GERALD GRACE, Employee/Cross-Appellant,
v.
SMITH FOUNDRY CO., and TRIFAC WORKERS’ COMP. FUND/MACKINAW ADM’RS, LLC, (f/k/a MEADOWBROOK), Self-Insured Employer/ Appellant.
No. WC20-6368
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
January 12, 2021
ATTORNEY
FEES. The compensation judge did not abuse her discretion in
determining that the employee’s attorney’s claim
for fees was not premature given the employee was furloughed,
not working, and not receiving indemnity benefits, such that
there was no ongoing stream of benefits from which the
attorney could collect contingent fees.
ATTORNEY
FEES – RORAFF OR IRWIN FEES. The
compensation judge’s award of
Roraff/Irwin fees is vacated and the matter
remanded for application of the Irwin factors
without consideration of medical benefits not yet recovered
by the employee.
COSTS
& DISBURSEMENTS. The compensation judge did not abuse her
discretion in finding the costs to obtain expert reports to
support the employee’s prior, unsuccessful claim were
not taxable.
Patricia J. Milun, Chief Judge, David A. Stofferahn, Judge,
Sean M. Quinn, Judge
Compensation Judge: Sandra J. Grove.
James
T. Hansing, Minneapolis, Minnesota, for the Cross-Appellant.
Beth
A. Butler, Arlen R. Logren, Peterson, Logren & Kilbury,
P.A., Roseville, Minnesota, for the Appellants.
Affirmed
in part, reversed and remanded in part.
OPINION
PATRICIA J. MILUN, Chief Judge
The
self-insured employer appeals from the compensation
judge’s award of
Roraff/Irwin1 fees, and the employee’s
attorney cross-appeals from the compensation judge’s
denial of a portion of his claimed taxable disbursements. We
affirm in part and reverse and remand in part.
BACKGROUND
The
employee, Gerald Grace, suffered injuries to his left upper
extremity as a result of a 2015 work incident. He sought
workers’ compensation benefits related to those
injuries, and also claimed to have sustained an injury to his
cervical spine as a result of the same incident. The
employee’s claim for benefits was heard by a
compensation judge, who found that the employee did not
sustain a cervical spine injury. The compensation
judge’s decision was affirmed by this court and by the
Minnesota Supreme Court.2
In
2019, the employee asserted a new claim for various benefits,
alleging thoracic outlet syndrome as a result of the 2015
work incident. The employee’s claims were considered by
a compensation judge on December 24, 2019. By Findings and
Order dated February 18, 2020, the compensation judge found
that the employee’s thoracic outlet syndrome was
compensable. Because the employee was working at a new job as
a security guard for a casino at a lower rate of pay at the
time of the hearing, he was awarded temporary partial
disability (TPD) benefits. The judge also awarded a period of
temporary total disability benefits and a rehabilitation
consultation, and she approved the requested change in
physician. The employee’s claim for permanent partial
disability benefits was denied. A portion of the claimed
medical benefits and some intervention claims were awarded to
the extent the treatment related to the thoracic outlet
syndrome, and the remainder of the claims were denied. No
appeal was taken from the February 18, 2020, Findings and
Order.
The...
