RODNEY DEAN BJORNSON, Employee/Appellant, v. MCNEILUS COS., INC. AND TRAVELERS INDEM. CO. OF AM. and PROP. & CAS. INS. COS. OF HARTFORD, admin’d by GALLAGHER BASSETT SERVS., INC., Employer-Insurers/Respondents.

This matter is before this court on remand from the April 30, 2025, Minnesota Supreme Court opinion, Bjornson v. McNeilus Companies, Inc., 20 N.W.3d 2 (Minn. 2025), on appeal from the compensation judge’s findings and order on remand.  In our prior decision Bjornson v. McNeilus Companies, Inc., No. WC23-6530 (W.C.C.A. Mar. 11, 2024), we reversed the compensation judge’s award of Roraff^[1] fees in the amount of $49,000 based upon our determination that the findings were not supported by substantial evidence in the record.  That decision was appealed and the supreme court reversed our decision and remanded the matter back to this court with specific instructions to obtain clarification of the existing evidence from the compensation judge and then review the record as a whole to determine whether substantial evidence supports the compensation judge’s award of attorney fees.

After following these directives, we conclude that substantial evidence does not support the compensation judge’s award of Roraff fees of $49,000 pursuant to Minn. Stat. § 176.081, subd. 1 (a)(1), and Minn. Stat. § 176.411, subd. 1.  We reverse the findings and order on remand and clarify that substantial evidence does not support the compensation judge’s August 3, 2023, award of Roraff fees in the amount of $49,000.

The employer, McNeilus Companies, Inc., and the insurers, Travelers Indemnity Company of America and Property & Casualty Hartford, reached a to-date settlement with the employee, Rodney Dean Bjornson, on February 3, 2023, for two dates of injury.  The employer and Hartford stipulated and agreed that the employee sustained a work-related injury on June 24, 2021, but disputed the nature and extent of the injury.  (Ex. H at OAH-0062.)  The employer and Hartford did not dispute that the treatment the employee received at MCHS^[2] (all facilities and all dates of service) was causally related to cure or relieve the effects of the June 24, 2021, work-related incident, and “agree to defend, indemnify and save and hold him harmless with regard to any claims for any Spaeth balance that may be owed.”Id. (emphasis added).  The employer and Travelers denied that the May 29, 2019, injury was work-related.

The employer and insurers jointly paid $15,000 to settle all indemnity, vocational rehabilitation, and medical expenses through the date of the award on stipulation for the two dates of injury.  Of that amount paid to the employee, $3,000 was paid to the employee’s attorney for attorney fees.  Nowhere in the stipulation for settlement did the parties agree to the dollar amount of the employee’s medical bills causally related to the now admitted June 24, 2021, work injury.  The only mention of any amount of the medical bills in the stipulation was in the outline of the employee’s claims and contentions contained in Section VI, subpart 21, which states in part, “on information and belief, the amount paid by UnitedHealthcare Services was at least $327,257.37.”  (Ex. H at OAH-0057.)  The award on stipulation signed by the compensation judge and served and filed on February 3, 2023, dismissed all pleadings.  (Ex. I at OAH-0073-0074.)

On February 15, 2023, twelve days after the award on stipulation was served and filed, the employee’s attorney filed a statement of attorney fees claiming 20 percent of the total alleged medical bills of $327,257.37.  (Ex. J.)  The attorney claimed that he recovered for the employee a lump sum to-date settlement for wage loss benefits including permanent partial disability benefits, medical out-of-pocket payments, medical mileage, and recovery of medical expenses, which entitled him to the maximum compensation rate of $26,000 for each injury, or a total of $52,000 less the $3,000 paid pursuant to the stipulation for settlement, under Minn. Stat. § 176.081, subd. 1(a)(1).  Attached to the statement was an itemization of professional services rendered in the amount of approximately $28,000.  (Ex. K.)  The employer and insurers objected to the statement of attorney fees, arguing that there was no recovery of medical benefits which would give rise to the award of attorney fees and that the fees sought were unreasonable and excessive.

On June 5, 2023, a hearing was held before a compensation judge on the attorney fee claim. Two issues were presented: 1) whether the contingent fee paid per the stipulation for settlement was inadequate to reasonably compensate the employee’s attorney in a medical dispute, and 2) if not, whether the disputed medical benefits were recovered and paid.  The compensation judge found the intervention interest of UnitedHealthcare^[3] was “recovered” within the meaning of Minn. Stat. § 176.081, subd. 1(a)(1), and ordered the employee’s attorney be paid $49,000 in attorney fees.  (Aug. 3, 2023, Findings and Order on Attorney’s Fees, Finding 11, Order 1.)  The employer and insurers appealed.

On September 11, 2023, this court received the certified record index (approved and signed by the compensation judge) from the Court of Administrative Hearings (CAH) following the filing of the notice of appeal.  On that same day, this court’s verification of record was sent to the parties, which stated, “[t]he parties must examine the verified record in CAMPUS and report any discrepancies to the court, no later than the deadline for receipt of reply briefs.”  No party contacted this court to report any discrepancy in the certified record, and the record did not include the itemized medical bills from the Mayo Clinic referenced by the compensation judge in her findings.  According to the hearing transcript and the employee’s exhibit list, the itemized medical bills from the Mayo Clinic were not attached to the claim petition offered into evidence as Exhibit D at the June 5, 2023, hearing, and were not in the record before us.  Without the itemized medical bills, we held in our March 11, 2024, decision that substantial evidence did not support the compensation judge’s award of Roraff fees.  We also suggested that as an alternative to Roraff fees, the employee’s attorney could petition for attorney fees under an Irwin^[4] analysis based on a reasonable hourly rate, which would not require the employee’s attorney to produce evidence of the ascertainable dollar amount of medical benefits recovered.  On appeal, the Minnesota Supreme Court reversed this court’s decision.

The sole issue before the supreme court was whether the employee’s attorney submitted sufficient evidence of an ascertainable dollar value of medical benefits awarded to support his claim for Roraff fees.  The employee’s attorney argued that even if the bills were not received into evidence, his testimony and exhibits—including the nine-page claim petition (Ex. D), his statement of attorney fees (Ex. J), the employee’s trial brief (Ex. L), the stipulation for settlement (Ex. H), and the employee’s itemization of benefits claimed (Ex. G)—proved that the employer and insurers paid an ascertainable dollar value which could be used to calculate his Roraff fees.  The supreme court noted in their opinion that this court had not made a determination of whether the findings of the compensation judge in the context of the record as a whole were supported by evidence that a reasonable mind might accept as adequate.  The supreme court reversed our decision denying Roraff fees, stating:

In conformity with the supreme court’s directives, this court referred the matter to CAH on May 7, 2025, ordering the compensation judge to “clarify whether the ‘itemized medical bills from the Mayo Clinic’ were the actual itemized bills or Exhibit G.”  Order of Referral to the Office of Administrative Hearings, No. WC25-6601 (W.C.C.A. May 7, 2025).  In that order, this court further ordered the compensation judge to submit clarification of the record to this court pursuant to the supreme court’s decision in Bjornson and Minn. Stat. § 176.381. 

In Findings and Order on Remand of June 12, 2025, the compensation judge found that the employee’s claim petition and its attachments, including the itemized medical bills, filed on March 29, 2022, were part of the record at the attorney fee hearing, not just Exhibit G.  (June 12, 2025, Findings and Order on Remand, Finding 8 at OAH-0247.)  In the memorandum, the compensation judge explained that the claim for attorney fees arose out of the dispute originated by the filing of the employee’s initial claim petition.  The compensation judge cited Minn. R. 1420.2900, subp. 7, which defines the “record” of hearing as one which “shall contain all pleadings.”  While a version of the employee’s claim petition was submitted as a specific exhibit (Ex. D) on June 5, 2023, without any medical bills attached, the compensation judge reasoned that “the record” contained the employee’s complete claim petition including all attachments.  (June 12, 2025, Findings and Order on Remand, Mem. at OAH-0248.)  The employer and insurers filed a notice of appeal with this court on June 17, 2025.

Also on June 17, 2025, this court ordered CAH to submit all portions of the record not previously submitted related to the August 4, 2023, Findings and Order on Attorney’s Fees.  This court further ordered CAH to amend the record index certified on September 11, 2023, to include all portions of the record not previously submitted.  The employer and insurers objected to the order, which was denied.  CAH submitted an amended record index, which now includes a 143-page document containing the March 29, 2022, claim petition with the itemized medical bills, that had not been submitted to this court during the first appeal in 2023.  No additional pleadings were included.

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).  When the findings are supported by substantial evidence, the Workers’ Compensation Court of Appeals must defer to the compensation judge. Lagasse v. Horton, 982 N.W.2d 189, 202 (Minn. 2022).  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); see also Smith v. Carver Cnty., 931 N.W.2d 390, 79 W.C.D. 495 (Minn. 2019).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involve 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); see also Busch v. Advanced Maint., 659 N.W.2d 772, 778-79, 63 W.C.D. 277, 284 (Minn. 2003).

On appeal, the employer and insurers argue that the compensation judge erroneously found that the 143-page document was part of the evidence in the record and was considered at the attorney fee hearing on June 5, 2023.  Because there were no medical bills offered or admitted into evidence at the June 5, 2023, attorney fee hearing, the employer and insurers argue that only Exhibit G (the summary document of the voluminous medical records) was admitted into evidence.  The employer and insurers assert that by refusing to acknowledge that the only evidence before her at the hearing were the admitted exhibits, the compensation judge “incorrectly conflated the official record in this matter with the evidence in the record before her”^[5] and circumvented the requirement that only documents that are submitted into evidence at the hearing are considered by the compensation judge.^[6]

The Minnesota Supreme Court remanded the matter to this court for a referral to the compensation judge to clarify what was contained in Exhibit G.  We referred the matter to the compensation judge seeking clafication using the language of the supreme court: “were the ‘itemized medical bills from the Mayo Clinic’ the actual itemized bills or Exhibit G, the summary document of the voluminous medical records prepared by counsel.”  Bjornson, 20 N.W.3d at 6.  We indicated that the record should not be reopened to accept additional evidence.  In her findings and order on remand, the compensation judge found that the original March 29, 2022, claim petition and its attachments were part of the record at the attorney fee hearing, not just Exhibit G.  (June 12, 2025, Findings and Order on Remand, Finding 8 at OAH-0247.)  The judge explained in her memorandum that the claim for attorney fees arose out of the dispute from the employee’s claim petition on March 29, 2022.  Because Minn. R. 1420.2900, subp. 7, states that a record shall contain all pleadings, the compensation judge reasoned that the record included the medical bills not offered by the parties as an exhibit or in evidence at trial.  Upon this court’s review, the actual medical bills were not included in Exhibit G, or any other exhibit offered at the hearing.  Minn. Stat. § 176.411.  Based on the statute, the rules, and case law, we are not to consider material documents that have not been offered into evidence.

The Minnesota Workers’ Compensation Act provides the structure for hearings, burdens of proof, and evidence in workers’ compensation claims and proceedings and establishes that a compensation judge is not bound by common law or statutory rules of evidence, nor by technical or formal rules of pleading or procedure.  Minn. Stat. § 176.411.  Instead, “findings of fact shall be based upon relevant and material evidence only, as presented by competent witnesses, and shall comport with section 176.021.”  Id. (emphasis added).  For hearings conducted by video technology, as was the case here, the exhibits must be pre-filed with the office at least three business days before the hearing.  Mailed or delivered exhibits must be placed in a separate, sealed envelope marked with the name and date of the case, the file number, and must be identified as exhibits of the submitting party.  See Minn. R. 1420.2900, subp. 6B.  While pleadings are part of the record under Minn. R. 1420.2900, we have previously held that they are not considered evidence unless admitted.

In two decisions from this court, Birkholz v. Wagner Spray Tech, No. WC07-128 (W.C.C.A. Sept. 5, 2007) and Moore v. Univ. of Minn., 67 W.C.D. 602 (W.C.C.A. 2007), we reserved the option of considering only those exhibits formally submitted and accepted into evidence and those documents in the division file that are specifically identified at hearing by filing date, title, and content.^[7]  We noted that incorporating the entire division file into the record is generally poor practice because the parties cannot be certain which of the hundreds of pages of documents a judge may choose as relevant in deciding a case.  This restricts the parties’ ability to object or to qualify those documents that have not been offered.  We have held that the employee must present evidence at the hearing sufficient to establish entitlement to the requested attorney fee.  In Birkholz, we held that where the amount of medical expenses related to the surgery was not in evidence before the compensation judge, the judge had insufficient information to determine either the statutory contingent fee or whether the statutory contingent fee was inadequate to reasonably compensate the attorney for representing the employee.  In 2012, we held in Yennie v. Benchmark Elecs., Inc., 72 W.C.D. 465 (W.C.C.A. 2012), that where there was no evidence in the record as to the medical benefits recovered on behalf of the employee, there was no basis for the compensation judge to conclude that a contingent fee was inadequate to compensate the attorney for representing the employee at the hearing and therefore a Roraff fee was inappropriate.

The compensation judge’s reliance on a document that was not offered as an exhibit or admitted into evidence at the hearing is reversible error.  The rules require that the judge consider only admitted relevant and material evidence that is not repetitive or cumulative.  Exhibits for hearing must be pre-filed with the office at least three business days before the hearing.  Minn. R. 1420.2900, subp. 6.  An exhibit is defined as a document or other evidence that is introduced at a hearing and is marked, offered, and accepted into the record by a judge as an exhibit.  Minn. R. 1415.3500, subp. 1.  The judge did not mark or accept into evidence the 143-page document at issue.  Therefore, it is not part of the record and cannot be considered by this court on appeal.

The employee’s attorney also argues that aside from the 143-page document, his testimony and the exhibits offered into evidence at the attorney fee hearing were adequate to support the compensation judge’s conclusions.  Those exhibits included the employee’s claim petition (without the itemized medical bills) (Ex. D), itemization of benefits claimed (Ex. G), the employer and insurers’ answer to the claim petition (Ex. F), the statement of attorney fees (Ex. J), itemization of professional services rendered (Ex. K), and the stipulation for settlement.  (Ex. H.)  We disagree.

Minn. Stat. § 176.081, subd. 1(a)(1), provides an attorney fee in those cases where a contingent fee fails to adequately compensate the employee’s attorney for representing an employee in a medical dispute.  The amount of compensation awarded for obtaining disputed medical benefits “shall be the dollar value of the medical . . . benefit awarded, where ascertainable.”  Id.  Where the dollar value is not reasonably ascertainable, the amount charged in hourly fees or $500, whichever is less, will be paid by the employer or insurer.  Minn. Stat. § 176.081, subd. 1(a)(2).  “[W]hen the W.C.C.A. reviews a compensation judge’s decision on a question of law, it need give no deference to conclusions of the compensation judge and reviews those conclusions de novo.”  Varda v. Nw. Airlines Corp., 692 N.W.2d 440, 443-44, 65 W.C.D. 92, 97 (Minn. 2005).  In interpreting statutes, our supreme court has held that we must look to the “plain language of the text” and that when a term is not defined by statute, we look to “dictionary definitions.”  Lagasse v. Horton, 982 N.W.2d 189, 197-98 (Minn. 2022); see also State v. Thonesavanh, 904 N.W.2d 432, 435-36 (Minn. 2017); Shire v. Rosemount, Inc., 875 N.W.2d 289, 292 (Minn. 2016).  Because the attorney fees are tied to the ascertainable dollar value of the medical benefit dispute, we must define the term “ascertainable.”  The common use of “ascertain” is “to make certain, exact, or precise; to find out or learn with certainty.”  Ascertain, Merriam-Webster’s Dictionary 71 (11th ed. 2019).  The clear language of the statute imposes a standard of a certain, exact, or precise amount of medical benefits recovered when awarding Roraff attorney fees.

Based upon the following analysis, we conclude that the record does not provide substantial evidence to support the compensation judge’s award of Roraff fees in the amount of $49,000 because the medical benefit claimed was not reasonably ascertainable based on the evidence admitted at the initial attorney fee hearing or in the record provided to this court on September 11, 2023.

The stipulation contains no agreement or language that the dollar value equaled the amount claimed by the employee’s attorney.  The employer and insurers did not agree in the stipulation to pay $327,257.37 or that this dollar amount represented the dollar value of the medical benefits recovered.  The employee’s attorney argued at the fee hearing that the medical benefit amount was $327,257.37 and referred to this amount as being included in the stipulation for settlement.  (Ex. H and I.)  However, the stipulation for settlement language to which he refers is not certain.  In the employee’s claims and contentions, he claims that “[o]n information and belief, the amount paid by UnitedHealthcare Services was at least $327,257.37.”  (Ex. H at OAH-0057.) (emphasis added).  This is not a certain, exact, or precise dollar amount.

There are no fee schedule calculations or amounts provided by the employee’s attorney in the exhibits submitted at the initial hearing, nor is there a factual finding by the compensation judge of the fee scheduled amounts.  Attorney fees for recovering medical benefits are calculated based only on the medical-fee-scheduled amounts under the Minnesota workers’ compensation fee schedule.  See Minn. Stat. § 176.136, subd. 1a; Minn. R. 5211.4020; see also Irwin, 59 W.C.D. 319, 599 N.W.2d 132; Crowley v. Plehal Blacktopping, Inc., 66 W.C.D. 135 (W.C.C.A. 2006); Roraff, 288 N.W.2d at 16, 32 W.C.D. at 298.  The employer and insurers’ liability is limited to the maximum charges set forth in the medical fee schedule or the healthcare providers’ actual fee, whichever is lower.  McLaughlin v. St. Phillips Church, 66 W.C.D. 20 (W.C.C.A. 2005).  Roraff fees cannot be properly calculated with this variable missing from the equation.

We are also not certain of the Spaeth^[8] balance amount here, if any.  The stipulation for settlement indicates that the employer and insurers only agreed to defend, indemnify, and save and hold the employee harmless with regard to any claims for any Spaeth balance that may be owed.  (Ex. H at OAH-0062.)  “A Spaeth balance is the amount that remains after a health insurer pays the medical provider the amount provided under the workers’ compensation fee schedule.”  Gamble v. Twin Cities Concrete Prods., 852 N.W.2d 245, 247 n.2, 77 W.C.D. 775, 777-78 (Minn. 2014).  The employee’s attorney has never testified as to a Spaeth balance nor does evidence in the record indicate such.

The compensable medical treatment must also be deemed reasonable and necessary.  Minn. Stat. § 176.135. subd. 1, provides in part that the employer “shall furnish any medical, psychological, chiropractic, podiatric, surgical and hospital treatment . . . as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.”  The reasonableness and necessity of medical treatment pursuant to Minn. Stat. § 176.135 is a question of fact for the compensation judge.  See, e.g., Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).  Here, the parties settled the claims and issues through the stipulation for settlement, but the parties did not stipulate and agree that the medical treatment was reasonable and necessary for the dates of injury.

The remaining exhibits offered by the employee’s attorney do not provide the certainty necessary for the calculation of contingent Roraff attorney fees.  The first report of injury, notice of insurers’ primary liability determination, and retainer contract (Exs. A, B, and C) contain no reference to the alleged dollar value of the medical benefits obtained.  The employee’s March 29, 2022, claim petition (Ex. D) claims that UnitedHealthcare paid at least $317,063.47, which is different than the amounts claimed in the stipulation for settlement and at the attorney fee hearing.  A letter from Optum/UnitedHealthcare Services indicated that Optum represented UnitedHealthcare Services and would not be filing an intervention claim, and also did not indicate a dollar value.  (Ex. E.)  The employer and insurers’ answer to the employee’s claim petition denies each and every matter, allegation, and claim in the petition, contradicting the testimony of the employee’s attorney that the employer and insurers did not object to the dollar value.  (Ex. F.)  The employee’s itemization of benefits claimed (Ex. G) lists total charges but does not contain the fee-scheduled amount or necessary information to make the dollar value ascertainable.  The remaining exhibits are the statement of attorney fees with addendum, the itemization of professional services rendered, and the employee’s trial brief.  (Exs. J, K, and L.)  These exhibits also do not document the ascertainable dollar amount for the medical benefits recovered by the employee’s attorney.

The employee’s attorney argues that his testimony alone is sufficient proof that the medical benefits totaled $327,257.37.  He explains that the compensation judge was simply weighing his testimony against his opponents’ and that the supreme court has now sanctioned an employee attorney’s testimony as a sole means to prove ascertainable medical benefits.  We disagree.  There must be an evidentiary basis for a compensation judge’s determination on attorney fees.  Bryant v. Univ. of Minn., No. WC06-197 (W.C.C.A. Dec. 21, 2006).  Based on the statutory language of Minn. Stat. § 176.081, there must be reasonable certainty of the dollar amount of the medical benefits recovered by the employee’s attorney.  Thus, even if testimony could be considered on an evidentiary basis, as explained above, the testimony in this matter fails to provide an ascertainable amount of recovery, which would be: the total amount of the medical bills reasonably and necessarily related to the admitted work injury, then fee scheduled as provided under the Minnesota Workers’ Compensation Act, minus any payment made by UnitedHealthcare, resulting in an ascertainable Spaeth balance, which would represent the amount actually recovered under the stipulation for settlement.  The testimony of the employee’s attorney simply fails to establish such an amount.

There is no substantial evidence in the record that a reasonable mind might accept as adequate to support the compensation judge’s award of Roraff fees in the amount of $49,000 absent the Spaeth balance, the fee-scheduled amount of the medical benefits recovered by the attorney, and an adjudication that the medical treatment was reasonable and necessary.  All are fundamental in establishing a reasonable ascertainable dollar value of the medical benefits in this case.  Alternatively, if we are required to consider as part of the record, the 143-page document provided in June and July 2025, we would reach the same conclusion based on the above analysis. We reverse the compensation judge’s findings and order on remand.

Finally, we acknowledge, as we did in this court’s initial decision, that the employee’s attorney may petition for attorney fees under an Irwin analysis, which does not require proving ascertainable medical benefits per Minn. Stat. § 176.081, subd. 1(a)(1).