The employee’s attorney appeals from the compensation judge’s denial of his claim for contingent attorney fees pursuant to Minn. Stat. § 176. 081, subd. 1.(a),^[1] and the judge’s award instead of hourly excess attorney fees pursuant to Irwin v. Surdyk’s Liquor,599 N.W.2nd 132, 59 W.C.D. 319 Minn. (1999).  We affirm.

The facts in this case are undisputed.  On February 7, 2007, Peggy L. Jakubek, the employee, sustained a work-related injury to both shoulders while working for Oneida Building Services, the employer, insured by SFM Mutual Insurance Company.  The employer and insurer admitted liability for the injury and paid indemnity and medical benefits.  In September 2008, the parties entered into a settlement in which the employee received $90,000 in return for a full, final, and complete settlement of all claims relating to the injury except future medical expenses.  The employee’s attorney received $13,000 in contingent attorney fees for his representation of the employee.

Four years later on January 17, 2012, Dr. Jeffrey Klassen, the employee’s treating physician, recommended a left shoulder reverse total shoulder arthroscopic (TSA) procedure, opining the surgery was substantially related to the employee’s admitted work injury and was reasonable and necessary.  The employee filed a Medical Request and request for Certification on January 31, 2012.

In February 2012, Dr. David Carlson conducted an independent medical examination at the request of the employer and insurer.  The doctor agreed that surgery was appropriate, but recommended a different procedure.  Dr. Carlson additionally recommended additional MRI scans.  Based on Dr. Carlson’s opinion, the employer and insurer denied approval of the TSA procedure, and the dispute was certified on April 6, 2012.

In June 2012, the employer and insurer agreed to pay for diagnostic MRI scans, but continued to refuse to pay for the TSA procedure.  On June 13, 2012 and July 13, 2012, the employer and insurer made written requests of Dr. Klassen for clarification of his medical opinion.  A hearing date was set for August 10, 2012.

On August 1, 2012, Dr. Klassen responded to the employer and insurer’s request for clarification, explaining his reasons for the reverse TSA procedure.  On August 6, 2012, upon receipt of Dr. Klassen’s explanation and upon reviewing new MRI scans, Dr. Carlson concurred with the TSA recommendation.  Thereafter, the employer and insurer approved the TSA procedure and the August 10, 2012 hearing was cancelled.

On August 20, 2012, the employee’s attorney filed a Statement of Attorney Fees and Costs seeking contingent attorney fees for the recovery of medical benefits along with partial reimbursement of attorney fees for the employee, pursuant to Minn. Stat. § 176.081, subd. 7.  The statement noted the previous payment of $13,000 in attorney fees for the same date of injury.  A subsequent medical payment summary provided by the employer and insurer indicated payment of $27,912.15 for the TSA procedure.

The employer and insurer objected to the requested attorney fees, and a hearing was scheduled for October 8, 2012.  At the hearing, the compensation judge informed the parties that the 25/20 contingent fee formula was not applicable, but that he would consider an excess attorney fee claim, citing Wolters v. Curry Sanitation, Inc., 72 W.C.D. 509 (W.C.C.A. 2012) and Clark v. Dick’s Sanitation, slip op. (W.C.C.A. May 16, 2000).  The hearing was continued, and the employee’s attorney subsequently filed an Excess Fee Exhibit (Pet. Ex. A) with an itemization of the time expended on the employee’s medical request.

The hearing reconvened on December 10, 2012.  The employee’s attorney claimed 13.7 hours at an hourly rate of $215 for a total of $2,945.50 in excess attorney fees.  The employer and insurer objected to the fee request on the grounds that the hours claimed were excessive, duplicative, and unreasonable.

The compensation judge found that a reasonable Roraff/Irwin fee^[2] for representation of the employee in obtaining approval of the TSA surgery was $2,250, and ordered the employer and insurer to pay that sum to the employee’s attorney.  Partial reimbursement of attorney fees pursuant to Minn. Stat. § 176.081, subd. 7, was awarded to the employee.  The employee’s attorney appealed the award of excess fees.

“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. February 11, 1993), summarily aff’d, (Minn. June 3, 1993).

The employee’s attorney contends that he is entitled to a contingent attorney fee for his representation of the employee.  He argues that application of the 25/20 formula would result in an attorney fee of $5,582.43 based on the dollar value of the medical benefits paid on the employee’s behalf.  Instead, in accordance with the judge’s ruling, the employee’s attorney itemized the hours spent on the file, claiming $2,945.50 in excess attorney fees.  Given that this amount is approximately half the fee if calculated pursuant to the 25/20 formula, the employee’s attorney argues the attorney fees awarded are inadequate and should be vacated and remanded.

Minn. Stat. § 176.081, subd. 1.(b), provides that “[a]ll fees for legal services related to the same injury are cumulative and may not exceed $13,000.  Subdivision 1.(a)(3) further provides that “[t]he fees for obtaining disputed medical or rehabilitation benefits are included in the $13,0000 limit in paragraph (b).”  There is no dispute that $13,000 in attorney fees already had been paid for legal services related to the employee’s bilateral shoulder injury.

In Irwin v. Surdyk’s Liquor,599 N.W.2nd 132, 59 W.C.D. 319 (Minn. 1999), the supreme court held that the maximum 25/20 contingent fee statutory limit on medical benefits awarded was unconstitutional, depriving the judiciary of a final, independent review of attorney fees.  The court, accordingly, remanded the case to this court for an award of reasonable attorney fees based on the statutory guidelines, 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.  Id. at 142, 59 W.C.D. at 335-36.  In Clark v. Dick’s Sanitation, slip op. (W.C.C.A. May 16, 2000), this court held, relying on Irwin, that the 1995 “maximum permissible fee” of $13,000 in attorney fees was also unconstitutional, allowing claims for attorney fees in excess of the statutory cap, if such fees are necessary to reasonably compensate an employee’s attorney for services provided.^[3]

This court specifically addressed the issue raised in this case in Brown v. Omni Remanufacturing, 63 W.C.D. 519 (W.C.C.A. 2003).  In Brown, the parties entered into a full, final and complete settlement in which the employee was paid $70,000 for a closeout of all benefits except future medical claims.  The employee’s attorney received $13,000 in contingent fees for his representation of the employee.  The employee subsequently filed a medical request seeking payment for a surgical procedure recommended by his treating physician.  The employee was eventually awarded the recommended treatment, and the employee’s attorney filed a Statement of Attorney Fees seeking additional attorney fees based on the 25/20 formula.  This court held that “where the statutory maximum fee [$13,000] has been paid for a post-October 1, 1995, injury, all additional fees for legal services related to the same injury are excess fees and must be determined utilizing the factors enumerated in Irwin.”  Id. at 524-25.  Reasonable attorney fees pursuant to Irwin are calculated on an hourly fee basis.  See e.g., Crowley v. Plehal Blacktopping, Inc., 66 W.C.D. 11 (W.C.C.A. 2005).  We, accordingly, affirm the compensation judge’s denial of contingent attorney fees based on the 25/20 formula.

Finally, counsel for the employee asserts that the compensation judge made only cursory findings with respect to the Irwin factors, and appeared to focus exclusively on the amount of time involved in determining the amount of hourly excess fees.  The employee did not, however, appeal the compensation judge’s finding that a reasonable attorney fee for representing the employee in obtaining approval for the surgery was $2,250.00, nor did he appeal any of the compensation judge’s findings on the seven Irwin factors.^[4]  We, therefore, affirm the compensation judge’s award of $2,250.00 in hourly excess attorney fees.