SEVERO CANTU, Employee, v. AMERIPRIDE LINEN & APPAREL SERVS. and CNA/RISK ENTER. MGMT., Employer-Insurer/Petitioner.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 27, 2005

 

No. WC04-238

 

HEADNOTES

 

ATTORNEY FEES - APPEALS; STATUTES CONSTRUED - MINN. STAT. ' 176.511, SUBD. 3.  Where the employee=s attorney=s claim for fees before the compensation judge had related solely to services performed for the employee and not to hours expended at the hearing on fees or to time spent in preparing the fee petition, and where, on appeal from the judge=s award of attorney fees, the employee=s attorney had prevailed in obtaining an increase in his attorney fee award together with an accompanying increase in reimbursement to the employee under subdivision 7 of Minnesota Statutes ' 176.081, and the WCCA had accordingly awarded him an appellate fee pursuant to Minn. Stat. ' 176.511, subd. 3, the WCCA refused, on review of its decision, to grant the employer and insurer=s petition to reverse its award of the appellate fee.

 

Petition to reverse attorney fee award denied.

 

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

 

Attorneys:  Gregg A. Johnson, Heacox, Hartman, Koshmrl, Cosgriff & Gislason, St. Paul, MN, for Petitioners.  Thomas C. Hannon, Attorney at Law, Burnsville, MN, for Respondent.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer request review and reconsideration of this court=s award of attorney fees incidental to its decision issued on April 1, 2005.  Upon review, we decline to reverse the award of fees.

 

BACKGROUND

 

On July 2, 2004, Compensation Judge William Johnson issued a decision awarding a fee of $3,000 to the employee=s attorney.  In addition to the attorney fee, Judge Johnson=s decision also included an award to the employee under Minn. Stat. ' 176.081, subd. 7.  The employee, whose attorney was seeking a total fee of $6,170.00, appealed from the judge=s decision.  By a decision issued April 1, 2005, this court modified Judge Johnson=s order to provide for a fee of $4,412.39 to the employee=s attorney.  Our order in that decision also included an award of an appellate attorney fee to the prevailing employee=s attorney.  The employer and insurer, in an application for review and reconsideration filed April 15, 2005, request that this court overturn the appellate fee award.

 

DECISION

 

The employer and insurer contend that it is well established in case law that an employee=s attorney is not entitled to an attorney fee for time and effort expended in recovering or collecting his attorney fee.  See Bloomfield v. Popple Bar, 43 W.C.D. 519 (W.C.C.A. 1990); Worasi v. Hyatt Regency Hotel, 41 W.C.D. 371 (W.C.C.A. 1988).  This court=s award of a $1,250.00 fee on appeal, they contend, constituted an award to the employee=s attorney for work in collecting his own fee, contrary to our holding in Bloomfield and subsequent cases.  We disagree.

 

Attorney Hannon=s claim for fees before Judge Johnson related solely to services performed for the employee at the October 2, 2003, hearing on liability, not to hours expended at the hearing on fees or to time spent in preparing his fee petition.  The dispute on appeal pertained to the difference between the $3,000 fee awarded by Judge Johnson and the $6,170.00 that Mr. Hannon had claimed as a reasonable fee for his representation of the employee.  This court determined that the appropriate fee under the statute was $4,412.39, and that increase in Mr. Hannon=s fee award carried with it an increase in reimbursement to the employee under subdivision 7 of Minnesota Statutes ' 176.081.

 

Under Minn Stat. ' 176.511, subd. 3, this court has authority to award, as an incident to its review on appeal, a reasonable fee to an employee=s attorney who prevails in obtaining or protecting an award of Acompensation.@  This court has held that an award of an attorney fee is an award of compensation under the statute.  See Hanegmon v. National Steel Pellet, slip op. (W.C.C.A. Oct. 6, 2004); Minn. Stat. ' 176.011, subd. 8 (A>Compensation= includes all benefits provided by this chapter on account of injury or death@).  Where such an award is issued or affirmed on appeal, an award of an appellate fee to the prevailing employee=s attorney is appropriate.  Therefore, after further review, we confirm our April 1, 2005, decision to award an appellate fee to the employee=s attorney, based on his prevailing before this court, pursuant to Minn. Stat. ' 176.511, subd. 3.