Dostal v. Dostal Elec.

LAWRENCE H. DOSTAL, Employee/Appellant, v. DOSTAL ELEC. and U.S. F & G/ST. PAUL COS., Employer-Insurer.

ATTORNEY FEES - RORAFF FEES; APPEALS - RECORD. Where there is no record of the proceeding on the employee=s claim for Roraff attorney fees, the compensation judge=s Findings and Order must be vacated, and the case remanded to the judge for a hearing on the record.

The employee appeals from the compensation judge=s award of Roraff fees.^[1] We vacate and remand for proceedings consistent with this decision.

On July 1, 1975, Larry Dostal, the employee, was injured in a work-related motor vehicle accident while working for Dostal Electric, the employer, then insured by U.S. F & G/St. Paul Companies. The employer and insurer admitted liability for the employee=s injury.

In September 1998, the employee filed a medical request seeking payment of outstanding charges for dental care and seeking approval for dental implants. In a Decision and Order dated December 30, 1998, Compensation Judge Jerome Arnold ordered the employer and insurer to pay the outstanding medical expenses and pay for the proposed dental implants. The employee did not thereafter undergo the dental implant surgery.

In September 2000, the employee filed a claim petition, again seeking authorization for dental implant surgery, together with penalties. The employer and insurer denied liability for the proposed treatment. Thereafter, the employee=s deposition was taken, a pre-trial was held and settlement discussions took place between counsel, resulting in a settlement in which the insurer paid for a new set of dentures. No stipulation for settlement was executed and the amount of the payment made by the insurer is not of record.^[3] The employee=s claim petition was then dismissed by order dated September 27, 2002.

The employee filed a Statement of Attorney Fees seeking Roraff fees of $6,922.70. The case was heard by a compensation judge on November 25, 2002. There is, however, no record of the proceedings. In a Findings and Order served and filed December 3, 2002, the compensation judge found the claimed attorney fee was not reasonable and awarded a Roraff fee of $1,786.95. The employee appeals.

The employee argues the compensation judge=s award of Roraff fees was not reasonable because the judge focused exclusively on the benefits obtained rather than a review of all the Irwin factors.^[4] The employee further argues he sought at the hearing to include an omitted two hours of legal work performed in 1998 and that the judge failed to consider this omitted time in his decision. The employer and insurer contend the evidence supports the compensation judge=s decision and the decision, therefore, be affirmed under Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

In this case, there is no record of the proceedings for this court to review. The hearing was held by telephone but no transcript of the hearing is available and there is no evidence for this court to review. In Winquist v. Hansen Gravel, Inc., 61 W.C.D. 674 (W.C.C.A. 2001), this court held that when a party requests a hearing on a claim for attorney fees:

The hearing may be conducted in person, by telephone conference or in any other manner reasonably preserving the rights of the parties to present evidence and argument, but it must be recorded or transcribed and a record must be maintained regarding the evidence offered and considered by the compensation judge, so that this court has the capacity to review any appeal that may be taken from the judge=s decision.

Absent a record for review, the judge=s Findings and Order must be vacated. The case is remanded to the compensation judge for a hearing on the record, including testimony and the submission of evidence, if appropriate.

^[1] See Roraff v. State, Dep=t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).

^[2] The background facts in this case have been gleaned from documents in the imaged file and from the briefs of the parties. There is no official record of the proceedings.

^[3] The employee, in his brief, states the cost of the procedure agreed to by the parties was $2,600.00.

^[4] See Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999). The employee was injured in 1975 and the law in effect on that date governs this proceeding rather than the 1995 amendments to Minn. Stat. ' 176.081. Senjem v. Independent Sch. Dist. #625, 55 W.C.D. 656 (W.C.C.A. 1996).