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

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 26, 2003

HEADNOTES

ATTORNEY FEES; JURISDICTION - APPLICATION FOR REVIEW.  This court has jurisdiction pursuant to Minn. Stat. ' 176.081, subd. 3, and Minn. Stat. ' 176.511, subd. 3, to review and reconsider a prior order awarding attorney fees included in a decision not appealed by the petitioners.

Application for review of attorney fees denied.

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

Attorneys:  Barbara L. Heck, Candlin & Heck, St. Paul, MN, appeared for the Petitioners.  Thomas R. Longfellow, Sieben, Polk, LaVerdiere & Dusich, St. Paul, MN, appeared for the Respondent.

OPINION

THOMAS L. JOHNSON, Judge

Dostal Electric and U.S. F & G/St. Paul Companies request a review of the Workers= Compensation Court of Appeals= award of appellate attorney fees.  We affirm the award.

BACKGROUND

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 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.  By order dated September 27, 2002, the employee=s claim petition was then dismissed.

The employee filed a Statement of Attorney Fees seeking Roraff fees^[1] of $6,922.70.  The case was heard by a compensation judge, but no record of the proceedings was maintained.  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 appealed the judge=s decision.

On appeal, this court noted that no transcript of the hearing before the compensation judge was available so there was no evidence for the court to review.  Absent a record for review, this court vacated the compensation judge=s Findings and Order and remanded the case to the judge for a hearing on the record, including testimony and the submission of evidence, if appropriate.  The court further awarded the employee=s attorney $1,000.00 in attorney fees for representing the employee on appeal.  The employer and insurer request a review of the attorney fee award.

DECISION

1.  Jurisdiction

There was no appeal of this court=s June 3, 2003 decision.  Accordingly, the employee contends the Workers= Compensation Court of Appeals has no jurisdiction to consider the petitioners= application for review of attorney fees.  We disagree.

Minn. Stat. ' 176.081, subd. 3, provides that a Aparty that is dissatisfied with its attorney fees may file an application for review by the Workers= Compensation Court of Appeals. . . .  The Workers= Compensation Court of Appeals shall have the authority to raise the issue of the attorney fees at any time upon its own motion and shall have continuing jurisdiction over attorney fees.@  The statute gives this court very broad authority over issues of attorney fees in workers= compensation cases.  We conclude the statute gives this court authority to consider the petitioners= application for review of an award of appellate attorney fees.

2.  Award of Attorney Fees

Minn. Stat. ' 176.511, subd. 3, provides that where, Aupon an appeal to the Workers= Compensation Court of Appeals, an award of compensation is affirmed, or modified and affirmed, or an order disallowing compensation is reversed, the Workers= Compensation Court of Appeals may include in its award as an incident to its review on appeal an amount to cover a reasonable attorney=s fee, or it may allow the fee in a proceeding to tax disbursements.@  In this case, an order disallowing compensation was vacated and remanded to the compensation judge.  Under the statute, this court had the discretion to award a reasonable attorney fee.