The employee appeals from the compensation judge's award of only $500.00 in Roraff attorney fees.^[1]  We affirm.

On November 1, 1999, Margaret Coffing [the employee] sustained a Gillette-type injury^2[] to her upper extremities, shoulders, and neck in the course of her work as a baker and second cook for Independent School District No. 194 [the employer].^[3]  The employee was sixty years old on that date and was earning a weekly wage of $399.00 for a nearly full-time work week.  The employer was ultimately unable to offer light-duty work to the employee within her restrictions, and, after working first as a babysitter from about October 2000 through mid July 2002, the employee took a part-time position doing light-duty work as a stock clerk at a department store.  On November 6, 2002, she filed a claim petition, alleging entitlement to temporary partial disability benefits from October 30, 2000, through July 19, 2002, to compensation for a 3.5% whole-body impairment to her cervical spine, and to various medical benefits, all consequent to her work injury.  After a hearing on June 5, 2003, and by findings and order issued July 25, 2003, Compensation Judge Cheryl LeClair-Sommer concluded in part that the employee had not proven either her permanent partial disability claim or that her part-time earnings at the department store sufficiently represented her earning capacity to entitle her to wage replacement, “considering the lack of effort to seek additional part-time or alternate full-time employment.”  No appeal was taken from Judge LeClair-Sommer’s findings and order.

Following the hearing before Judge LeClair-Sommer, the employer and insurer agreed to provide rehabilitation services to the employee, who had not had the assistance of a qualified rehabilitation consultant [QRC] prior to the hearing.  The employee continued to work at her part-time stock-clerk job while also receiving QRC assistance, and on September 3, 2003, she filed another claim petition, alleging entitlement again to compensation for a 3.5% whole-body impairment and now to compensation for temporary partial disability continuing from June 6, 2003, the day after the hearing before Judge LeClair-Sommer.  A hearing was subsequently held on November 17, 2003, regarding the employee’s attorney’s claim for fees related to his work on several previous litigations for the employee in this matter, pursuant to which, by findings and order filed January 15, 2004, the employee’s attorney was awarded $2,000.00 in Roraff fees for his work in obtaining payment of medical expenses.

On October 29, 2004, the employee’s treating physician, neurologist Dr. Jack Hubbard, testified by deposition, in part that, while the employee did not have objective clinical findings relative to her cervical spine, the employee did have objective findings of myofascial trigger points in her arms, where most of her symptoms were located.  Dr. Hubbard testified further that, while it did not strictly correlate to a category in the permanent partial disability schedules, the employee’s forearm condition did resemble the cervical pain syndrome categorized at Minnesota Rules 5223.0370, subpart 3B, where that condition is assigned a permanency rating of 3.5% of the whole body.  Dr. Hubbard opined further that, while she could probably work full time at a job more clearly within her restrictions, the employee should limit her hours of work at the department store, where she repetitively used her arms, to six per day or thirty per week.

The matter of the employee’s September 3, 2003, claim petition eventually came on for hearing on December 10, 2004, this time before Compensation Judge Jennifer Patterson.  The first issue before Judge Patterson was the employee’s right to relitigate issues of her permanent partial disability and her restriction to less than full time work beginning June 6, 2003, which the employer and insurer contended were barred by the doctrine of res judicata because already fully litigated in the June 5, 2003, proceeding before Judge LeClair-Sommer.  Also at issue were the employee’s entitlement to permanency and wage replacement benefits on the merits, the necessity of physical therapy that she had received in early 2004 for a flare-up of symptoms in late 2003, and whether or not rehabilitation services should be discontinued on grounds that further work search was likely to be futile.

By findings and order filed January 24, 2005, the employee was awarded compensation for a permanent partial disability to 3.5% of her whole body pursuant to a Weber rating,^[4] in part “[a]s supported by Dr. Hubbard’s testimony.”  The judge also awarded compensation for a temporary partial disability based on the employee’s actual earnings between June 6, 2003, through the date of hearing, based in part on “Dr. Hubbard’s restriction of the employee to performing [her] work 30 hours per week” and “Dr. Hubbard’s general limitation of working 6 hours per day maximum at” her job.  Finally, the judge also awarded payment for the 2004 course of physical therapy at issue, which the judge found “reasonable for Dr. Hubbard to prescribe.”  Contrary to the employee’s request, however, the judge concluded that rehabilitation assistance should continue “because the employee has not carried the burden of showing that further job search is likely to be futile.”  With regard to res judicata as applied to the employee’s permanency claim, the judge indicated in her memorandum that, while Judge LeClair-Sommer’s July 2003 findings and order were res judicata with respect to any claims for permanency referable to the employee’s neck, the employee’s current permanency claim was not precluded because it was for benefits referable to the employee’s forearm condition, a condition not at issue before Judge LeClair-Sommer on June 5, 2003.  Implicit in Judge Patterson’s award of wage replacement benefits was a conclusion that the employee’s entitlement to benefits in the period since the hearing before Judge LeClair-Sommer in June of 2003 was subject to evidence, including evidence of both restrictions and job search, different from the evidence applicable prior to June of 2003.  See Sjerven v. Strite-Anderson Mfg., 45 W.C.D. 469, 472 (W.C.C.A. 1991) (determinations as to an employee's medical restrictions, the diligence of an employee's job search, and an employee's earning capacity are generally considered res judicata "only with respect to the period considered in the former hearing").  The employer and insurer appealed to this court for review of Judge Patterson’s findings and order, and this court affirmed those findings and order by a decision filed September 13, 2005.

On October 5, 2005, the employee’s attorney, Arnold Bellis, wrote to counsel for the employer and insurer, outlining over $13,000.00 in monetary benefits owed to the employee and over $3,000.00 owed to him as her attorney, pursuant to this court’s September 13, 2005, affirmance of Judge Patterson’s findings and order.  About a week later, on October 14, 2005, Mr. Bellis wrote to the Workers’ Compensation Division at the Department of Labor and Industry, complaining that the employer and insurer had so far paid only a small portion of the benefits affirmed a month earlier as payable.  The employer and insurer had evidently suggested to Mr. Bellis that they had already compensated the employee for nearly three-fourths of her whole-body impairment and intended to pay wage replacement benefits only through the date of the December 10, 2004, hearing before Judge Patterson.  On October 18, 2005, Mr. Bellis filed an objection to any discontinuance on those grounds,^[5] asserting also a claim for penalties pursuant to Minnesota Statutes section 176.194, subdivision 3(7), and Minnesota Statutes section 176.225, subdivisions 1(b), (c), (d), and (f).

On October 26, 2005, the employer and insurer filed a notice of intention to discontinue benefits, indicating that, upon receipt of actual wage slips, past due temporary partial disability benefits would be paid through June 20, 2005, asserting that ever since that date any temporary disability of the employee had been due to restrictions related to a superseding knee injury.  The following day, they filed also a rehabilitation request, seeking termination of the employee’s rehabilitation plan.  On November 1, 2005, Mr. Bellis wrote to counsel for the employer and insurer, enclosing supplemental documentation of the employee’s claim to still-withheld benefits, together with documentation to support his own claim for additional attorney fees.  A week later, on November 8, 2005, he wrote again to the Division, requesting that his October 14, 2005, objection to discontinuance be “consolidated in response to the employer/insurer’s recent formal notice to discontinue.”  On November 10, 2005, he filed a rehabilitation response, contesting termination of the employee’s rehabilitation plan.  On November 30, 2005, he wrote to opposing counsel again, again reiterating and detailing his and the employee’s claims for payment of outstanding benefits and attorney fees.

On December 16, 2005, in part in response to a letter from Mr. Bellis on December 9, 2005, Judge Patterson filed an “order denying motion to expand issues,” providing in part that “all issues regarding penalties, underpayments and attorney fees . . . will only be considered after a Claim Petition, a Petition for Attorney Fees, or both are properly served, filed and pending.”  On January 5, 2006, Mr. Bellis wrote again to opposing counsel, again identifying outstanding amounts still owed to his client and to him and enclosing an updated wage loss schedule and copies of the employee’s recent pay stubs.

On January 6, 2006, pursuant to Judge Patterson’s order of December 9, 2005, Mr. Bellis filed a claim petition “concerning expanded issues,” together with a statement of attorney fees.  The claim petition alleged entitlement to various wage replacement and permanent partial disability benefits and penalties.  The only claim for rehabilitation benefits was for “[r]ehabilitation benefits claimed by employee and agreed to by the employer and insurer after June 2003,” with a note that, “[i]n her decision of 01/24/2005, Judge Patterson noted that [employer’s expert] QRC Russell testified that rehabilitation services to the employee should continue,” Judge Patterson having denied in her decision the employee’s request for termination of rehabilitation.  The statement of attorney fees asserted entitlement to a total of $14,452.68 in fees, itemized as follows:  $1,972.39 in contingent fees already paid for work in recovery of wage loss benefits, $525.00 in contingent fees already paid for work in recovery of permanency benefits, $1,000.00 in fees already paid upon order of this court for his work in prevailing on appeal, $849.04 in contingent fees still to be paid for work on wage loss recovery, and $10,106.25 in additional fees pursuant to Roraff v. State, Department of Transportation, based on his own records of time that he had actually spent in representation of the employee.  In his statement, Mr. Bellis also asserted possible entitlement to unspecified fees for work at resolving non-monetary medical or rehabilitation issues under Minnesota Statutes section 176.081, subdivision 1(a)(2), “[t]o be determined at 01/12/2006 hearing.”  In his statement he also applied for reimbursement to the employee of $149.88 pursuant to Minnesota Statutes section 176.081, subdivision 7, for contingent fees paid between October 23 and December 17, 2005.  In the statement, Mr. Bellis identified the total $14,452.68 figure as being in excess of the limitations established in Minnesota Statutes section 176.081, subdivision 1, and so subject to provisions established by the supreme court in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).  On January 20, 2006, the judge ordered that the employee’s October 2005 objection to discontinuance, rehabilitation request, and attorney fee petition be consolidated and, pursuant to evidence that had come to light at a pretrial conference on January 12, 2006, that rehabilitation be suspended as of the date of the conference, subject to reinstatement.  On March 30, 2006, Mr. Bellis wrote to Judge Patterson, informing her that, except for the matter of his claim to Roraff fees, all matters pending at the time of the January 12, 2006, pretrial before her had been resolved, and he requested certification of the attorney fee matter for hearing.

The attorney fees matter came on for hearing before Judge Patterson on May 31, 2006.  Issues at hearing included whether or not this was an appropriate case for an award of “excess fees or Roraff fees with respect to medical issues and Heaton fees^[6] with respect to rehabilitation issues” and, “if so, what Roraff, Heaton and excess fees are reasonable to compensate the employee’s attorney for legal services provided in connection with issues in dispute from June 6, 2003 on.”  At the hearing, the parties stipulated that Mr. Bellis’s compensation rates of $150 an hour for work performed through December 10, 2004, and of $175 an hour for work performed in 2005 were reasonable.  By Finding 2A of her July 20, 2006, findings and order on attorney’s fees, the compensation judge indicated that the parties had also stipulated at hearing that Mr. Bellis had been paid $4,576.53 in contingent fees since June 6, 2003.^[7]  At Item C of that same uncontested Finding 2, the compensation judge indicated that the parties had stipulated also that the judge had no jurisdiction to award attorney fees for appellate legal services and that therefore Mr. Bellis had amended his claim for Roraff and Heaton fees “from $10,206.45 [sic] to $8,606.25,” apparently to erase a claim for additional appellate fees related to actual hours spent on appellate work.^[8]  At uncontested Finding 3, the judge concluded further that, at the employee’s earlier, December 2004, hearing before her, the employee had been successful in proving entitlement to compensation for a 3.5% permanent partial disability, to compensation for temporary partial disability based upon her actual earnings continuing from June 6, 2003, and to payment for a “single course of physical therapy in 2003,”^[9] which the judge noted in that same finding to be “[t]he only medical issue in dispute” and “relatively minor.”

With regard to matters here contested on appeal, Judge Patterson concluded in part at Finding 4 of her findings and order that, “[s]ince the employee did not prevail on any of the rehabilitation issues in dispute from August 2003 on, this is not an appropriate case for an award of Heaton fees.”  At contested Finding 5, the judge concluded that the course of physical therapy that she had earlier identified as the sole medical issue in dispute “involved a fairly small medical bill and a factual issue of no more than average difficulty” for which $500.00 was a reasonable attorney fee.  At contested Finding 8, the judge concluded further that the indemnity “issues in this case were not unusually difficult or complex, but rather presented typical fact issues,” rendering this “not an appropriate case for an award of excess fees.”  And finally, at contested Finding 9, the judge concluded that “[t]he $4,576.53 contingent fee already paid is adequate to compensate the employee’s attorney for obtaining $2,625.00 in permanent partial and about $14,000 in temporary partial disability benefits for his client.”  The employee appeals, asserting also, although she didn’t enumerate Finding 2 as contested in her notice of appeal, that Mr. Bellis’s attorney fee claim remained for $10,106.25, rather than for $8,606.25 as indicated in Finding 2.

In reviewing cases 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 (1992).  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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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.  Id.

By the time of the May 31, 2006, hearing in this matter, Mr. Bellis had already been paid all contingent fees owed him for work recovering wage loss and permanency benefits for the employee, together with a $1,000.00 fee awarded by this court in its September 13, 2005, decision, for Mr. Bellis’s work prevailing on the employer and insurer’s appeal from Judge Patterson’s January 24, 2005, findings and order.  Mr. Bellis argued at that time that he had performed work substantially more valuable than the amounts he had been paid, much of that work having been of an unascertainable value because performed primarily in collection of amounts already awarded.  Minnesota Statutes section 176.081 provides that the statutory contingent fee formula for determining an attorney’s compensation for recovery of monetary benefits “is presumed to be adequate to cover recovery [also] of medical or rehabilitation benefits currently in dispute.”  Minn. Stat. § 176.081, subd. 1(a)(1).  “[I]f the attorney establishes that the contingent fee is inadequate to reasonably compensate the attorney for representing the employee in the medical or rehabilitation dispute,” the statutory formula is to be applied to “the dollar value of the medical or rehabilitation benefits awarded, where ascertainable.”  Id.  Having concluded in unappealed Finding 3 that “[t]he only medical issue in dispute was relatively minor and involved the employee’s claim that she needed a single course of physical therapy,” the compensation judge awarded Mr. Bellis, in addition to his statutory contingent fee on monetary benefits, $500.00 rather than the greater amount to which he claimed entitlement based on his records of time actually spent on the case.  On appeal, Mr. Bellis contends that the judge erred in her award, that he is entitled instead to “Roraff / Heaton” fees in the amount of $10,106.25, in addition to the $4,576.53 that he has already been paid in appellate and contingent fees.  He argues that the judge erred (1) by determining the fee without considering “in any way” the October 29, 2004, deposition testimony of Dr. Hubbard and (2) by not applying the factors outlined in Irwin v. Surdyk’s Liquor for determining a reasonable attorney fee under the circumstances.  We are not persuaded.

At the outset, we would note that we see this case to be a solely Roraff case, not a “Roraff/Heaton” case.  At Finding 4 the compensation judge concluded that this was not an appropriate case for an award of Heaton fees “[s]ince the employee did not prevail on any of the rehabilitation issues in dispute from August 2003 on,” and Mr. Bellis makes little argument to the contrary - - and then only unpersuasively.  Near the end of his brief, just before his conclusion, Mr. Bellis asserts, “We claim Heaton fees because we established the employee’s right to rehabilitation benefits awarded by Judge Patterson, which had previously been denied by Judge LeClair[-]Sommer[].”  Judge Patterson’s “award” of rehabilitation benefits, however, was merely an order - - contrary to the position of the employee at the time - - that rehabilitation benefits be continued, having been apparently voluntarily agreed upon immediately after the hearing before Judge LeClair-Sommer.  Mr. Bellis did not prevail before Judge Patterson in “establish[ing] the employee’s right to rehabilitation benefits”; in fact, it was the employer and insurer who did so.

With regard to the Roraff fee issue, we note that, at Finding 1 of her July 20, 2006, findings and order on attorney fees, Compensation Judge Patterson adopted by reference, “as though set forth verbatim herein,” both her own January 24, 2005, findings and order in this matter and this court’s September 13, 2005, decision affirming that January 2005 findings and order.  Both of those decisions are also clearly included among exhibits submitted into evidence at the hearing below.  In her January 24, 2005, findings and order and accompanying memorandum, in evidence here as Petitioner’s Exhibit A, Judge Patterson herself references the treatment, restrictions, recommendations, and opinions of Dr. Hubbard by name no fewer than sixteen times, six of those references being specifically to Dr. Hubbard’s actual testimony.  In this court’s September 13, 2005, decision, in evidence here as Petitioner’s Exhibit C, we referenced Dr. Hubbard by name no fewer than five times, our principal reference being to the doctor’s formal testimony.  Mr. Bellis argues that “[t]he doctor’s deposition played a pivotal role in the hearing before Judge Patterson on December 10, 2004,” but that, in concluding, as she did in Finding 3, that the only medical issue in dispute at the December 2004 proceeding “was relatively minor,”^[10] the judge “forgot that Dr. Hubbard’s medical deposition was on file.”  Moreover, he contends, “[i]f the Compensation Judge had reviewed the W.C.C.A.’s Decision it might have jolted her memory in connection with Dr. Hubbard’s deposition.”  In addressing this issue in his brief, Mr. Bellis argues that the employer and insurer’s cross examination of Dr. Hubbard was particularly rigorous and that preparing the doctor for his deposition was particularly demanding.  Later in his brief, Mr. Bellis argues further that Judge Patterson’s own January 24, 2005, findings and order identify eight different issues for litigation, virtually all of which, he contends, depended for determination upon Dr. Hubbard’s opinions.  He argues further that, had he not prevailed on the medical issues addressed by Dr. Hubbard in his testimony, Blue Cross would never have been eligible to recoup the $1,644.10 that it had paid for the employee’s medical treatment.

In addressing this same issue in his brief, Mr. Bellis also lists numerous other aspects of the case less directly related to Dr. Hubbard’s testimony, aspects that he suggests also resulted in unusual obligations for him.  He argues, for instance, that he was instrumental in compelling payment of $1,644.10 in medical expenses awarded but still-unpaid as late as February 1, 2006, over four months subsequent to this court’s September 2005 affirmance of Judge Patterson’s award.  He argues that he has been obliged to file not just one but a second and a third claim petition for wage loss, permanency, and medical benefits, beginning in June of 2003.  He suggests that the eight-month delay caused by the employer and insurer’s appeal in this case imposed a further burden on him and that the merits of that appeal itself required additional work to defend.  He suggests that further work was required to address the employer and insurer’s “retroactive notice of discontinuance” (underscoring in original), which Mr. Bellis argues was without proper notice of intention to discontinue, after the employer and insurer’s failure to pay wage loss benefits due since December 10, 2004.  He argues that, because the employer and insurer were not paying benefits as ordered, the judge also required the employee to file her expanded and amended claim petition, which did prompt negotiation of payment but also “required substantial time” of Mr. Bellis.  Mr. Bellis concludes his argument on this issue as follows:

After a very thorough review of the entire record in this case, and acknowledging that Mr. Bellis’s participation in it has been more than attentive, we see, in the end, no basis for concluding that the compensation judge was somehow oblivious either of the medical complexity of the case or of the impact on the case of the testimony of a medical expert whom she herself cited sixteen times in her January 24, 2005, findings and order.  The only issue in a Roraff case such as this is the relative value and difficulty of the medical benefits issue, nor was there any issue before the judge as to penalties for unreasonable delay in payment of benefits, all issues other than attorney fees pending at the time of the January 12, 2006, pretrial conference having been resolved prior to hearing.  That the employer and insurer had contested the employee’s claim as zealously as appeared practical to them was clearly their prerogative.

In Irwin v. Surdyk’s Liquor, the supreme court held that, in determining a reasonable attorney fee, a court should consider not only the statutory guidelines but also “the 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.”  Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 142, 59 W.C.D. 319, 336 (Minn. 1999).  Mr. Bellis notes that the judge’s July 30, 2006, findings and order on attorney fees makes no reference to the Irwin case.  He contends that the judge should have applied the seven so-called “Irwin factors” to arrive at a reasonable fee but did not do so.  Had she done so, he argues, the judge would “have awarded Roraff fees of $10,106.25 because the services the undersigned rendered in this matter are supported by our time records.”  We are not persuaded.

  At Finding 5 of her findings and order, Judge Patterson concluded as follows:

  Judge Patterson articulated the nature of contingent fees astutely in the first paragraph of her memorandum:

Any attorney who represents an employee on issues where a contingent fee can be claimed under Minn. Stat. § 176.081, Subd. 1, takes the risk that the final contingent fee may result in an attorney fee that is either much more, or much less, than would have been earned with a straight hourly fee.  Where a case is quickly resolved, a petitioner’s attorney can make several times his or her usual hourly rate.  Where a case involves protracted litigation and delay, and the maximum claim for weekly disability benefits involves either a short time span or a modest total dollar value, or the employee does not fully prevail, the contingent fee may be far less than an hourly charge would have been.  This is the nature of contingent fees.

What constitutes a reasonable attorney fee for recoupment of medical and related benefits is a factual issue subject to the discretion of the factfinder.  Neuman v. Graceville Health Ctr., 52 W.C.D. 194, 198 (W.C.C.A. 1994), citing Roraff generally.  Moreover, contrary to Mr. Bellis’s apparent presumption, “[d]etermining a reasonable Roraff fee is not merely a matter of multiplying the attorney’s hourly rate by the amount of time spent on the case.”  Corbett v. IPSCO MN, Inc., slip op. (W.C.C.A. Mar. 4, 2004), citing Borgan v. Bob Hegland, Inc., slip op. (W.C.C.A. Jun. 12, 2002).  In this case, as in most, the compensation judge who had worked with the parties and their attorneys as they worked through litigation of the matters at issue had a unique vantage point from which to assess the complexity and the amount of the work necessary to accomplish resolution of the dispute.  In light of all of the evidence in the case, we cannot conclude that the compensation judge’s decision limiting Mr. Bellis’s Roraff fee award to $500.00 was unreasonable either for any failure to properly contemplate the testimony of Dr. Hubbard or for nonapplication or misapplication of the “Irwin factors.”  Therefore we affirm that decision.  Cf.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.  Nor will we assume any authority, as requested by Mr. Bellis, to increase Mr. Bellis’s award for his work on appeal before this court by any amount in excess of the standard $1,000.00 that we have already awarded under our current policy, as authorized under Minnesota Statutes section 176.511, subdivision 3.^[11]