ANTHONY WESLEY, Employee/Appellant, v. WISEWAY MOTOR FREIGHT and TRANSCONTINENTAL/CNA INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 8, 2000

 

HEADNOTES

 

ATTORNEY FEES - RORAFF FEES; ATTORNEY FEES - SUBSTANTIAL EVIDENCE.  Where the employee did not prevail on most of his claims, and where the record did not indicate that medical expenses were a primary issue, the compensation judge did not err in concluding that the employee=s attorney was adequately compensated for his work by the small contingent fee payable on temporary total disability benefits.

 

COSTS & DISBURSEMENTS.  Where the record did not establish that the claimed costs were reasonably related to issues upon which the employee prevailed, the compensation judge did not err in denying the employee=s claim.

 

Affirmed.

 

Determined by Wilson, J., Wheeler, C.J., and Pederson, J.

Compensation Judge:  Catherine A. Dallner

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of attorney fees and certain costs.  We affirm.

 

BACKGROUND

 

The employee sustained a work-related injury to his spine on January 27, 1998, while working for Wiseway Motor Freight [the employer].  Shortly thereafter, on March 12, 1998, the employee filed a claim petition, seeking payment of temporary total disability benefits from January 27, 1998, and continuing, medical expenses, and a rehabilitation consultation.  The employer and its workers= compensation insurer paid the employee wage loss benefits under Wisconsin law.  An amended claim petition was filed on September 30, 1998, wherein the employee claimed an additional injury on July 8, 1998, while employed by Tschida Excavating, Inc. [Tschida], and amended his claim to include temporary partial disability benefits continuing from April 21, 1998, and permanent partial disability benefits.  Blue Cross/Blue Shield intervened, requesting reimbursement of $82.23 in medical benefits paid for services rendered by the Coon Rapids Medical Center on March 11 and 12, 1998.

 

The employee and Tschida entered into a stipulation for settlement in October of 1999.  Pursuant to the terms of the stipulation, the employee was paid $1,000.00 in full, final and complete settlement of any and all claims related to the alleged July 8, 1998, injury at Tschida.  From this $1,000.00 payment, $250.00 was deducted and paid to attorney Steven Christensen for statutory attorney fees.  Tschida and its workers= compensation insurer also reimbursed the employee for $302.28 in costs.  A partial award on stipulation was filed on October 22, 1999.

 

The case against the employer proceeded to hearing on July 20 and August 31, 1999, before a compensation judge at the Office of Administrative Hearings.  There were ten issues at hearing, including whether Minnesota had jurisdiction over the employee=s claims, whether the employee was entitled to temporary total, temporary partial, and permanent partial disability benefits, whether the January 27, 1998, injury was permanent or temporary, whether disputed chiropractic care was reasonable and necessary and within the treatment parameters, and whether Blue Cross/Blue Shield was entitled to reimbursement for medical expenses paid.  In a decision filed on November 15, 1999, the compensation judge found that Minnesota had jurisdiction over the employee=s claim but that the January 27, 1998, injury was only temporary and had resolved by March 12, 1998.  The judge awarded the employee temporary total disability benefits from January 28, 1998, through March 12, 1998, minus the wage loss benefits paid under Wisconsin law,^[1] and denied the employee=s claims for temporary partial or permanent partial disability benefits and chiropractic expenses.  By Amended Findings and Order filed December 8, 1999, the judge allowed reimbursement to Blue Cross/Blue Shield.  No appeal was taken from the findings or amended findings.

 

On February 21, 2000, Mr. Christensen filed a petition for attorney fees and costs, seeking $14,985.00 in attorney fees pursuant to the Gruber, Roraff, Kopish, and Irwin decisions,^[2] as well as payment for unreimbursed costs in the amount of $410.28.  The employer and insurer objected to the petition for attorney fees.  The attorney fee issue came on for hearing before the same compensation judge on April 3, 2000.  In findings filed on June 2, 2000, the judge found that, while the employee was the prevailing party on the jurisdiction issue, he received no benefit from that finding, given the simultaneous finding of a temporary injury.  The judge went on to find that Mr. Christensen was not entitled to attorney fees under any of the cited cases, or under Minn. Stat. ' 176.081, subd. 1, with the exception of fees in the amount of $265.82, which fees had been withheld from the employee=s Wisconsin wage loss benefits.  The judge allowed Mr. Christensen his costs related to obtaining records from the Secretary of State, but she denied reimbursement of costs associated with gathering medical records and reports.  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@  Id.

 

DECISION

 

Gruber Fees

 

Mr. Christensen contends that this case is analogous to Gruber, in that benefits had already been paid to the employee, and additional monetary benefits, on the jurisdiction issue, were inadequate to support an appropriate contingency fee.  Therefore, he contends, he is entitled to an hourly fee for services rendered in representation of the employee on the jurisdiction issue.  We do not agree. 

 

Gruber involved a claim by the employer and insurer for reimbursement of benefits paid based on an allegation that the employee had received those benefits in bad faith.  In finding that the employee=s attorney was entitled to an hourly fee for representation of the employee on that issue, this court held,

 

as a matter of policy, we conclude that where an employee successfully defends against an allegation of bad faith receipt of benefits but contingency fees available, if any, are insufficient to reasonably compensate the employee=s attorney for time expended in defending that issue, the employee=s attorney may be awarded reasonable hourly fees from the employer and insurer sufficient to compensate the employee=s attorney for successful defense of the bad faith issue.

 

Gruber, 57 W.C.D. 284, 290.  This court=s holding in Gruber was clearly restricted to cases in which an employee is required to defend against a claim of bad faith receipt of benefits.  That was not an issue in the instant case, and we decline to extend Gruber to these facts.  The jurisdiction issue went hand in hand with the employee=s claims for temporary and permanent disability benefits, claims on which Mr. Christensen, for the most part, did not prevail.^[3]

 

Roraff or Kopish Fees

 

The employee=s attorney also argues that he is entitled to attorney fees under Roraff and/or Kopish.  In Roraff, the supreme court held that, in proceedings brought solely to recover medical benefits, reasonable attorney fees may be assessed against the employer or insurer.  Kopish took things a step further by specifying that, in proceedings where medical benefits are of primary importance and the employee=s attorney would obtain an unreasonable attorney fee without them, Roraff fees may be awarded.  

 

In the present case, the amended claim petition filed on September 30, 1998, indicated that the employee was seeking payment of outstanding medical and chiropractic expenses.  Blue Cross/Blue Shield eventually intervened for $82.23 in medical benefits paid.  Mr. Christensen was successful only in recovering Blue Cross/Blue Shield=s intervention interest.^[4]

 

In his brief, Mr. Christensen cited to several cases to support his position that he is entitled to Roraff/Kopish fees for his recovery of medical benefits.  However, we find all of the cited cases to be distinguishable from the instant case, in that the attorneys in the cited cases all recovered significantly more medical expenses and/or established that the claimed injuries were permanent, thus leaving the door open for future medical benefits.  Here, the compensation judge awarded only a small sum in reimbursement to an intervenor and found that the employee=s injury was temporary.  Also, contrary to some of the cases cited, there was never a stipulation or any indication in the record, in the instant case, that medical expenses were of primary importance or one of the primary reasons for litigation. 

 

Mr. Christensen also suggests that the compensation judge erred by failing to discuss all of the factors set forth in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).   It is true that the judge did not make findings regarding 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, or the nature of the proof involved.  It is also true that specific findings regarding those factors are generally required.  See Smith v. City of Sauk Centre, 58 W.C.D. 209 (W.C.C.A. 1998); Frisch v. S & S Carpet Designs, 60 W.C.D. 181 (W.C.C.A. 2000).  A review of the transcript, however, reflects that no evidence was presented at the fee hearing that would have allowed the compensation judge to make such findings.  Mr. Christensen testified at that hearing that 60% of his time was spent on the jurisdiction issue and that the remaining 40% of his time was spent on the remaining issues.  The November 15, 1999, findings and order list nine other issues, besides jurisdiction, of which Blue Cross/Blue Shield=s right to reimbursement was one.  At no time did Mr. Christensen even estimate the amount of time spent on this medical issue.  Nor did he discuss the difficulty of that issue or the nature of necessary proof.

 

Mr. Christensen contends that he put in 81 hours of attorney time on this case.  The fact remains, however, that he did not prevail on the bulk of the claims.  He only recovered, for or on behalf of the employee, approximately six weeks of temporary total disability benefits and $82.23 in reimbursement to Blue Cross/Blue Shield.  The compensation judge found that $265.82, in contingency fees from the temporary total disability benefits awarded, adequately compensated him for his work.  Substantial evidence supports that finding, and we therefore affirm the judge=s denial of Roraff or Kopish fees.

 

Costs

 

The compensation judge awarded certain costs but denied other costs related to obtaining medical records and reports, finding that the employee did not prevail on the issues to which the medical records pertained.  Mr. Christensen contends that he is entitled to reimbursement for the cost of obtaining medical records from Allina/Coon Rapids Medical Center and North Memorial Hospital, because he prevailed in his claim for treatment expenses incurred with those providers and/or because he would have been inadequately prepared for trial had he not obtained those records.

 

As noted earlier, there is an unappealed finding that Allina/Coon Rapids Medical Center treatment expenses were covered by a stipulation for settlement with a different employer.  In addition, at the hearing on attorney fees and costs, Mr. Christensen did not introduce any medical records into the record as exhibits, and we base our decision only on the hearing record and the judgment roll.  We therefore have nothing to review to determine whether the records of Allina/Coon Rapids Medical Center or North Memorial Medical Center were necessary to the employee=s presentation of the issues upon which he prevailed.^[5]  Since the same compensation judge presided over the hearings on the employee=s claim for benefits and the attorney=s claim for fees and costs, we give great deference to her findings on whether the records were necessary to the employee=s presentation of his case.  Accordingly, we affirm the judge=s decision denying costs for medical records.