CHARLES PLUMB, Employee/Appellant, v. DODGE OF BURNSVILLE, INC., and FARM BUREAU GROUP OF IOWA, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 30, 2004

 

HEADNOTES

 

ATTORNEY FEES B IRWIN FEES.  Where wage loss benefits are being paid which are producing contingency fees, the determination of whether contingency fees are adequate to compensate the employee=s attorney is premature.

 

Affirmed.

 

Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge: John Ellefson

 

Attorneys: Norbert Cuellar, Cuellar Law Office, Minneapolis, MN, for the Appellant.  James R. Waldhauser and Vincent A. Petersen, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s denial of the employee=s attorney=s claim for Roraff^[1] fees at this time on the basis that the claim is premature.  We affirm.

 

BACKGROUND

 

On August 17, 2002, Charles Plumb, the employee, sustained a work-related injury to his low back when he was involved in an altercation with another employee.  The employee worked as a sales person at Dodge of Burnsville, the employer, which was insured for workers= compensation liability by Farm Bureau Group of IA, the insurer.  As a result of the altercation, the employee=s employment was terminated on August 24, 2002.  On November 27, 2002, the employee filed a claim petition for temporary total disability benefits from August 25, 2002, through January 13, 2003, temporary partial disability benefits from January 14, 2003, through April 15, 2003, and continuing, medical expenses, and a rehabilitation consultation.  The employer and insurer denied primary liability for the claim, arguing that the employee had sustained a temporary aggravation of a pre-existing condition.

 

A hearing was held on April 25, 2003.  In Findings and Order served and filed April 30, 2003, the compensation judge found that the employee=s work injury caused a substantial and permanent exacerbation of the employee=s pre-existing condition and that the employer and insurer were liable for workers= compensation benefits.  The compensation judge awarded the claimed medical expenses totaling $2,298.99 and Atemporary total and temporary partial disability benefits to the employee from the date of the injury through the date of the hearing and continuing.@  The employee=s attorney was also awarded contingent fees and reimbursement of fees under Minn. Stat. ' 176.081.  In a statement of attorney fees filed May 14, 2003, the employee=s attorney claimed additional Roraff fees of $3,593.47 based upon a total claim of $6,591.00 (33.8 hours at $195.00 per hour) less the $2,997.53 he had already received.  The employer and insurer objected to the fee statement, arguing that the employee=s attorney was receiving contingent fees which would adequately compensate him. 

 

On June 30, 2003, the employee underwent low back surgery, which was not disputed by the employer and insurer.  The employee=s temporary partial benefits ceased and the employee began receiving temporary total disability benefits from and after June 30, 2003.  The employer and insurer continued withholding attorney fees from these benefits. 

 

On August 18, 2003, a hearing was held on the employee=s claim for Roraff fees.  In Findings and Order on Attorney Fees served and filed August 26, 2003, the compensation judge denied the claim, concluding that since the employee was receiving temporary total disability benefits from which contingent fees were being withheld, it was premature to determine whether Roraff fees were appropriate.  The compensation judge stated: AUntil the stream of temporary total and temporary partial disability benefits ends, it is impossible to ascertain the total amount of contingent attorney=s fees [the employee=s attorney] will be entitled to receive for representing the employee at the hearing on April 25, 2003.@  The employee appeals the compensation judge=s denial of Roraff fees.

 

STANDARD OF REVIEW

 

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers= Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

Attorney fees for the recovery of medical benefits may be assessed against an employer and insurer if the employee=s attorney establishes that the contingent fee on indemnity benefits is inadequate to reasonably compensate the attorney for representing the employee in the medical dispute.  Minn. Stat. ' 176.081, subd. 1(a)(1).^[2]  Generally, in cases where wage loss benefits are being paid which are producing contingency fees, the determination of whether contingency fees are adequate to compensate the employee=s attorney is premature.  Borgan v. Bob Hegland, Inc., 62 W.C.D. 452, 462-63 (W.C.C.A. 2002).

 

In this case, after the April 25, 2003, hearing, the compensation judge awarded  Atemporary total and temporary partial disability benefits to the employee from the date of the injury through the date of the hearing and continuing.@  After the employee=s June 30, 2003, surgery, the employee=s temporary partial benefits ceased and the employee began receiving temporary total disability benefits.  The employer and insurer continued withholding attorney fees from these benefits.  The employee argues that the indemnity benefits awarded at the April 25, 2003, hearing ceased at the time of the June 30, 2003, surgery when the employee began receiving ongoing temporary total disability benefits.  We disagree.  Primary liability was at issue at the April 25, 2003, hearing when the wage loss benefits were awarded.  The employer and insurer did not dispute the employee=s request for the June 30, 2003, surgery, and began paying temporary total disability benefits and withholding attorney fees after the June 30, 2003, surgery.  There was no dispute in this case as there was in Turan v. Park Constr., 61 W.C.D. 602 (W.C.C.A. 2001), where the employee=s entitlement to wage loss benefits was not disputed at the time of the medical request.

 

The compensation judge did not err by concluding that the employee=s attorney was entitled to ongoing contingent fees based on the employee=s continuing entitlement to wage loss benefits, and therefore that it is premature to determine whether those fees constituted adequate compensation.  Accordingly, we affirm.