JUNE 13, 2017

No. WC17-6038

ATTORNEY FEES – RORAFF FEES; ATTORNEY FEES – HEATON FEES. Where substantial evidence supports the compensation judge’s determination that there was no genuine dispute over medical or rehabilitation benefits, a denial of Roraff or Heaton fees is appropriate.

    Determined by:
  1. David A. Stofferahn, Judge
  2. Gary M. Hall, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: James F. Cannon

Attorneys: Donaldson V. Lawhead, Lawhead Law Firm, Austin, Minnesota, for the Appellant. Elizabeth Benson Powell, O’Meara, Leer, Wagner & Kohl, Minneapolis, Minnesota, for the Respondent.




The employee appeals from the compensation judge’s denial of Roraff and Heaton fees.[1] The employee also moves this court to supplement the record. We deny the employee’s motion and affirm the compensation judge’s decision.


Cody Weatherly was working as a forklift operator for Hormel Foods on July 29, 2015, when he slipped on ice in a freezer where he was working, injuring his right knee. He initially treated with the employer’s medical department until a recommendation was made that he consult with occupational medicine at Mayo Health Services – Austin (Mayo). The employee continued to work full time for the employer but was not able to work his usual overtime.

The employee saw CNP Joanne McGaffey at Mayo on August 19, 2015. CNP McGaffey ordered an MRI scan of the right knee. Corvel, the medical managed care administrator for the employer, authorized the MRI, which was done on August 20, 2015. The MRI showed a meniscus tear and a complete tear of the anterior cruciate ligament (ACL). An orthopedic consultation was authorized by Corvel on August 21, 2015.

Mr. Weatherly saw an orthopedist, Dr. Michael Eckstrom, at Mayo on September 8, 2015. Dr. Eckstrom’s opinion at that time was that the meniscus tear was the result of the July 29, 2015, work injury, but, based on the history provided by the employee, the ACL tear was pre-existing. Mayo, in requesting pre-approval for surgery, advised the employer that the ACL repair would be billed to the employee’s personal insurance.

On September 14, 2015, the employee retained attorney Donaldson Lawhead to represent him in connection with his work injury. On September 16, 2015, Mr. Lawhead advised the employer of his representation of the employee and requested a rehabilitation consultation. The rehabilitation consultation was approved by the employer and was performed on October 2, 2015, by the QRC selected by Mr. Lawhead.

The employee returned to Dr. Eckstrom on October 6, 2015, to discuss the proposed surgery. Dr. Eckstrom noted the employee “is concerned because he thinks his anterior cruciate ligament injury has happened at this time as well, so he wants to claim this under Work Comp.” Dr. Eckstrom stated he needed to review earlier MRIs and “that if I see an anterior cruciate ligament which is intact…then it would be a case that we could include it.”

The employee saw CNP McGaffey again on October 14, 2015, and discussed the ACL injury with her. CNP McGaffey stated the earlier MRI could not be located but a note from a physician’s assistant regarding the MRI stated that it disclosed a partial ACL tear which showed signs of healing. CNP McGaffey noted “Patient states he did recover completely without surgery. He states he has not had any significant pain discomfort on (sic) problems with his right knee since 2003 . . . Patient’s questions for me is did the fall he sustained at work exacerbate the ACL injury.” CNP McGaffey noted in her chart that this was not her area of expertise and she referred the employee to Dr. Robert Kirsch at Olmsted Medical Group (Olmsted). Corvel approved the referral the next day.

Mr. Weatherly saw Dr. Kirsch on November 10, 2015, and was accompanied by his QRC. The employee advised Dr. Kirsch that he had a partial ACL tear 11 years ago, but continued to be active “without any feeling of instability.” Dr. Kirsch stated in his chart note, “This is work related.” He stated later, “He went 11-12 years with normal physical activity and no indication of instability leads me to believe there was some structured stability of the ACL prior to the injury.”

There is some apparent confusion in the Olmsted medical records. A record which indicates it was generated on November 17, 2015, is instead the third page of the November 10 chart note prepared by Dr. Kirsch. In that third page, Dr. Kirsch refers to a “long discussion” with the employee and QRC in which the primary focus was whether the ACL tear was related to the work injury. Dr. Kirsch stated his opinion that the ACL tear was work related and recommended surgical repair. Corvel approved the surgery on November 18, 2015, and the surgery by Dr. Kirsch was performed on December 14, 2015.

Attorney Lawhead filed a claim petition on December 14, 2015, seeking payment of temporary total disability benefits from December 14, 2015, temporary partial disability benefits from July 29, 2015, to December 12, 2015, reserved permanent partial disability claims, requested payment of medical bills at Mayo and Olmsted in an unknown amount, and claimed retraining and continued QRC services. The employer’s answer admitted the wage loss claims, stated that permanent partial disability was premature since surgery had occurred less than a month previous to the answer, and stated it was unknown if any medical bills were outstanding. After a telephone pretrial, the compensation judge issued an order dismissing the claim petition on August 10, 2016.

Attorney Lawhead filed a statement of attorney’s fees on August 3, 2016, seeking Roraff, Heaton, and contingency fees totaling $15,459.05. A hearing on the statement of attorney’s fees was held by telephone on October 31, 2016.

The compensation judge issued his Findings and Order on January 5, 2017. The compensation judge denied the claim for Roraff attorney fees, concluding that there had been no genuine dispute over the employee’s medical treatment and surgery. (Finding 11.) The compensation judge also denied the claimed Heaton fees, finding that rehabilitation benefits had been paid voluntarily by the employer. (Finding 13.) The compensation judge awarded contingency fees from the temporary total disability and temporary partial disability benefits paid to the employee, finding that Mr. Lawhead’s filing of the claim petition had “prompted” the employer to pay those benefits. (Finding 16.) Attorney Lawhead was awarded total fees of $1,909.25.[2]

The employee has appealed the denial of Roraff and Heaton fees. The employee has also filed a motion seeking to supplement the record before this court.


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(3). 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, 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 evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

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



1.   Motion to Supplement the Record

At the hearing, the employee’s attorney alleged that his efforts generated Dr. Kirsch’s opinion that the employee’s ACL rupture was related to the work injury and, as a result, a Roraff fee was appropriate.

The compensation judge denied this claim. He concluded that Dr. Kirsch’s November 10 chart note was not prepared in response to Mr. Lawhead’s letter of November 9. (Finding 11.)

The employee’s attorney has filed a motion in this appeal to supplement the record by including a statement from Dr. Kirsch which purports to address this question further. We deny the employee’s motion and decline to consider this information.

The statute itemizes the grounds upon which an appeal may be taken from the decision of a compensation judge to this court. The statutory provision relevant to this appeal is that “the findings of fact and order were clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1 (emphasis added). We find nothing in the statute which allows a party to submit additional evidence to this court that was not introduced at the hearing and considered by the compensation judge. See Nelson v. Hormel Foods Corp., No. WC13-5603 (W.C.C.A. Mar. 6, 2014).

2.   Roraff and Heaton Fees

Attorney fees for the representation of an injured worker are awarded pursuant to Minn. Stat. § 176.081. A contingent fee based on the “compensation awarded to the employee” is authorized in Minn. Stat. § 176.081, subd. 1. The contingent fee is “presumed to be adequate to cover recovery of medical or rehabilitation benefits or services concurrently in dispute.” Minn. Stat. § 176.081, subd. (a)(1). “Allowable fees under this chapter shall be based solely upon genuinely disputed claims or portions of claims. The existence of a dispute is dependent upon a disagreement after the employer or insurer has had adequate time and information to take a position on liability.” Minn. Stat. § 176.081, subd. 1 (c).

As a basic prerequisite, the statute requires a genuine dispute between the parties concerning the payment of workers’ compensation benefits. Whether there has been a genuine dispute is a question of fact for the compensation judge. Biederman v. Win Stephens Buick, 58 W.C.D. 497 (W.C.C.A. 1998); Engren v. Majestic Oaks Golf Club, No. WC15-5881 (W.C.C.A. June 6, 2016). Even if there is a dispute, the attorney representing an injured worker is not automatically entitled to a fee. The attorney must establish that benefits for the employee were obtained through the efforts of the attorney. The issue for this court on appeal is whether substantial evidence supports the determination made by the compensation judge. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

The compensation judge denied any claim for Heaton fees, finding that “there simply was no rehabilitation dispute in this case.” (Emphasis in original.) (Finding 13.) While this finding was appealed, this issue was not addressed in the employee’s brief and “is deemed waived and will not be decided by the court.” Minn. R. 9800.0900, subp. 1.

The primary issue raised in the employee’s brief is the denial of Roraff fees by the compensation judge. Attorney Lawhead contends that the employer denied the relationship between the employee’s work injury and the ACL tear and it was through his efforts that this denial was reversed and surgery for the ACL tear was paid by the employer. In response, the employer argues that the claim for Roraff fee was properly denied because there was no genuine dispute regarding medical benefits.

The compensation judge found there was no genuine dispute on the question of medical treatment. We find substantial evidence to support that determination. The employer authorized the employee’s initial consultation at Mayo, allowed the MRI, and approved the consultation with Dr. Eckstrom. The initial consultation with CNP McGaffey on August 19 was three weeks after the injury and the appointment with the orthopedist was three weeks after that. Contrary to employee’s argument, this does not indicate a “culture of denial” by the employer.

Further, according to Dr. Eckstrom’s chart, the employee’s history, as provided by the employee, was the source of his conclusion that the ACL tear was a pre-existing condition. There is no indication that the employer raised the issue of a pre-existing condition or ever took any position on this question. The employee raised the issue of the ACL tear again with Dr. Eckstrom on October 6 and discussed the issue with CNP McGaffey on October 14, 2015. CNP McGaffey recommended a second opinion which was approved by the employer the next day.

The second opinion was with Dr. Kirsch on November 10, 2015, and a discussion was held by Dr. Kirsch with the employee and the QRC on the question of causation. The employer approved the surgery on November 18 and the surgery took place on December 14. There no indication in any of the records that Mr. Lawhead was involved in these decisions and there is no mention of whether or not the employee had a lawyer.

Based on this record, it was reasonable for the compensation judge to conclude that at no time did the employer delay payment or refuse to pay for medical treatment related to the work injury. The employer did not obtain an independent medical examination and instead followed the recommendations of the treating medical providers. Substantial evidence supports the compensation judge’s finding that no genuine dispute existed with regard to the payment of medical expenses. In the absence of a dispute there is no basis for an award of Roraff fees.

In their briefs, the parties discuss other issues as well. The statute provides that the Roraff fees are to be paid if contingent fees are inadequate. The parties argue the adequacy of the contingency fees ordered by the compensation judge and whether Mr. Lawhead’s itemized time was reasonable. We do not address these issues since the compensation judge decided this matter on a finding of no genuine dispute and the adequacy of the contingency fee was not relevant to his determination.

Mr. Lawhead also argues at some length in his brief that his efforts generated Dr. Kirsch’s opinion on causation, contrary to the compensation judge’s decision. However, there was never a dispute over Dr. Kirsch’s opinion. An attorney provides valuable assistance to an injured worker by advising the worker of their rights under the workers’ compensation statute, benefits to which the person might be entitled, recommending a QRC, and suggesting questions for a treating doctor to consider. The statute is clear, however, that fees under 176.081 may be awarded only if the attorney obtains benefits for the employee only after resolving a dispute with the employer. That is not the case here.

The decision of the compensation judge is affirmed.

[1] Roraff v. State, Dep’t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980); Heaton v. J.E. Fryer & Co., 36 W.C.D. 316 (W.C.C.A. 1983). See also Minn. Stat. § 176.081, subd. 1(1) and (3)(c).

[2] In the employee’s Appellant Reply Brief Mr. Lawhead refers to contingency fees awarded of $686.36. The reason for this discrepancy between the compensation judge’s decision and this statement in the brief is not addressed.