MILA COSTELLO, Employee, v. CLAY COUNTY and ALEXSIS-RSKCO, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 22, 2002

 

HEADNOTES

 

ATTORNEY FEES - RORAFF FEES; ATTORNEY FEES - SUBD. 7 FEES.  Where, in her Findings and Order on the employee=s request for Roraff/Irwin attorney fees and for an award under Minn. Stat. ' 176.081, subd. 7, the compensation judge had awarded the requested Roraff/Irwin fees but had failed even to address the additional claim for benefits under subdivision 7, and in that Minn. Stat. ' 176.081, subd. 7, requires that a judge Ashall@ award subdivision 7 fees to the employee in circumstances uncontestedly like those in this case, the compensation judge=s decision was affirmed with modification to include an award to the employee as required under subdivision 7 in addition to the judge=s  award of  Roraff/Irwin attorney fees.

 

Affirmed as modified.

 

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

Compensation Judge:  Kathleen Behounek

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s failure to award benefits pursuant to Minn. Stat. ' 176.081, subd. 7, on her award of Roraff/Irwin^[1] attorney fees.  We affirm the judge=s order with modification, to include an award to the employee of $883.42.

 

BACKGROUND

 

On November 24, 2000, Mila Costello [the employee], through her attorney, filed a claim petition alleging entitlement to permanent partial disability and medical benefits related to a claimed injury on March 26, 1998, in the course of her employment with the Clay County Sheriff=s Department [the employer].  The employee claimed that she injured her cervical, thoracic, and lumbar spine, as well as her right shoulder.  The employer denied liability for the benefits claimed and contested the nature and extent of the alleged injuries.

 

The employee=s claims came on for a hearing before a compensation judge on September 7, 2001.  At issue before the judge were whether the employee had sustained a 10% permanent partial disability of the whole body related to her cervical spine, whether the employee=s work injury included an injury to her right shoulder, and whether the employee was entitled to payment of treatment expenses related to her cervical spine and right shoulder injuries.  In an unappealed Findings and Order issued October 16, 2001, the compensation judge determined that the employee=s right shoulder condition and all claimed treatment expenses related to that condition were causally related to her March 26, 1998, work injury.  The judge also awarded compensation for the claimed 10% permanent partial disability, from which attorney fees were withheld, together with payment to the employee pursuant to Minn. Stat. ' 176.081, subd. 7.

 

On November 14, 2001, the employee=s attorney filed a Statement of Attorney=s Fees, seeking $2,944.75 in additional fees pursuant to the Roraff and Irwin decisions, as well as payment to the employee under Minn. Stat. ' 176.081, subd. 7.  The employer filed an objection to the claim for fees on November 27, 2001, and the matter was heard by the compensation judge on February 19, 2002.  In a Findings and Order issued April 16, 2002, the judge determined that the previously awarded contingent fee of $1,700.00 was not an adequate and reasonable fee to compensate the employee=s attorney for his representation of the employee.  Accordingly, she ordered the employer to pay Roraff/Irwin fees of $2,944.75, but she failed to address the additional claim for benefits to the employee under Minn. Stat. ' 176.081, subd. 7.  The employee appeals from the judge=s failure to address the claim under subdivision 7.

 

STANDARD OF REVIEW

 

A[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

 

The employee made application for an award of benefits pursuant to Minn. Stat. '  176.081, subd. 7.  That subdivision provides that, if an employer and insurer have contested payment of benefits and the employee succeeds in obtaining benefits through the assistance of an attorney, the court

 

shall award to the employee against the insurer or self-insured employer or uninsured employer, in addition to the compensation benefits paid or awarded to the employee, an amount equal to 30 percent of that portion of the attorney=s fee which has been awarded pursuant to this section that is in excess of $250.

 

Minn. Stat. ' 176.081, subd. 7 (1995) (emphasis added).  In the present case, the Roraff fees awarded by the compensation judge consequent to the employee=s 1998 work injury were awarded pursuant to Minn. Stat. ' 176.081, which was amended in 1995 to provide for attorney fees based on medical expenses.  For injuries occurring after the 1995 amendment, and pursuant to the supreme court=s decision in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), subdivision 7 fees are therefore awardable on Roraff-type fees even though Roraff fees are paid by employers and insurers and not by employees under contingent fee agreements.

 

The employer and insurer contend that the compensation judge considered the employee=s request for subdivision 7 fees and did not award them.  They also contend that the statute grants the judge the discretion to award or deny such fees.  We disagree.

 

First of all, the judge=s Findings and Order make no reference at all to the employee=s claim under subdivision 7.  Secondly, the statute provides that, Aupon application, [the compensation judge] shall award to the employee against the insurer . . . , an amount equal to 30 percent of that portion of the attorney=s fee which has been awarded pursuant to this section that is in excess of $250.@  We conclude there is no basis on which to suppose that the judge even considered the employee=s claim for subdivision 7 fees when she issued her decision or that, even if she did consider it, she had any discretion to deny those fees under these facts.  The employer and insurer had denied liability for the employee=s right shoulder injury and for certain medical treatment expenses, and liability for that injury and those expenses was eventually found.  In such circumstances an award under subdivision 7 is required by statute.

 

In the present case, the total contingent and Roraff attorney fee award is $4,644.75.  Under subdivision 7, the employee is entitled to thirty percent of that portion of the attorney fee that is in excess of $250.00.  Accordingly, we modify the April 16, 2002, Findings and Order in this matter, to provide an additional award to the employee in the amount of $883.42.^[2]