SHAWN M. DOBERSTEIN, Employee/Appellant, v. SUPERVALU, INC., and KEMPER INS./BROADSPIRE, Employer-Insurer, and SUPERVALUE, INC., and RISK ENTER. MGMT., LTD., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 17, 2008
ATTORNEY FEES - RORAFF FEES. Where the employee was receiving an ongoing stream of wage loss benefits that was generating a contingent attorney fee, it was premature to determine whether the contingent fee was inadequate to compensate the employee’s attorney for work performed in connection with medical expense issues.
Affirmed as modified.
Determined by: Wilson, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Gary P. Mesna
Attorneys: Kenneth N. Potts, Attorney at Law, Minnetonka, MN, for the Appellant. Kathryn Hipp Carlson, Miller & Carlson, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge’s findings and order on attorney fees. We affirm, as modified.
The employee sustained an admitted injury to his low back on February 19, 2000, while working for SuperValu, Inc. [the employer]. Kemper Insurance, now Broadspire, paid various workers’ compensation benefits, including permanency benefits for a 14% impairment of the body as a whole. The employee eventually returned to work without restrictions.
Apparently, a first report of injury was completed by the employer for a claimed injury on May 2, 2007, at which time the employer was insured by Risk Enterprise Management. That insurer served a notice of insurer’s primary liability determination on May 10, 2007, contending that
[b]ased on our investigation, the employee has a significant pre-existing low back injury, he reports no specific incident that precipitated the need for medical care or treatment. Furthermore, the work activities are not such that would cause a gillette type [sic] injury. Therefore, we are denying primary liability.
The employee was seen by Dr. Francis Denis, for consultation at the request of Dr. Gil Lewandowski, on May 7, 2007. At that time, the employee gave a history of his 2000 work injury and of a progressive worsening of back pain over time. He also reported that he had been working light duty since May 2, 2007. Dr. Denis diagnosed degenerative disc disease at L4-5 and discussed with the employee the option of fusion of L4-5 with decompression and discectomy. On May 17, 2007, after reviewing an MRI, Dr. Denis recommended proceeding with the lumbar fusion.
On June 7, 2007, Dr. Denis wrote to the employee’s attorney, opining that the employee’s current situation and need for surgery were specifically related to the original work injury of February 19, 2000. Dr. Denis further stated that he felt that the employee had not sustained a Gillette-type injury and that his condition was “relatively predictable degeneration following the initial injury.” He again recommended lumbar fusion.
On June 15, 2007, the employee filed a claim petition listing February 19, 2000, and May 2, 2007, as the dates of injury. The claimed weekly wage for 2000 was $710 and for 2007 it was $1320. The employee was seeking temporary partial disability benefits from May 2, 2007, to May 10, 2007; temporary total disability benefits continuing from May 11, 2007; approval for low back surgery; medical expenses; and a rehabilitation consultation.
On July 11, 2007, the employer filed an answer to the employee’s claim petition, specifically denying that the employee had been temporarily totally disabled, denying that the employee was qualified for rehabilitation, and alleging that the employee’s wage loss, if any, was related solely to a personal medical condition and not to his work activities at the employer.
The employee was examined by independent medical examiner Dr. Richard Hadley on August 13, 2007, and, in a report of that same date, Dr. Hadley opined that the February 2000 injury was a substantial contributing cause of the employee’s need for surgery. He further stated that that the employee’s history failed to demonstrate any injury occurring on May 2, 2007, and that the employee had not been temporarily totally disabled, as he had been capable of working with restrictions. Thereafter, the employer and Broadspire made payment of wage loss benefits, and, apparently, paid for the surgery.
The employee’s attorney filed a statement of attorney fees on December 14, 2007, seeking $13,000.00 in fees under Minn. Stat. § 176.135 and Roraff, based on ascertainable medical bills in the amount of $88,764.85. The employer and Broadspire objected to the requested fees because there was “an ongoing stream of disability benefits.” The employer and Broadspire also indicated that they had already withheld $2,081.22 in fees, but that, at the attorney’s request, fees were no longer being withheld.
The matter proceeded to hearing on February 11, 2008. In a findings and order filed on March 3, 2008, the compensation judge found that there was a genuine dispute over various issues and that the employee’s attorney was entitled to contingent attorney fees for recovery of monetary benefits. He further held that the employee had not established that the contingent fee from monetary benefits “is or will be inadequate to reasonably compensate attorney Potts for representing the employee with respect to the disputes over medical and rehabilitation benefits.” The judge ordered that the $2081.22 in fees previously withheld be paid to the employee’s attorney and that the employer and Broadshire pay the attorney 25% of the next $1918.78 and 20% of the next $60,000 in benefits payable to the employee. 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 (2008). 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 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 contends that “the sole issue of this case” was whether the proposed surgery was reasonable and necessary and related to the employee’s admitted injury in February 2000, that temporary total disability benefits were never in dispute, and that the judge’s findings and order should be reversed. We are not persuaded.
We must determine, initially, whether substantial evidence supports the judge’s finding that there was a genuine dispute as to whether the employee sustained a work-related injury in 2007, as to whether the benefits claimed were causally related to the 2000 work injury, and as to whether the employee was entitled to temporary total disability benefits. We note that the employee filed a claim petition listing both a 2000 and a 2007 work injury. In his appeal brief, the employee’s attorney admits that he alleged a 2007 injury in the claim petition because the employee would have been entitled to a higher compensation rate. On that claim petition, the employee made claims for wage loss benefits and rehabilitation services in addition to medical expenses and surgery. At the time of the filing, the employee had not yet had surgery, so the wage loss benefits could not “flow from the surgery,” as alleged by the employee.
In their answer, the employer and insurers never specifically raised reasonableness and necessity as a defense to the claim for surgery. Rather, they specifically denied that the employee had been temporarily and totally disabled, alleging that the employee’s wage loss, if any, was solely related to a personal medical condition, and that the employee was not a qualified employee for rehabilitation purposes. The report of Dr. Hadley stated that the employee was not temporarily totally disabled, providing medical support for their denial of temporary total disability benefits.
Given the evidence before us, there is substantial evidence to support the judge’s implicit finding that there was a genuine dispute over various issues and that the employee’s attorney is entitled to contingent attorney fees for recovery of monetary benefits under Minn. Stat. § 176.081, subd. 1(a).
The compensation judge also found that it had not been established that the contingent fee from monetary benefits “is or will be inadequate to reasonably compensate” the employee’s attorney for representing the employee with respect to the disputes over medical and rehabilitation benefits. He offered no explanation for this conclusion, and the employer and Broadspire offer no argument in this regard, other than to reiterate the judge’s finding. This court has long held that, where ongoing wage loss benefits are producing contingent fees, it is premature to determine whether those contingent fees will be adequate to compensate the employee’s attorney. Borgan v. Bob Hegland, Inc., 62 W.C.D. 452, 462-63 (W.C.C.A. 2002); Moran v. United Parcel Serv., slip op. (W.C.C.A. Apr. 1, 2003). We therefore modify the judge’s finding to reflect that it is premature to determine whether contingent fees will adequately compensate the employee’s attorney for representing the employee in the medical dispute.
 No one introduced the first report of injury as an exhibit at hearing, but, generally, a notice of primary liability determination is not filed unless a first report of injury has been completed.
 The parties provided no evidence as to the employee’s treatment with Dr. Lewandowski.
 The answer was signed by Kathryn Hipp Carlson as “Attorney for SUPERVALU” and states that “SUPERVALU and Broadspire and Risk Enterprise Management pray for an order of the Workers’ Compensation Division dismissing the Employee’s Claim Petition with prejudice and on the merits.”
 Roraff v. State, Dep’t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980). Attorney fees pursuant to Minn. Stat. §176.135 are often referred to as Roraff fees.
 While the employee alleges that he remained off work at the employer’s request after Dr. Denis recommended surgery, there is no evidence in the record that would support that allegation.
 Contrary to the employee’s assertion that “temporary total benefits were never in dispute.”
 Minn. Stat. § 176.081, subd. 1(a)(1) provides, in part, as follows:
(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 benefits 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.
 At the time of the hearing on attorney fees, the employer and Broadshire cited Moran in support of their argument that a Roraff fee claim was premature.