JOHN G. CORBETT, Employee/Appellant, v. IPSCO MINNESOTA, INC., and ROYAL SUNALLIANCE, Employer-Insurer, and METROPOLITAN HAND SURGERY ASSOCS., and IPSCO ENTERS. HEALTH PLAN, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 4, 2004

 

HEADNOTES

 

ATTORNEY FEES - RORAFF FEES.  Given the record before him, the compensation judge did not err in awarding Roraff fees of $7,000.00, rather than the more than $15,000.00 claimed.

 

Affirmed.

 

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

Compensation Judge:  Paul D. Vallant

 

Attorneys:  Steven P. Christensen, Attorney at Law, Roseville, MN for the Appellant.  Peterson, Logren & Kilbury, Arlen R. Logren, St. Paul, MN, for the Respondents.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee=s attorney appeals from the judge=s award of Roraff fees.^[1]  We affirm.

 

BACKGROUND

 

The employee=s work for Ipsco Minnesota, Inc. [the employer], involved placing two-by-fours between sheets of metal that were being stacked by a metal cutting machine.  The two-by-fours weighed five pounds or more and the employee would normally pick up three two-by-fours at a time and carry them to the machine.  The employee, who is right-handed, would distribute the two-by-fours with his right upper extremity by grabbing a two-by-four with his wrist bent and then quickly straightening or flicking his wrist to toss the two-by-four to its desired location.  After developing carpal tunnel symptoms in his right hand and wrist, the employee used his left upper extremity more than he had in the past.  The employee performed this grasping activity hundreds of times a day.

 

On or about November 7, 2001, the arm on the metal cutting machine struck a two-by-four that the employee was holding in his right hand, which caused tingling and pain in the employee=s fingers and up his arm.  He notified the employer of the injury and the employer referred him to Dr. Sean Flood.  On or about November 29, 2001, an arm on the machine struck the employee in the right forearm, which caused an immediate increase in the pain and tingling in his right upper extremity.  He immediately reported that injury and again saw Dr. Flood.

 

On December 6, 2001, the employee was seen by his family doctor, Dr. Chandra Lagalwar, who suspected carpal tunnel syndrome and referred the employee for an EMG.  Based on the EMG, the employee was diagnosed as having bilateral carpal tunnel syndrome, right greater than left.

 

The employee gave the results of the EMG to his employer within a few days of December 13, 2001, the day that he was first told by his doctor that he had carpal tunnel syndrome.  At that time, the employee also told the employer that he was claiming that the carpal tunnel syndrome was work-related.  Dr. Lagalwar and one other doctor^[2] opined that the employee=s work activities were a substantial contributing factor in the development of bilateral carpal tunnel syndrome and that the employee should have carpal tunnel release surgery on his right upper extremity.  The employer and insurer had the employee examined by Dr. Call, who opined that the employee=s carpal tunnel syndrome was not work-related and that surgery was premature.

 

The employee filed a claim petition on February 8, 2002, which proceeded to hearing on March 26, 2003, and April 4, 2003.  In a findings and order filed on April 16, 2003, the compensation judge found that the employee=s bilateral carpal tunnel syndrome was causally related to his work activities, that carpal tunnel release on the right was reasonable and necessary, and that the medical treatment that the employee had received to date had also been reasonable and necessary.  The judge went on to order the employer and insurer to pay any unpaid medical expenses related to treatment of the employee=s bilateral carpal tunnel condition and to pay for the proposed carpal tunnel release surgery.

 

Steven P. Christensen, the attorney for the employee, subsequently filed a Statement of Attorney Fees, seeking $15,120.00 in attorney fees (75.6 hours at $200 per hour) and costs of $3969.26.  The employer and insurer objected to the requested fees and the matter proceeded to hearing on August 11, 2003, before a different judge than had heard the claim petition.  In findings and order on attorney fees filed on October 24, 2003, that compensation judge found that Mr. Christensen was entitled to Roraff fees in the amount of $7,000.00, and costs as claimed.  Mr. Christensen appeals from the award of attorney fees.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

Roraff fees claims are generally analyzed in light of the seven factors set forth in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).  Those factors are: (1) the amount involved; (2) the time and expense necessary to prepare for trial; (3) the responsibility assumed by counsel; (4) the experience of counsel; (5) the difficulties of the issues; (6) the nature of the proof involved; and (7) the results obtained.  Irwin, 599 N.W.2d at 142, 59 W.C.D. at 336.

 

Mr. Christensen contends that the compensation judge erred in speculating that less than $3000.00 was in dispute at the time of trial, including expenses for the right carpal tunnel surgery and wage loss, and that a similar expense would likely be incurred for the left carpal tunnel surgery.  Mr. Christensen further argues that the compensation judge knew that the right carpal tunnel surgery had only been performed on May 30, 2003, and that the judge should have known that A[a]s a practical matter, medical providers do not submit claims for payment immediately.@  We are not persuaded.

 

The compensation judge had limited information before him regarding benefits in dispute.  At hearing on the attorney fee petition, the employee submitted only the notice of intention to discontinue benefits as evidence of the benefits in dispute.  That NOID, dated June 18, 2003, showed payment of $1,043.39 in temporary total disability benefits and $1,841.24 in medical expenses.  Mr. Christensen made no argument at hearing that there were still medical expenses outstanding.  His statement of attorney fees left blank the space for Aamount recovered,@ and, in his trial brief, submitted as an exhibit at the fee hearing, he did not argue that medical expenses for the carpal tunnel surgery exceeded those noted in the NOID; rather, he commented that the claim had significant monetary value when the cost of the bilateral carpal tunnel surgeries and follow-up care was taken into consideration, including resulting wage loss and rehabilitation services.  We note, however, that Roraff fees are for recovery of medical expenses, not indemnity benefits or vocational rehabilitation.  The evidence presented to the judge at the time of the attorney fee hearing indicated that $1,841.24 had been paid in medical expenses, that the employee had recovered from that surgery, that he had returned to work within two weeks of the surgery, and that carpal tunnel surgery on the left side was scheduled.  The testimony of the employee and the NOID provide adequate evidence to support the judge=s finding that the amount involved was not substantial.

 

Secondly, Mr. Christensen contends that the time spent to prepare the case was not excessive.³  In his appellate brief, he explained that Dr. Donahue=s deposition lasted more than 2.5 hours and that he spent 3 hours preparing for it; and that, of the total of 7 hours claimed to prepare for and attend Dr. Call=s deposition, 3.5 hours were spent simply attending the deposition.  Mr. Christensen offered similar detail, on appeal, concerning his contacts with QRC David Mickelson, Joanne Hanson, Mark McCrea, Roxanne Helland, Sue Johnson, and Teresa Donovan.  The record before the compensation judge, however, does not contain this kind of detail.  Rather, the judge had the statement of attorney fees, which itemized 4 hours to prepare for and attend the deposition of lay witness Roxanne Helland, 7.0 hours to prepare for and attend the deposition of Dr. Call, 6.0 hours to prepare for and attend the deposition of Dr. Donahue, 4.0 hours to review the file and prepare for the first half day of hearing, 3.0 hours to prepare the employee for that same half day of hearing, and 2.0 hours to prepare for the second half day of hearing.  Given that the underlying issues in this case were primary liability for bilateral carpal tunnel syndrome and notice of injury, it was not erroneous for the compensation judge to conclude that the hours spent by Mr. Christensen were excessive.

 

Mr. Christensen also contends that the compensation judge erred by failing to conclude that the employee=s claim for bilateral carpal tunnel syndrome constituted complex litigation.  Again, we are not persuaded.  Carpal tunnel syndrome claims are relatively common in workers= compensation cases, and we see nothing in the record to indicate that this claim was particularly complicated.

 

When evaluating Roraff fee claims, the ultimate question is reasonableness.  Lanhart v. Bureau of Engraving, slip op. (W.C.C.A. May 7, 2001).  Determining a reasonable Roraff fee is not merely a matter of multiplying the attorney=s hourly rate by the amount of time spent on the case.  Borgan v. Bob Hegland, Inc., slip op. (W.C.C.A. June 12, 2002).  Each case is dependent on its particular facts.  It appears to us that the judge in the present case carefully reviewed the attorney fee claim and addressed the Irwin factors in light of the record before him.  The determination of a reasonable fee is largely within the discretion of the compensation judge.  Compare, e.g., Chinander v. Carl Bolander & Sons, 49 W.C.D. 251 (W.C.C.A. 1993); Everist v. Special School Dist. No. 1, slip op. (W.C.C.A., Nov. 23, 1992).  The judge awarded $7,000.00 and, on the facts of this case, we cannot say that the award was unreasonable or clearly erroneous.  We therefore affirm.