TERESA H. FALLON, Employee, v. AT&T MINN., SELF-INSURED/HERITAGE CLAIM SERV., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 3, 2005

 

No. WC05-215

 

HEADNOTES

 

ATTORNEY FEES; VACATION OF AWARD - MISTAKE.  Where the employee=s attorney filed a statement of attorney fees requesting a release of previously-withheld fees, and where the employer and its insurance administrator subsequently determined that a lesser amount of fees was being withheld and paid that amount to the employee=s attorney, thereby resolving the claim for payment of attorney fees, the order granting attorney fees is vacated.

 

Vacated.

 

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

Compensation Judge: Carol A. Eckersen

 

Attorneys: Babcock, Neilson, Mannella, Klint, Thomas A. Klint, Anoka, MN, for the Respondent.  Lommen, Nelson, Cole & Stageberg, Richard L. Plagens, Minneapolis, MN, for the Appellant.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the order granting attorney fees on the grounds that the statement of attorney fees and order granting attorney fees were based on a mutual mistake of fact.  We vacate the order.

 

BACKGROUND

 

On April 4, 2000, Ms. Teresa H. Fallon, the employee, sustained a work-related injury to her neck and shoulders.  On that date, she was employed by AT&T Minnesota, working as a customer account representative.  The employer, who was self-insured for workers= compensation liability on the date of injury, has paid certain workers= compensation benefits to and on behalf of the employee.  In addition, certain issues concerning this claim were the subject of an earlier evidentiary hearing held at the Office of Administrative Hearings. Following that hearing, the compensation judge issued her findings and order on December 5, 2003, denying the employee=s claim for those benefits at issue.  No appeal was taken from that findings and order.

 

On March 2, 2005, counsel for the employee filed a statement of attorney fees, requesting payment of contingency fees pursuant to Minn. Stat. ' 176.081, subd. 1.  In that statement, he contended that from the permanent partial disability benefits earlier paid to the employee, attorney fees in the amount of $1,369.60 had been withheld.  On that basis, the employee=s attorney claimed attorney fees in the amount of $1,369.60.  No party filed an objection to the statement.

 

By order granting attorney fees, served and filed on May 25, 2005, the compensation judge granted the claimed attorney fees.  The employer appeals from the order.

 

DECISION

 

The self-insured employer and its insurance administrator, Heritage Claim Service, appeal from the order granting attorney fees, contending that the statement of attorney fees and subsequent order were both based on a mutual mistake of fact, and that because the issue of payment of attorney fees has already been resolved, the order granting fees should be vacated.

 

In its brief on appeal, the employer advised that upon receipt of the statement of attorney fees, the insurance administrator reviewed payment records and determined that an amount less than the alleged $1,369.60 had been withheld from the earlier payment of permanent partial disability benefits.  The employer provided this information to the employee=s attorney, along with an itemization of benefits earlier paid to the employee and attorney fees earlier issued to the employee=s attorney.  The employer and insurance administrator evidently released the lesser amount of withheld fees to the employee=s attorney, and the matter was thereby resolved.

 

It appears, however, that neither party advised the compensation judge of the resolution of the matter, and therefore the judge issued an order granting attorney fees on May 25, 2005.  Counsel for the employee has now advised this court that he has no objection to a vacation of the order, in view of the mutual mistake of fact as to the amount of benefits withheld as attorney fees.  Based upon the above information, the claim for payment of withheld attorney fees has been resolved, thereby obviating the need for an order for payment.  We therefore vacate the Order Granting Attorney Fees of Compensation Judge Carol A. Eckersen, served and filed May 25, 2005.