JOANN E. COLLINS, Employee/Appellant, v. COMMUNITY LIVING OPTIONS and MINNESOTA ARP/WAUSAU INS., Employer/Insurer, and ST. CROIX REG=L MED. CTR., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 3, 2007
ATTORNEY FEES - HEATON FEES. Where the employee=s attorney had not prevailed on the employee=s claim for fifteen months of temporary total disability benefits and had succeeded in obtaining only $542.06 in temporary partial disability benefits and a rehabilitation consultation, the compensation judge=s denial of the employee=s claim for Heaton fees was vacated without prejudice, absent evidence of the value of the obtained rehabilitation consultation and of pending medical expense claims, to the extent that those values would be factors in arriving at a reasonable fee in light of the statutory formula and the Irwin factors.
Determined by Pederson, J., Rykken, J., and Johnson, C. J.
Compensation Judge: Peggy A. Brenden
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant. Joseph G. Twomey, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge's denial of attorney fees. We vacate the denial as premature.
On September 28, 2006, this court filed a decision in this matter in part reversing the compensation judge=s award of about fifteen months of temporary total disability benefits, in part affirming the judge=s awards of a rehabilitation consultation and $542.06 in temporary partial disability benefits, and in part remanding to the judge, for more specific findings, issues pertaining to the causal relationship between certain medical expenses and the work injury. On November 16, 2006, the employee=s attorney, David R. Vail, filed a Statement of Attorney Fees and Costs, requesting taxation of costs and disbursements in the amount of $445.36, together with $3,540.00 in attorney fees pursuant to Heaton v. J. E. Fryer & Company, for 17.6 hours of work that he claimed to have spent in obtaining the rehabilitation consultation for the employee. The statement asserted no claim for fees pursuant to Roraff v. State, Department of Transp. for hours spent on the employee=s still unresolved medical expense issues. The employer and insurer filed an Objection to Attorney Fees on November 27, 2006, contending that the amount of time spent on the file was excessive and that fees were being claimed for time spent preparing for the temporary total disability claim that was ultimately denied by the compensation judge.
The employee=s Statement of Attorney=s Fees and the remand from this court were consolidated for hearing, and the matter came on for hearing on December 6, 2006. The employer and insurer agreed at hearing to reimburse Mr. Vail=s costs and disbursements in the amount claimed, and the sole issues for determination by the judge were (1) which alleged medical expenses were causally related to the employee=s September 1996 work injury and (2) whether or not Mr. Vail was entitled to Heaton fees. Mr. Vail himself testified at hearing, in part to the effect that he had received a contingent fee of only $135.52 for his work at the January 25, 2006, hearing, which he contended was not adequate compensation for the approximately 40 hours of work that he claimed to have spent on the file over the course of about two and a half years, 17.6 of which hours were, he testified, Atime that relates solely to the rehab issue.@ In support of his claim, and with regard to the difficulty of the issue, Mr. Vail testified that the employee had
[H]ad treatment all over the Midwest; Wisconsin, Minnesota, and Missouri. She was treated by various doctors with various subspecialties, for instance, chiropractors, osteopaths, orthopedists, et cetera. It was vigorously disputed. There were at least two adverse examinations, again by doctors of different specialties. They argued at all times that there were absolutely no restrictions and those arguments were overcome.
Mr. Vail went on to testify that Athe results were excellent. I obtained the disputed rehabilitation,@ reiterating that he had Aparsed out the time that I spent on the medical bills,@ which Amay be the subject of a Roraff fee at some later date.@ The employer and insurer=s attorney, after contesting the rehabilitation-relatedness of most of the employee=s claim, subsequently argued that the only billing clearly related to rehabilitation issues Acomes to point 3 [.3 hrs] and I think that Mr. Vail should get more than point 3 for the rehab issues, but I don=t think that he=s entitled to the entire amount claimed.@ A[T]he fact that an employee did not prevail on the wage dispute does not mean that the attorney can make up for the lack of contingency fees on the claim for Heaton fees,@ he argued, suggesting that Asomething in between $500 and $1000" might be appropriate.
By findings and order filed December 12, 2006, the compensation judge awarded payment of some and denied payment of some of the alleged treatment expenses. The judge denied, however, the employee=s entire claim for Heaton fees, concluding at Finding 8 that the issue of a rehabilitation consultation had not been a primary one at the January 25, 2006, hearing and explaining in her memorandum her conclusion that this court=s holding in Kopish v. Sivertson Fisheries was controlling, which she concluded required nonmonitary issues to have been Aof primary importance@ for hourly-based fees to be payable. The judge went on to conclude in Findings 11 through 15 that the rehabilitation issue at hearing had involved relatively simple facts and no complex or unusual law, that it had required Mr. Vail no more than two hours to prepare for, that the rehabilitation issue on which the employee had prevailed had a monetary value of no more than $500.00, and that the responsibility assumed by Mr. Vail in regard to it had been routine. The employee appeals from the denial of Heaton fees.
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.
On appeal, the employee contends that the employer and insurer Astipulated@ at hearing that at least some amount of Heaton fees was appropriate - - and at least $500.00. She argues that the compensation judge, in denying fees notwithstanding that agreement, erred also as a matter of law by applying the standard set forth in Kopish v. Sivertson Fisheries rather than that set forth in Irwin v. Surdyk=s Liquor, as mandated by this court=s decision in Borgan v. Bob Heglund, Inc. See Kopish v. Sivertson Fisheries, 39 W.C.D. 627 (W.C.C.A. 1987); Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999); Borgan v. Bob Heglund, Inc., 62 W.C.D. 452 (W.C.C.A. 2002). In Kopish this court had cautioned that hourly-based fees under Minn. Stat. § 176.135 were awardable in addition to contingent fees under Minn. Stat. § 176.081 Aonly in the most unusual circumstances@ and only where Apayment of medical expenses is of primary importance.@ Kopish, 39 W.C.D. at 630. The employee argues that this court=s decision in Borgan requires that the compensation judge make a threshold determination as to whether the contingent fee in the case is adequate and, if not, that application of the seven AIrwin factors@ should follow. See Borgan, 62 W.C.D. at 461. She argues that the judge in this case did not make a threshold determination as to whether the contingent fee was adequate but instead denied all fees on the simple ground that rehabilitation benefits were not an issue of Aprimary importance.@ The employee requests that the matter be remanded to a different compensation judge. We conclude that the judge=s denial of Heaton fees should be vacated as premature.
Minnesota Statutes section 176.081 provides that hourly-based A[a]ttorney fees for recovery of medical or rehabilitation benefits or services shall be assessed against the employer or insurer only 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) (emphasis added). In our decision in Borgan, this court did not address the final phrase of this language, and the compensation judge, in applying the Kopish standard, appears to have construed the law consistent with the separate opinion in Borgan, which dissented from the analysis but not from the result. See Borgan, 62 W.C.D. at 463-65. The circumstances in the two cases, if not identical, are analogous in their warranty of vacation.
At the time of the hearing below, the compensability of various medical expenses was still undetermined, and the employee had not yet filed a Statement of Attorney Fees asserting entitlement to Roraff fees that would be based in part on application of the statutory formula to the value of any benefits that might be secured. Also at the time of the hearing, the employee had not yet undergone the rehabilitation consultation that Mr. Vail was seeking Heaton fees for obtaining for her, the value of that benefit being therefore also not yet defined. In Borgan, we concluded that no determination of the adequacy of the contingent fee was possible prior to determination of any Aongoing [contingent] fees from a flow of benefits@ and without definition of Athe amount of claimed medical expenses@ at issue. On that basis, we vacated the judge=s determination that the contingent fee in that case was adequate. See Borgan, 62 W.C.D. at 462-63.
Under the facts of the case before us, we conclude that any determination of a reasonable fee must take into consideration what fees would be due Mr. Vail under the statutory formula alone - - not only for his successful work at securing the $542.06 in temporary partial disability benefits but also for his successful work at securing the value of any medical and rehabilitation benefits obtained, neither of which values has as of yet been demonstrated. Under the statute, a Acontingent fee for recovery of monetary benefits according to the [statutory] formula is presumed to be adequate to cover recovery of medical and rehabilitation benefits or services concurrently in dispute,@ and Athe amount of compensation awarded for obtaining disputed medical and rehabilitation benefits . . . shall be the dollar value of the medical or rehabilitation benefit awarded, where ascertainable.@ Minn. Stat. § 176.081, subd. 1(a)(1) (underscoring added). Acknowledging that, under Irwin, these provisions remain subject to judicial discretion, but noting also that the latter provision is embraced in at least two of the Irwin factors ultimately to be applied, we conclude, under the facts of this case, that any assessment of the adequacy of the employee=s contingent fee is premature. Accordingly, we vacate without prejudice the compensation judge=s denial of a Heaton fee. Cf. Borgan, 62 W.C.D. at 462-63.
 Collins v. Community Living Options, No. WC06-133 (W.C.C.A. Sep. 28, 2006).
 See Heaton v. J. E. Fryer & Co., 36 W.C.D. 316 (W.C.C.A. 1983).
 See Roraff v. State, Dep=t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).
 In determining a reasonable attorney fee, a court Ashould not only consider the statutory guidelines, but also the 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 at 142, 59 W.C.D. at 336 (underscoring added).
 With regard to the employee=s claim that the employer and insurer Astipulated@ to a Heaton fee of at least $500.00, we conclude, in essential agreement with the employer and insurer, that any concession by the employer and insurer in this context did not rise to the level of stipulation and was more an assertion of a maximum fee than of an agreement to a minimum fee. The issue was whether the employee was entitled to any Heaton fee, the employer and insurer were ultimately contesting the award of Heaton fees, and the compensation judge had discretion to award or not to award any fee.