The employer and insurer appeal from the compensation judge’s order awarding the employee’s attorney $12,578.74 in contingent and Roraff attorney fees^[1] for the recovery of medical benefits.  Counsel for the employee cross-appeals the compensation judge’s denial of his request for attorney fees in the amount of $33,740.00.  We affirm.

The employee, Curtis B. Braatz, worked as a journeyman electrician for Parsons Electric Company.  During the summer of 2007, the employee was engaged in a job he described as extremely physically demanding.  In early July, the employee began to experience low back symptoms radiating into his buttock and down his leg.  He was seen by a neurologist, and an MRI scan confirmed a herniated disc.  On August 26, 2007, the employee gave notice to the employer of a Gillette-type injury on or about July 6, 2007.^[2]  The employer and insurer denied primary liability and refused to pay his medical expenses.  The employee retained counsel in September 2007, and medical records and reports were obtained.

The employee filed a Claim Petition on July 31, 2009, seeking temporary total disability benefits from and after August 18, 2007.  The employer and insurer again denied primary liability, asserting that any disability arose from non-work-related causes.  Discovery was initiated, including an independent medical examination, taking of the employee’s deposition, and requests by the employer and insurer for medical authorizations.  On November 5, 2009, the employee filed a Medical Request seeking payment of bills with Noran Neurological Clinic.  The employer and insurer denied primary liability and further asserted the employee’s need for treatment was related to a 2004 motor vehicle accident.  In February 2010, the employee filed an Amended Claim Petition seeking payment of all outstanding medical expenses.  An Amended Medical Request was filed in March 2010 identifying additional medical providers.  The Claim Petition was amended a third time in April 2010, itemizing $32,940.00 in medical expenses.

Between November 2009 and August 2010, six medical providers and a third-party medical payor intervened.  The employer and insurer denied primary liability and asserted the claimed medical expenses were not causally related to the July 6, 2007 injury.  Further discovery ensued, including a second independent medical examination, a deposition of the employee’s physician, and multiple motions on the part of the employer and insurer to compel discovery.  In each instance, a compensation judge ordered counsel for the employee to produce the documents sought.

A hearing was scheduled before a compensation judge on September 9, 2010.  Prior to trial, the parties requested a continuance as discovery had not been completed.  The compensation judge ordered the matter stricken from the trial calendar and provided for reinstatement upon the filing of a joint certificate of readiness.  On October 26, 2010, the employee filed a Certificate of Readiness.  The employer and insurer objected, stating they did not agree the matter was ready for trial.  The compensation judge issued an order denying reinstatement, stating the parties had not filed a joint certificate and it appeared there were outstanding discovery issues.  A second Certificate of Readiness was filed by the employee on May 17, 2011.  The employer and insurer again objected, and on November 28, 2011, the compensation judge denied reinstatement, stating the certificate had not been signed by all counsel.  The matter remained stricken from the calendar.

On March 9, 2012, a Notice of Pending Dismissal was issued, stating the case would be dismissed unless a request for reinstatement was received within 60 days.  Counsel for the employee filed a motion to reinstate in May 2012, and the matter was scheduled for hearing on October 30, 2012.  At the hearing, the issues presented were limited to primary liability for the employee’s disability and the reasonableness and necessity for, and causal relationship of, the employee’s unpaid medical expenses.^[3]  The compensation judge issued a Findings and Order on December 18, 2012, finding that the employee had sustained a Gillette injury to his lumbar spine culminating on or about July 6, 2007, and that the disputed medical treatment was reasonable, necessary, and causally related to the July 6, 2007 injury.

On February 19, 2013, counsel for the employee filed a Statement of Attorney Fees seeking $33,740.00 in attorney fees based upon 96.4 hours of time billed at $350.00 per hour.  The employer and insurer objected, denying any liability for Roraff fees and asserting the fees claimed were excessive, inappropriate, and unreasonable.  In response, counsel for the employee served a subpoena on the insurer, on April 3, 2013, seeking any and all time records, billings, and calculations or tabulations of time spent by counsel for the employer and insurer in the matter.  The employer and insurer filed a motion to quash the subpoena which was granted by the compensation judge at the outset of the hearing on attorney fees on April 12, 2013.

In a Findings and Order on Attorney Fees, served and filed April 16, 2013, the compensation judge found the dollar value of the medical expenses recovered was $11,893.69, and a contingent fee of $2,578.74 was awarded on this amount, pursuant to Minn. Stat. § 176.081, subd. 1(a)(1).  The judge further concluded there was no current stream of indemnity benefits from which contingent fees were payable, that no attorney fees were being withheld by the employer and insurer, and that no attorney fees previously had been paid.  The judge found the contingent fees payable relative to the disputed medical expenses were inadequate to compensate the employee’s counsel for his representation of the employee, and that counsel was entitled to excess attorney fees pursuant to Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).  Finally, the compensation judge found a reasonable Roraff/Irwin attorney fee was $10,000.00.  The employer and insurer appeal from the award of additional Roraff attorney fees.  The employee appeals from the compensation judge’s denial of the full $33,740.00 in attorney fees claimed.  We affirm.

Attorney fees for the recovery of medical expenses may be assessed against an employer and insurer if the employee’s attorney establishes that the contingent fee on indemnity benefits “is inadequate to reasonably compensate the attorney for representing the employee in the medical . . . dispute.”  Minn. Stat. § 176.081, subd. 1(a)(1).  In Irwin v. Surdyk’s Liquor, 599 N.W.2d at 142, 59 W.C.D. at 336, the supreme court held a reasonable attorney fee in cases involving medical disputes is to be determined by applying the statutory guidelines along with consideration of “the amount involved, the experience of counsel, the responsibility assumed by counsel, the time and expense necessary to prepare for trial, the difficulty of the issues, the nature of the proof involved, and the results obtained.”

A determination of the amount of Roraff fees awarded in a particular case lies within the discretion of the compensation judge.  Because each case is factually unique, this court will defer to the judgment of the compensation judge who presided at the hearing.  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.  Jeffrey v. Banana Republic, 67 W.C.D. 246, 250 (W.C.C.A. 2007); Dimon v. Metz Baking, 64 W.C.D. 143, 147 (W.C.C.A. 2003).  “The 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., slip op. (W.C.C.A. Sept. 26, 2001.)

The employer and insurer argue that Minn. Stat. § 176.081, subd. 1(a)(3), precludes an award of Roraff attorney fees on the facts of this case, asserting the employee had claims for indemnity benefits from which contingency fees could have been paid, but dropped the claims just prior to the hearing.  The employee’s initial claim petition sought temporary total disability benefits from and after August 2007.  The subsequent amendments to the claim petition addressed solely claims for medical expenses.^[4]  From the beginning, the employer and insurer denied primary liability for the injury and disputed medical causation.  A hearing on the matter was scheduled on Tuesday, October 30, 2012.  On Friday, October 26, 2012, counsel for the employee advised counsel for the employer and insurer that he intended to try only the issues of primary liability, medical causation, and the reasonableness and necessity of the claimed medical expenses.

Minn. Stat. § 176.081, subd. 1(a)(3), provides that

Counsel for the employer and insurer contend the language of the statute is plain and unambiguous, requiring that all disputed claims be heard concurrently.  We disagree.  The statute requires only that the attorney concurrently “file” all outstanding disputed issues.  The focus of the dispute may change and trial strategy may be revised during the course of pre-trial litigation.  We do not read the statute to mandate that all potential claims for benefits must be tried together regardless of the circumstances.  While we do not condone separation for trial of medical expense claims from other viable benefit claims as a general rule, the employee’s attorney retains discretion to determine how best to represent his or her client within his or her professional obligations to the client.

We additionally note that Minn. Stat. § 176.081, subd. 1(a)(3), is prospective in effect, precluding an attorney only from collecting attorney fees for issues that “could reasonably have been,” but were not, raised in an earlier proceeding.  Compare, e.g., Nguyen v. Audio Commc’ns, 814 N.W.2d 9, 12, 72 W.C.D. 229, 233-34 (Minn. 2012).

While not directly on point, this court has addressed similar arguments in a number of cases.  In each instance, this court has held the employee’s attorney has no claim for contingent fees on an as yet prospective benefit award.  The issue of what benefits are genuinely in dispute is generally determined at the time of an award.  Crowley v. Plehal Blacktopping, Inc., 66 W.C.D. 11, 17 (W.C.C.A. 2005).  In this case, the only benefits in dispute at the December 2012 hearing were medical benefits.

Implicit in the employer and insurer’s argument is the conclusion that indemnity benefits will be due.  Any entitlement to wage loss benefits is entirely speculative at this point in time, as is the possibility or potential for a dispute over the payment of any benefits that may or may not be subsequently claimed.  The existence of a potential claim for wage loss benefits, and the resulting potential for future contingent attorney fees, is irrelevant to the issue of whether an employee’s attorney is entitled to Roraff fees for services already performed.  The employee’s attorney will only obtain future attorney fees if there is a claim, if the claim is disputed, and if the employee prevails on such a claim.  Compare, e.g., Irwin, 599 N.W.2d at 143, 59 W.C.D. at 337-38; Turan v. Park Constr., 61 W.C.D. 602 (W.C.C.A. 2001); Kelley v. Inter Faith Care Ctr., slip op. (W.C.C.A. Dec. 16, 2003); Archibald v. Metropolitan Mech. Contractors, slip op. (W.C.C.A. Aug. 27, 2002); Engstrom v. Ultra Pac, Inc., slip op. (W.C.C.A. Mar. 16, 1999).

The employer and insurer contend counsel for the employee effectively “capped” the contingency fee on indemnity benefits by removing indemnity benefits from consideration just prior to the hearing, citing Dorr v. National Marrow Donor Program, No. WC11-5278 (W.C.C.A. Jan. 5, 2012).  In Dorr, the employer and insurer paid to the employee approximately $1.8 million in permanent total and permanent partial disability benefits, rehabilitation services, and medical expenses.  Ongoing permanent total and permanent partial benefits were being paid as well, from which attorney fees were being withheld by the employer and insurer.  The attorney sought $13,000.00 in contingent fees and $26,000.00 in excess fees on indemnity benefits for a total of $39,000.00.  Counsel for the employee argued he was not obligated to request additional fees from the employee’s benefits, and sought an additional $13,500.00 in Roraff/Irwin fees to be assessed against the employer and insurer.  The compensation judge found a reasonable fee to be $50,000.00, that there was a stream of benefits from which attorney fees could be paid, and that the indemnity benefits paid to the employee were adequate to provide a reasonable fee to the employee’s attorney.  The judge, accordingly, denied counsel’s request for Roraff/Irwin fees.

In this case, unlike Dorr, the only disputed benefits submitted to the compensation judge were unpaid medical expenses.  No wage loss benefits have been paid to the employee and any future dispute over wage loss benefits is speculative.  The compensation judge found there was no ongoing stream of benefits from which contingent fees could be paid, and that the contingent fee relative to the disputed medical expenses was inadequate to compensate the employee’s counsel for his representation of the employee.  We cannot conclude that the compensation judge’s determination is based upon a clearly erroneous conclusion given the record as a whole, and we, accordingly, affirm.

Finally, the employer and insurer argue the attorney fee awarded is unreasonable pursuant to the lodestar method set forth by the supreme court in Green v. BMW of N. Am., LLC, 826 N.W.2d 530 (Minn. 2013).^[5]  The appellants argue that, pursuant to Green, applying sound billing judgment mandates that hours that are not properly billed to one’s client may not be properly billed to one’s adversary.  Under this reasoning, they contend, counsel for the employee would not bill his client $12,578.74, to recover $11,893.69 in medical expenses, thus, the attorney fees awarded are excessive and unreasonable.

Green involved a claim under the Minnesota lemon law, Minn. Stat. § 325F.665.  Ms. Green was awarded $25,157.00 in damages and $229,064.00 in attorney fees and costs, over nine times the amount recovered.  In making its award on attorney fees, the district court concluded it was improper to compare the amount of reasonable attorney fees to the amount of damages recovered.  The supreme court reversed, stating that in determining a reasonable fee, all relevant circumstances must be considered, including the amount involved and results obtained, the experience, reputation and ability of counsel, the time and labor required, the nature and difficulty of the responsibility assumed, and the reasonableness of the fee charged.  The court found the reasoning in several workers’ compensation cases persuasive, noting the language of the previous workers’ compensation statute - - adopted in Irwin - - incorporates the same factors.  Green, 826 at 537-538, 537 n.6 (citing In re Petition of Attorney Fees, 350 N.W.2d 373, 36 W.C.D. 811 (Minn. 1984); Saari v. McFarland, 319 N.W.2d 706, 34 W.C.D. 677 (Minn. 1982)).

The factors to be considered in determining an award of attorney fees in workers’ compensation cases are well established, Minn. Stat. § 176.081, subd. 1(a)(1); Irwin, 599 N.W.2d at 142, 59 W.C.D. at 336, and we see no need to reach beyond the law specific to attorney fees in workers’ compensation cases in analyzing the reasonableness of the attorney fees awarded in this case.  Implicit in the employer and insurer’s argument is the contention that the attorney fee should not exceed the medical expenses awarded.  It is well established that while the amount involved is a factor to consider in an award of Roraff fees, it is neither the only nor the determinative factor.  Rather, as indicated in Green, all of the relevant circumstances must be considered.  Jeffrey, 67 W.C.D. at 250; Moen v. G.F. Business Equip., 42 W.C.D. 952 (W.C.C.A. 1989).

The employee’s attorney argues that since the employer and insurer put at issue the reasonableness of the time spent by the employee’s counsel, the amount of time spent by counsel for the employer and insurer is relevant and probative on the issue, and it was an error of law to quash the subpoena.  A compensation judge may issue a subpoena for the production of such documents as are material in a case.  Minn. Stat. § 176.351, subd. 2.  The judge shall quash a subpoena, upon a party’s motion, if the judge finds it is unreasonable or oppressive.  Minn. R. 1420.2700.  The employee submitted voluminous exhibits, including a statement of attorney fees with a detailed description of the actions taken and the time he expended on the case; 90 exhibits containing copies of the pleadings filed in the case; and 111 exhibits consisting of copies of the parties’ correspondence.  The extensive pleadings and correspondence, including those generated by the employer and insurer, clearly document and support the expenditure of time by the employee’s counsel in pursuing the employee’s claim.  The judge granted the motion to quash explaining that he did not believe the amount of time spent by and the hourly rate charged by defense counsel was material relative to the employee’s burden of proof under Irwin.  Evidentiary rulings are generally within the sound discretion of the compensation judge.  Ziehl v. Vreeman Constr. Co., slip op. (W.C.C.A. Oct. 15, 1991); see also Minn. Stat. § 176.411, subd. 1 (a compensation judge “is bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure.”)  The compensation judge did not abuse his discretion in so holding, and we affirm.

The employee appeals the award of $10,000.00 in Roraff fees, asserting the compensation judge arbitrarily and unreasonably excluded approximately two-thirds of the time spent by the employee’s counsel on the case.  Implied in the employee’s argument is the contention that because the compensation judge found the amount of time spent per task was generally reasonable, the compensation judge should have awarded all or most of the claimed $33,740.00 in attorney fees.

It has long been established that the determination of a claim for Roraff fees is not merely a matter of multiplying the attorney’s hourly rate times the amount of time spent on the case.  Rather, the issue is what fee is reasonable considering and applying all of the Irwin factors.  Dimon, 64 W.C.D. at 148; Borgan v. Bob Hegland, Inc., 62 W.C.D. 452, 462 (W.C.C.A. 2002).  The time spent to prepare and try the case is just one of the Irwin factors.  Thus, even if all of the time spent by the employee’s counsel was reasonable and necessary, the compensation judge is not legally bound to award the full fee sought.  Johnson v. VCI Asbestos Abatement, 65 W.C.D. 547, 550 (W.C.C.A. 2005).

Here, the compensation judge found the dollar value of the medical expenses recovered was $11,893.69.  Applying the Irwin factors, the judge found that, although important from the standpoint of care and treatment, the amount involved was relatively modest.  The judge further found that the proof necessary to establish primary liability and the reasonableness and necessity of the medical benefits ultimately awarded - - that is the responsibility assumed by counsel and the difficulty of the issues - - was straightforward and not complex.  The judge concluded that “[b]alancing the scope of benefits awarded versus benefits claimed, the time and expense necessary to represent the employee, the responsibility assumed by and experience of counsel, the difficulty of the issues, the nature of the proof required to prove same, and the overall results obtained, a reasonable additional Roraff attorney fee is $10,000.”  (Finding 20.)

Counsel for the employee argues that the compensation judge failed to provide any discussion or explanation for his exclusion of nearly two-thirds of the itemized time, and asserts the judge should be required to explicitly analyze and articulate his decision on fees in light of the Irwin factors.  The compensation judge, in his findings and order, reviewed the Irwin factors as they applied to the unique facts of this case.  And, while a more expansive explanation would have been helpful in this matter, having thoroughly reviewed the exhibits, and in light of the compensation judge’s lengthy involvement in this case, we cannot say that the lack of more detailed findings or further clarification in the memorandum mandates reversal of the award.  Giving due deference to the compensation judge’s discretion, we cannot conclude the compensation judge’s award of $10,000 in Roraff fees was so clearly erroneous, given the facts and circumstances of this particular case, as to be an abuse of discretion, and we affirm.