PRACTICE & PROCEDURE – RECORD. The compensation judge’s award of attorney fees and denial of the employee’s objection to the statement of attorney fees as untimely are vacated and the matter remanded for a hearing on the issues raised by the employee, including whether the statement of attorney fees was properly served and received.
Compensation Judge: William J. Marshall
Attorneys: Pro se Appellant. Christopher E. Celichowski, O’Meara, Leer, Warner & Kohl, P.A., Minneapolis, Minnesota, for the Respondent.
Vacated and remanded.
SEAN M. QUINN, Judge
The pro se employee appeals from the compensation judge’s award of fees to her former attorney and from his denial of her objection to the claim for attorney fees as untimely. We vacate and remand for a hearing.
Elsie Mayard, the employee claimed a November 8, 2017, work injury. She hired attorney Michael Schultz, who represented her for approximately one year. He last met with the employee on November 5, 2018, to review a stipulation for settlement, which the employee apparently did not sign. She terminated Mr. Schultz’s services shortly after that meeting.
After being discharged, Mr. Schultz filed a notice of attorney lien on November 9, 2018. Sometime thereafter, the employee hired attorney Donald Kohler. The record available for review suggests that Mr. Kohler renegotiated a settlement of the employee’s workers’ compensation claims and a stipulation for settlement was prepared. On November 6, 2020, an award on stipulation was issued by a compensation judge. According to representations made to this court, the stipulation for settlement stated that $1,500.00 was to be withheld from the employee’s benefits and paid to Mr. Schultz upon his filing of a statement of attorney fees, and that the employee reserved her right to object to his statement of fees. The record before this court does not contain any fee agreements between the employee and either of her attorneys, the stipulation for settlement, or the award on stipulation, and therefore, our review of this matter is hindered by the lack of a complete record.
On May 28, 2021, Mr. Schultz filed a statement of attorney fees documenting the number of hours he worked representing the employee, the dates when he performed services on the employee’s case, and the general nature of the services performed on each occasion. The affidavit of service accompanying the statement of attorney fees indicates that the employee was properly served with this statement of fees.
On June 8, 2021, the compensation judge issued an order stating that pursuant to the stipulation, $1,500.00 was withheld to satisfy Mr. Schultz’s attorney lien, that he submitted a statement of fees, and that no objection to the statement had been filed. Consequently, the compensation judge ordered the release of $1,500.00 to Mr. Schultz to satisfy his lien.
On June 11, 2021, the employee sent an email to the compensation judge, which copied to the attorney representing the employer and to Mr. Schultz, stating that she objected to Mr. Schultz's statement of attorney fees and his lien and that she never received a copy of his statement of fees. The compensation judge immediately forwarded a copy of that email to Mr. Kohler, the employee’s attorney of record, indicating that he would not be responding to the employee and directing Mr. Kohler to do so. The next day, Mr. Kohler responded by email to the compensation judge stating that he did not represent the employee in any fee dispute but only in getting the settlement offer reinstated. The day after that, the compensation judge again responded to Mr. Kohler, stating that this was not a matter of a fee dispute but rather one where the stipulation, apparently signed by Mr. Kohler, Mr. Schultz, the employee, and the employer's attorney, called for Mr. Schultz to file a statement of attorney fees and for the judge to act upon it, and that Mr. Kohler should explain this to his client. Mr. Kohler acknowledged this and said that he would take another look at the matter, but stated that he understood his client always intended to object to any attorney fee claim from Mr. Schultz.
On June 11, 2021, Mr. Schultz sent a letter to the compensation judge, which was copied to the employee and to the employer’s attorney, stating that pursuant to the stipulation, the agreement of the parties was that $1,500.00 was being withheld for his fees, that the stipulation was signed by the employee and by her new attorney, that he submitted his statement of fees, and that it was served on the employee.
On June 14, 2021, the compensation judge issued an order denying the employee’s objection to Mr. Schultz 's attorney fee claim as untimely. The employee appeals.
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).
On appeal, the pro se employee argues that she suffers from a language barrier and that she never received the statement of attorney fees served on her by Mr. Schultz. She also laid out, in general, her objection as to why Mr. Schultz should not receive any attorney fees. Mr. Schultz argues that the law provides ten days to file an objection to a statement of attorney fees, that the employee failed to do so in a timely fashion, and that the compensation judge properly denied her objection as untimely and properly awarded him the fees he requested.[1]
Minn. R. 1415.3200, subp. 3(A), states that an attorney claiming fees must serve a statement of attorney fees on the employee and on the employer and insurer. The rule goes on to state that any party objecting to the fees must do so within ten days of the date the statement of attorney fees was served. Minn. Stat. § 176.275, subd. 2(a), provides that when proof of service is required under the Workers’ Compensation Act or its rules, the proof of service must comply with Rule 15 of the Minnesota General Rules of Practice, which states that an affidavit of service must be signed, sworn, and notarized. Minn. Stat. § 176.285, subd. 1, states that where service of papers is done by mail, properly addressed and stamped, service is presumed to have reached the served party. The statute goes on to state, however, that a party may challenge service by providing evidence that it did not receive the served document. The burden of proving lack of receipt is on the party challenging service. Vang v. Planna Tech., Inc., 69 W.C.D. 11, 16 (W.C.C.A. 2009).[2] The objective of this statute cannot be achieved if the party challenging service of a document is not given an opportunity to be heard and present evidence.
The limited record before us establishes that Mr. Schultz filed a statement of attorney fees and served it on the employee by mail. Yet, the employee asserts she did not receive the statement of attorney fees. The employee’s assertion that she did not receive Mr. Schultz’s statement of attorney fees, by itself, may not be enough evidence to defeat the presumption under Minn. Stat. § 176.285, subd. 1, that there was proper service or receipt.[3] That said, her assertion that she did not receive the statement elevates the issue such that she should have been given an opportunity to be heard and present evidence to meet her burden of proof.
Accordingly, we vacate the compensation judge’s order denying the employee’s objection and his award of fees to Mr. Schultz. We remand this matter to the compensation judge so that he may make findings after a hearing on the issues of proper service and the employee’s underlying objection to the fees. The compensation judge should determine whether there was proper service of the statement by Mr. Schultz on the employee, including receipt by the employee. If the compensation judge finds there was proper service and receipt, he will not need to reach the issue of the employee’s underlying objection and can reissue the award of fees. If, on the other hand, he finds that the statement was not properly served or received, he will need to consider the employee’s objection and determine what fees, if any, should be awarded to Mr. Schultz.
[1] The employer notified this court that it takes no position in this fee dispute.
[2] See also Vang v. Planna Tech., Inc., No. WC09-4985 (W.C.C.A. Dec. 15, 2009).
[3] See Schoneck v. Pathway Health Servs., No. WC21-6420 (W.C.C.A. Dec. 3, 2021) (where effective service is established by proof of service that complies with Rule 15 of the General Rules of Practice, the burden to prove the service was improper is on the party challenging effective service, and the mere statement that the document being served was not received usually does not, by itself, suffice to prove ineffective service).