DAVID D. VEZINA, Employee, v. BEST WESTERN INN MAPLEWOOD and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants, and COMMISSIONER, MN DEP'T OF LABOR & INDUS., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 28, 2000

 

HEADNOTES

 

CREDITS & OFFSETS - SOCIAL SECURITY OFFSET; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 4.  Under Minn. Stat. ' 176.101, subd. 4, the permanent total disability rate may be reduced below the minimum rate of 65 percent of the statewide average weekly wage by application of the Social Security offset.

 

ATTORNEY FEES - RORAFF FEES; ATTORNEY FEES - SUBD. 7 FEES.  Where the compensation judge=s award of additional permanent total disability benefits was reversed, attorney fees based on that award are also reversed.  The compensation judge=s alternate finding that additional Roraff fees were appropriate is supported by substantial evidence and affirmed.  The attorney fees may exceed $13,000.00 and subd. 7 fees are available, based upon Irwin.

 

Affirmed in part and reversed in part.

 

Determined by Rykken, J., Johnson, J., and   Pederson, J.

Compensation Judge:  Nancy Olson

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s determination that the attorney=s fees claimed by the employee=s attorney are reasonable and compensable, even though beyond the $13,000.00 limit on attorney fees contained in Minn. Stat. ' 176.081, subd. 1(3)(b).  The employer and insurer also appeal from the compensation judge=s determination that the employee=s weekly compensation rate for permanent total disability benefits, after application of the Social Security Disability Insurance offset, may not be reduced below 65 percent of the statewide average weekly wage on the employee=s date of injury, October 27, 1995.  We affirm the award of attorney fees related to the medical dispute, but reverse the compensation judge=s determination that the employee=s compensation rate for permanent total disability benefits may not be reduced below 65 percent of the statewide average weekly wage.

 

BACKGROUND

 

On October 27, 1995, David D. Vezina, the employee, sustained an injury to his thoracic back, a fractured vertebrae at the T6 level, in the course and scope of his employment with Maplewood Inn, the employer.  On that date, the employer was insured for workers= compensation liability in the state of Minnesota by State Fund Mutual Insurance Company, the insurer.  Born on March 9, 1943, the employee was 52 years old when injured, and earned an average weekly wage which qualified him for a base compensation rate of $505.06.

 

Following his injury, the employee remained off work and was hospitalized from November 7 through November 16, 1995, for treatment of his back condition.  During that hospitalization, the employee also underwent cardiac consultation and testing.  The employee was disabled from employment until approximately January 17, 1996, when he attempted to return to work.  The work he engaged in for two days resulted in a severe flare-up of his back pain.  As of January 18, 1996, Dr. Ivance restricted the employee to four hours of work per day, and increased his pain medication.  The employee was unable to return to work at that point, however, due to his back condition.

 

The employer and insurer initially accepted responsibility for the employee=s work-related injury, but in January 1996, sought to discontinue the employee=s ongoing benefit entitlement, contending that the employee was able to return to work on a full-time basis, and that any ongoing disability thereafter was related to his non-work-related medical conditions, including asthma, lung and cardiac conditions.  The employee objected to this discontinuance, and the matter was heard before a compensation judge on June 27, 1996.  By Findings and Order, served and filed August 19, 1996, the compensation judge found that the employee continued to be temporarily totally disabled from and after January 17, 1996, as a substantial result of his injury on October 27, 1995, and awarded to the employee ongoing temporary total disability benefits.^[1]   The compensation judge also awarded attorney fees to the employee=s attorney pursuant to the statutory 25/20 formula in the amount of $13,000.00, the maximum allowed per injury under Minn. Stat. ' 176.081, subd. 1(3)(b) (1995).

 

The employee attempted to return to work later in 1996 but was unable to continue working due to his back injury; by January 1997, the employee filed a claim petition, seeking entitlement to permanent total disability benefits and compensation for 15 percent permanent partial disability of the body as a whole.  The employer and insurer denied liability for those claims, and the matter was again heard before a compensation judge on May 22, 1997.  At hearing, the parties stipulated that the employee had sustained a 15 percent permanent partial disability of the body as a whole as a result of his October 27, 1995 injury.  Pursuant to Findings and Order on August 11, 1997, and Amended Findings and Order, served and filed September 9, 1997, the compensation judge found that the employee was rendered permanently totally disabled from sustained gainful employment activity as a substantial result of his injury of October 27, 1995, and awarded permanent total disability benefits commencing November 1, 1996.  Additional attorney fees were neither claimed nor awarded, because the employee=s attorney had already been paid the maximum allowed by Minn. Stat. ' 176.081.

 

In 1998, a third dispute arose between the employee and employer and insurer, concerning claims for reimbursement of prescription expenses to the employee and payment of outstanding bills to the intervenor, Allina Health Systems/United Hospital.  A fourth issue also arose, when the employer and insurer reduced the employee=s ongoing permanent total disability benefits to an amount below 65 percent of the statewide average weekly wage, based upon the employee=s receipt of Social Security Disability Insurance benefits.  The parties disputed whether the insurer had exceeded the reductions allowed by Minn. Stat. ' 176.101, subd. 4, as amended effective October 1, 1995.  A third hearing was scheduled for February 8, 1999, to address these issues.  At that hearing, however, the parties reached a settlement of the medical disputes, with the employer and insurer agreeing to pay a compromised amount of medical expenses to the intervenor, and agreeing to reimburse the employee for claimed prescription expenses.  That settlement was finalized by Award on Stipulation, served and filed June 30, 1999.

 

Two issues remained unresolved:  (1) whether permanent total disability benefits could be reduced below 65% of the statewide average weekly wage after offset for the employee=s Social Security Disability Insurance (SSDI), and (2) whether additional attorney=s fees were payable beyond the statutory maximum of $13,000.00.   The attorney fee issue was addressed at a hearing on April 15, 1999; the permanent total disability issue was reserved for future determination.  At the April 15, 1999 hearing, the employee=s attorney submitted a Statement of Attorney Fees, outlining attorney fees incurred since representation was first undertaken of this employee, in the amount of $25,998.50.  The employee=s attorney stated that $8,893.50 of those fees related to preparation for the April 15, 1999 hearing, and that one-half of his preparation time and the corresponding $4,446.75 in fees were related to the medical issues. The employer and insurer did not contest this designation of fees.

 

In the Amended Findings and Order served and filed on May 28, 1999, the compensation judge outlined the parties= stipulations made at the April 15, 1999 hearing, including in pertinent part that (1) the employee=s attorney expended the hours listed in the Statement of Attorney Fees; (2) that if the employee is successful on the underpayment of benefits, the employee=s attorney will only claim payment of attorney fees from the additional permanent total disability benefits awarded; (3) that at least one-half of the time expended by the employee=s attorney for that hearing was related to obtaining payment of the medical expenses for the employee; (4) that the medical claim was extremely complex due to the employee=s numerous medical conditions; (5) that 20% of the medical benefits awarded to the employee (primarily prescription expenses) was $597.73; and (6) that given the time and expertise required to resolve the medical dispute, an attorney fee of $597.73 would not be a reasonable attorney fee for obtaining the medical benefits.

 

The compensation judge then found that the claimed attorney fees were reasonable and addressed factors since articulated in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319  (Minn. 1999).  The compensation judge specifically found that: (1) the hourly charge of the employee=s attorney, $185.00 per hour, was reasonable based upon his expertise in the area of workers= compensation law, and that an hourly charge of $70.00 per hour for legal assistants and a $140.00 per hour charge for the associate attorney was also reasonable; (2) that of the total $25,989.50 in attorney fees listed in the Statement of Attorney Fees, $8,893.50 related to preparation for the hearing on April 15, 1999, which designation of time was not contested by the employer and insurer; (3) that the claimed $8,893.50 in attorney fees would be deducted from any additional weekly benefits obtained by the employee, but that if the employee was successful in only obtaining medical benefits under the agreement entered into by the parties, the employee=s attorney then would claim only one-half, $4,446.75, as Roraff^[2] attorney fees, and (4) that the time expended on the case was reasonable given the complexity of issues and the vigorous defense raised by the employer and insurer.

 

The compensation judge explained, in her memorandum of May 28, 1999, that she carefully reviewed the Statement of Attorney=s Fees, and found that the time spent was reasonable.  She also explained that even though the intervenor was represented by counsel, it was essential for the employee=s attorney to carefully review the medical bills at issue, since the employee=s numerous severe health problems were ongoing and any resolution on the medical bills could have far reaching implications on the employee=s ability to receive future medical care.  The compensation judge further commented that she Aconsidered the designation of one-half of the time to medical to be conservative,@ and that the use of a paralegal assistant and associate attorney to prepare for hearing was reasonable, since it limited the extent of attorney fees. 

 

The compensation judge noted in her Findings and Order that the parties also agreed that the stipulation for settlement on the medical intervention claim and the employee=s medical expense claim would not address the attorney fees issue, and that the fee issue would be resolved through the certification process, or by an additional Findings and Order from the compensation judge.

 

The issue of payment of attorney fees beyond the statutory maximum of $13,000, along with the issue concerning calculation of the level of permanent total disability benefits, were referred to the Chief Administrative Law Judge (ALJ) of the Office of Administrative Hearings for consideration of certification to the Minnesota Supreme Court.  A hearing was held before the Chief ALJ on June 14, 1999.  According to Findings and Order served and filed July 18, 1999, the Chief ALJ certified both issues to the Minnesota Supreme Court for consideration.  By Order of the supreme court, served and filed October 18, 1999, the supreme court declined certification of both issues, and remanded the matter to the compensation judge for further proceedings.

 

By agreement of the parties, no additional hearing was held before a compensation judge; instead, the case was decided based upon review of the legal briefs submitted to the Minnesota Supreme Court.  By Findings and Order served and filed December 20, 1999, the compensation judge determined the following: (1) the minimum rate for the employee=s permanent total disability benefits, $329.00, based on 65 percent of the statewide average weekly wage on the date of the employee=s injury, applies after application of the Social Security offset; (2) the employee had been underpaid permanent total disability benefits, since he was paid at a weekly rate below $329.00; (3) the claimed attorney fees, exceeding the $13,000.00 statutory maximum, were reasonable and related to receipt of additional benefits for the employee; (4) the employee=s attorney was entitled to $8,893.50 in attorney fees payable pursuant to the 25/20 formula contained in Minn. Stat. '176.081, subd. 1(a), to be paid from the additional permanent total disability benefits awarded to the employee; and (5) the employee was entitled to partial reimbursement of attorney fees pursuant to Minn. Stat. ' 176.081, subd. 7, in the amount of 30 percent of the $8,893.50 awarded in attorney fees.  The compensation judge also found that the employee=s attorney=s claim for additional fees incurred since April 15, 1999, remains open.

 

The compensation judge also found that if she had determined that the employee was not entitled to recover underpaid permanent total disability benefits she then would have awarded the employee $4,446.75 in attorney fees based upon fees incurred for representation of the employee on the medical dispute.

 

The employer and insurer appeal from the compensation judge=s determination that the employee is entitled to the minimum rate of permanent total disability benefit, based upon 65 percent of the statewide average weekly wage on the employee=s date of injury, with such minimum established after application of the Social Security offset.  The employer and insurer also appeal from the compensation judge=s determination that the attorney fees claimed by the employee=s attorney are reasonable and compensable, even though beyond the $13,000.00 limit on attorney fees contained in Minn. Stat. '176.081, subd. 1(3)(b).^[3]

 

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 (1992).  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 the 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).

 

DECISION

 

Calculation of Permanent Total Disability Benefit Rate - History of Supplementary Benefits

 

Supplementary benefits were established in 1971, took effect on January 1, 1972, Minn. Stat. ' 176.132, and were abolished effective October 1, 1995.  Supplementary benefits were originally created to raise the benefit levels of injured workers who were totally disabled from sustained gainful employment for longer than two years, but who were paid at a low compensation rate.  Each year, a supplementary benefit rate was calculated pursuant to statute.  At the inception of supplementary benefits, in 1971, once an injured worker was totally disabled for two years, but was being paid a weekly rate below the then-current supplementary benefit rate, the employer and insurer commenced payment at the supplementary benefit rate.  The Special Compensation Fund then annually reimbursed the employer and insurer for the difference between the compensation rate and the supplementary benefit rate.

 

Originally the supplementary benefit level was $60 per week.  Benefits were raised by the 1975 legislation to 50 percent of the statewide average weekly wage, effective January 1, 1976.  Effective October 1, 1979, benefits were raised to 65 percent of the statewide average weekly wage.  In 1983, the Minnesota state legislature curtailed supplementary benefits, allowing benefits to be paid only after the duration of an individual=s total disability extended to four years.  Supplementary benefits were still available to recipients whose adjusted compensation rates were less than 65 percent of the statewide average weekly wage, or whose compensation rates fell below that level due to the offset of simultaneous receipt of Social Security retirement or governmental disability benefits related to the same disability as in the workers= compensation benefits claim.^[4]  The corresponding reimbursement from the Special Compensation Fund was also still available.

 

Prior to their repeal, which was effective for employees injured on or after October 1, 1995, supplementary benefits could potentially increase workers= benefits in three ways.  First, those benefits raised payment levels for workers injured before October 1, 1975 (before any annual adjustment of benefits was allowed) to the current supplementary benefit level.  Initially, the majority of supplementary benefits went to workers whose benefits were low by current standards and who were ineligible for annual cost of living adjustments.

 

The second category of workers to benefit from supplementary benefits were those earning low wages at the time of injury and who had a corresponding low compensation rate.  Once those workers qualified for supplementary benefits, they would receive a weekly payment at the supplementary benefit level, with the employer and insurer paying a base compensation rate and the Special Compensation Fund paying the difference between the compensation rate and the supplementary benefit level.

 

The third group of workers who received supplementary benefits is comprised of those workers whose benefits were reduced by simultaneous receipt of governmental disability benefits such as SSDI.  In 1967 the Minnesota legislature enacted a state offset whereby after an employer and insurer paid $25,000 in total disability benefits, subsequent weekly workers= compensation benefits received by permanently and totally disabled workers were reduced by the government disability benefits.  Effective January 1, 1972, if the worker=s reduced permanent total disability benefit fell below the supplementary benefit rate, the Agap@ between the reduced permanent total disability benefit and the supplementary benefit level was paid by the employer and insurer, who then were reimbursed by the Special Compensation Fund.  The net result to the injured worker in this group was receipt of workers= compensation benefits at the supplementary benefit level, plus his SSDI payment.  (In 1973, the statute was amended to require supplementary benefits to be reduced by 5 percent, in those cases where the employee simultaneously received SSDI.  Minn. Stat. '176.132, subd. 2(e).)

 

Effect of Social Security Offset on Permanent Total Disability Benefit Rate

 

Minn. Stat. '176.101, subd. 4 (1992), was also amended in 1995, for employees injured on or after October 1, 1995, to increase the minimum compensation rate for permanent total disability, as follows:

 

For permanent total disability, as defined in subdivision 5, the compensation shall be 66-2/3 percent of the daily wage at the time of the injury, subject to a maximum weekly compensation equal to the maximum weekly compensation for a temporary total disability and a minimum weekly compensation equal to the minimum weekly compensation for a temporary total disability 65 percent of the statewide average weekly wage.  This compensation shall be paid during the permanent total disability of the injured employee but after a total of $25,000 of weekly compensation has been paid, the amount of the weekly compensation benefits being paid by the employer shall be reduced by the amount of any disability benefits being paid by any government disability benefit program if the disability benefits are occasioned by the same injury or injuries which give rise to payments under this subdivision.

 

(The stricken language is the statute as it appeared before the 1995 amendment; the underlined language is the 1995 amendment.  Act of May 25, 1995, ch. 231, art. 1, Sect. 20, 1995 Minn. Laws. 1995).)

 

In this case, the compensation judge determined that the minimum rate for the employee=s permanent total disability benefits, after application of the Social Security offset, is set at $329.00, which represents 65 percent of the statewide average weekly wage on the employee=s date of injury.  The compensation judge specifically found that the minimum rate applies after the Social Security offset is applied.  The compensation judge found that the offset cannot be applied to reduce the employee=s weekly permanent total disability (PTD) benefit below the minimum PTD benefit set forth in the statute.

 

The employer and insurer appeal, arguing that under the plain meaning of the statute, after a total of $25,000.00 of weekly compensation benefits have been paid, the amount of weekly PTD benefits is reduced by the amount of Social Security or other disability benefits being paid by any government disability program.  The employer and insurer interpret the statute to allow them to pay a permanent total disability benefit rate less than the minimum rate set forth in Minn. Stat. ' 176.101, subd. 4 in cases, such as this one, where the SSDI offset reduces the employee=s PTD benefit below 65% of the statewide average weekly wage.

 

Minn. Stat. ' 645.16 provides that A[t]he object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.  Every law shall be construed, if possible, to give effect to all its provisions,@ and A[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.@  Moreover, pursuant to Minn. Stat. ' 645.08 (1), words and phrases are to be construed according to their plain meaning, and we must be guided by the presumption that the legislature does not intend an absurd or unreasonable result.  Minn. Stat. ' 645.17 (1); Owens v. Water Gremlin Co., 60 W.C.D. 16, 28 (W.C.C.A. 1999).

 

As stated by this court in Owens, 60 W.C.D. at 34:

 

Although a reasonable argument can be made that the 1995 statutory changes were intended to reduce rather than to expand benefits owed to injured employees, such an argument does not supplant the clear language of the statute.  While the legislature did place a cap on entitlement to temporary total disability benefits and required permanent partial disability thresholds for entitlement to permanent total disability, it also raised the maximum compensation rate to $615.00 per week and increased the minimum compensation rate for permanent total disability to 65% of the statewide average weekly wage.  Given such evidence of compromising considerations at work in the total picture of the 1995 amendments, the ultimate Alegislative intent@ behind any single provision among those amendments remains difficult to discern.

 

The employer and insurer  assert that the statutory language is unambiguous, that under the rules of statutory construction, Awords and phrases are construed according to their common and approved usage,@ Minn. Stat. ' 645.08(1), and therefore that the plain meaning of revised Minn. Stat. ' 176.101, subd. 4, requires the interpretation that the PTD rate may, in some cases, be reduced below 65 percent of the statewide average weekly wage.

 

                        The employer and insurer contend that Minn. Stat. ' 176.101, subd. 4 (1995), establishes a three-part process for workers determined to be permanently totally disabled who also receive a government disability benefit, such as SSDI.  They argue that the first sentence of subdivision 4, above, sets a minimum and maximum compensation rate for permanent total disability, without regard to any other disability program benefit paid to the injured employee:

 

For permanent total disability, as defined in subdivision 5, the compensation shall be 66-2/3 percent of the daily wage at the time of the injury, subject to a maximum weekly compensation equal to the maximum weekly compensation for a temporary total disability and a minimum weekly compensation equal to 65 percent of the statewide average weekly wage.

 

The employer and insurer next assert that the first clause of the next sentence specifically states that this calculated compensation rate is payable, at that rate (with applicable adjustments pursuant to Minn. Stat. '176.645), until "a total of $25,000.00 of weekly compensation has been paid."  Minn. Stat. ' 176.101, subd. 4 (emphasis added).  Finally, they assert that the third step, as outlined in the second clause of the second sentence, is the operative event.  After payment of $25,000.00 in permanent total disability benefits, the statute states that Athe amount of the weekly benefits being paid by the employer shall be reduced by the amount of any disability benefits being paid by any government disability program if the disability benefits are occasioned by the same injury or injuries which give rise to payments under this subdivision.@  Minn. Stat. '176.101, subd. 4 (emphasis added).

 

In summary, the employer and insurer argue that the legislature has unequivocally stated that the three steps below should be followed in calculating benefits payable to the employee:

 

(1) The compensation rate for permanent total disability shall be calculated, subject to the statutory maximum compensation rate and the statutory minimum equal to 65 percent of the statewide average weekly wage;

(2) The employer and insurer shall pay $25,000.00 of permanent total disability benefits; and

(3) If an injured worker is eligible for government disability benefits with respect to the same injury or injuries, the amount of weekly compensation being paid shall be reduced by those disability benefits.

 

To bolster their argument, the employer and insurer assert that the legislature enacted significant changes to the Minnesota Workers= Compensation Law in 1995, with an intended effect to reduce the costs of the workers= compensation system, resulting in a concomitant reduction of benefits payable to injured employees.  The employer and insurer also argue that the purpose of the coordination of Social Security and workers= compensation benefits is Ato reduce duplication of the two programs.@  Kloss v. E & H Earthmovers, 472 N.W.2d 109, 112, 44 W.C.D. 530, 533 (Minn. 1991).  The employer and insurer rely on the comment by the Minnesota Supreme Court that, A[i]n recognition that workers= compensation is but one element of a system of wage-loss protection, the Minnesota legislature early on provided a means for coordinating workers= compensation with the federal Social Security system and the state pension system.@  Potucek v. City of Warren, 535 N.W.2d 333, 336, 53 W.C.D. 88, 91 (Minn. 1995).  The employer and insurer argue that Athe legislature indeed shifted a significant burden to employers and insurers by establishing the initial 65 percent level  [PTD] benefit and by ensuring that this benefit level is maintained through the use of a combination of workers= compensation and the government disability payments.@  (Er=s Brief, Sept. 16, 1999, p. 13.)  For these reasons, the employer and insurer contend that statutory construction requires this court to conclude that the legislature intended that the minimum permanent total disability rate could be further reduced by Social Security disability benefits paid.

 

The employer and insurer argue that to the extent that Minn. Stat. ' 176.101, subd. 4 (1998), is capable of more than one reading, application of the canons of statutory construction require this court to conclude that the legislature intended the minimum permanent total disability benefit to be reduced by the Social Security disability benefit paid.  They argue that the legislature=s intent can be ascertained by considering the former law and the legislative and administrative interpretations of the former statute.  The employer and insurer argue that if the legislature intended a different application of the minimum, it would have so stated and amended more than the dollar amount in Minn. Stat. ' 176.101, subd. 4.  They argue that since the legislature only changed the minimum rate for permanent total disability benefits, the remaining language governing application of the Social Security offset is identical to the prior law, and that as was done prior to this 1995 change in the minimum permanent total disability rate, employers and insurers can apply the SSDI offset, Adollar-for-dollar,@ to reduce PTD benefits to below the minimum rate. 

 

The employee argues that the compensation judge=s interpretation of the statute is accurate, that is, that the amount of benefits set forth in Minn. Stat. ' 176.101, subd. 4 represents a minimum amount to be paid to the employee, even after an offset is taken for SSDI.  The employee strenuously argues that the statute is unambiguous, and that the pivotal word in subdivision 4 of '176.101 is Aminimum.@  The employee argues that for the word A minimum@ to maintain its integrity of meaning, the second sentence of subdivision 4 must be read so as to allow reduction of permanent total disability benefits by SSDI, but no further than to the Aminimum@ of  65 percent of the statewide average weekly wage.  The employee argues that only this interpretation gives effect to the intent of the legislature as it is reflected in the plain, unambiguous language of the statute.^[5]

 

By way of example, in this case, the employee earned an average wage at the time of his injury which entitled him to a base compensation rate of $505.06.  Pursuant to Minn. Stat. '176.645, his weekly compensation rate was not to be adjusted until four years post-injury, so that rate was effective until October 15, 1999.  The employee was adjudicated to be permanently totally disabled from employment as of November 1, 1996.  The employer and insurer paid $25,000 in PTD benefits by October 15, 1997.  Thereafter, they were allowed to apply the offset for the employee=s receipt of Social Security Benefits, reducing the employee=s PTD benefit dollar-for-dollar.

 

After October 15, 1997, the employer and insurer paid $265.00 in weekly PTD benefits, as follows (using rounded numbers):

 

   $505.00  =  base compensation rate

                        -    240.00  = weekly Social Security disability received by employee

   $265.00  =  weekly PTD benefit paid by employer and insurer

 

The employee argues that such numbers demonstrate the inequity of the employer and insurer=s interpretation of the revised statute, in that the weekly PTD benefit falls below the Aminimum@ rate provided by Minn. Stat. '176.101, subd. 4.  The employee contends that his weekly PTD benefit should be increased from $265.00 to the minimum PTD rate of $360.00 (65% of the statewide average weekly wage on October 15, 1997, when the employer and insurer commenced taking the offset).^[6]   He claims that he initially was underpaid $95.00 per week, which calculates to approximately $4,940 per year, an inequitable result not contemplated by the legislature.

 

The compensation judge agreed with the employee=s interpretation, and determined that the employee=s PTD benefit could not be reduced as outlined above.  But she found that the PTD rate would be reduced only to the minimum of 65% of the statewide average weekly wage on the date of injury, $329.00/week, and not the rate effective on the date the employee commences receiving PTD benefits, $360.00/week.  (Finding No. 4)

 

The employee further argues that the employer and insurer=s interpretation does not consider Aother laws upon the same or similar subjects@ in ascertaining legislative intent.  Minn. Stat. ' 645.16(5); In re Butler, 552 N.W.2d 226, 231 (Minn. 1996).  The employee urges this court to consider Minn. Stat. ' 176.101, subd. 4 along with simultaneous repeal of the supplementary benefit provision (formerly Minn. Stat. ' 176.132) in order to review the legislative intent.  The employee argues that it was the intent of the legislature not to lower the minimum permanent total disability rate but to shift the cost for permanently totally disabled individuals from the Special Compensation Fund to the specific industry which caused the permanent total disability, i.e., the injured worker=s employer.  The employee argues that A[a]ny other interpretation presupposes an inept and unsound legislative process,@  (Employee=s Brief, August 7, 1999, p. 19) and that application of the statute, as interpreted by the employer and insurer, results in inequitable treatment of permanently totally disabled employees.

 

As stated in Minn. Stat. ' 645.26, subd. 1 (1998), A[when] a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that the effect may be given to both.@  We acknowledge that the corresponding change in the statute eliminated the provision for supplementary benefits, effective October 1, 1995.  The now-revoked supplementary benefits, earlier provided by Minn. Stat. '176.132, previously worked in concert with Minn. Stat. '176.101, subd. 4, to assure a combined benefit commensurate with 65% of the statewide average weekly wage.  However, that portion of the statute, allowing payment of benefits at the supplementary level, no longer exists.  Therefore, the amended Minn. Stat. '176.101, subd. 4 cannot be analyzed in tandem with the now-repealed provision addressing supplementary benefits.  So it is this court=s role, in this case, to interpret the amended statute as it stands.  Although the previous statutory provision for supplementary benefits cannot be ignored, and is crucial for understanding of the parties= arguments herein, we need to analyze Minn. Stat. '176.101, subd 4, as amended by the legislature in 1995.  

 

This court has carefully evaluated the briefs and arguments presented by counsel and concludes that the revised statutory section, Minn. Stat. ' 176.101, subd. 4, is unambiguous, and that the plain meaning of the statute allows for an offset of SSDI or other government disability benefit to reduce the employee=s permanent total disability rate below 65 percent of the statewide average weekly wage on that employee=s date of injury.  The net result is that the permanent total disability benefit paid to an employee, after the offset is taken, may in many instances fall below the stated Aminimum@ rate of 65 percent of the statewide average weekly wage.^[7]  To read the statute in any other way, however, even though very credibly argued by counsel for the employee, would void the plain meaning of this statute, to which this court is required to adhere.  ABecause the statute is clear and unambiguous, no further argument should be necessary.@  Schlotz v. Hyundai Motor Co., 557 N.W.2d 613 (Minn. 1997); Homart Development Co. v. Co. of Hennepin, 538 N.W.2d 907 (Minn. 1995).

 

We acknowledge that this interpretation of the statutory language can, in many cases, lead to situations where an employee finds his or her entitlement to workers= compensation benefits reduced or totally offset by SSDI income.  That may seem to be an inequitable result for many employees who are subject to an offset for SSDI income.   Nevertheless, the plain meaning of Minn. Stat. ' 176.101, subd. 4, on its face, requires this determination.  We therefore reverse the compensation judge=s award of additional permanent total disability benefits and find that an offset for government disability benefits can be applied even if such an offset causes the level of permanent total disability benefits to fall below the minimum of 65 percent of the statewide average weekly wage on the date of the employee=s injury.^[8]

 

Attorney Fees Claim

 

The compensation judge found that the employee is entitled to $8,893.50 in attorney fees payable pursuant to the 25/20 formula contained in Minn. Stat. ' 176.081, subd. 1(a), payable from the permanent total disability benefits awarded.  That $8,893.50 figure was designated by the employee=s attorney at the April 15, 1999, hearing as the fees incurred in preparation for that hearing.  The employee=s attorney also claimed, and the parties stipulated, that one-half of the preparation time related to the medical expense and medical intervention claims.  The employer and insurer did not contest that this amount of fees represented time spent preparing for the hearing, but contended that no additional attorney fees were payable, since $13,000.00 in attorney fees had already been paid.  See Minn. Stat. ' 176.081, subd. 1(3)(b).

 

Since we reverse the compensation judge=s finding that the employee is entitled to reimbursement of an underpayment of permanent total disability benefits, we also reverse the compensation judge=s award of $8,893.50 in attorney fees payable pursuant to Minn. Stat. ' 176.081, subd. 1(a), to be paid from the additional permanent total disability benefits awarded.  We therefore do not address the parties= arguments concerning the limits on these attorney fees.

 

However, the compensation judge, in a specific alternative finding, referred to attorney fees relative to the medical dispute herein.  The compensation judge found that:

 

7.  Had the compensation judge found that the employee was not entitled to additional permanent total benefits the compensation judge would have awarded the employee $4,446.75 [one-half of the $8,893.50] pursuant to Roraff v. State of Minn., 288 N.W.2d 15 (1980).  (Finding No. 7.)

 

The employer and insurer argue that no additional fees are payable relative to the medical dispute, since the statutory limit of $13,000.00 in attorney fees had already been paid, pursuant to Minn. Stat. ' 176.081, subd. 1(3)(a) and (b).  On appeal, this court has the jurisdiction to address attorney fees de novo.  Minn. Stat. ' 176.081, subd. 3.  In line with the compensation judge=s alternative award of Roraff attorney fees, and in accordance with the analysis in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), we award the amount of $4,446.75 in attorney fees to the employee=s attorney for his representation of the employee in successfully obtaining medical benefits.

 

In Irwin, 599 N.W.2d 132, the Minnesota Supreme Court found that the provision of Minn. Stat. ' 176.081, which limits attorney fees to a maximum fee of $13,000.00 per injury, is unconstitutional.  Subsequent to Irwin, this court has further addressed the issue of limitations on attorney fees.  In Clark v. Dick's Sanitation, slip op. (W.C.C.A. May 16, 2000) this court held, based on Irwin, that the limit on attorney fees of $13,000.00 per injury is unconstitutional.  The employee=s attorney herein, therefore, is not limited to attorney fees of $13,000.00 for his representation of the employee relative to his October 27, 1995 personal injury.  See also, Sunderland v. Peterson Sheet Metal, slip op. (W.C.C.A., June 6, 2000).

 

In this case, the employee=s attorney asserted, at the April 15, 1999 hearing, that he had incurred $8,893.50 in attorney fees in preparation for that hearing, and that one-half of his time ($4,446.75) was spent in preparation of the medical issues.  The employer and insurer did not contest that designation of time, nor did they contest that the fee was reasonable.  In this situation, therefore, no dispute exists as to the amount of fees to which the employee=s attorney is entitled for his representation of the employee on the medical dispute.  We accordingly award attorney fees to the employee=s attorney in the amount of $4,446.75.

 

In addition, we award partial reimbursement of attorney=s fees to the employee=s attorney, pursuant to Minn. Stat. ' 176.081, subd. 7, at the rate of 30 percent, which calculates to $1,334.03 ($4,446.75 x 30%).  The employee=s date of injury, October 27, 1995, entitles him to partial reimbursement of attorney fees, based on those fees awarded herein, in view of the reasons articulated by the Minnesota Supreme Court in Irwin, and in light of this court=s recent decision on Rodriguez v. ConAgra Peavey, slip op. (W.C.C.A. July 13, 2000).