DAVID M. FEIG, Employee v. CITY OF ST. PAUL, SELF-INSURED, Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 16, 2004

 

HEADNOTES

 

ATTORNEY FEES - RORAFF FEES.  Where the employer objected to the employee=s request for Roraff fees and requested a hearing on the issue, but the compensation judge issued an award of fees without hearing, the award of fees was vacated and the matter remanded for hearing and new findings.

 

Vacated and remanded

 

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

Compensation Judge: Gary M. Hall.

 

Attorneys: Timothy S. Crom, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellant.  Raymond R. Peterson, McCoy, Peterson, Jorstad, Minneapolis, MN, for the Respondent.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s award of Roraff fees,[1] arguing that the judge erred in making the award without a hearing.  We vacate and remand for proceedings consistent with this decision.

 

BACKGROUND[2]

 

The employee sustained a work related injury to his left knee on February 11, 1997, while employed by the City of St. Paul [the employer], which was self-insured for workers= compensation purposes.  In February of 2001, the employee, employer and HealthPartners entered into a stipulation for settlement that provided, in part, that the employee would submit future medical expense claims to his health insurer and that the employer would be responsible for co-pays.  An award on stipulation was filed on February 23, 2001.

 

The employee filed a medical request on June 12, 2003, seeking payment of out-of-pocket medical expenses totaling $255.09.  The employer responded that the claim for medical expenses was governed by the stipulation for settlement and asked that the medical request be dismissed.

 

The matter proceeded to an administrative conference, and, in a decision and order filed October 15, 2003, a mediator/arbitrator determined that the employee had complied with the terms of the stipulation and ordered the employer to reimburse the employee for his out-of-pocket expenses.  On November 3, 2003, Raymond R. Peterson, the attorney for the employee, filed a statement of attorney fees, seeking Roraff fees in the amount of $1,308.00 and costs of $17.12.  The employer filed an objection to the claim for Roraff fees and, in that objection, requested that the matter be set for hearing.

 

On November 20, 2003, a compensation judge issued an order determining attorney=s fees, wherein he awarded employee=s counsel $1308.00 in attorney fees and $17.12 in costs.  The employer appeals.

 

DECISION

 

The employer contends that the compensation judge erred in awarding attorney fees without holding a hearing.  We agree.

 

As this court said in Irwin v. Surdyk=s Liquor,

 

due process and basic fairness requires that both the employee and employer and insurer be served with a request or petition for attorney fees in excess of the statutory contingency fee, the employee or employer and insurer be given adequate time to file an objection to the requested attorney fee and that an objecting party be afforded an evidentiary hearing.

 

60 W.C.D. 150, 158, (W.C.C.A. 2000).  In addition, Minn. R. 5220.2920, subp. 8, specifically states that a hearing must be scheduled if an objection to the requested fees has been filed.  The judge acknowledged that an objection had been filed in this case.  Finally, in French v. Wal-Mart Stores, Inc., slip. op. (W.C.C.A. May 27, 2003), in a nearly identical situation, this court vacated the award of attorney fees and remanded the matter for a hearing.

 

Because the employer asked for but was not afforded a hearing, the judge=s findings are vacated.  The case is remanded to a compensation judge at the Office of Administrative Hearings for hearing, including testimony and the submission of evidence, if appropriate, on the issue of attorney fees.  The judge shall issue findings and order following the hearing.[3]

 

 


[1]  See Roraff v. State, Dep=t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).

[2]  The background information was taken from the brief of the self-insured employer and from pleadings contained in the imaged file.  The employee did not file a brief.

[3]  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).