ATTORNEY FEES – GENUINE DISPUTE. Where the employer and insurer paid the employee’s claim for permanent partial disability compensation within three weeks of receiving a permanent partial disability rating from the employee’s physician without taking any action to dispute the claim, the compensation judge’s finding that no genuine dispute existed on that issue is supported by substantial evidence.
Compensation Judge: Kirsten M. Tate
Attorneys: Ross K. Menk and Karen R. Swanton, The Law Offices of Menk & Menk, Minneapolis, Minnesota, for the Respondent. James K. Helling, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
DAVID A. STOFFERAHN, Judge
The employee’s former attorney has appealed the denial of his claim for contingent attorney fees from the insurer’s payment of permanent partial disability benefits. We affirm.
Kurt Caswell, the employee, sustained injuries in an auto accident on December 16, 2013, while he was in the course of his employment with North Country Sheet Metal. The employer and its insurer admitted liability for the injury.
On April 8, 2015, the employee retained attorney Aaron Ferguson to represent him in connection with his work injury. On February 26, 2017, Mr. Ferguson wrote to Dr. Ana Groeschel, a physician at Noran Neurological Clinic, requesting a rating of permanent partial disability. Mr. Ferguson provided information concerning the employee’s injuries to Dr. Groeschel and sent copies of some of the rules for rating permanent partial disability.
Dr. Groeschel responded on March 22, 2017, with a Health Care Provider Report in which she assessed the employee’s permanent partial disability. This information was sent by Mr. Ferguson to the insurer on May 1, 2017. On or about May 18, 2017, the insurer issued payment of permanent partial disability benefits in accordance with Dr. Groeschel’s report. Attorney fees were withheld from the permanent partial disability benefits paid.
The employee discharged Mr. Ferguson and retained Ross Menk as his attorney on August 5, 2017. On September 19, 2017, Mr. Ferguson filed a Statement of Attorney Fees seeking attorney fees from the permanent partial disability benefits paid by the insurer. The employee objected to the fee request.
A hearing was held on Mr. Ferguson’s claim before a compensation judge on December 5, 2017. At the hearing, Mr. Ferguson stated that his claim for attorney fees was the amount withheld by the insurer from the payment of permanent partial disability benefits, $10,753.16. In her Findings and Order served and filed on January 12, 2018, the compensation judge determined that no genuine dispute had existed on the payment of permanent partial benefits and denied Mr. Ferguson’s claim. Mr. Ferguson has appealed.
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).
Minn. Stat. § 176.081, subd. 1(c) controls the award of attorney fees in workers’ compensation litigation. That section provides, “In no case shall fees be calculated upon the basis of any undisputed portion of compensation awards. Allowable fees under this chapter shall be based solely upon genuinely disputed claims or portions of claims….” The issue before the compensation judge was whether there was a genuine dispute over the payment of permanent partial disability benefits to the employee.
In the present case, the insurer paid the permanent partial disability benefits rated by Dr. Groeschel within three weeks of receiving the health care provider report from Mr. Ferguson. Mr. Ferguson argues, however, that there was an undue delay in the insurer’s payment; because the employee’s injuries in the auto accident were so severe, it should have been apparent to the insurer that significant permanent partial disability benefits would be owed. The insurer’s delay in obtaining ratings of permanent partial disability that encompassed all of the employee’s disability was the equivalent of a denial of permanent partial disability benefits owed to the employee, according to Mr. Ferguson. (T. 22).
Mr. Ferguson states in his brief, as he did at the hearing, that the insurer had the same medical records that he had and the insurer could have made payment of permanent partial disability based on those records. What records the insurer might have had and whether those records would have supported payment of permanent partial disability benefits is not part of the evidentiary record. The record does indicate that the insurer made payment of 10.76% permanent partial disability in March 2017, withholding attorney fees. The basis for that payment and whether Mr. Ferguson had anything to do with that payment are not in the record.
The additional permanent partial disability benefits paid by the insurer were based on the Health Care Providers Report from Dr. Groeschel dated March 22, 2017. In that same report, Dr. Groeschel stated that the employee reached maximum medical improvement (MMI) from his work injury on February 28, 2017. MMI is defined as “the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated….” Minn. Stat. § 176.011, subd. 13a. There is no evidence that the employee had reached MMI before Dr. Groeschel made that determination in her report. “Ordinarily, permanent partial disability is ascertained after maximum medical improvement.” Turek v. Northfield Freezings, 652 N.W.2d 265, 269, 62 W.C.D. 622, 626 (Minn. 2002); see also Yates v. Muller Logging, Inc., No. WC06-210 (W.C.C.A. Jan. 3, 2007). The insurer made payment of Dr. Groeschel’s rating within three months of maximum medical improvement. There was no undue delay that would constitute a denial.
Mr. Ferguson cites to our decision in Engren v. Majestic Oaks Golf Club, 76 W.C.D. 403 (W.C.C.A. 2016) and argues that attorney fees were allowed in a case in which payment had been delayed for four months. In that decision, however, fees were not awarded simply because the insurer had not paid for a prescription on a timely basis. The claim had been brought to a contested hearing by the employee’s attorney and a favorable decision was obtained on behalf of the employee. Those facts do not exist here.
Mr. Ferguson assisted the employee in obtaining the payment of benefits from the insurer. An attorney may provide valuable assistance to an employee who has been injured on the job and is entitled to workers’ compensation benefits; however, the statute is clear that unless there is a genuine dispute over the receipt of those benefits the attorney will not be entitled to a fee from the employee’s benefits. Weatherly v. Hormel Foods Corp., 77 W.C.D. 445 (W.C.C.A. 2017).
The compensation judge determined that there was no genuine dispute over the payment of permanent partial disability. We find her determination to be supported by substantial evidence in the record. See Clark v. Lake Superior Paper Indus., 67 W.C.D. 349 (W.C.C.A. 2007), Biederman v. Win Stephens Buick, slip op., (W.C.C.A. Feb. 3, 1999).
The decision of the compensation judge is affirmed.