KELLI A. YENNIE, Employee, v. BENCHMARK ELECS., INC., and TRAVELERS GROUP, Employer-Insurer/Appellants, and BLUE CROSS & BLUE SHIELD OF TEXAS, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 16, 2012
ATTORNEY FEES - RORAFF FEES. Where there is no evidence in the record as to the medical benefits recovered for the employee, there is no basis for the compensation judge to conclude that a contingent fee is inadequate to compensate the attorney for representing the employee at the hearing, and therefore a Roraff fee is inappropriate.
Determined by: Milun, C.J., Johnson, J., and Wilson, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Charles A. Bird, Bird, Johnson & Stevens, Rochester, MN, for the Respondent. Barbara L. Heck, John G. Ness & Assocs., St. Paul, MN, for the Appellants.
PATRICIA J. MILUN, Chief Judge
The employer and insurer appeal the compensation judge’s award of Roraff fees. We reverse.
On December 19, 2008, Kelli A. Yennie, the employee, reported injuring her neck while working as a warehouse clerk for Benchmark Electronics, Inc., the employer, which was insured for workers’ compensation liability by Travelers Group, the insurer. The employer and insurer admitted liability for the injury and paid various workers’ compensation benefits. The employee was initially diagnosed by her chiropractor, Dr. Nicholas Krause, with a cervical strain/sprain with thoracic pain. She continued working with a five pound weight restriction. In April 2009, the employee was evaluated by Dr. Jennifer Pecina at the Mayo Clinic. Dr. Pecina diagnosed chronic neck pain with acute exacerbation, took the employee off work, and referred her for physical therapy and to the Mayo Spine Clinic.
On April 28, 2009, the employee was evaluated by Dr. Ralph Edward Gay, a neurologist, at the Mayo Spine Clinic. Dr. Gay diagnosed chronic recurrent cervical myofascial pain with maladaptive muscle tightness and recommended biofeedback, scapular stabilization, and a posture principal program. Dr. Gay evaluated the employee on July 20, 2009, recommending that she continue biofeedback and changing her restrictions for lifting, pushing, or pulling to fifteen pounds occasionally and ten pounds frequently.
In June 2010, Dr. Gay assigned permanent work restrictions and recommended a pain management program. He also opined that the employee had reached maximum medical improvement.
On June 14, 2010, the employee was evaluated by Dr. Rajiv Aggarwal at the employer and insurer’s request. The employee drove from Rochester, Minnesota, to Burnsville, Minnesota, on that date for the evaluation. Dr. Aggarwal opined that the employee’s complaints from the incident at work were subjective in nature and related to conversion disorder or malingering; that the employee did not sustain any injury on December 19, 2008; and that the employee was in no need of any treatment related to the subjective symptoms of neck pain and neck tightness related to the event of December 19, 2008. Based on Dr. Aggarwal’s report, the insurer filed a notice of insurer’s primary liability determination on July 2, 2010, denying primary liability, and also filed a notice of intention to discontinue benefits. At that point, the employee retained counsel.
The employer and insurer served and filed Dr. Gay’s June 20, 2010, narrative report indicating that the employee had reached maximum medical improvement on July 30, 2010.
On November 3, 2010, the employee filed a claim petition seeking permanent total disability, permanent partial disability, and reimbursement of medical mileage. The claim petition addressed a potential intervenor, Blue Cross & Blue Shield of Texas (BCBS), which may have paid for the employee’s medical treatment at the Mayo Clinic. The employee’s pretrial statement also addressed the issue of the potential intervenor. The employer and insurer did not file a pretrial statement. A hearing was held on April 12, 2011. The compensation judge found that the employee had a ten percent permanent partial disability, that the employee was not permanently and totally disabled, and that it was premature to order reimbursement to the intervenor since no documentation of services was included with the motion to intervene. Based on these findings, the judge therefore awarded permanent partial disability benefits, denied permanent total disability benefits, and provisionally granted BCBS’s motion to intervene, provided that BCBS submitted the required documentation. The compensation judge did not address the medical mileage claim. Neither party appealed this decision.
On July 7, 2011, the employee filed a statement of attorney fees and costs claiming $2,264.58 in contingent fees which had been withheld, $421.00 in costs, and $5,000.00 in Roraff fees as well as reimbursement of fees under Minn. Stat. § 176.081, subd. 7. The employer and insurer objected. A hearing was held on September 7, 2011. At the hearing on attorney fees, the compensation judge made the following finding:
The employee prevailed on primary liability, establishing a compensable cervical spine injury on December 19, 2008, resulting in a ten (10%) percent whole body impairment . . . . Her claim for permanent total disability was denied. The intervention motion of Blue Cross and Blue Shield of Texas for the amount of $1,656.65, was provisionally granted but due to a lack of supporting documentation for the medical expenses incurred, no reimbursement was ordered.
The compensation judge awarded payment of the contingent fees and an additional $3,135.00 in Roraff fees. The employer and insurer appeal.
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.
The employer and insurer contend the compensation judge erred when he ordered the employer and insurer to pay “the sum of $3,135.00 pursuant to Minn. Stat. §176.081 and the Roraff and Irwin decisions” claiming that there were no medical disputes litigated at the hearing and no medical benefits recovered for the employee at hearing.
Attorney fees are payable on compensation awarded to the employee upon genuinely disputed claims or portions of claims. Minn. Stat. § 176.081, subd. 1, provides for attorney fees of 25% of the first $4,000.00 in compensation awarded to the employee and 20% of the next $60,000.00 in compensation awarded. This principle also applies to Roraff fees in cases in which medical benefits are recovered. Generally, a contingent attorney fee for recovery of monetary benefits is presumed adequate to compensate for recovery of medical and rehabilitation benefits or services concurrently in dispute. The employer or insurer are liable for additional fees “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 deciding a request for Roraff fees, the compensation judge must consider the statutory guidelines and the Irwin factors, including the amount 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 on behalf of the employee.
The compensation judge was unable to identify the medical benefits recovered in this case and this court is unable to do so either. Where there is no evidence as to the medical benefits recovered for the employee, there is no basis for the compensation judge to conclude that a contingent fee is inadequate to compensate the attorney for representing the employee at the hearing, and therefore the Roraff and Irwin cases are inapplicable. The employee has failed to establish entitlement to Roraff fees in this case since the record does not indicate that medical benefits were recovered for the employee. Accordingly, the compensation judge’s award of Roraff fees is reversed.
 Roraff v. State, Dep’t of Transp, 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).
 Finding 10.
 Krovchuk v. Koch Oil Refinery, 48 W.C.D 607 (W.C.C.A 1993), summarily aff’d (Minn. June 3, 1993).
 Minn. Stat. § 176.081, subd. 1(c).
 Minn. Stat. § 176.081, subd. 1(a)(1).
 Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 142, 59 W.C.D. 319, 336 (Minn. 1999); see also Irwin v. Surdyk’s Liquor (Irwin II), 60 W.C.D. 150, 158 (W.C.C.A. 2000).