JANICE N. SCHMIDT, Employee/Appellant, v. NORTEL NETWORKS, INC., and TRAVELERS INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 11, 2003

 

HEADNOTES

 

ATTORNEY FEES.  The compensation judge did not abuse his discretion in determining that the service of the employee=s previous attorney were reasonable and the fee claimed was appropriate.

 

Affirmed.

 

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

Compensation Judge: Bernard Dinner

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee and her present attorney have appealed from the determination of the compensation judge that the employee=s previous attorney was entitled to a reasonable attorney fee and the decision of the compensation judge that the requested fee was reasonable. We affirm.

 

BACKGROUND

 

The employee, Janice Schmidt, claimed to have sustained an injury to her low back on November 21, 2000 arising out of and in the course of her employment with Nortel Networks, Inc..  On December 18, 2000, Nortel=s insurer, Travelers Insurance Company, filed a denial of liability.

 

On April 20, 2001, the employee retained attorney Kathryn Hipp Carlson to represent her in her claim for workers= compensation benefits.  On April 25, 2001, Ms. Hipp Carlson filed a claim petition on behalf of the employee, alleging entitlement to temporary total disability compensation and other benefits as a result of the alleged November 21, 2000 injury.  According to her time records, Ms. Hipp Carlson spent one hour in preparing, serving and filing the claim petition. An answer was filed on behalf of Nortel and Travelers on May 14, 2001.  Thereafter the parties engaged in discovery and the employee=s deposition was taken on October 13, 2001.  At issue at that point was the employee=s refusal to provide signed medical authorizations to the insurer due to privacy concerns.  The employee=s refusal was discussed before and after the deposition. Ms. Hipp Carlson indicated she spent two hours in handling the deposition. On October 14, 2001, Ms. Hipp Carlson filed an affidavit of significant financial hardship and a request for an expedited hearing on behalf of the employee.  The employer and insurer objected to an expedited hearing, and filed a motion to compel discovery.  A hardship pretrial was scheduled. 

 

The hardship pretrial was conducted by telephone.  The compensation judge dealt with the insurer=s motion and Ms. Hipp Carlson stipulated that the employee had to date declined to provide signed medical authorizations.  In his Order, served and filed September 24, 2001, the compensation judge denied the employee=s request for an expedited hearing and the employee was ordered to provide signed authorizations with the caution that failure to do so Ain a timely manner may result in dismissal of her pending claim petition.@  Ms. Hipp Carlson indicated that she spent 1.3 hours in attending the pretrial and in corresponding with the employee.

 

Sometime thereafter, the employee discharged Ms. Hipp Carlson as her attorney.  Ms. Hipp Carlson filed a statement of attorney fees and notice of attorney lien on November 15, 2001 in which she requested a fee of $1,600.50 pursuant to Minn. Stat. ' 176.081, subd. 1, for services provided between April 19, 2001 and September 25, 2001.  During that period Ms. Hipp Carlson claimed 9.7 hours of time at a rate of $165.00 per hour.  The statement and notice were served on the attorney for the employer and insurer, the employee, and the employee=s new attorney, David R. Vail.  No objection to the statement was filed by any party.  On November 23, 2001, Mr. Vail filed a notice of appearance as attorney for the employee and on December 6, 2001 a substitution of attorney was filed with the Office of Administrative Hearings.

 

The employee=s claim petition was heard on May 3, 2002, by Compensation Judge  Bernard Dinner with Mr. Vail representing the employee.  In his Findings and Order, served and filed May 30, 2002, the compensation judge determined that the employee had sustained a work injury to her low back on November 21, 2000.  The employee was awarded medical expenses and temporary total disability compensation from November 21, 2000 until 90 days after Maximum Medical Improvement, which was determined to have been reached on February 13, 2002. The question of the attorney fee lien filed by Ms. Hipp Carlson was not addressed in the decision.

 

The employer and insurer appealed the compensation judge=s decision to the Workers= Compensation Court of Appeals but subsequently dismissed its appeal.  The employer and insurer filed a Notice of Benefit Payment on August 30, 2002 indicating the amount of attorney fees to be paid were $6,648.58.  All fees except $1,600.50 were paid to Mr. Vail with the balance continuing to be withheld due to the lien filed by Ms. Hipp Carlson. 

 

On November 6, 2002, Mr. Vail wrote to the compensation judge asking for a hearing to determine the issue of the withheld fees.  Ms. Hipp Carlson advised the compensation judge in a subsequent letter that she did not believe a hearing was warranted because no objection to her lien had been filed. 

 

The issue of attorney fees was set  for a  hearing which was held before Compensation Judge Dinner on February 10, 2003.  At the hearing, Mr. Vail argued that the fee requested by Ms. Hipp Carlson should not be awarded because of three items in the time records which Mr. Vail believed did not accurately state the amount of time Ms. Hipp Carlson would have spent on these activities.  Mr. Vail=s position was that the balance of $1,600.50 should be paid to himself.  The employee appeared at the hearing to object to Ms. Hipp Carlson=s fees, expressing dissatisfaction with the way she believed her case had been handled by Ms. Hipp Carlson.

 

In his Findings and Order, served and filed February 12, 2003, the compensation judge found the fee requested by Ms. Hipp Carlson to be reasonable for prior legal services and ordered the insurer to pay Ms. Hipp Carlson the $1,600.50, which had been withheld.

 

The employee and Mr. Vail appeal.

 

DECISION

 

The employee and Mr. Vail argue on appeal that Ms. Hipp Carlson is not entitled to an attorney fee because she obtained no benefits for the employee.  We disagree.

 

Clearly the services provided by both Ms. Hipp Carlson and Mr. Vail were responsible for the ultimate success of the employee=s case.  Ms. Hipp Carlson filed the claim petition, provided notice to intervenors and handled the employee=s deposition.  She filed a request for an expedited hearing which appears to have been denied only because of the employee=s refusal to sign medical authorizations.  While Mr. Vail tried the employee=s claim, representing an employee in a workers= compensation matter consists of more than going to trial.  The services provided by Ms. Hipp Carlson were necessary for the employee=s claim and she is entitled to compensation for those services.  The question for the compensation judge was whether the requested fees were reasonable. 

 

At the hearing, the employee and Mr. Vail argued that the fee requested by Ms. Hipp Carlson was not reasonable because, they contend, she misstated the amount of time spent on three activities in her representation of the employee: preparing the claim petition, handling the employee=s deposition, and attending the hardship pre-trial.  We disagree.

 

The amount of time spent by the attorney in handling a claim is just one of several factors to be considered in determining whether an attorney=s fee is reasonable.  Irwin v. Surdyks Liquors, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).  We can not say, based on the record before us, that the compensation judge abused his discretion in finding the requested fee of $1,600.50 to be reasonable.  No objection to the requested fee was raised on the basis of any other factor.  The employee and Mr. Vail claimed only that the actions should not have taken as long as claimed.  There was no contention that these services were not provided at all, nor was there any other argument as to why the requested fee was not reasonable.

 

We affirm.