THERESA A. HUBBARD, Employee/Appellant, v. NORTHEAST METRO ISD #916, and WESTERN NAT=L MUT. INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 24, 2003

 

HEADNOTES

 

ATTORNEY FEES - CONTINGENT FEES.   Where the only compensation awarded was $788.64 in temporary total disability benefits paid to the employee, the compensation judge properly awarded contingent attorney fees of $197.16 pursuant to Minn. Stat. ' 176.081, subd. 1(a).  There is no statutory basis or any basis in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999) or other case law for awarding hourly fees payable by the insurer in cases involving a monetary award payable to the employee.

 

Affirmed.

 

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

Compensation Judge:  Catherine A. Dallner.

 

Attorneys:  David W. Blaeser, Attorney at Law, Woodbury, MN, appeared for Appellant.  Ronald M. Stark, Jr., Attorney at Law, Minneapolis, MN, appeared for Respondents.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s Findings and Order on Attorney=s Fees denying additional fees sought by employee=s counsel.  We affirm.

 

BACKGROUND

 

Theresa A. Hubbard, the employee, sustained a personal injury on April 29, 2000 while working for Northeast Metro ISD #916, the employer, insured by Western National Mutual Insurance Company.  The employer and insurer admitted liability for the employee=s personal injury and commenced payment of temporary total disability benefits.  On May 7, 2002, the insurer served on the employee a notice of intention to discontinue benefits (NOID), alleging it was entitled to discontinue benefits because the employee returned to work on May 6, 2002.  The employee met with David W. Blaeser, Esquire, and a notice of appearance was served and filed on May 9, 2002.  The employee requested an administrative conference which was held on June 4, 2002.  The employee and her attorney appeared at the conference, but there was no appearance by the employer or insurer.  When contacted by telephone, the adjuster for the insurer stated the insurer was withdrawing its NOID and would recommence payment of temporary total disability benefits.  The insurer then paid the employee 2.6 weeks of temporary total disability benefits in the amount of $788.64.  The employee returned to work for the employer on May 20, 2000.

 

In October 2002, the employee=s attorney filed a Statement of Attorney=s Fees, seeking payment from the employer and insurer of $1,400.00, comprised of $197.16 in contingent fees and the balance in hourly fees.  The fee request was heard by a compensation judge at the Office of Administrative Hearings.  In a Findings and Order filed April 21, 2003, the judge awarded contingent attorney fees of $197.16 but denied the employee=s request for additional fees payable by the employer and insurer.  The employee appeals.

 

DECISION

 

The compensation judge awarded a contingent attorney fee of 25 percent of the $788.64 in temporary total disability benefits paid to the employee pursuant to the agreement of the parties at the administrative conference.  The employee=s attorney contends the contingent fee is inadequate to compensate him for his representation of the employee.  Citing Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), the employee=s attorney argues he is entitled to an hourly fee paid by the insurer where the contingent fee is inadequate to reasonably compensate him.  We disagree.

 

In Irwin, the supreme court held the provisions of Minn. Stat. ' 176.081, subd. 1(a)(1), that limited Roraff[1] or Heaton[2] fees to a percentage of the medical or rehabilitation benefits awarded, violated the separation of powers doctrine of the Minnesota Constitution.  This case, however, involves a claim for monetary benefits only.  Minn. Stat. ' 176.081, subd. 1(a), has long provided that the Amaximum permissible fee@ in such cases is 25/20 percent of the compensation awarded to an employee.  The Irwin case does not stand for the proposition that, if a contingent fee is inadequate to compensate an employee=s attorney, the insurer must make up the difference.  We find no authority in the statute or the Irwin case for such a result.  Accordingly, the decision of the compensation judge is affirmed.