TOSHA ENGSTROM, Employee/Appellant,
v.
ULTRA PAC, INC., and SAFECO INS. CO., Employer-Insurer,
and
ULTRA PAC, INC., and NORTHBROOK INS./ST. PAUL COS., Employer-Insurer/Cross-Appellants,
and
MEDICA/HEALTHCARE RECOVERIES, INC.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 16, 1999
HEADNOTES
ATTORNEY
FEES - RORAFF FEES. Under the circumstances of
this medical request, the employee's attorney's fees
are not limited to $13,000.00 since the dispute involves
multiple injuries under Minn. Stat. § 176.081, subd.
1(b). Also, contingent fees on benefits not concurrently
in dispute or from potential future disputes need not be
considered in determining the attorney's fee for the
medical request.
APPEALS
- TRANSCRIPT; COSTS & DISBURSEMENTS. The appellant
is not required to pay the cost of preparing a transcript in
an appeal involving attorneys' fees where the
cross-appellant requested the transcript instead of the
appellant and the transcript was not necessary for this court
to fairly consider the appellant's appeal.
Affirmed
in part and vacated in part.
Determined by Hefte, J., Pederson, J., and Wheeler, C.J.
Compensation Judge: Jeanne E. Knight
OPINION
RICHARD C. HEFTE, Judge
The
employee appeals the compensation judge's decision that
the employee's attorney's fees are limited to
$13,000.00 in a medical request dispute where the employee
sustained one condition substantially caused by two separate
injuries. The employer and Northbrook cross-appeal the
compensation judge's finding that contingent fees on
monetary benefits were inadequate to compensate the
employee's attorney. We vacate in part and affirm in
part.
BACKGROUND
On
April 10, 1995, Tosha Engstrom (employee) injured her low
back while working as a line leader for Ultra Pac
(employer). On October 26, 1995, the employee
experienced significant back pain and shooting pain down her
legs which she could not relate to any specific
incident. The employee underwent physical therapy and
was placed on restrictions of no bending, stooping, twisting,
or lifting greater than 20 pounds. The employee was
placed in a light duty labeling job to accommodate these
restrictions. The April 1995 and the October 1995
injuries are not involved in this proceeding. On January
9, 1996, the employee sustained an admitted work related
injury to her low back when she slipped on icy stairs, at
which time the employer was insured for workers'
compensation liability by Northbrook Insurance/St. Paul
Companies (Northbrook). The employee experienced
increased pain in her back and legs after this
incident. The employee continued to work at her light
duty position. On February 5, 1996, the employee
sustained another low back injury after a fall while working
for the employer, which was insured at that time for
workers' compensation liability by Safeco Insurance
(Safeco). After this incident, the employee experienced
excruciating pain in the low back and both legs. The
employee was off work for 5.8 weeks, returned to work part
time for one month, then again went off work and has not been
able to return to work since. The employee received
temporary total disability benefits.
The
employee was referred to Dr. Gary Banks, who recommended a
two-level anterior-posterior fusion with
instrumentation. The employer and Safeco objected to the
surgery and, on October 8, 1996, filed a notice of intention
to discontinue benefits based on an independent medical
examination by Dr. Mark Gregerson. In a September 30,
1996, report, Dr. Gregerson opined that the employee was at
maximum medical improvement effective March 18, 1996, and
could return to work with restrictions, and that the proposed
surgery by Dr. Banks was not reasonable and
necessary. The employer and Safeco also claimed that the
employee had been offered a job within those
restrictions. A conference was held on the notice of
intention to discontinue benefits on November 27,
1996. A decision denying discontinuance was served and
filed December 2, 1996, concluding that Dr. Gregerson's
report was not adequate foundation for discontinuance of
benefits. The employer and insurer did not object to
this decision. The employee was awarded attorney fees...
