DIANE BIRKHOLZ, Employee/Appellant, v. WAGNER SPRAY TECH and SAFECO INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 5, 2007
APPEALS - RECORD. Where no record was made of the hearing below on the employee=s counsel=s petition for attorney fees, the findings and order must be vacated and the matter remanded for reconsideration.
ATTORNEY FEES - RORAFF FEES. Where the sole dispute involved ascertainable medical expenses, the employee=s attorney is entitled to contingent attorney fees under the 25/20 statutory formula on medical benefits awarded. If this fee is inadequate to reasonably compensate the employee=s attorney, an additional hourly fee may be assessed. The employee has the burden of proving the claim for attorney fees, including submission of exhibits establishing the amount of the medical expenses awarded.
Vacated and remanded.
Determined by: Johnson, C.J., Rykken, J., and Stofferahn, J.
Compensation Judge: Kathleen Behounek
Attorneys: Frederick E. Kaiser and Jason L. Schmickle, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Appellant. Aaron P. Frederickson, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s award of attorney fees. We vacate the findings and order and remand the case to the compensation judge for further proceedings.
Diane Birkholz, the employee, sustained a personal injury on June 16, 1999, while working for Wagner Spray Tech, the employer, then insured by Safeco Insurance Company. The employer and insurer admitted liability for the employee=s personal injury and paid various workers= compensation benefits, including temporary total disability benefits and medical expenses.
In July 2006, the employee, acting pro se, filed a medical request seeking payment of certain medical expenses. The employee prevailed at a subsequent administrative conference and the employer and insurer then filed a Request for Formal Hearing. Shortly thereafter, the employee retained Frederick E. Kaiser to represent her. The employer and insurer contended the employee sustained a new work-related injury that was a superseding, intervening cause of her disability. In December 2004, the employer and insurer petitioned for and received a Temporary Order in which they agreed to pay certain medical expenses. Apparently, the Temporary Order resolved the employee=s claims and there was no hearing on the employer and insurer=s request for formal hearing.
The employee underwent an EMG on her right arm in January 2005 that revealed a right carpal tunnel syndrome of moderate severity. Dr. Thomas N. Conner recommended a carpal tunnel release. Dr. Stephen Barron examined the employee in May 2005 at the request of the employer and insurer. The doctor concluded the employee sustained a work-related sprain to her right shoulder and scapula in June 1999, but opined this injury resolved within six months. Dr. Barron agreed the 2005 EMG showed a sensory motor carpal tunnel syndrome of moderate severity, but concluded the employee=s personal injury did not cause the carpal tunnel syndrome. Dr. Barron further opined there were insufficient findings on physical examination to warrant a carpal tunnel release. The employee filed a medical request seeking approval for a carpal tunnel release and reimbursement of treatment expenses. Following a hearing, the compensation judge approved the surgical request and ordered the employer and insurer to pay the expenses for treatment at Northwest Family Physicians and Twin Cities Orthopedics. On appeal, this court affirmed the compensation judge=s decision. Birkholz v. Wagner Spray Tech, No.WC05-301 (W.C.C.A. June 5, 2006).
The employee filed a third medical request in January 2006 seeking approval for a surgical consultation for scars on her face resulting from her personal injury. The employer and insurer filed a medical response denying liability for payment for the consultation. Prior to the scheduled hearing, the employer and insurer accepted liability for the surgical consultation.
Mr. Kaiser filed a petition for attorney fees in April 2006, seeking fees in the amount of $1,317.50. In June 2006, Mr. Kaiser filed a second attorney fee request seeking fees of $9,902.50. The employer and insurer objected to both fee statements and the case was heard by the compensation judge. No testimony was taken and no exhibits were admitted at the hearing. In a Findings and Order served and filed February 1, 2007, the compensation judge found the amount of treatment expenses paid by the employer and insurer as a result of the litigation involving the carpal tunnel surgery was $523.00. The employee did not, however, provide the judge with an exhibit itemizing the medical expenses for the carpal tunnel surgery or the plastic surgery consultation. The judge concluded there was insufficient information to determine whether or not payment of attorney fees using the 25/20 formula at Minn. Stat. § 176.081, subd. 1(a), based upon the dollar value of the medical benefits awarded, would result in an inadequate fee for Mr. Kaiser. The compensation judge then awarded hourly fees of $2,200.00 plus costs of $2,458.21. The employee appeals.
The employee contends the compensation judge=s award of attorney fees was unreasonable in view of the extensive work provided by her attorney and the results obtained in the litigation. The employee further contends the compensation judge erred in failing to award attorney fees under Minn. Stat. § 176.081, subd. 7. The employer and insurer contend the compensation judge analyzed the factors set forth in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999) and provided a clear rationale for her findings. Accordingly, the respondents contend the compensation judge=s decision should be affirmed.
Initially, we note that although the parties were afforded a hearing on the attorney fee dispute, no exhibits were offered into evidence and no witness testified. Thus, there is no record for this court to review. Absent a record, the compensation judge=s Findings and Order must be vacated. See Winquist v. Hansen Gravel, Inc., 61 W.C.D. 674 (W.C.C.A. 2001). A claim for attorney fees must be proven by a preponderance of the evidence and the proponent has the burden of proof. The employee must, therefore, present evidence at the hearing sufficient to establish entitlement to the requested attorney fee.
The dispute in this case involves ascertainable medical expenses as set forth in three medical requests. Accordingly, the employee=s attorney is entitled to a contingent attorney fee under the 25/20 formula in Minn. Stat. § 176.081, subd. 1(a) based upon the dollar value of the medical expenses awarded. If this contingent fee is inadequate to reasonably compensate the employee=s attorney for representing the employee, an additional fee may be assessed against the employer or insurer. The amount of the medical expenses related to the carpal tunnel surgery and the plastic surgery consultation was not in evidence before the compensation judge. Accordingly, the compensation judge had insufficient information to determine either the statutory contingent fee or whether or not the statutory contingent fee was inadequate to reasonably compensate the attorney for his representation of the employee. Accordingly, we have no alternative but to vacate the compensation judge=s findings and remand the case to the compensation judge for further proceedings. The award of attorney fees made on remand should include reimbursement of attorney fees pursuant to Minn. Stat. § 176.081, subd. 7.