LARRY HORTON, Employee/Appellant,
v.
ASPEN WASTE SYSTEMS, INC., and EMC INS. COS., Employer-Insurer,
and
C. JEREMY LAGASSE, Respondents.
No. WC20-6356
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
December 24, 2020
ATTORNEY
FEES – GENUINE DISPUTE. An award of fees from a benefit
of the employee that is not yet due and not yet payable is
premature. Not until the benefit is payable to the employee
can it be determined what role an attorney played in
obtaining that benefit for purposes of awarding attorney
fees.
Kirk
C. Thompson, Kirk C. Thompson Law Office, P.A., Minneapolis,
Minnesota, for the Appellant.
James
S. Pikala, Eric S. Schwab, Arthur, Chapman, Kettering, Smetak
& Pikala, P.A., Minneapolis Minnesota, C. Jeremy Lagasse,
Aaron Ferguson Law, Roseville, Minnesota, for the
Respondents.
Determined by: David A. Stofferahn, Judge, Gary M. Hall,
Judge, Deborah K. Sundquist, Judge
Compensation Judge: Kirsten M. Tate
Vacated.
OPINION
DAVID
A. STOFFERAHN, Judge.
The
employee appeals from an award of attorney fees to be paid
from his permanent partial disability benefits. There is no
evidence that permanent partial disability benefits were
payable and it was an error to award an attorney fee from
those benefits. We vacate the award.
BACKGROUND
Larry
Horton, the employee, sustained a serious work injury on June
22, 2017, which resulted in significant disability affecting
his cervical spine, thoracic spine, and right arm. The
employer admitted liability and commenced payment of
temporary total disability (TTD) benefits and medical
expenses.
On the
employer’s behalf, the insurance adjuster wrote to the
employee’s treating doctor, Dr. Daniel Sipple, on June
22, 2018, seeking a report addressing maximum medical
improvement (MMI) and permanent partial disability (PPD)
ratings. Dr. Sipple stated in his response of July 10, 2018,
that the employee had 10 percent disability for the injury to
the cervical spine and 60 percent for the nerve...
