability benefits had been paid, justifying the maximum fee of $13,000.00.