Bye v. Federal Reserve Bank of Minneapolis

DEBRA BYE, Employee/Appellant, v. FEDERAL RESERVE BANK of MINNEAPOLIS and FIREMAN=S FUND INS. CO., Employer-Insurer, and PARK NICOLLET HEALTH SERVS., Intervenor.

COSTS & DISBURSEMENTS. Where the employee has not yet filed a statement of costs and disbursements and no order has been issued resolving any such claim, the employee=s appeal regarding costs and disbursements is not ripe for determination.

ATTORNEY FEES - RORAFF FEES. Where the employee established primary liability for her trigger digits and right lateral epicondylitis conditions, but did not recover medical expenses to treat those conditions, the employee is not entitled to Roraff fees.

ATTORNEY FEES - PRACTICE & PROCEDURE. Where neither the employee=s letter amending the claim petition or the employee=s pre-trial statement were offered into evidence or brought to the attention of the compensation judge at the hearing, the employee failed to establish a genuine dispute and failed to establish entitlement to Roraff attorney fees with respect to her medical mileage claim.

The employee appeals from the compensation judge=s denial of her claim for hourly attorney fees and costs and disbursements. We affirm.

On January 20, 1998, Debra Bye, the employee, sustained a Gillette-type^[1] personal injury while working for the Federal Reserve Bank of Minneapolis, then insured by Fireman=s Fund Insurance Company. The employer and insurer admitted liability for a bilateral carpal tunnel condition and paid various workers= compensation benefits to and on behalf of the employee.

In February 2002, the employee filed a claim petition seeking retraining. By letter dated July 10, 2002, David B. Kempston, the employee=s attorney, amended the claim petition to include a claim for mileage incurred in 1998 and 1999. On August 7, 2002, the employee again amended her claim petition seeking approval for a left shoulder arthroscopy to treat a left shoulder impingement with associated adhesive capsulitis.^[2] The employee prepared and served upon the employer a pre-trial statement^[3] which listed as issues for trial the following: the nature and extent of the work injury; approval of a left shoulder arthroscopy; potential intervention interests; employee mileage reimbursement; attorney fees, including Roraff, Irwin and Heaton fees;^[4] and costs and disbursements.

In preparation for the hearing, the deposition of the employee=s treating physician, Dr. Thomas Walsh, was taken on January 6, 2003. Dr. Walsh testified the employee=s diagnosis was bilateral carpal tunnel syndrome, right lateral epicondylitis, and multiple bilateral trigger digits. The doctor related all of these conditions to the employee=s January 1998 personal injury. To correct these conditions, Dr. Walsh performed multiple surgeries between May 24, 1996 and December 4, 2001, including a right and left carpal tunnel release, multiple trigger finger and thumb releases, right lateral epicondylar injections, debridement and a partial ostectomy and release of the extensor carpi radialis brevis and a tenosynovectomy. It appears the insurer voluntarily paid these medical expenses. Dr. Walsh also diagnosed a left shoulder impingement with adhesive capsulitis, secondary to her work injury for which the doctor recommended an arthroscopic procedure.

In December 2002, Dr. Paul Wicklund examined the employee at the request of the employer and insurer. The doctor opined the employee sustained a personal injury in January 1998 in the nature of bilateral carpal tunnel syndrome. Dr. Wicklund stated the multiple trigger digits and left shoulder impingement were caused by the employee=s underlying diabetes, not her personal injury. The doctor concluded the only operation necessitated by the personal injury was the bilateral carpal tunnel release.

The employee=s claim was heard by Compensation Judge Paul V. Rieke on January 23, 2003. At the outset of the hearing, the parties agreed to bifurcate the retraining claim. The compensation judge then outlined the remaining issues. The first issue was the nature and extent of the employee=s January 20, 1998 injury. The employer and insurer admitted a bilateral carpal tunnel injury but denied the employee sustained a right lateral epicondylitis and multiple trigger digits as a result of her personal injury. The employer and insurer also denied the requested left shoulder surgery was causally related to the 1998 work injury. The employee also made a claim for payment of medical bills from the intervenor, Park Nicollet Health Services, in the amount of $1,778.46 and a claim for a pharmacy bill of $484.86. Finally, the employee claimed Roraff attorney fees. (T. 4-6.) The parties stipulated on the record that the employer and insurer would pay Athe mileage from 1998 and 1999.@ (T. 17-18.) They further stipulated the employer and insurer would pay the prescription charges and bills from Park Nicollet Health Services that were incurred prior to March 25, 2002. (T. 18-20.)^[5]

In a Findings and Order filed January 28, 2003, the compensation judge found the employee=s right lateral epicondylitis condition and the employee=s multiple bilateral trigger digits were causally related to the personal injury of January 20, 1998. The judge found the employee=s left shoulder impingement with associated adhesive capsulitis was not causally related to the personal injury and found the personal injury was not a substantial contributing cause to the need for the recommended left shoulder surgery. The judge further denied the claim of Park Nicollet Health Services and the claim for pharmacy expenses from and after March 25, 2000. Finally, the compensation judge denied the claim for Roraff fees and found the employee=s attorney Awould have been entitled to a reasonable Roraff/Irwin attorney fee had the employee prevailed in this action.@ (Finding 14.) No provision was made in the judge=s order for costs or disbursements.

Following service of the Findings and Order, the employee=s attorney wrote to the compensation judge seeking amendment of the Findings and Order. Specifically, the employee=s attorney claimed the employee prevailed in the action and sought the right to file an attorney fee statement claiming Roraff attorney fees. Counsel for the employer and insurer objected to the request but asked the judge to correct a clerical error. In an Amended Findings and Order filed February 5, 2003, the compensation judge corrected the typographical error but declined to otherwise amend the Findings and Order. In a memorandum, the compensation judge noted there were no benefits to which the employee was entitled on the issues upon which the employee=s attorney prevailed so no attorney fees were awardable. The employee appeals.

One of the issues in this case was whether the January 20, 1998 Gillette injury was a substantial contributing cause of the employee=s digital triggering and right lateral epicondylitis.^[6] The compensation judge found these conditions were causally related. Accordingly, the employee contends she was a prevailing party and the judge erred in not awarding costs and disbursements. The respondents point out the employee did not prevail on her claim for medical expenses associated with her left shoulder condition. Accordingly, they contend the judge=s finding that the employee was not a prevailing party is supported by substantial evidence and must be affirmed.

In proceedings before a compensation judge, a prevailing party may be awarded reimbursement for actual and necessary disbursements. AThese disbursements shall be taxed upon five days written notice to adverse parties.@ Minn. Stat. ' 176.511, subd. 2. The compensation judge did find the employee did not prevail in the action. This determination, however, was made in reference to the employee=s Roraff fee request, not the issue of reimbursement of costs. The employee has not served and filed a statement of costs and disbursements, and the compensation judge has not issued an order resolving that issue. Accordingly, the employee=s appeal regarding costs is not ripe for determination.

The employee next contends the compensation judge=s denial of her claim for Roraff fees was legally erroneous. The employee asserts she was a prevailing party because the compensation judge found two disputed conditions were work-related. Thus, the employee contends, her attorney is entitled to an award of Roraff fees. We disagree.

The employee sought payment of medical expenses for treatment of her left shoulder. She alleged the shoulder condition was a consequence of work-related right lateral epicondylitis and multiple trigger digits. The employer and insurer denied liability for all of these conditions. Although the employee was successful in establishing liability for her trigger fingers and epicondylitis, the compensation judge ultimately concluded the left shoulder condition was not causally related. Based upon the transcript and the exhibits, we find no evidence that medical expenses necessary to treat the disputed epicondylitis and trigger digit conditions were at issue. Establishing liability for these conditions was no more than an intermediate step in establishing liability for medical expenses related to the employee=s left shoulder condition. The employee did not prevail on her claim, and the compensation judge=s decision is, therefore, affirmed.

The employee next argues her attorney was successful in obtaining payment of prescription expenses and medical mileage entitling her to an award of Roraff fees. The respondents contend they were first presented with these claims on the day of the hearing and they were never in dispute. Accordingly, they assert the compensation judge properly denied Roraff fees based upon these benefits.

Attorney fees are payable only upon genuinely disputed claims. Minn. Stat. ' 176.081, subd. 1(c). We find no evidence the prescription expenses were ever disputed or denied by the insurer. Accordingly, the employee has failed to prove entitlement to an award of Roraff fees based upon the judge=s award of the prescription charges.

Attorney fees on the medical mileage claim are, however, more problematic. These expenses were placed in issue by the employee=s letter amending the claim petition and listed in the employee=s pre-trial statement. Neither of these documents were, however, offered into evidence at the hearing. Nor does the record reflect that either of these documents were brought to the attention of the compensation judge. Thus, there was no evidence before the compensation judge that the medical mileage claim was the subject of a genuine dispute. On appeal, this court may not consider evidence not contained within the record before the compensation judge. Minn. Stat. ' 176.421, subd. 6; Gollop v. Gollop, 389 N.W.2d 202, 203, 38 W.C.D. 757, 758 (Minn. 1986). In Beckwith v. Sun Country Airlines, slip op. (W.C.C.A. July 3, 2003), this court observed the optical document imaging procedures now in use have complicated the question of just what constitutes the Arecord@ in a proceeding. A party may not expect a compensation judge to find and consider documentation or other evidence not submitted to the judge in paper form at the hearing. Here, counsel for the employer and insurer agreed, at the outset of the hearing, to pay the mileage claimed by the employee. The burden of proof is on the employee to establish entitlement to Roraff fees. In the absence of documentation of a dispute, we are forced to conclude the employee failed to establish entitlement to Roraff fees. The compensation judge=s decision is, therefore, affirmed.

^[1] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

^[2] These letters were referenced in the employee=s appellate brief and this court obtained copies from the imaged file maintained by the Department of Labor and Industry. See Beckwith v. Sun Country Airlines, mem. op. (W.C.C.A. July 3, 2003).

^[3] The employee=s pre-trial statement is located in the file but is not part of the imaged file.

^[4] See Roraff v. State, Dep=t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980); Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999); and Heaton v. J.E. Fryer & Co., 36 W.C.D. 316 (W.C.C.A. 1983).

^[5] From our review of Intervenor Exhibit 1, there appears to be only one $37.00 charge for medical services prior to March 25, 2002. The balance of the intervenor=s claim was for services provided on March 25, 2002 and thereafter.

^[6] The employee claimed the left shoulder condition was a compensable consequence of her underlying right lateral epicondylitis and multiple trigger digits.