SHEILA GROVE, Employee, v. UNITED HOSP., SELF-INSURED, adm=d by GALLAGHER BASSETT SERVS., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 5, 2005

 

No. WC05-129

 

JURISDICTION - SUBJECT MATTER.  Because the record was inadequate to establish whether tangible benefits were in dispute at the hearing, the matter was remanded for further proceedings.

 

ATTORNEY FEES.  In the absence of an actual petition for fees or agreement of the parties, compensation judges should avoid issuing orders awarding unspecified Areasonable@ attorney fees, as such orders have no practical effect other than to prompt otherwise unnecessary appeals.

 

Modified in part, vacated in part, and remanded.

 

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

 

Compensation Judge: William R. Johnson

 

Attorneys: Dean M. Salita, Brabbit & Salita, MN for the Respondent.  Douglas J. Brown, and Joshua T. Brinkman, Brown & Carlson, Minneapolis, MN, for the Appellant.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s award of medical expenses and related attorney fees, costs, and disbursements, arguing that there was no justiciable controversy before the judge for determination.  The employer also argues that the judge erred in finding that the employer was insured by Gallagher Bassett Services, when it was in fact self-insured.  We modify the judge=s decision, and the caption of the case, to reflect the employer=s status as self-insured, and we vacate the remainder of the judge=s decision and remand for further proceedings consistent with this opinion.

 

BACKGROUND

 

The employee allegedly sustained a work-related injury to her right elbow on February 26, 2001, while employed as a physical therapist by Allina Health System, doing business as United Hospital [the employer].  On October 15, 2003, after testing and conservative treatment, she underwent surgery to treat her right elbow condition.

 

When the matter came on for hearing before a compensation judge on January 5, 2005, the employee=s attorney, Dean Salita, indicated that the employee was Awithdrawing [her] permanency claim at this point@ and that the issue was Acausation on a right elbow injury; the date  of injury 2/26/01, and obviously the medical that goes with it, associated with it.@  When asked by the compensation judge, Awhat does the medical amount to?@ Mr. Salita replied,

 

MR. SALITA: Well, that=s kind of the question.  Some of it is in the Summit Orthopedic records as to what the, if we consider it a Spaeth balance but Allina has the total outstanding medical which they were technically put on notice so Mr. Brown=s client has the bills.  I don=t know if Mr. Brown actually has them today but it=s payment of the surgery and the medical treatment.  So the sole issue is causation.

 

Shortly thereafter, the following discussion took place between Mr. Salita, Douglas Brown, the employer=s attorney, and the compensation judge:

 

MR. BROWN:  Just for clarification as I understand it there are no specific medical bills that are being claimed, is that right or --?

 

MR. SALITA:  No, that=s not technically correct.  I mean the bills were paid by -- Summit Orthopedics has a Spaeth^[[1]] balance that is in there but I don=t know what specifically Allina has paid contractually and I don=t know what the amount is.  So obviously whatever has been paid specific to the surgery and the medical treatment for this that=s what the bill will be.

 

MR. BROWN:  Well, my only concern with that, Judge, is the bill that=s attached to this exhibit shows a zero balance so I have no idea of what their Spaeth balance even is based on the bill.  Has Summit been placed on notice?

 

MR. SALITA:  You know, I don=t -- I should say it this way.  I misspoke.  I don=t think Summit has an actual Spaeth balance.  The balance here is zero.  This was a bill to show what Medica Choice had paid as some of it in fact, I don=t even know if this comes up but there were some listing of payments by Gallagher Bassett so I don=t know if Gallagher has paid some of it in mistake of fact or it had gone through Medica instead but the bill basically just came with the medical records.  My understanding is Allina has paid everything.

 

MR. BROWN:  Yeah, I believe Gallagher Bassett as part of the workers= comp did pay for some of the bill as a mistake of fact and then they later denied the surgery which was paid by Medica Choice I believe.

 

MR. SALITA:  That=s my understanding.  So the only bills outstanding are through Allina which need to be clarified I guess in terms of -- but obviously if causation is proven we=ll deal with what the bills are at that point.

 

MR. BROWN:  Yeah, I guess --

 

MR. SALITA:  It=s causation essentially, the decision he needs to determine.

 

MR. BROWN:  That would by my position is really the only issue is for you to decide causation.

 

The only exhibit dealing specifically with medical treatment charges and payments indicates that AWC Gallagher Bassett Allina@ paid some initial expenses and that AMedica Choice@ paid the remainder; as such, according to the exhibit, the balance owed to Summit Orthopedics, LTD, was zero.

 

The hearing then proceeded in the usual fashion, without further discussion as to the nature of the claim.  Subsequently, in a decision issued on January 11, 2005, the compensation judge concluded that the employee=s work activities for the employer were a substantial contributing cause of the employee=s right elbow condition and need for treatment.  The Aemployer and insurer@ were ordered to Apay the reasonable and necessary medical costs associated with the employee=s work-related right elbow injury,@ and the judge further ordered payment of Areasonable@ Roraff fees^[2] to Mr. Salita, partial reimbursement of fees pursuant to Minn. Stat. ' 176.081, subd. 7, Aappropriate@ interest, and taxable costs and disbursements.  The employer appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

"[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).

 

1.  Identity of Insurer

 

In Finding 1, the compensation judge determined that the employer was Ainsured for its workers= compensation liability with Gallagher Bassett Services.@  However, at the beginning of the hearing, Mr. Brown indicated that the employer was self-insured, and it appears that Gallagher Bassett merely administers workers= compensation claims on the employer=s behalf.  As there is apparently no dispute that the employer was in fact self-insured on the date of injury, we modify the judge=s decision, and the caption of this case, to reflect the proper identity of the parties.^[3]

 

2.  Justiciable Controversy

 

As previously indicated, there was a discussion at the beginning of the hearing before the compensation judge regarding the nature of the benefits at issue.  Following that discussion, the hearing proceeded, as usual, with admission of exhibits and the direct examination and cross examination of the employee.  Mr. Brown, the employer=s attorney, voiced no objection to the procedure.  However, after the compensation judge issued his decision, finding in the employee=s favor on the issue of causation and awarding medical expenses, fees, and costs, the employer appealed, arguing that the judge lacked jurisdiction to issue a decision because there was no justiciable controversy.  More specifically, the employer contends that, because all of the employee=s medical expenses had already been paid by either the self-insured employer or by Medica Choice, the employee had no Atangible interest at stake@ sufficient to confer jurisdiction.  Therefore, the employer contends, the compensation judge=s decision constitutes an impermissible advisory opinion and must be vacated.

 

It is true, as the employer asserts, that compensation judges have no authority to issue advisory opinions.  See e.g., Herrly v. Walser Buick, 47 W.C.D. 670, 675 (W.C.C.A. 1992).  AThe existence of a justiciable controversy is prerequisite to adjudication.  The judicial function does not comprehend the giving of advisory opinions.  No controversy is presented, absent a genuine conflict in the tangible interests of opposing litigants.@  Isaak Walton League of Am. Endowment, Inc., v. State, Dep't of Natural Resources, 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977).  An issue presented for decision must A(a) involve definite and concrete assertions of right by parties with adverse interests, (b) involve a genuine conflict in tangible interests of opposing litigants, and (c) be capable of relief by decree or judgment.@  Graham v. Crow Wing Co. Bd. of Comm=rs., 515 N.W.2d 81, 84 (Minn. Ct. App. 1994).  After careful review of the record, we conclude that the matter must be remanded.

 

It is undisputed that treatment was rendered in connection with the employee=s right elbow condition, resulting in medical bills related to that treatment.  It is also undisputed, on appeal, that these medical bills were causally related to the employee=s work activities,^[4] and that the employer was denying workers= compensation liability for those bills, on causation grounds, at the time of the hearing.  Both parties proceeded at hearing as if the employer=s responsibility for those bills would be affected by the compensation judge=s ultimate decision on causation.  It appears that Gallagher Bassett paid some of the bills, on behalf of the self-insured employer, and we would concede that an employee may not bring a workers= compensation claim for expenses that have already been paid, as workers= compensation benefits, by the employer and/or the employer=s workers= compensation insurer.  However, many of the expenses listed on the Summit Orthopedics billing statement were apparently paid by Medica Choice.  There is no definitive evidence in the record establishing the nature of the relationship between Medica Choice and the employer.

 

It is well established that an employee may seek payment of medical bills, from an employer and its workers= compensation insurer, regardless of whether the health provider has intervened in a pending proceeding, because the employee is liable for unpaid medical bills.  See Hughs v. Edwards Mfg. Co., 61 W.C.D. 481 (W.C.C.A. 2001); Adams v. DSR Sales, Inc., slip op. (W.C.C.A. Mar. 12, 2004).  However, it is simply not possible, on the basis of the present record, to determine whether there were in fact outstanding medical bills related to treatment of the employee=s work injury.

 

At oral argument before this court, the employer maintained that it was the employee=s responsibility to submit copies of outstanding medical bills at the hearing before the compensation judge,^[5] in order to establish the existence of a justiciable controversy.  Because the employee did not do so, the employer alleges, this court has no option but to conclude that the compensation judge=s decision is an impermissible advisory opinion.  We are not persuaded.  Given the way this matter was litigated,^[6] and given the employer=s failure to raise any objection at the hearing level, it would not be reasonable to simply void the judge=s decision.  Instead, we believe that the appropriate course of action is to vacate the judge=s decision and remand the matter to the judge, to determine whether or not there were in fact medical bills, or other Atangible@ benefits, at issue at the time of the initial hearing.  If, after submission of additional evidence, the compensation judge finds in the employee=s favor on this issue, the judge may reinstate his previous decision as to causation and liability, and the employer may of course again appeal to this court.  If the compensation judge finds, instead, that no tangible benefits were at stake at the prior hearing, he need do nothing more, and the prior decision will simply remain vacated, subject to the employee=s right to appeal.

 

Finally, with regard to the employer=s appeal from the judge=s decision ordering the employer to Apay reasonable attorney fees@ to Mr. Salita, pursuant to Roraff, we agree that the judge erred in issuing an order to this effect, regardless of the existence of outstanding medical expenses.  Initially, we note that the employee had not filed any claim for Roraff fees as of the hearing date.  More importantly, it is simply inappropriate to order payment of unspecified Areasonable@ fees, absent an agreement by the parties.  An order of this kind has no practical effect, other than to prompt employers to file otherwise unnecessary appeals.

 

If an employer has no objection to a statement of attorney fees filed post hearing, payment will be made without the need for further court intervention.  If, on the other hand, an objection is made, a hearing and additional decision by a compensation judge are required in any event, and either party is free to appeal from that decision.  Because an order for unspecified Areasonable@ fees accomplishes nothing except to add an extra layer of litigation, judges should generally avoid issuing orders of that kind.

 

At oral argument, the employee=s attorney indicated that he filed a request for Roraff fees following the hearing.  We encourage the compensation judge to consolidate the Ajusticiable controversy@ issue on remand with the employee=s attorney fee claim, in the interests of judicial economy.^[7]