BARBARA A. HENRICHS, Employee/Cross-Appellant, v. ST. PAUL PUBLIC SCHOOLS #625, SELF-INSURED/THE ASU GROUP, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 27, 2007
ATTORNEY FEES. Where the employee was receiving wage loss benefits and the employee=s attorney was entitled to contingent fees based on those benefits, a determination of whether contingent fees are adequate to compensate the employee=s attorney is premature, and the award of additional Roraff and Heaton fees is vacated.
Determined by: Rykken, J., Wilson, J., and Stofferahn, J.
Compensation Judge: William R. Johnson
Attorneys: Benjamin J. Heimerl, Germscheid & Heimerl, Maplewood, MN, for the Cross-Appellant. Thomas L. Cummings and Matthew P. Bandt, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals the compensation judge=s award of attorney fees for the recovery of medical or rehabilitation benefits or services. We vacate in part and dismiss in part.
On January 13, February 2, and May 2, 2005, Barbara Henrichs, the employee, sustained work-related right arm and shoulder injuries while working for Independent School District No. 625, the employer, which was self-insured for workers= compensation liability. The employer accepted liability and paid various workers= compensation benefits. A dispute later arose about the employee=s entitlement to ongoing benefits. The employer contended that the effects of the employee=s work-related injuries had resolved, and that her current disability and need for restrictions were causally related to her pre-existing condition and not to her work injuries. On July 13, 2006, the employer filed a petition to discontinue benefits. That petition was consolidated with a request for formal hearing that had been filed following a rehabilitation conference. At a hearing held on November 22, 2006, the sole issue addressed was whether the employee=s need for physical restrictions was causally related to her work injuries, and therefore whether reasonable grounds existed to discontinue the employee=s vocational rehabilitation assistance and wage loss benefits.
In Findings and Order served and filed December 21, 2006, the compensation judge found that the employee=s work injuries remained causally related to the employee=s need for physical restrictions, and denied the employer=s petition to discontinue wage loss benefits and rehabilitation assistance. The compensation judge also ordered the employer to pay the employee=s attorney reasonable attorney fees under Minn. Stat. ' 176.081, subd. 1, as well as partial reimbursement of attorney fees under Minn. Stat. ' 176.081, subd. 7. The employer did not appeal that decision.
As a result of the December 21, 2006, Findings and Order, the employee was awarded temporary total disability benefits dating back to approximately May 26, 2006. That award of wage loss benefits generated a contingent fee of at least $2,419.88, but evidently this amount was not withheld by the employer, which, according to the compensation judge, resulted in an overpayment to the employee. According to the employee=s appellate brief, attorney fees of $73.33 per week are being withheld from ongoing temporary total disability payments. The record does not reflect whether the parties have resolved the separate overpayment issue and that issue is not before this court. At this point, the employee has an outstanding claim petition for permanent total disability benefits or retraining benefits, to which the employer has objected.
On February 15, 2007, the employee=s attorney filed a Statement of Attorney Fees for $64,282.50 in Roraff and Heaton fees, and $9,790.48 for costs and disbursements. The employer objected, and a hearing was held on February 26, 2007. The compensation judge awarded $5,000.00 for Heaton fees and $7,000.00 for Roraff fees. The compensation judge acknowledged that although the employee had a potential claim for additional benefits from which additional attorney fees could be claimed, the contingent fees were inadequate to fully compensate the employee=s attorney for his work performed to assist the employee with prevailing on the broad issue of causation which, in turn, would allow the employee to possibly obtain approval for retraining benefits, related wage loss benefits, and attendance at a pain clinic. The compensation judge disallowed many of the claimed costs, but awarded $5,095.48 in costs and disbursements. The employer appealed from the award of attorney fees, and the employee filed a cross-appeal from the denial of a portion of the claimed costs and disbursements.
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. 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).
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).
The self-insured employer appeals the compensation judge=s award of attorney fees for the recovery of medical or rehabilitation benefits or services. Attorney fees in workers= compensation cases are governed by Minn. Stat. ' 176.081, subd. 1, which provides in pertinent part as follows:
Subdivision 1. Limitation of fees. (a) A fee for legal services of 25 percent of the first $4,000 of compensation awarded to the employee and 20 percent of the next $60,000 of compensation awarded to the employee is the maximum permissible fee and does not require approval by the commissioner, compensation judge, or any other party. All fees, including fees for obtaining medical or rehabilitation benefits, must be calculated according to the formula under this subdivision, except as otherwise provided in clause (1) or (2).
(1) The contingent attorney fee for recovery of monetary benefits according to the formula in this section is presumed to be adequate to cover recovery of medical and rehabilitation benefit or services concurrently in dispute. Attorney 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. In cases where the contingent fee is inadequate the employer or insurer is liable for attorney fees based on the formula in this subdivision or in clause (2).
For the purposes of applying the formula where the employer or insurer is liable for attorney fees, the amount of compensation awarded for obtaining disputed medical and rehabilitation benefits under sections 176.102, 176.135, and 176.136 shall be the dollar value of the medical or rehabilitation benefit awarded, where ascertainable.
* * *
(3) The fees for obtaining disputed medical or rehabilitation benefits are included in the $13,000 limit in paragraph (b). An attorney must concurrently file all outstanding disputed issues. An attorney is not entitled to attorney fees for representation in any issue which could reasonably have been addressed during the pendency of other issues for the same injury.
(b) All fees for legal services related to the same injury are cumulative and may not exceed $13,000. If multiple injuries are the subject of a dispute, the commissioner, compensation judge, or court of appeals shall specify the attorney fee attributable to each injury.
The contingent fee for the recovery of indemnity benefits is presumed to be adequate to compensate the attorney for the recovery of medical or rehabilitation benefits or services. A fee for recovery of medical or rehabilitation benefits or services may be assessed against the employer and insurer only if the attorney establishes Athe 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). Certain factors set out in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999) are to be considered when determining whether the contingent fee on indemnity benefits is inadequate to reasonably compensate the employee=s attorney. These factors include the amount of benefits 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. See Irwin, 599 N.W.2d at 142, 59 W.C.D. at 336.
The compensation judge found that the contingent fee was inadequate to reasonably compensate the employee=s attorney for representation of the employee in a vocational or medical dispute. He then applied the Irwin factors in determining a reasonable fee for the employee=s attorney. In this case, however, the employee is receiving temporary total disability benefits from which attorney fees are being withheld. Where wage loss benefits are being paid which are producing contingent fees, the determination of whether contingent fees are adequate to compensate the employee=s attorney is premature. Borgan v. Bob Hegland, Inc., 62 W.C.D. 452, 462-63 (W.C.C.A. 2002). We therefore vacate the compensation judge=s award of fees for recovery of medical or rehabilitation benefits or services.
The employee filed a notice of cross-appeal with this court on May 31, 2007. A respondent must serve and file a notice of cross-appeal within 30 days of the filing of the compensation judge's Findings and Order or within 15 days of service of the notice of appeal on that respondent. Minn. Stat. ' 176.421, subd. 3a; Minn. R. 9800.1600, subp. 1. Filing is complete upon receipt of the necessary documents at the office or department. Minn. Stat. ' 176.275, subd. 1. Time limits for perfecting an appeal are jurisdictional. Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 39 W.C.D. 430 (Minn. 1987); Bjerga v. Maislin Transp., 400 N.W.2d 99, 39 W.C.D. 309 (Minn. 1987); Kearns v. Julette Originals Dress Co., 267 Minn. 278, 126 N.W.2d 266, 23 W.C.D. 127 (1964). Where subject matter jurisdiction is lacking, this court cannot determine the merits of the case. Hemmesch v. Molitor, 328 N.W.2d 445, 35 W.C.D. 541 (Minn. 1983). Since the compensation judge=s decision was served and filed April 27, 2007, and the employer=s notice of appeal was served on the employee on May 14, 2007, the employee=s cross-appeal was filed late and this court lacks subject matter jurisdiction to determine the issues raised by the cross-appeal. Therefore, the employee=s cross-appeal is dismissed.