BRADLEY A. KELLER, Appellant, v. QUICKSILVER EXPRESS COURIER, and CRUM & FORSTER INS. GROUP, Employer-Insurer, and HEALTHCARE RECOVERIES/MEDICA, TWIN CITIES ORTHOPEDICS, and PARK NICOLLET HEALTH SERVS., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 30, 2005

 

No. WC04-339

 

HEADNOTES

 

ATTORNEY FEES - IRWIN FEES.  Under the circumstances of this case which involved a claim for both indemnity benefits and medical expenses, and in view of the compensation judge=s application of the factors set forth in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), to the facts peculiar to this case, the compensation judge=s award of attorney fees to the employee=s attorney for his representation of the employee was not clearly erroneous and not an abuse of discretion on the facts of this case, and must, therefore, be affirmed.

 

Affirmed.

 

Determined By: Rykken, J., Wilson, J., and Stofferahn, J.

Compensation Judge: Kathleen Behounek

 

Attorneys:  Lawrence C. Miller, Miller & Carlson, Minneapolis, MN, for the Appellant.  Michael L. Koshmrl, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee=s attorney appeals from the compensation judge=s award of Roraff^[1] attorney fees.  We affirm.

 

BACKGROUND

 

On December 9, 2002, and March 25, 2003, Bradley A. Keller, the employee, sustained personal injuries to his neck and left shoulder arising out of and in the course of his employment with Quicksilver Express Courier, the employer.  On those dates, the employer was insured for workers= compensation liability by Crum & Forster Insurance Group, the insurer.  The employer and insurer initially denied primary liability for the alleged work injuries, and the employee ultimately filed a claim petition, seeking payment of temporary total disability benefits, medical expenses and rehabilitation assistance.

 

At the hearing held on April 13, 2004, to address the employee=s claim petition, the employee sought payment of approximately 33 weeks of temporary total disability benefits, for various periods of time extending from December 2002 to March 2003; 2 weeks of temporary partial disability benefits in January and March 2003; and medical treatment expenses incurred between September 2002 and March 2003, in excess of $10,800.00.^[2]  The claims for medical expenses included expenses claimed directly by the employee and also by intervenors.

 

In her Findings and Order served and filed on July 6, 2004, the compensation judge found that the employee had sustained temporary injuries to his neck and left shoulder that had resolved as of March 29, 2003.  Accordingly, the compensation judge awarded payment of temporary total and temporary partial disability benefits and medical expenses through March 29, 2003, but denied the employee=s and  intervenors= claims after that date.

 

The compensation judge ordered withholding and payment of attorney fees from the payment of benefits, pursuant to the 25/20 formula set forth in Minn. Stat. ' 176.081, and also awarded partial reimbursement of attorney fees pursuant to Minn. Stat. ' 176.081, subd. 7.  From the wage loss benefits awarded to the employee, the employer and insurer withheld contingency attorney fees in the amount of $1,194.38 and paid those to the employee=s attorney.  Neither party appealed from the July 6, 2004, Findings and Order.

 

On July 14, 2004, the employee=s attorney served and filed a statement of attorney fees, claiming entitlement to attorney fees pursuant to Minn. Stat. ' 176.135, Roraff and Irwin v. Surdyk=s Liquor, et al.^[3]  In his statement of attorney fees, the attorney itemized his work and hours spent between February 11, 2003, through May 27, 2004, during his representation of the employee.  He itemized a total of 38.2 hours and a total fee of $7,474.00.  At the time of the hearing, the employee=s attorney claimed $6,279.62, which he arrived at by subtracting the awarded contingency fees from his total itemized fee ($7,474.00 - $1,194.38 = $6,279.62).  The employee=s attorney also stipulated that he would exclude, from his fee claim, 1.1 hours spent pursuing medical treatment expenses that ultimately were denied.

 

The employer and insurer objected to the claimed attorney fees, contending in their objection that the employee succeeded in obtaining only a portion of his claimed benefits, and that any award of Roraff/Irwin fees should be reduced to reflect the extent to which the employee was successful in his claims for benefits.  The employer also objected generally to the claimed fees, arguing that the individual time entered for the services performed did not accurately reflect the time expended, and that a portion of the work performed could have been accomplished by legal staff as  opposed to an attorney.

 

A hearing on attorney fees was held before the same compensation judge on October 25, 2004.  In findings and order served and filed on December 22, 2004, the compensation judge awarded attorney fees in the amount of $3,000.00.  The employee=s attorney appeals from that award.

 

DECISION

 

In Roraff v. State, Dep=t of Transp.,^[4] the Minnesota Supreme Court interpreted Minn. Stat. '176.135 to allow for reasonable attorney fees to be paid by an employer and insurer in a proceeding related solely to the recovery of medical expenses.  Subsequent cases expanded that holding to allow for payment of attorney fees in cases where both medical expenses and wage and permanency benefits were payable if medical expenses were of primary importance or a central issue and it was clear that the contingent fees alone would not reasonably compensate the employee=s attorney for the services provided.^[5]

 

In the Irwin case, the supreme court further addressed the analysis required for determining the amount of reasonable attorney fees in cases involving medical disputes.  That determination is to be based upon the statutory guidelines on fees and factors including Athe amount involved, the time and expense necessary to prepare for trial, the responsibility assumed by counsel, the experience of counsel, the difficulties of the issues, the nature of the proof involved, and the results obtained.@^[6]  The express purpose of the Irwin decision is to afford a reasonable fee to an attorney for legal services provided to the employee.^[7]  A reasonable attorney fee may not be based solely on a simple mathematical calculation of the time expended or the hourly rate, as the time necessary to prepare for trial is but one of the Irwin factors.  Rather, a reasonable fee must be determined based on all seven of the Irwin factors.

 

In this case, the compensation judge concluded that the contingency attorney fee awarded in this case Awas an inadequate fee for the services provided on the employee=s behalf in this claim.@  However, the judge did not award the entire fee claimed by the employee=s attorney, and instead awarded a fee of $3,000, after making specific factual findings regarding the Irwin factors, including those outlined below:

 

$                   The time itemized in the fee petition accurately reflects the actual time spent by the employee=s attorney performing the services listed;

 

$                   The responsibility assumed by counsel was to prove primary liability and the medical causation of the employee=s left shoulder and neck conditions, in order to establish entitlement to payment of treatment expenses and wage loss benefits;

 

$                   The employee=s attorney has approximately 16 years= experience in the workers= compensation field;

 

$                   The proof necessary to establish primary liability was straightforward and not complex, and was based mainly on the employee=s testimony and submission of medical records;

 

$                   The attorney=s representation of the employee resulted in a determination of work-related injuries, found to be temporary in nature, and therefore a portion of the employee=s claim was deemed to be compensable;

 

$                   The time spent by the attorney in preparing and trying the case was reasonable.

 

In her memorandum, the compensation judge further explained her analysis of the Irwin factors necessary for a determination of attorney fees.   She stated that,

 

Although [the employee=s attorney] established that the employee had sustained work related injuries, the injuries were found to be temporary aggravations that resolved.  Thus, the employee=s entitlement to ongoing disability benefits and reimbursement of all treatment expenses, as well as future treatment expenses, was not established.  The issues presented were not particularly difficult or unusual and did not require complicated or extensive expert medical opinion.  The results obtained by [the employee=s attorney] were fair. In consideration of the facts and outcome of the employee=s claims, and the Irwin factors noted in the Findings, the compensation judge finds that a reasonable attorney fee in this case is $3,000.00.  (Memo., p. 4.)

 

The employee=s attorney argues that, although the compensation judge analyzed the Irwin factors and applied them to this case, her award of fees is based upon a clearly erroneous conclusion, in view of the record.  The employee=s attorney argues that the compensation judge apparently adopted the employer and insurer=s suggestion at the hearing that any award of Roraff/Irwin fees Ashould be reflective of the successfulness of the claims made by the employee.@ (T. 35.)  Citing to Stark v. Heritage Communications,^[8] the employee=s attorney argues that the amount of fees awarded should not bear any proportionate relationship to the awarded claims, and that the fees should not have been reduced because less than the total claim for medical benefits was recovered.  In Stark, this court held that:

 

we find no basis in case law or elsewhere for concluding that an employee=s attorney=s entitlement to a reasonable Roraff fee for successful and necessary work recovering medical benefits due his client, payable by the employer and insurer, should be in any way conditioned upon the proportionate relationship between those owed benefits and other benefits found to be not owed.

 

While this is true, neither should a mathematical formula be applied without further analysis of the Irwin factors.  For example, in Borgan v. Bob Hegland, Inc.,^[9] this court cautioned that Aa determination of a claim for Roraff/Heaton fees is not merely a matter of multiplying the attorney=s hourly rate times the amount of time spent on the case less the contingent fee awarded.@  Rather, the issue is what fee is reasonable, taking into consideration the Irwin factors.  Each case is dependent on its particular facts.^[10]  In this case, the compensation judge determined that a lesser amount than the total claimed was appropriate in view of her application of the Irwin factors, and we cannot conclude that the fee award was based simply on a proportionate amount of benefits claimed.

 

The employee=s attorney also argues that because the compensation judge found that all his time spent preparing and trying the case was Areasonable,@ by inference, none of his time was  Aexcessive.@  He further argues that, given the judge=s finding of Areasonableness,@ less emphasis should be placed upon those Irwin factors that refer to the difficulties of the issues involved in the case and the nature of proof needed to be adduced.  In this case, the compensation judge found that  the issues presented were not particularly difficult or unusual and did not require complicated or extensive expert medical opinion.  The employee=s attorney argues that if the issues had been more complicated, the time required for representation would have been more extensive and likely would have exceeded his itemized 38.2 hours.

 

A determination of the amount of Roraff fees awarded in a particular case lies within the discretion of the compensation judge.  Neumann v. Graceville Health Ctr.^[11]   Because 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 such an award, this court will not reverse a compensation judge=s award or denial of attorney fees absent an abuse of discretion.  AThe compensation judge abuses his or her discretion only when the award of fees is based upon a clearly erroneous conclusion given the record.@  Lucking v. EPC Loudon-Crookson Plastic Molding Corp.^[12] That discretion is not, however, unfettered.^[13]

 

In this case, the compensation judge reviewed the Irwin factors as they apply to the unique facts of this case, and thoroughly outlined her reasoning in her findings and order.  Based upon our review of the files and records herein, we conclude the compensation judge=s review of the Irwin factors was reasonable and not an abuse of her discretion.  Accordingly, the award of Roraff fees of $3,000.00 is affirmed.