JERRY CURTIS, Employee/Appellant, v. VIRGINIA REG'L MEDICAL CTR., SELF-INSURED, adm'd by BERKLEY RISK ADM=RS, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 2, 2002

 

HEADNOTES

 

ATTORNEY FEES - RORAFF FEES.  Under the facts, and given the judge=s application of the factors contained in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), the judge=s Roraff fee award was not unreasonable or clearly erroneous.

 

Affirmed.

 

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

Compensation Judge:  Donald C. Erickson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s award of $2,500.00 in Roraff^[1] fees for recovery of $1,570.00 in medical expenses.  We affirm.

 

BACKGROUND

 

The employee sustained an admitted injury to his low back on May 17, 2000, while working for Virginia Regional Medical Center [the employer], which was self-insured for workers= compensation purposes.  A discogram was performed on May 7, 2001.  On August 10, 2001, the employee filed a medical request, seeking payment for the discogram and authorization for surgery.  The employer responded that the discogram and surgery were not causally related to the work injury.

 

Independent medical examiner Dr. Jack Drogt examined the employee on October 19, 2001, and, in a report of that date, opined that Adiscography was performed due to chronic pain caused by the incident of May 17, 2000.@  The matter proceeded to hearing on November 15, 2001, and, in a Findings and Order served and filed that same day, the compensation judge determined that the employee had withdrawn his request for approval for surgery at the hearing; that the employer was not allowed to raise additional defenses to the discogram claim; that the discogram was causally related to the work injury; that a contingent fee was inadequate to reasonably compensate the employee=s attorney on the medical issue; and that the employee=s attorney should file a statement of attorney fees pursuant to Minn. Stat. '176.081, subd. 1(a)(1), and Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).  No appeal was taken from that Findings and Order.

 

On November 29, 2001, Thomas R. Longfellow, the attorney for the employee, filed a statement of attorney fees, seeking $4,863.45 in Roraff fees,  representing 21.17 attorney hours at $220.00 per hour and 3.17 paralegal hours at $65.00 per hour.  The employer filed an objection, alleging that the claimed hourly rate was unreasonable, that the claimed hours and expenses were incurred in whole or part in relation to the claim for surgery, which had been abandoned on the day of trial, and that the time and expense incurred was unreasonable under the factors contained in Irwin.

 

The matter proceeded to a telephone hearing on January 14, 2002.  Although the notice of hearing specified that it would be Aa hearing on the record,@ no record of the hearing was made.^[2]  In Findings and Order filed that same day, the compensation judge found that a contingent fee based on the $1,570.00 discogram would result in unreasonable compensation for the employee=s attorney and that a reasonable fee, considering the seven Irwin factors, was $2,500.00.  The employer appeals.

 

DECISION

 

The employer contends that the employee=s attorney did not prove that the statutory contingent fee on the discogram expense was inadequate to compensate him for representing the employee in the medical dispute.  We note initially that the employer did not appeal from the compensation judge=s November 15, 2001, finding that the contingent fee was inadequate.  However, whether or not that issue should be considered waived, the petition for attorney fees reflects that Mr. Longfellow expended  21.17 hours of attorney time on this case and that his paralegal expended another 3.17 hours.^[3]  That alone reasonably supports the judge=s finding that a contingent fee of $392.50 would not adequately compensate the employee=s attorney for his efforts.

 

The employer also contends that the judge=s fee award was not reasonable considering the Irwin factors.  Those factors are: 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.  Irwin at 142, 59 W.C.D. at 336.  The compensation judge made specific findings on each of the factors.

 

The compensation judge began by deducting 6.0 hours of attorney time billed for travel.  That left Attorney Longfellow with a claim for $3,543.45.  The judge then determined that, of the remaining time, some was spent on the claim for authorization for surgery, which had been withdrawn the morning of the hearing.  The judge went on to find that Mr. Longfellow had assumed total responsibility for the preparation of the case, that he has extensive experience in litigating workers= compensation matters, that the issue of causation was not a difficult one, that the nature of the proof involved the employee=s testimony and the introduction of medical records, and that Mr. Longfellow had obtained a favorable result for the employee.  In awarding $2,500.00 in Roraff  fees, the judge noted in his memorandum that it was impossible to precisely calculate what portion of Mr. Longfellow=s time was attributable to the withdrawn request for surgery. 

 

In Roraff fee cases, the ultimate question is reasonableness.  Lanhart v. Bureau of Engraving, slip op. (W.C.C.A. May 7, 2001).  The determination of a reasonable fee is largely within the discretion of the compensation judge.  Dally v. Conagra/Peavy Co., slip op. (W.C.C.A. Oct. 18, 2000).  In this case, the compensation judge who handled the fee petition had also presided at the hearing on the discogram expense.  He was fully aware that a portion of the attorney=s time had been expended on the withdrawn request for surgery.  Given the facts of this case, we cannot say that the judge=s award of attorney fees was unreasonable or clearly erroneous.  As such, the judge=s findings and order are affirmed.