BRIGITTE D. GARDING, Employee, v. PROTOMOLD CO., INC., and SFM MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 24, 2009
ATTORNEY FEES - RORAFF FEES. Where the sole issue at hearing was the employee's medical request to change treating physicians, and the employer and insurer thereafter voluntarily reinstated payment of temporary partial disability benefits, the employee's attorney was properly awarded hourly Roraff fees for successfully obtaining the change of physicians, and no contingency fee is due on the temporary partial disability benefits which were not in dispute at the time the benefits were reinstated.
Determined by: Johnson, C.J., Stofferahn, J., and Wilson, J.
Compensation Judge: Patricia J. Milun
Attorneys: Kenneth N. Potts, Minnetonka, MN, for the Respondent. Beth Giebel Mandel, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer, Protomold Company, Inc., and SFM Mutual Insurance Company, appeal the compensation judge’s award of Roraff attorney fees. We affirm.
Brigitte D. Garding, the employee, sustained a personal injury on November 10, 2006, while working for the Protomold Company, Inc., the employer, then insured by SFM Mutual Insurance Company. The employer and insurer admitted liability for the employee’s personal injury.
The employee sought care at the Waconia Ridgeview Clinic on November 10, 2006, complaining of right shoulder and arm pain. The diagnosis was a fracture of the humeral shaft of the right arm that initially was treated conservatively. In January 2007, the employee saw Dr. Aimee Klapach, an orthopedic surgeon, complaining of continued right shoulder, arm, and wrist pain. An x-ray demonstrated a healing fracture of the humeral surgical neck and greater tuberosity of the humerus with no displacement. Dr. Klapach diagnosed right proximal humerus fracture, non-displaced, with severe pain and early adhesive capsulitis. The doctor prescribed physical therapy and anti-inflammatory medication. In August 2007, Dr. Klapach performed a right shoulder arthroscopy, subacromial decompression, and a distal clavicle excision. Following the surgery, the doctor again prescribed physical therapy. On October 31, 2007, Dr. Klapach released the employee to return to full-time work subject to restrictions and opined the employee had not yet reached maximum medical improvement. The employee was advised to work five-hour days until November 12, 2007, at which time she could resume full ten-hour days.
On November 15, 2007, the employer and insurer filed a Notice of Intention to Discontinue Workers’ Compensation Benefits (NOID). They asserted Dr. Klapach released the employee to return to work on a full-time basis and the employer had suitable, full-time work available, but the employee rejected the job offer for personal reasons. In the NOID, the employer and insurer stated that payment of wage loss benefits was made through November 11, 2007. In their brief, the employer and insurer state the employee did not contest the discontinuance of temporary partial disability benefits.
On November 13, 2007, the employee had seen Dr. Dana Harms, an orthopedic specialist at the Allina Medical Group, for evaluation of continued shoulder complaints. Dr. Harms recommended a repeat MRI scan and restricted the employee to four-hour work days. By letter dated November 27, 2007, a claims representative of the insurer stated the employee was not authorized to change physicians to Dr. Harms. (Resp. Ex. 1.) The employee saw Dr. Frank Wei, a physical medicine and rehabilitation specialist, on November 28, 2007, on referral from Dr. Harms. The doctor prescribed further physical therapy and Vicodin for pain control.
The employee filed a Medical Request in December 2007 seeking to change doctors from Dr. Klapach to Dr. Harms and Dr. Wei. The employer and insurer objected to the requested change of treating physicians. The medical request was certified as a dispute by the Department of Labor and Industry under Minn. Stat. § 176.081, subp. 1(c) and a conference was held in February 2008. In a Decision and Order dated February 12, 2008, a Mediator/Arbitrator with the Department of Labor and Industry denied the employee’s request to change treating physicians. The employee then filed a Request for a Formal Hearing and the issue was heard before Compensation Judge Patricia A. Milun in April 2008. In a Findings and Order served and filed April 30, 2008, the compensation judge approved the employee’s request to change treating physicians. There was no appeal from the findings and order of the compensation judge.
The employee’s attorney filed a Statement of Attorney Fees in May 2008, seeking $4,262.50 in fees for his representation of the employee on the request to change treating physicians. The employer and insurer objected to the fee petition.
In July 2008, the employee filed a claim petition seeking payment of temporary partial disability benefits from and after November 12, 2007. In their answer, the employer and insurer admitted liability for the claimed temporary partial disability benefits “as a direct result of the recent hearing to address the employee’s request to change treating doctors.” The employer and insurer further stated that temporary partial disability benefits would be paid promptly upon receipt of the employee’s pay records.
The employee’s claim for attorney fees was heard by Compensation Judge Milun on July 28, 2008. In a findings and order served and filed September 26, 2008, the compensation judge awarded attorney fees to the employee’s attorney of $4,262.50. The employer and insurer appeal.
The employer and insurer paid the employee’s temporary partial benefits until her treating surgeon, Dr. Klapach, released her to work full-time. They then filed a NOID to which the employee did not object. In December 2007, the employee filed a Medical Request seeking a change of treating physicians from Dr. Klapach to Drs. Harms and Wei, which was ultimately granted in the April 30, 2008, Findings and Order. The appellants state they thereafter reinstated payment of temporary partial benefits retroactive to November 12, 2007. The employer and insurer assert that as a direct result of the compensation judge’s decision allowing the employee to change treating physicians, the employer and insurer admitted liability for temporary partial disability benefits which they had previously discontinued based upon the opinion of the employee’s prior treating physician. This ongoing stream of benefits, the appellants argue, should result in contingency attorney fees for the employee’s attorney. Accordingly, the employer and insurer assert the question of whether this contingency fee is adequate to compensate the employee’s attorney is premature. The appellants, therefore, request the compensation judge’s order be reversed. We are not persuaded.
In cases involving claims for medical or rehabilitation benefits only, Minn. Stat. § 176.081, subp. 1(a), provides for the payment of contingent attorney fees of 25/20 percent of the dollar value of the medical or rehabilitation benefits awarded, where ascertainable. The maximum fee for obtaining a change of doctor is the amount charged in hourly fees for the representation or $500.00, whichever is less. Attorney fees for the recovery of medical benefits may be assessed against the employer and insurer only if the contingent fee is inadequate to reasonably compensate the attorney for representing the employee in the medical dispute. Generally, in cases where wage loss benefits are being paid which are producing contingent attorney’s fees, the determination of whether the contingent fee is adequate to compensate the employee’s attorney is premature. Borgan v. Bob Hegland, Inc., 62 W.C.D. 452 (W.C.C.A. 2002).
In multiple cases, however, this court has held an employee’s attorney has no claim for contingent attorney fees on undisputed prospective benefits. Minn. Stat. § 176.081, subp. 1(c), provides:
In no case shall fees be calculated on the basis of any undisputed portion of compensation awards. Allowable fees under this chapter shall be based solely upon genuinely disputed claims or portions of claims.
The issue of what is genuinely in dispute in an employee’s claim is generally determined at the time of an award. Crowley v. Plehal Blacktopping, Inc., 66 W.C.D. 11 (W.C.C.A. 2005). The sole issue in dispute at the April 9, 2008, hearing was whether the employee was entitled to a change in treating physicians from Dr. Klapach to Drs. Harms and Wei. Entitlement to temporary partial disability benefits was not raised in the context of that litigation. The fact that the judge’s approval of a change of treating physician resulted in the voluntary payment of temporary partial disability benefits does not automatically entitle the employee’s attorney to a contingent attorney fee from that stream of benefits. Rather, the question is whether those benefits were in dispute.
In the Crowley case, id., this court affirmed the compensation judge’s finding that attorney fees were not payable out of wage loss benefits paid subsequent to a hearing on entitlement to surgery as the only issues in dispute at the hearing were medical and rehabilitation benefits. Similarly, in Turan v. Park Constr., 61 W.C.D. 602 (W.C.C.A. 2001), the employee was paid temporary total disability benefits following his work injury. The employer and insurer then served the employee with a Notice of Intention to Discontinue Benefits, effective August 28, 2000, based upon a doctor’s report concluding the employee had reached maximum medical improvement. The employee’s medical request for knee surgery was the subject of an administrative conference in June 2000, at which time the compensation judge concluded the surgery was reasonable, necessary, and causally related to the work injury. Temporary total disability benefits were then continued, but attorney fees were withheld after August 28, 2000. The surgery was completed in late September or early October 2000. The employee’s attorney notified the employer and insurer he was not seeking attorney fees from the total disability benefits and filed a petition for Roraff fees. Following a hearing on the attorney fee claim, the compensation judge found the disability benefits paid after August 28, 2000, were not disputed and awarded attorney fees to the employee’s attorney based on the 25/20 statutory formula applied to the medical expenses. On appeal, this court affirmed the compensation judge’s decision concluding the attorney’s representation of the employee at the administrative conference was limited to the issue of entitlement to surgery. Counsel for the employer and insurer attempt to distinguish these cases, but we find them directly on point.
The employer and insurer also rely on the case of Dietrich v. U.S. Airways, Inc., slip op. (W.C.C.A. May 30, 2008). We find that case inapplicable. In Dietrich, we held that attorney fees for establishment of entitlement to retraining benefits were payable on a contingent basis from the wage loss benefits paid during retraining. The instant case, however, involves entitlement to change treating physicians, not retraining. Minn. Stat. § 176.102, subp. 11(b), expressly provides for payment of temporary total disability benefits to an employee who is not employed during a retraining program. Accordingly, wage loss benefits are inherent in a request for retraining. In contrast, no statute provides for automatic payment of weekly benefits following surgery and an employer and insurer may have defenses to such a claim for indemnity benefits.
Neither do we agree with the employer and insurer’s argument that the wage loss benefits were disputed because they were paid as a direct result of the compensation judge’s decision allowing the employee to change treating physicians. The employer and insurer sought to discontinue temporary partial disability benefits because Dr. Klapach released the employee to full-time work, and the employer had full-time work available for the employee. After the compensation judge allowed the employee to change treating physicians, the employer and insurer apparently abandoned this argument and reinstated payment of temporary partial disability benefits. So far as we can tell from the limited information available to us, the dispute over wage loss benefits involved whether the employee was able to work on a full-time basis. That dispute has nothing to do with whether the employee was entitled to change physicians. The employee’s entitlement to temporary partial disability benefits was not an issue at the April 9, 2008, hearing. The compensation judge found no stream of benefits existed from which the employee’s attorney was entitled to a contingent fee. Substantial evidence supports that finding, and it is affirmed.
On appeal, the employer and insurer only contend the award of Roraff attorney fees was premature. They do not assert the amount of the fee award was unsupported by substantial evidence or was an abuse of discretion. The compensation judge’s award of attorney fees of $4,262.50 is, accordingly, affirmed.
In their brief, the employer and insurer state they withheld attorney fees of $1,643.77 from the temporary partial disability benefits paid from November 12, 2007, through July 28, 2008. Since we have concluded those benefits were not in dispute, the employee’s attorney is not entitled to a contingent fee on those benefits. The insurer is ordered to release to the employee the attorney fees withheld from the payment of undisputed temporary partial disability benefits.
 Roraff v. State, Dep’t of Transp., 288 N.W.2d 15, 31 W.C.D. 297 (Minn. 1980). Attorney fees for work performed in connection with medical claims are now governed by Minn. Stat. § 176.081, subd. 1, but use of the term Roraff fees has survived the codification.
 See, e.g., Kohn v. A&M Bus. Interiors, 65 W.C.D. 269 (W.C.C.A. 2005); Kelley v. Inter Faith Care Ctr., slip op. (W.C.C.A. Dec. 16, 2003).