ATTORNEY FEES. The employee’s attorney is entitled to reasonable attorney fees where the employer and insurer did not agree to entry of an order vacating an earlier award on stipulation until after employee’s attorney performed significant work on the employee’s behalf. Under the facts presented, the presumptive attorney fee award is the appropriate amount to award as fees, rather than the hourly fee total requested.
Attorneys: Joshua E. Borken, St. Paul, Minnesota, for the Petitioner. Katherine S. VanHavermaet, Law Offices of Kelly R. Rodieck & Assoc., St. Paul, Minnesota, for the Respondent.
Attorney fees awarded.
SEAN M. QUINN, Judge
The employee successfully petitioned to vacate a previous award on stipulation. The attorney for the employee now seeks fees for representing the employee in the petition to vacate.
The employee, Brandon Beager, suffered a work injury with the employer, North Valley, Inc., on June 20, 2013. At a mediation, the employee was not represented by counsel, and settled his case on a full, final and complete basis. An award on stipulation was served and filed on November 7, 2014. Subsequently, the employee hired attorney Joshua Borken seeking to vacate that award.
On behalf of the employee, Mr. Borken contacted the employer and insurer and attempted to negotiate an agreement to vacate the award on stipulation. This was not successful. Mr. Borken then went about the process of gathering additional medical evidence, including a medical report, and drafting a petition to vacate, which was filed with this court. Shortly, after the petition to vacate was filed with this court, the employer and insurer notified this court that it was waiving its right to object to the petition to vacate. Instead, the employer and insurer submitted a proposed order granting the petition to vacate. On January 24, 2019, this court vacated the award on stipulation served and filed November 7, 2014.
Mr. Borken now files a petition for attorney fees incurred in obtaining vacation of that award. In his petition, Mr. Borken claims 14.5 hours of work at an hourly rate of $350.00 per hour, plus an additional 3.2 hours of paralegal work. Mr. Borken claims a total attorney fee of $5,395.00 which is his hourly rate multiplied by the number of hours he spent representing the employee, plus his paralegal hourly rate[1] multiplied by the number of hours she spent on the file.
Mr. Borken also seeks partial reimbursement of attorney fees to be paid to his client under Minn. Stat. § 176.081, subd. 7, in the amount of $1,543.50. Finally, he seeks $713.52 in reimbursable disbursements.
The employer and insurer objected. The employer and insurer’s objections are: (1) the fees sought are excessive, (2) there was no actual litigation given that they did not object to the petition to vacate, (3) the fees are not supported by adequate information, and (4) the fees are not in compliance with Minn. R. 1415.3200. The employer and insurer made no objection to the request for partial reimbursement of attorney fees under Minn. Stat. § 176.081, subd. 7, nor did they object to Mr. Borken’s request for reimbursement of disbursements.
In a reply, Mr. Borken notes that he attempted, unsuccessfully, to negotiate an agreement on the petition to vacate before filing the petition with this court. As such, he maintains there was litigation, and an award of attorney fees is appropriate.
Minn. Stat. § 176.511, subds. 2 and 3, states, in part:
The . . . Workers’ Compensation Court of Appeals on cases before the court, may award the prevailing party reimbursement for actual and necessary disbursements. Disbursements shall be taxed upon ten days’ written notice to adverse parties.
Where (1) an award of compensation is affirmed, or modified and affirmed, (2) an order disallowing compensation is reversed, or (3) a petition to vacate an award is granted, the Workers’ Compensation Court of Appeals may include in its award an amount to cover a reasonable attorney fee or may allow an attorney fee in a proceeding to tax disbursements.
The statute gives this court wide discretion to award both fees and disbursements; the statute clearly states this court “may” award fees and “may” award disbursements. Generally, however, this court awards attorney fees to the employee’s attorney on successful appeals and petitions to vacate stipulations.
Mr. Borken’s petition for fees sets out the hours that he and his paralegal expended in representing the employee on the petition to vacate. The employer and insurer argue the fees sought are excessive without making any specific objection to the number of hours, the hourly rate, or the total fee. The amount of hours expended to gather the medical evidence, obtain the medical report, and draft a petition to vacate, do not appear excessive.
The employer and insurer also argue there was no actual litigation. It is true that the employer and insurer ultimately chose not to submit an objection to the petition to vacate. However, it is clear from the record before us that Mr. Borken sought such an agreement before filing a petition to vacate. The employer and insurer did not agree to vacate the award on stipulation. Mr. Borken was then compelled to begin the litigation process by gathering evidence and filing a petition to vacate. The employer and insurer do not dispute that Mr. Borken actually performed the work.
The employer and insurer also assert there was not enough information submitted by Mr. Borken to justify the fees. The employer and insurer do not specify exactly what additional information should be required from Mr. Borken. Much like the objection that the amount of the claimed attorney fees is “excessive,” this objection is overly broad and vague. We fail to see how the information provided is insufficient.
Finally, the employer and insurer assert, again without specificity, the statement of attorney fees filed by Mr. Borken does not comply with the requirements of Minn. R. 1415.3200. That rule, however, does not apply to the award of attorney fees under Minn. Stat. § 176.511.
In short, Mr. Borken has adequately justified that he is entitled to an award of attorney fees for his representation of the employee on the petition to vacate and there has been no compelling nor specific objection offered by the employer and insurer.
With that said, this court has generally awarded attorney fees of $3,300.00 to an employee’s attorney for successful representation on appeals and on petitions to vacate in non-oral argument settings. We see no reason to deviate from that practice in this particular case. Consequently, an award of $3,300.00 in attorney fees to Mr. Borken is appropriate.
As to disbursements, the employer and insurer offer no objection. Mr. Borken clearly had to obtain the necessary medical evidence in order to put together the petition to vacate. The disbursements sought are reasonable and necessary and the amount of $713.52 sought by Mr. Borken is appropriate for those disbursements.
Finally, although the employer and insurer failed to object to Mr. Borken’s request for reimbursement of attorney fees to his client under Minn. Stat. § 176.081, subd. 7, we decline to award any reimbursement of attorney fees here. That statute applies to contingent fees payable from the employee’s compensation benefits, not appeal fees under Minn. Stat. § 176.511.
Consequently, this court orders the employer and insurer to pay to Mr. Borken the sum of $3,300.00 in attorney fees and the additional sum of $713.52 for his taxable disbursements.
[1] In the petition for attorney fees, Mr. Borken claims his paralegal is billed at a rate of $150.00 per hour. In his hourly calculations, the paralegal fee is listed at $100.00 per hour.