PHILIP NESTOR, Employee, v. LUOMA EGG RANCH and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer, and BRIAN CAMPBELL FISCHER, Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 11, 2013
No. WC13-5554
HEADNOTES
ATTORNEY FEES. Where the record contains no evidence that the services of the employee’s previous attorney contributed to the ultimate settlement by the employee’s subsequent attorney, but where the subsequent attorney has not objected to the compensation judge’s award of a fee to the previous attorney from the settlement, the compensation judge’s decision is affirmed.
Affirmed.
Determined by: Stofferahn, J., Hall, J., and Wilson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent Employee. Eric S. Westphal, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents Employer and Insurer. Brian Campbell Fischer, Injury Law, Duluth, MN, as the Appellant.
OPINION
DAVID A. STOFFERAHN, Judge
Attorney Brian Fischer appeals from the compensation judge’s award of attorney fees. We affirm.
BACKGROUND
The record for this court’s review is essentially non-existent. The transcript consists entirely of statements by Mr. Fischer and Mr. Balmer and no exhibits were introduced at the hearing. We have stated previously that a determination of attorney fees should be done with the same care as any other finding of fact. John v. Suburban Air Conditioning, 62 W.C.D. 285 (W.C.C.A. 2002). Further, we have previously advised parties that because the judgment roll is imaged, it is no longer automatically part of the record, and material from the judgment roll must be introduced into evidence to be part of the record for review. Beckwith v. Sun Country Airlines, 63 W.C.D. 511 (W.C.C.A. 2003). It is the obligation of the party asserting a claim to provide evidence to support that claim. Nevertheless, in the present case, we conclude we have gleaned sufficient undisputed information from the parties’ briefs and from the compensation judge’s Findings and Order to allow us to consider this matter.
Philip Nestor sustained an admitted work injury to his left index finger on September 22, 2010. Shortly afterwards, he retained attorney Brian Fischer to represent him in connection with this injury. At some point, Mr. Fischer filed a claim petition on behalf of the employee claiming permanent partial disability benefits. The employer and insurer paid the rated disability, and Mr. Fischer was paid $2,304.45 as attorney fees.
Mr. Fischer also represented the employee at an administrative conference dealing with the request of the employer and insurer to discontinue temporary total disability benefits because the employee had reached maximum medical improvement from his work injury. The conference also considered a request to end rehabilitation services. Temporary total disability was discontinued as a result of the conference, but at a date later than requested by the employer and insurer. Rehabilitation services were continued. Mr. Fischer was awarded a fee of $500 for his services associated with the conference.
Shortly afterwards, in March 2012, the employee discharged Mr. Fischer and retained attorney James Balmer. Mr. Fischer filed a lien for attorney fees, but did not specify the claimed fee.
Later in 2012, Mr. Balmer filed a claim petition for the employee seeking permanent total disability benefits. The employee’s claim was settled in October 2012, with the employer and insurer agreeing to pay $13,000 for attorney fees from the proceeds of the settlement.
Mr. Fischer’s lien was heard by Compensation Judge Jerome Arnold on December 10, 2012. Compensation Judge Arnold awarded Mr. Fischer $500 of the $13,000 withheld by the employer and insurer from the settlement. Mr. Fischer has appealed.
DECISION
In his appeal, Mr. Fischer does not identify the fee he believes appropriate for his services and he does not identify the benefits obtained for the employee by his services. While there was a settlement of the employee’s claim by Mr. Balmer, the record is devoid of any evidence that Mr. Fischer’s services contributed to that settlement in any way. Mr. Fischer, in his brief, refers to his services in establishing what he refers to as the orderly progression of the employee’s file so that the settlement could be made at a later time. We do not accept this argument for a number of reasons.
First, an attorney representing an injured worker in a workers’ compensation case is not entitled to a fee for talking to the client, advising the client about choices in medical or rehabilitation providers, or even in establishing an orderly progression of the file. An attorney may claim a contingent fee from the monetary benefits recovered for the client or may receive employer-paid fees for obtaining rehabilitation or medical services. Minn. Stat. § 176.081, subd. 1. Second, Mr. Fischer was compensated for his services in handling this file with the fees he received from the permanent partial disability claim and the administrative conference. Third, we reiterate that there is no evidence Mr. Fischer’s services contributed in any way to the result obtained by Mr. Balmer.
While Mr. Fischer does not identify the fee he believes would be appropriately paid to him, he states that this court should apply the Irwin[1] factors in considering the issue of attorney fees. Since the fees paid to Mr. Fischer, when added to the fees withheld from the settlement negotiated by Mr. Balmer, exceeds the statutory limit, an Irwin analysis would be appropriate. However, based on the record before us, we are not able to say whether that analysis was done at some point. In any event, we see no relevance to the fee request of Mr. Fischer. The question for our review is not whether Mr. Balmer’s fee is in accordance with Irwin, it is whether Mr. Fischer is entitled to any fee.
While we do not see a basis for an award of fees from the settlement to Mr. Fischer, Mr. Balmer, in his brief, requests that the decision of the compensation be affirmed and we will do so.
[1] Irwin v. Surdyk’s Liquor, 599 N.W.2d 132; 59 W.C.D. 319 (Minn. 1999).