RICHARD A. LAFOUNTAIN, Employee/Cross-Appellant, v. M.A. GEDNEY CO. and SFM MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 16, 2010
ATTORNEY FEES - RORAFF FEES. The compensation judge erred in concluding that the employee’s attorney was entitled to Roraff fees, where the record did not adequately establish the existence of a genuine dispute, and the employee’s attorney did not perform any significant legal services in connection with the surgery that the insurer ultimately approved and the employee actually underwent.
Determined by: Wilson, J., Pederson, J., and Stofferahn, J.
Compensation Judge: James F. Cannon
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Cross-Appellant. Beth Giebel Mandel, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge’s decision on Roraff fees. We reverse.
On April 12, 1993, the employee sustained a work-related injury to his low back while employed by M.A. Gedney Co. [the employer], which was insured for workers’ compensation purposes by SFM. He subsequently underwent extensive treatment, including five low back surgeries, to address his work-related condition.
On February 27, 2009, the office of the employee’s surgeon, Dr. Jeffrey Pinto, sent the insurer a fax, requesting authorization to perform another surgery. Attached to the request was a February 25, 2009, office note by Dr. Pinto, describing the proposed procedure as a revision of hardware from L4 to S1. On March 5, 2009, Becky Klinger, the claims specialist assigned to the employee’s file, responded, indicating that preauthorization for the procedure could “not be considered at this time,” explaining as follows:
After reviewing with our medical consultant, we are requiring that the employee be seen for a second surgical opinion. We will be arranging this examination in the near future. I will notify you of my decision within seven working days of receiving the second opinion exam report.
By letter, also dated March 5, 2009, Beth Mandel, counsel for the insurer, notified David Vail, the employee’s attorney, that “a second surgical evaluation” of the employee had been scheduled with Dr. Charles Burton, for April 1, 2009.
On March 18, 2009, almost two weeks after the date of Ms. Mandel’s letter, Mr. Vail responded as follows:
Thank you for your letter advising us of a new adverse set for April 1, 2009. Please be advised that my client will not be attending that appointment. You should cancel it.
As you know, you previously had an adverse. The adverse was with Dr. Engasser. You should reset any new adverses with Dr. Engasser. We will agree to a re-evaluation by Dr. Engasser. However, we will not be agreeing to a new adverse with a different doctor. This is “doctor shopping.”
The following day, Ms. Mandel sent Mr. Vail a letter indicating that the employee’s examination with Dr. Burton had been rescheduled to April 27, 2009.
On March 30, 2009, Mr. Vail filed a claim petition, requesting surgery “as recommended by Dr. Jeffrey Pinto in his office visit of 2/25/2009.”
On April 1, 2009, a representative of the Department of Labor and Industry issued a “Certification of Dispute,” describing the nature of the dispute as “approval for surgery as recommended by Dr. Jeffrey Pinto.” Ms. Mandel and Ms. Klinger subsequently testified that they had informed the department representative that there was no dispute and that the insurer was instead simply seeking a second “surgical opinion.”
On April 2, 2009, Dr. Pinto’s office sent the insurer a “New Request” for approval of surgery, instructing the insurer to “Please Disregard the Previous Request.” The chart note attached to this new request indicated that Dr. Pinto had reconsidered his surgical options and now proposed to perform an anterior lumbar interbody fusion with removal of the disc, with a wedge allograft and placement of a plate. On April 7, 2009, Ms. Klinger replied to the request, indicating again that the insurer was requesting a second opinion. In the meantime, on April 6, 2009, Mr. Vail filed a medical request, seeking approval for the surgery proposed by Dr. Pinto as described in the February 25, 2009, chart note. No reference was made to Dr. Pinto’s more recent proposal.
On April 8, 2009, the insurer filed an answer to the employee’s claim petition, indicating that the insurer was “[u]nable to admit or deny” the request for surgery as the insurer was “exercising their right to a second surgical opinion in this matter.” By letter of that same date, Ms. Mandel informed Mr. Vail that the examination with Dr. Burton had been cancelled and that she had scheduled an independent medical examination with Dr. Mark Engasser, for May 5, 2009. Ms. Klinger subsequently testified that the exam with Dr. Engasser had been scheduled for the first available date.
On May 10, 2009, the insurer filed a response to the employee’s medical request, indicating that there was no “certifiable dispute” and that the insurer was exercising its right to a “second surgical opinion.”
The employee evidently attended the examination with Dr. Engasser on the date scheduled, and Dr. Engasser apparently issued his report on about June 1, 2009. A few days later, on June 5, 2009, Ms. Klinger notified Dr. Pinto’s office that surgery had been approved. That same day, Ms. Klinger called the employee’s QRC to inform her of the approval and to ask the QRC to have the surgery scheduled as soon as possible. The QRC’s records indicate that she called both the employee and Mr. Vail that same day. By letter dated June 8, 2009, Ms. Mandel notified Mr. Vail yet again of the insurer’s approval.
The employee underwent the surgery recommended by Dr. Pinto on June 29, 2009. Also on June 29, 2009, Mr. Vail filed a claim for Roraff fees and an award pursuant to Minn. Stat. § 176.081, subd. 7. The employer and insurer objected to the fee claim, and the matter came on for hearing before a compensation judge on November 9, 2009.
In a decision issued on January 28, 2010, the compensation judge concluded that there had been a genuine dispute over the employee’s entitlement to surgery and that Mr. Vail was therefore entitled to Roraff fees. However, the judge also concluded that the fee claim was governed by the law in effect on the date of the employee’s work injury, meaning that Mr. Vail was entitled to an hourly fee, rather than a contingent fee based on the cost of surgery. Both parties appeal.
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).
“[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).
Pursuant to Minn. Stat. § 176.081, subd. 1c (2008),
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, including disputes related to the payment of rehabilitation benefits or to other aspects of a rehabilitation plan. The existence of a dispute is dependent upon a disagreement after the employer or insurer has had adequate time and information to take a position on liability. Neither the holding of a hearing nor the filing of an application for a hearing alone may determine the existence of a dispute. Except where the employee is represented by an attorney in other litigation pending at the department or at the Office of Administrative Hearings, a fee may not be charged after June 1, 1996, for services with respect to a medical or rehabilitation issue arising under section 176.102, 176.135, or 176.136 performed before the employee has consulted with the department and the department certifies that there is a dispute and that it has tried to resolve the dispute.
In the present case, the compensation judge concluded that a genuine dispute existed with regard to both surgery requests - - Dr. Pinto’s original surgery proposal, sent to the insurer on February 27, 2009, and the doctor’s second proposal, sent to the insurer on April 2, 2009. In reaching this conclusion, the compensation judge accepted Mr. Vail’s contention that the insurer’s failure to approve the proposed surgeries within the time limits specified in the medical treatment parameters meant that a “genuine dispute” existed for purposes of Mr. Vail’s fee claim. We agree that the treatment parameters are relevant to attorney fees in cases where authorization of proposed surgery has been sought. We cannot agree, however, that the facts of this case support a Roraff fee award.
In Alden v. Mills Fleet Farm, No. WC10-5081 (W.C.C.A. July 29, 2010), this court observed that the treatment parameters establish a comprehensive scheme governing requests for nonemergency surgery. In cases such as the one now before us, the rules indicate that an insurer that elects to request an independent medical examination has 45 days, after requesting the exam, to either authorize or decline to authorize proposed surgery. In Alden, the insurer complied with all of the applicable treatment parameters by requesting an exam and ultimately approving the surgery request well within the time limits established by Minn. R. 5221.6050, subp. 9.C. For that reason, and because there was no indication of any real disagreement between the parties, we reversed the compensation judge’s award of attorney fees, noting that we found “little justification for imposing liability for fees on an insurer that handles and ultimately approves a request for surgery in precisely the manner envisioned by the rules governing compensable treatment.” Alden, slip op. at 9.
In the present case, the insurer did not approve the proposed surgery within the 45-day period contemplated by rule. However, there are other relevant considerations here.
We note initially that Dr. Pinto withdrew his February 27, 2009, request when he made his second surgical proposal to the insurer on April 2, 2009. Because the first request was withdrawn, and the employee ultimately underwent an entirely different procedure, the first request, and events related thereto, are simply irrelevant to the issue of Mr. Vail’s entitlement to fees. Clearly Mr. Vail cannot recover fees related to a medical procedure that was never performed.
Second, the insurer’s failure to approve the surgery within the 45-day period contemplated by rule was arguably due at least in part to the actions of Mr. Vail. By letter dated March 5, 2009, Ms. Mandel notified Mr. Vail of the independent medical examination with Dr. Burton set for April 1, 2009. Mr. Vail waited nearly two weeks before informing Ms. Mandel that his client would see only Dr. Engasser. Ms. Mandel then had a choice - - she could either make a motion to compel the employee’s attendance at the exam with Dr. Burton, further delaying any decision on the proposed surgery, or she could agree to Mr. Vail’s demand. Ms. Mandel chose to have Dr. Engasser perform the exam, which was then scheduled for the first date available with that doctor. It may be true that the insurer did not approve the surgery for several days after receiving Dr. Engasser’s opinion. Nevertheless, it is reasonably inferable that a good part of the delay in the approval process was attributable to factors beyond the insurer’s control, that is, Mr. Vail’s refusal to comply with the insurer’s request for an examination with Dr. Burton.
Finally, and importantly, we find no evidence in the record that Mr. Vail performed any significant legal services in connection with the request for the second surgery proposed by Dr. Pinto, and, as we noted before, this is the only medical service relevant to Mr. Vail’s claim for fees. Mr. Vail did not request certification of a dispute with respect to this surgery, and none was issued. Both the claim petition and the medical request referred to the surgery recommended by Dr. Pinto in February of 2009, a recommendation Dr. Pinto subsequently withdrew and asked the insurer to disregard. We see no indication that Mr. Vail filed a letter amendment to his claim petition, as allowed by Minn. R. 1415.1100, subp. 5, or that he took any other action to advance the employee’s right to undergo the surgery proposed by Dr. Pinto on April 2, 2009, and ultimately performed by him on June 29, 2009.
Given all these circumstances, we conclude that the compensation judge erred in finding that Mr. Vail was entitled to Roraff fees. We therefore reverse the judge’s decision on this issue.
 See Roraff v. State, Dep’t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980); Minn. Stat. § 176.081, subd. 1; Minn. Stat. § 176.135, subd. 1(d). Mr. Vail cross-appealed from the compensation judge’s decision as to how the fees were to be calculated. Because we conclude that Mr. Vail is not entitled to Roraff fees, we need not consider his argument that the compensation judge erred in applying the attorney fee provisions in effect on the date of the employee’s injury.
 Certain background information was taken from this court’s previous decision, LaFountain v. M.A. Gedney Co., No. WC08-115 (W.C.C.A. July 28, 2008).
 The employer and insurer also raise a constitutional issue, which cannot be resolved by this court.
 The underlined language was added to the statute in 1995, subsequent to the date of the employee’s injury. The language regarding certification of disputes is obviously intended to apply to all legal services provided after June 1, 1996, regardless of the date of the employee’s injury. The remaining underlined language appears to be a clarification of the legislature’s intent as to just what constitutes a genuine dispute.
 In the present case, as in Alden, the insurer inaccurately framed its request as a request for a second opinion, rather than for an independent medical examination. We strongly discourage this practice, especially since different rules apply to second opinions. See Minn. R. 5221.6050, subp. 9.C.
 Assuming other pertinent time limits have been satisfied. Specifically, the insurer must request the examination within 7 working days after a physician’s notification of proposed surgery. Minn. R. 5221.6050, subp. 9.C.
 Pursuant to Minn. R. 5221.6050, subp. 9.C.(6),
In any case where prior notification of proposed surgery is required, the insurer may elect to obtain an examination of the employee by the employer’s physician under Minnesota Statutes, section 176.155, sometimes referred to as an “independent medical examination.” If the insurer notifies the employee and health care provider of the examination within seven working days of the provider’s notification, the proposed nonemergency surgery may not be provided pending the examination. However, after 45 days following the insurer’s request for an examination, the health care provider may elect to proceed with the surgery, subject to a determination of compensability by the commissioner or compensation judge under subpart 7.
 We note that neither party offered the opinion as evidence at the fee hearing.
 In a decision issued after these events, this court held that an insurer is not bound to use the same independent examiner for all exams with any given employee. Ollikkala v. RSI, Inc., No. WC09-104 (W.C.C.A. Aug. 11, 2009). However, even prior to our decision, there was no basis in the statute, rules, or prior case law supporting any other conclusion on this issue. In his brief, Mr. Vail refers to Dr. Daniel Janiga, who first evaluated Dr. Pinto’s surgery proposal, as the first “employer’s physician,” implying that the insurer’s use of Dr. Janiga is somehow relevant to the insurer’s right to an independent medical exam. However, Dr. Janiga did not examine the employee but rather only reviewed the surgery request. Contrary to Mr. Vail’s argument, it is evident that Minn. Stat. § 176.155, governing independent medical examinations, applies only to physical examinations of the employee, not to reviews of records.