YER SUMNER, Employee/Appellant, v. JIM LUPIENT INFINITI and SFM RISK SOLUTIONS, INC., Employer-Insurer/Respondents.

JUNE 19, 2019

No. WC19-6242

ATTORNEY FEES – RORAFF FEES. The compensation judge appropriately applied the Irwin factors to reach a reasonable Roraff fee.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. David A. Stofferahn, Judge
  3. Gary M. Hall, Judge

Compensation Judge: Adam S. Wolkoff

Attorneys: B.J. Robichaud, Paul W. Schroepfer, and Samuel H. Dilley, Robichaud, Schroepfer & Correia, P.A., P.S.C., Minneapolis, Minnesota, for the Appellant. Joshua M. Steinbrecher, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, for the Respondents.




The employee appeals the amount of the compensation judge’s award of Roraff attorney fees. We affirm.


On January 28, 2012, Yer Sumner, the employee, was working as an internet sales director of automotive sales for Jim Lupient Infiniti, the employer, which was insured for workers’ compensation liability by SFM Risk Solutions. The employee claimed that she slipped and fell that day while working on the employer’s outdoor premises, striking her head, left elbow, and back. The employee reported the incident to her supervisor and continued working. Later, she sought treatment for pain, dizziness, and confusion. The employee filed a claim petition seeking temporary total disability benefits (TTD) and payment of medical expenses. The employer and insurer denied primary liability. Several providers intervened.

The compensation judge found that the employee had sustained a work injury and was TTD from January 28 through February 11, 2012. The judge also found that the employee had fully recovered from her work injury without the need for work restrictions or further treatment and with no residual disability by May 21, 2012. Holding that none of the intervenors’ rights to reimbursement were otherwise established prior to the hearing, the judge denied all the intervenors’ claims for reimbursement due to their failure to personally attend the hearing.

The employee appealed the compensation judge’s finding that the employee had recovered from her work injury by May 21, 2012; the denial of TTD benefits after February 11, 2012; the failure to determine whether certain medical treatment was reasonable, necessary, and causally related to the work injury; and the denial of reimbursement to intervenors. Two intervenors cross-appealed the denial of their claims for reimbursement.

In Sumner v. Jim Lupient Infiniti, 75 W.C.D. 243 (W.C.C.A. 2014), this court affirmed the compensation judge’s denial of the intervenors’ claims for failure to attend the hearing, reversed in part, vacated in part, and remanded the matter to the compensation judge for redetermination of various issues. The intervenors appealed to the Minnesota Supreme Court, which affirmed. Sumner v. Jim Lupient Infiniti, 865 N.W.2d 706, 75 W.C.D 263 (Minn. 2015). The matter was remanded to the compensation judge and a hearing was held on April 16, 2016.

The issues on remand were: the date of the employee’s recovery from the work injury; the employee’s restrictions, ability to work, and wage loss benefits; which medical expenses were reasonable, necessary, and causally related to the employee’s work injury; and whether certain intervenors were entitled to reimbursement of their intervention claims. The compensation judge found that the employee had recovered from her work injury as of May 29, 2012, and was entitled to TTD and medical expenses from January 28 through May 29, 2012. The judge denied the intervention claims at issue as well as the employee’s direct claims for treatment by the intervenors. The employee appealed the date of recovery, the denial of TTD, and the denial of her direct claims for treatment by the intervenors. The employee also appealed the finding denying payment to the intervenors. The employer cross-appealed the finding that the employee’s medical treatment expenses through May 29, 2012, were reasonable, necessary, and causally related to the employee’s work injury.

This court affirmed the date of the employee’s recovery, the award of medical treatment expenses through May 29, 2012, and the denial of the intervenors’ claims as direct claims by the employee, and reversed the compensation judge’s determination that two of the intervention claims had been extinguished. Sumner v. Jim Lupient Infiniti, 77 W.C.D. 357 (W.C.C.A. 2016). This decision was appealed, and the Minnesota Supreme Court affirmed without opinion on May 10, 2017. The employee’s attorney was awarded attorney fees of $3,000.00 from this court and $1,200.00 from the supreme court. Both courts denied the employee’s petitions for additional fees.

On July 31, 2017, the employee’s attorney filed a statement of attorney fees, later amended, for contingent fees of $3,158.00, Roraff fees of $71,693.00, costs and disbursements of $5,211.00, and subdivision 7 fees. After a hearing on October 3, 2018, the compensation judge ordered payment of the $3,158.00 in contingent fees withheld from the employee’s TTD and awarded $1,067.55 in contingent fees on medical and rehabilitation expenses, $5,211.00 in costs and disbursements, $7,500.00 in Roraff fees, and subdivision 7 fees. The employee appeals the amount of Roraff fees awarded.


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).


The employee appeals the amount of Roraff fees awarded by the compensation judge. As the award of Roraff fees in this case is within a reasonable range given the record, we conclude the compensation judge did not abuse his discretion and affirm.

Contingent attorney fees under the Minnesota Workers’ Compensation Act are payable to the employee’s counsel for obtaining benefits on behalf of the employee. Contingent fees for the recovery of monetary benefits are presumed to be adequate for a concurrent recovery of medical or rehabilitation benefits in dispute. Minn. Stat. § 176.081, subd.1(a)(1). Additional attorney fees for the recovery of medical or rehabilitation benefits may be assessed against the employer and insurer if the employee’s counsel can prove the contingent fees on the monetary benefits are inadequate to reasonably compensate the attorney for representation with respect to the medical and rehabilitation benefits also in dispute. Id. If proven inadequate, or if there are no monetary benefits awarded, contingent fees on the medical or rehabilitation benefits are calculated and awarded based upon the ascertainable dollar value of the disputed medical or rehabilitation benefits.[1] Id. Where the contingent fees are still inadequate to reasonably compensate the attorney for the time spent on legal services for the employee, the attorney is entitled to an additional hourly fee calculated by application of the factors set out in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999); see also Roraff v. State, Dept. of Transportation, 288 N.W.2d 15, 32 W.C.D 297 (Minn. 1980). Determination of a reasonable fee requires consideration of several factors, including “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.” Irwin, 599 N.W.2d at 142, 59 W.C.D. at 336. An award of fees is considered reasonable when it falls within a reasonable range for that case. Schlichting v. Zalk-Josephs Co., slip op. (W.C.C.A. Mar. 28, 1984).

In the present case, the compensation judge applied the law, and after finding the contingent fees were inadequate to compensate counsel for time expended on the matter, he considered the Irwin factors and ordered the employer and insurer to pay $7,500.00 in Roraff fees. The question before us on appeal is whether the evidence supports the judge’s findings of fact discounting the claimed Roraff fees and the amount awarded. The employee argues the compensation judge erred by not adequately considering certain factors, including the difficulty of the issues, the complex procedural posture of the case, the full results obtained, and the medical expenses extinguished due to multiple intervenors failing to appear, in determining the amount of Roraff attorney fees awarded.

The compensation judge determined that the contingent fees from the employee’s TTD benefits and the contingent fees from the dollar value of the medical and rehabilitation expenses recovered were inadequate to reasonably compensate the attorney for his time and effort expended in the recovery of medical and rehabilitation expenses. The judge then considered and analyzed the Irwin factors and found the following: (1) the monetary value of the medical services at issue was significant; (2) the time expended on the matter was reasonable; (3) the $600.00 an hour billing rate charged by lead counsel was unreasonable and excessive, in that the rate exceeds the range of reasonable fees charged by individuals of similar experience and training; (4) the billing rate charged by other attorneys and paralegals on the case was within the range of reasonable fees charged by individuals of similar experience and training; (5) the responsibility assumed by counsel was significant; (6) counsel was an experienced and capable workers’ compensation attorney; (7) the difficulty of the issues and nature of proof involved were not complex; and (8) the results obtained for the employee were limited.[2]

We conclude the compensation judge carefully reviewed the billing records provided by the employee’s counsel, appropriately considered and analyzed the factors set forth in Irwin, and balanced the scope of benefits awarded against the benefits claimed to reach his conclusion. As such, the compensation judge presented an adequate basis for setting the amount of fees awarded to employee’s counsel. Discounting the claimed fee is supported by the record and the compensation judge’s award of Roraff fees is within a reasonable range. Because the compensation judge’s findings are supported by substantial evidence and the judge applied the appropriate legal analysis, we affirm.

[1] These contingent fees are presumed to be reasonable and are awarded without consideration of the hours worked by the employee’s attorney or the Irwin factors. See Crowley v. Plehal Blacktopping, Inc., 66 W.C.D. 11 (W.C.C.A. 2005); Shamp v. Daybreak Foods, No. WC04-144 (W.C.C.A. June 25, 2004).

[2] Findings 10 – 15.