MATTHEW F. JOHNSON, Employee/Appellant, v. VCI ASBESTOS ABATEMENT, and ZURICH N. AM., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 15, 2005

 

No. WC05-157

 

HEADNOTES

 

ATTORNEY FEES - RORAFF FEES.  The compensation judge=s finding that 5.2 hours of attorney and staff time was sufficient to resolve the employee=s medical claim was clearly erroneous, and the compensation judge=s award of attorney fees is reversed, and an award of $2,500.00 in attorneys fees is substituted.

 

COSTS & DISBURSEMENTS - SUBSTANTIAL EVIDENCE.  On the record before us, this court cannot conclude that the compensation judge abused her discretion by refusing to tax the cost of obtaining medical records from other medical providers on the basis that these particular records were not necessary to resolve the issues on which the employee prevailed.

 

Reversed in part and affirmed in part.

 

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

Compensation Judge: Jennifer Patterson

 

Attorneys: David C. Wulff, Law Office of David C. Wulff, Roseville, MN, for the Appellant.  Debra Heisick, Drawe & Heisick, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals from the compensation judge=s award of Roraff ^[1] attorney fees and costs.  We reverse and substitute an award of attorney fees of $2,500.00, and affirm the award of costs.

 

BACKGROUND

 

Matthew F. Johnson, the employee, sustained a personal injury on February 9, 2002, while working for VCI Asbestos Abatement, the employer, insured by Zurich North America, the insurer.  The employer and insurer accepted liability for the employee=s personal injury.

 

Between March 21 and August 25, 2003, the employee received 108 treatments from Daniel Anderson, D.C., generating a bill of $15,856.22.  The insurer apparently paid for the first 96 treatments but denied liability for the last 12 leaving a balance on the Anderson Chiropractic bill of $1,172.00.  In addition, the employee claimed mileage incurred in obtaining medical treatment.

 

The employee signed a retainer agreement with the Law Office of David C. Wulff on August 8, 2003.  In December 2003, Mr. Wulff filed a request for certification of a medical dispute claiming over $1,172.00 in outstanding medical bills together with $335.80 in medical milage.  The Department of Labor and Industry certified the benefits as disputed and the employee filed a Medical Request.  Following a medical conference, the insurer paid the employee $305.14 for medical mileage.  Thereafter, the parties entered into a settlement in which Dr. Anderson was paid $600.00 to settle the outstanding balance of $1,172.00 and the employee was paid $1,000.00 to settle his remaining claim of $30.66 in medical mileage and as a closeout of future chiropractic care.  Thereafter, Mr. Wulff filed a petition seeking attorney fees of $3,928.50 plus $400.45 in costs.  Following a hearing, the compensation awarded $1,100.00 in Roraff attorney fees and $171.00 in costs.  The employee appeals.

 

DECISION

 

1.  Roraff Fees

 

In deciding the employee=s claim for attorney fees, the compensation judge applied the seven Irwin factors.^[2]  The judge found the amount in dispute, $1,172.00 was only a small amount of money and concluded it would not be reasonable to pay to the employee=s attorney more than twice as much in attorney fees as was paid to the health care provider and the employee.  The judge afforded Agreat weight@ to this factor.  The employee argues the compensation judge applied a legal standard limiting Roraff fees to an amount less than the benefits recovered.  Such a legal standard, the employee contends, is contrary to established case law.^[3]

 

The compensation judge made several factual findings regarding the time necessary to prepare for trial.  The compensation judge found the time spent by Mr. Wulff on the initial client intake was excessive, it was not necessary to gather all the employee=s medical records and the time spent doing so was unnecessary, certain charges by Mr. Wulff=s staff were routine clerical services, the 5.2 hours Mr. Wulff spent to prepare for and attend an administrative conference was unreasonable since he was unsuccessful at the conference, and found the six months spent by Mr. Wulff on settlement negotiations was excessive.  The employee argues the compensation judge=s findings regarding the time and expenses necessary to prepare for trial are clearly erroneous and unsupported by substantial evidence.

 

The compensation judge found a reasonable fee was $1,100.00 Arepresenting payment for about five hours of attorney and staff time, the amount of time reasonable to spend on a chiropractic bill of less than $1,200 and a $335 medical mileage claim.@ (Finding 5.)  Mr. Wulff contends all of the time documented on his fee petition^[4] was reasonably required and necessary to  effectuate a resolution of the employee=s claim.  It would be impossible, Mr. Wulff argues, to interview a client, open a file, attend a conference, settle the case and review a stipulation for settlement in five hours.  Such a limitation on fees, the appellant asserts, will result in employees with small medical only claims being unable to obtain legal representation.

 

The express purpose of the Irwin decision is to afford a reasonable fee to an attorney for legal services provided to the employee.  McCarthy v. Al Baker=s, 61 W.C.D. 805 (W.C.C.A. 2001).  A determination of the amount of a Roraff fee lies within the discretion of the compensation judge.  Neuman v. Graceville Health Ctr., 52 W.C.D. 194 (W.C.C.A. 1994).  As each case is factually unique, this court will give deference to the compensation judge=s judgment and discretion in determining an award of Roraff fees.  In reviewing an award of Roraff attorney fees, this court will not reverse a compensation judge=s award or denial of attorney fees absent an abuse of discretion.  John v. Suburban Air Conditioning, 62 W.C.D. 285 (W.C.C.A. 2002).  A compensation judge abuses his or her discretion only when the award of fees is based upon a clearly erroneous conclusion given the record.

 

In Borgan v. Bob Hegland, Inc., slip op. (W.C.C.A. June 12, 2002), this court cautioned that the determination of a claim for Roraff fees is not merely a matter of multiplying an attorney=s hourly rate by the amount of time he spent on the case.  The time necessary to prepare the case for trial or settlement is just one of the Irwin factors.  Thus, even if all of the time spent by Mr. Wulff on this case was reasonable and necessary, the compensation judge is not legally compelled to award the full fee sought.  Rather, the issue is what fee is reasonable considering all of the Irwin factors.

 

It was not unreasonable in this case for Mr. Wulff to obtain all the employee=s medical records.  Nor can we agree with the compensation judge that none of the time spent at the administrative conference was reasonable.  We conclude the compensation judge=s finding that 5.2 hours of attorney and staff time was sufficient to resolve the employee=s claim is clearly erroneous.  We agree, however, with the compensation judge=s findings that the case involved a small amount of money, the issues were routine and an average result was obtained.  We reverse the compensation judge=s award of attorney fees and substitute an award of $2,500.00.

 

2.  Costs

 

The employee sought reimbursement of $400.45 in costs.  The compensation judge awarded $171.00, the costs of obtaining the medical records from the Anderson Chiropractic Clinic.  The balance of the claimed costs, $228.45, the compensation judge denied because they were incurred to obtain medical records which the compensation judge concluded were not necessary to resolving the issues on which the employee prevailed.^[5]

 

A compensation judge may award the prevailing party reimbursement for actual and necessary disbursements.  Minn. Stat. ' 176.511, subd. 2; Hodgin v. Ford Motor Co., 341 N.W.2d 567, 36 W.C.D. 423 (Minn. 1983).  The determination of whether a cost is necessary and directly related to the issues on which the party prevailed is left to the sound discretion of the compensation judge and will not be reversed except for a clear abuse of discretion.  Brochu v. U.S. Steel Corp., 27 W.C.D. 417, 425 (W.C.C.A. 1974); Ebert v. Lundeen Bros., Inc., slip op. (W.C.C.A. Oct. 15, 1996); Welper v. Sodko, slip op. (W.C.C.A. Feb. 9, 1996).

 

 The two issues in this case were outstanding medical bills and medical mileage.  Since a resolution of both of those issues was effected, the employee was a prevailing party.  The sole question then is whether the denied costs were Anecessary@ disbursements.  Mr. Wulff asserts it is necessary to obtain all of an employee=s medical records to fully evaluate and present the employee=s claim.  At the hearing, Mr. Wulff specifically contended the additional medical records were necessary to address the defense that Dr. Anderson=s treatment was not necessitated by the work injury.  There is merit to the employee=s argument.  The compensation judge, however, found the employee failed to establish it was necessary to obtain these particular medical records to resolve the issues in this case.  A[T]he judge is familiar with the needs of the case, its importance and the strategies involved and is in the best position to judge what is truly necessary and what is only useful.@  Zabel v. Pillsbury Co., slip op. (W.C.C.A. Feb. 22, 1991)(quoting Romain v. Pebble Creek Partners, 310 N.W.2d 118 (Minn. 1981)).  This court does not have before us any of the medical records. While another judge may have decided the issue differently we cannot conclude the compensation judge abused her discretion.  Compare Mohamed v. The Turkey Store, 61 W.C.D. 410 (W.C.C.A. 2001).  The amount of costs is, therefore, affirmed.