GARY LEFFELAAR, Employee, v. BOSSWITZ CONSTR. & ROOFING and MINN. ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 29, 2003

 

HEADNOTES

 

ATTORNEY FEES.  Under the circumstances of this case, the employee=s attorney=s claim for Roraff and Heaton fees was not barred by the doctrine of res judicata, despite a prior order for contingent fees in response to a petition for Roraff and Heaton fees.

 

Affirmed as modified.

 

Determined by Wilson, J., Pederson, J., and Rykken, J.

Compensation Judge:  Jeanne E. Knight

 

Attorneys:  Carrie L. Hund, Hansen, Dordell, Bradt, Odlaug, & Bradt, St. Paul, MN, for Appellants.  David R. Vail, Soderberg & Vail, Minneapolis, MN, for Respondent.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the judge=s determination that the employee=s attorney=s claim for Roraff[1] and Heaton[2] fees was not barred by the doctrine of res judicata.  We affirm as modified.

 

BACKGROUND

 

The employee was represented in a workers= compensation proceeding by attorney David Vail.  The matter went to trial and a findings and order was served and filed on May 22, 2002, awarding the employee benefits for ankle surgery and rehabilitation. 

 

On July 12, 2002,  Mr. Vail filed a petition for attorney fees, seeking payment of Roraff and Heaton fees in the amount of $5937.50.  No objection to that petition was ever filed by the employer and insurer. 

 

On August 26, 2002, the compensation judge signed, served and filed the attorney fee award that had been submitted by Mr. Vail along with the fee petition.  That award, however, turned out to be the standard form for an award of contingent fees.

 

On September 25, 2002, after discovering that the compensation judge had awarded contingent fees rather than Roraff and Heaton fees, Mr. Vail contacted the compensation judge and asked her to change the award.  The judge advised Mr. Vail that she did not have continuing jurisdiction and that he should appeal to the Workers= Compensation Court of Appeals.  No appeal was timely filed.[3]

 

On January 7, 2003, Mr. Vail filed a new statement of attorney fees, claiming the same amount as Roraff and Heaton fees.  The employer and insurer objected, contending that the claim was barred by res judicata.  The matter proceeded to hearing, and, in findings and order filed on April 24, 2003, the compensation judge found, in appealed findings, that Mr. Vail had documented 46.65 hours of work on the case, that there was no ongoing stream of benefits from which to compensate him, that he had been successful in obtaining medical and rehabilitation benefits for the employee, that the contingent fee was inadequate to compensate Mr. Vail for his efforts, that Mr. Vail has 16 years of experience in the field of workers= compensation, and that the case had complex medical issues for which Mr. Vail had assumed full responsibility.  The employer and insurer appeal from the judge=s order awarding Mr. Vail $2560.60 in Heaton fees and $3750.00 in Roraff fees.

 

DECISION

 

The employer and insurer contend that the August 26, 2002 order awarding attorney fees was a judgment on the merits and the doctrine of res judicata bars further claims for the same fees.  We are not persuaded.

 

     In some instances, principles of res judicata apply in workers= compensation matters.  Erickson v. Hulcher Emergency Servs., 50 W.C.D. 133 (W.C.C.A. 1994).  The doctrine of res judicata does not, however, preclude litigation of issues that were not specifically decided in a prior proceeding.  Fischer v. Saga Corp., 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993).  In the instant case, the compensation judge presiding at the attorney fee hearing was the same judge who signed the attorney fee award in 2002.  In her April 24, 2003, findings and order, she found that there had been no objection to the petition for attorney fees filed in July of 2002 and that she had signed the proposed attorney fee award that was submitted with the petition.  She went on to find that  A[u]nfortunately, the award submitted for signature was for the award of contingent attorney fees.@  Later in her memorandum, the judge stated  A[i]n the future. . . Mr. Vail would be wise to review the proposed orders submitted with his petitions.@

 

The award of attorney fees filed in 2002 does not indicate that the compensation judge intended to deny Mr. Vail=s claim for Roraff and Heaton fees and substitute an award of contingent fees.  Rather, because there had been no objection to the petition for attorney fees submitted to her, the judge simply signed the proposed award on attorney fees that had been submitted with that petition.  It was subsequent to the service and filing of that award on attorney fees that it became apparent that the employee=s attorney had provided the judge with the form for an award of contingent fees rather than the form for the award of Roraff and Heaton fees.  Because the 2002 award cannot be construed to constitute a decision of the merits of the Roraff and Heaton fee claim, the doctrine of res judicata does not apply. 

 

There has never been an objection to Mr. Vail=s claim for Roraff and Heaton fees, except for the arguments regarding res judicata.  The judge=s award of fees is therefore affirmed, as modified.[4]