MARK DIMON, Employee, v. METZ BAKING and SENTRY CLAIMS SERVS., Employer-Insurer/Appellants, and TWIN CITIES DRIVERS HEALTH & WELFARE FUND and TEAM CARE OF MINN.,P.C., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 7, 2003

 

HEADNOTES

 

ATTORNEY FEES - IRWIN FEES.  Although the total amount of medical expenses recovered on behalf of the employee was relatively small, the compensation judge did not abuse her discretion in awarding the full amount of attorney fees claimed by the employee=s attorney on the facts peculiar to this case.

 

Affirmed.

 

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

Compensation Judge:  Carol A. Eckersen.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s award of Roraff^[1] attorney fees.  We affirm.

 

BACKGROUND

 

On April 7, 1999, Mark Dimon, the employee, sustained a personal injury to his low back while working for Metz Baking, then insured by Sentry Claims Services.  The employer and its insurer accepted liability for the employee=s personal injury.

 

Following his injury, the employee sought chiropractic care at Team Care of Minnesota.  Initially, the employee received daily chiropractic treatments.  The treatment regimen was then reduced to three times per week.  On October 8, 1999, Dr. Gene Hartmann at Team Care wrote to Sentry Claims Services to notify the insurer that Team Care intended to treat the employee beyond the 12-week limit contained in the treatment parameters.^[2]  Thereafter, Dr. Hartmann spoke with Peter Pellegrom, the insurer=s claim representative, on October 28, 1999 and the two agreed the insurer would pay for one chiropractic treatment per month for six additional months.

 

The employee received treatment at Team Care once a month into July 2000.  On July 31, 2000, Mr. Pellegrom wrote Team Care stating the charges for July 2000 exceeded their six-month agreement and that the insurer would not pay the charges.  Thereafter, the employee received treatment at Team Care once in August, once in November and twice in December 2000.  Dr. LeAnn Snow at Team Care opined the employee had sustained a 3.5 percent whole body disability secondary to his personal injury.

 

In November 2000, the employee filed a claim petition seeking payment of the 3.5 percent permanent disability rated by Dr. Snow and payment of his outstanding bills at Team Care.  In their answer, the employer and insurer admitted the employee sustained a personal injury on April 7, 1999, but alleged the employee=s injury was temporary in nature, and asserted the claimed medical expense was barred by the treatment parameters.

 

On February 7, 2001, the employee was examined by Dr. Paul T. Wicklund at the request of the employer and insurer.  The doctor diagnosed the April 7, 1999 personal injury as a low back strain from which the employee recovered by July 7, 1999.  Thereafter, Dr. Wicklund opined, the employee needed no further medical or chiropractic treatment for his low back.  The doctor stated the employee needed no restrictions and sustained no permanent partial disability as a result of his personal injury.

 

Beginning in March 2001, the employee obtained chiropractic care from Koslowski Chiropractic where he treated through June 14, 2001.  By letter dated July 14, 2001, Dr. Dennis M. Koslowski wrote the employee=s attorney stating he had treated the employee on 14 occasions.

 

The case was initially set for trial on February 27, 2002.  At the hearing, counsel for the employer and insurer advised the court that Team Care had received payments both from the insurer and from Twin Cities Bakery Drivers Health & Welfare Fund, an intervenor.  The hearing was continued to obtain clarification of the claim of Team Care.  Thereafter, Team Care intervened in the proceeding.

 

The hearing was held on the employee=s claim petition on April 3, 2002.  The employee claimed a 3.5 percent permanent partial disability and sought payment of the $579.00  bill of Koslowski Chiropractic and the bill of Team Care.  In a Findings and Order filed June 3, 2002, the compensation judge awarded the employee the 3.5 percent permanent disability, and ordered the insurer to reimburse the intervenor, Twin Cities Bakery Drivers Health & Welfare Fund, for payments it made to Team Care, subject to a credit for any amounts refunded by Team Care due to billing errors.^[3]  The compensation judge also awarded the employee medical mileage for trips to Team Care.  The judge found the care at Koslowski Chiropractic was not reasonable or necessary and denied payment of this bill.  There was no appeal from the judge=s Findings and Order.

 

The employee then filed a petition for attorney fees, seeking payment of Roraff attorney fees of $5,209.81.  The employer and insurer filed an objection to the claim, and the case was heard by Compensation Judge Eckersen on January 13, 2003.  In a Findings and Order on Attorney Fees, filed March 11, 2003, the compensation judge made the following finding:

 

6.  There was a substantial amount of time involved in this matter sorting out the billings from Team Care.  The responsibility assumed by counsel was of an average amount.  Mr. Wulff has a high level of expertise in the workers= compensation field.  The issues in this matter and the nature of the proof needed to be adduced were of an average degree of difficulty.  Mr. Wulff obtained mixed results.  He succeeded in getting Team Care=s bill paid and the intervenor reimbursed.  The employee=s claims for treatment with Koslowski Chiropractic were denied, though this was a smaller portion of the employee=s medical claims.

 

The compensation judge found the contingent attorney fee of $792.19 was inadequate to compensate Mr. Wulff for the time spent representing the employee.  The judge then awarded Roraff attorney fees to Mr. Wulff in the amount of $5,209.81, the full amount of his claim.  The employer and insurer appeal.

 

DECISION

 

The employer and insurer do not appeal the compensation judge=s finding that the contingent fee paid on the award of permanent partial disability was insufficient to adequately compensate the employee=s attorney.  Rather, they assert the compensation judge made no findings regarding one of the Irwin factors, the amount involved, and failed to make findings as to the weight the judge gave to each of the seven Irwin^[4] factors.  Beyond the $2,625.00 permanent partial disability award, the appellants argue, the employee was awarded only an additional $376.97 in Team Care medical expenses and medical mileage.  The bill of Koslowski Chiropractic was denied in its entirety, which, the appellants assert, represented two-thirds of the employee=s medical claim.  Giving appropriate consideration and weight to the Aamount involved factor,@ the appellants contend, mandates an award of less than the full amount of fees claimed.  Accordingly, the appellants assert the compensation judge=s award is legally erroneous and ask this court to reduce the award.

 

In the Irwin case, the supreme court held a reasonable attorney fee in cases involving medical expense claims is determined by considering the statutory guidelines on fees and Athe amount involved, the experience of counsel, the responsibility assumed by counsel, the time and expense necessary to prepare for trial, the difficulty of the issues, the nature of the proof involved, and the results obtained.@  Irwin, 599 N.W.2d at 142, 59 W.C.D. at 363.  A determination of the amount of Roraff fees awarded in a particular case lies within the discretion of the compensation judge.  Newman v. Graceville Health Ctr., 52 W.C.D. 194 (W.C.C.A. 1994).  Because each case is factually unique, this court will give deference to the compensation judge=s judgment and discretion in determining an award of Roraff fees.  In reviewing such an award, this court will not reverse a compensation judge=s award or denial of attorney fees absent an abuse of discretion.  AThe compensation judge abuses his or her discretion only when the award of fees is based upon a clearly erroneous conclusion given the record.@  Lucking v. EPC Loudon-Crookson Plastic Molding Corp., slip. op (W.C.C.A. Sept. 26, 2001).  That discretion is not, however, unfettered.  See, e.g., Langlois v. University of Minn., slip op. (W.C.C.A. Aug. 6, 2003).

 

There is no dispute in this case that the employee=s counsel is experienced in workers= compensation cases, the responsibility assumed by counsel was of an average amount and the difficulties of the issues and nature of the proof involved was of an average degree of difficulty.  Neither do the appellants contend the employee=s attorney=s charges or his hourly rates were unreasonable.  Rather, the appellants argue consideration of the first factor, the amount involved, and the seventh factor, the results obtained, mandate a lesser fee than that awarded by the compensation judge.

 

The appellants first point out the compensation judge made no finding, in either hearing, of the specific amount involved in the dispute.  The exact amount of the claim of Team Care was, apparently, unknown because of the double payments by the insurer and the intervenor and billing errors.^[5]  At the attorney fee hearing, Mr. Wulff testified the claim of Koslowski Chiropractic was $569.04.^[6]  Under the circumstances, the compensation judge made no legal error in failing to make a finding about the exact amount of the Team Care bill at issue.

 

In support of their argument that the compensation judge erred in awarding the full amount of the fee requested, the appellants cite this court=s decision in Borgan v. Bob Hegland, Inc., 62 W.C.D. 452, 462 (W.C.C.A. 2002).  In Borgan, this court cautioned that Aa determination of a claim for Roraff/Heaton fees is not merely a matter of multiplying the attorney=s hourly rate times the amount of time spent on the case less the contingent fee awarded.@  Rather, the issue is what fee is reasonable considering and applying all of the Irwin factors.  The appellants also cite Duda v. Pizza Hut, slip. op (W.C.C.A. July 12, 2002), in which this court concluded the record did not support the compensation judge=s conclusion that the case was complicated and the employee=s counsel assumed great responsibility.  With regard to the results obtained, the court in Duda noted the employee prevailed on less than a quarter of the claimed chiropractic expenses and concluded the compensation judge abused his discretion in awarding all of the requested Roraff fees.  See also Beckwith v. Sun County Airlines, 63 W.C.D. 511 (W.C.C.A. 2003).

 

In response, the employee argues a compensation judge is not, as a matter of law, required to reduce the requested Roraff fee simply because the medical benefits claimed are less than those recovered.  In support of this argument, the employee cites Stark v. Heritage Communications, slip. op (W.C.C.A. May 10, 2000), in which this court held:

 

We find no basis in case law or elsewhere for concluding that an employee=s attorney=s entitlement to a reasonable Roraff fee for successful and necessary work recovering medical benefits to his client, payable by the employer and insurer, should be in any way conditioned upon the proportionate relationship between those owed benefits and other benefits found not to be owed.

 

The employer and insurer additionally maintain an award of the full claim for attorney fees is inconsistent with workers= compensation law.  They point to Minn. Stat. ' 176.001 (2002), which provides the purpose of workers= compensation law is to deliver benefits to injured workers Aat a reasonable cost to the employers.@  In addition, the statute provides that workers= compensation laws are not to be considered remedial or given a liberal construction in favor of either party.  Awarding fees for denied claims, the appellants argue, is contrary to the policy enunciated in the Roraff decision and is inconsistent with the even-handed application of the law required by Minn. Stat. ' 176.001.  The employer and insurer assert the compensation judge=s decision, in effect, punishes employers and insurers for asserting their legal right to challenge unreasonable and unnecessary medical expenses.

 

The employee, on the other hand, asserts that the public purpose served by Roraff fees is to ensure that attorneys who represent compensation claimants will receive reasonable compensation so that competent counsel will be available to injured employees.  This public policy, the employee contends, is fully protected by the requirement that Roraff fees be found reasonable by a compensation judge after consideration of the Irwin factors and the particular facts involved in the case.

 

In this case, one of the significant issues at the initial hearing was whether the employee sustained a permanent injury or whether the injury was temporary and ended by July 1999 as opined by Dr. Wicklund.  The employee prevailed on this issue and, as a result, was awarded permanent partial disability  and medical benefits after July 1999.  At the attorney fee hearing, Mr. Wulff further testified Athe vast majority of the time that is itemized on my itemization relates to the dispute concerning the medical expense benefits and primarily the dispute concerning Team Care.  It was the Team Care bill that was . . . that was alleged to be, or to have some discrepancies.@  (T. 24.)  Because the initial hearing scheduled for February 28, 2002 was continued, Mr. Wulff had to again prepare for trial on April 3, 2002.

 

This is a close case.  While the legal and public policy arguments of the appellants have merit, whether this court might have decided the issue differently is not the question.  Rather, the issue is whether the compensation judge abused her discretion in the award of attorney fees given the facts and circumstances of this particular case.  On balance, we cannot conclude the compensation judge did so.  Accordingly, the compensation judge=s award of attorney fees must be affirmed.