JOHN E. FOSTER, Employee/Appellant, v. NORTHWEST AIRLINES d/b/a DELTA AIRLINES, INC., and LIBERTY MUT. INS. GROUP., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 11, 2012
ATTORNEY FEES - RORAFF FEES. The compensation judge properly denied counsel’s petition for Roraff fees where counsel failed to secure payment of medical expenses or approval of requested surgery. The establishment of an ongoing injury, standing alone, provides no grounds for a fee award.
Determined by: Wilson, J., Hall, J., and Stofferahn, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: David W. Blaeser, Woodbury, MN, for the Appellant. Kristen L. Ohlsen, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee’s attorney appeals from the judge’s denial of his request for attorney fees. We affirm.
The employee was employed as a mechanic for Northwest Airlines [the employer]. On May 5, 2008, he sustained an admitted work injury to his neck when he struck his head on a plane he was working on. He developed tingling in his right arm shortly thereafter and underwent conservative treatment, including physical therapy, over the next few years.
One of the employee’s treating physicians eventually recommended surgery to treat the employee’s ongoing symptoms, and the employee’s request for approval of the recommended surgery came on for hearing before a compensation judge on May 24, 2011. According to the resulting findings and order, issued June 17, 2011, the issues were as follows: (1) whether the employee had sustained a Gillette-type injury; (2) whether the May 5, 2008, work injury was a substantial cause of the employee’s need for the recommended cervical surgery; (3) whether the recommended surgery was reasonable and medically necessary treatment; (4) and whether the employee’s physical therapy provider, which had intervened, was entitled to payment. The compensation judge found that the employee had not sustained a Gillette injury but that the May 5, 2008, work injury remained a substantial cause of the employee’s neck condition and need for treatment through the date of hearing. The judge also found, however, that, given the employee’s ambivalence, the claim for surgery was premature, and she further found that the intervenor had not provided sufficient detail of the outstanding balance, or shown compliance with the medical fee schedule, to warrant reimbursement. Accordingly, no benefits were awarded.
The employee’s attorney filed a request for Roraff fees for work performed in connection with the May 2011 hearing. The employer and insurer objected, and the matter came on for hearing, before the same compensation judge, on October 3, 2011. In her decision issued November 16, 2011, the compensation judge denied the claim for fees on grounds that the employee’s attorney was not successful in securing payment of any disputed medical expenses. Counsel for the employee appeals.
STANDARD OF REVIEW
“[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 employee’s attorney sought Roraff attorney fees in the amount of $10,500 for his representation of the employee in connection with the claim for surgery. Counsel acknowledges that no benefits were awarded as a result of his efforts, as the judge found the request for surgery premature and the intervenor’s reimbursement claim deficient. Counsel argues, however, that an award of fees is nevertheless appropriate, in that counsel established that the employee’s work-related neck injury had not resolved as of the hearing date. In fact, counsel alleges, the judge found that the employee had “suffered a permanent injury to his cervical spine.” As such, counsel claims, hourly fees should be awarded to compensate him for his efforts in establishing “primary liability.” We are not persuaded.
Initially we would note that the compensation judge did not conclude that the May 5, 2008, work injury was permanent. Rather, the judge concluded only that the effects of the work injury were ongoing as of the hearing date. Therefore, contrary to the employee’s position, the judge’s decision does not necessarily establish the employer and insurer’s liability for future benefits of any kind.
More importantly, obtaining identifiable benefits or services of some kind is a prerequisite to a fee award. With respect to fees payable by an employer and insurer, the attorney fee statute itself speaks of fees for “recovery of medical and rehabilitation benefits or services” and disputed “medical and rehabilitation benefits.” Minn. Stat. § 176.081, subd. 1(a)(1), 1(a)(2), 1(a)(3) (emphasis added). And, in Bye v. Federal Reserve Bank of Minneapolis, slip op. (W.C.C.A. July 13, 2003), this court concluded that, because the employee’s attorney did not obtain any medical expense benefits relative to the conditions for which he established primary liability, no fees were payable. We find no basis to distinguish Bye from the case now before us.
The employee’s attorney correctly notes that fee awards should be adequate to ensure that injured workers have access to competent representation in workers’ compensation disputes. Ziegler v. Award Staffing Servs., Inc., No. WC09-186 (W.C.C.A. Nov. 18, 2009). It is also true that the establishment of liability for future benefits is a factor that a judge may consider in evaluating a claim for fees. Nevertheless, we find no support in the statute or in case law for a fee award in a case in which no benefits or services have been either awarded or preserved for the employee. We therefore affirm the judge’s decision denying the claimed fees.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 See Roraff v. State, Dep’t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).
 The compensation judge did award counsel costs, and that award is undisputed on appeal.
 And/or what counsel referred to as Heaton and Irwin fees.
 In fact, in Bye, it did not appear that the employee was claiming any medical expenses for treatment of the conditions as to which he prevailed in his claim.