RICHARD PETERSON, Employee/Respondent,
v.
VIRACON, INC. and INS. CO. OF THE STATE OF PENN., ADMIN. BY SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer/Appellants.
No. WC19-6247
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
July 24, 2019
ATTORNEY
FEES – HEATON FEES. Where the employee had
stopped attending a retraining program with no intention of
returning to the program and no longer received retraining
wage loss benefits, the award of Heaton fees to the
employee’s attorney was not premature and was not
barred by collateral estoppel or law of the case based on an
earlier denial of fees before the employee stopped attending
the program.
ATTORNEY
FEES – HEATON FEES. Substantial evidence
supports the compensation judge’s application of the
Irwin factors and the amount of Heaton fees
awarded.
Charles A. Bird, Bird, Jacobsen & Stevens, P.C.,
Rochester, Minnesota, for the Respondent.
Thomas
V. Maguire, Brown & Carlson, P.A., Minneapolis,
Minnesota, for the Appellants.
Determined by: Deborah K. Sundquist, Judge, David A.
Stofferahn, Judge, Sean M. Quinn, Judge
Compensation Judge: Miriam P. Rykken
Affirmed.
OPINION
DEBORAH K. SUNDQUIST, Judge.
The
employer and insurer appeal the judge’s award of excess
Heaton[1] fees for a retraining program which
was not completed by the employee. Because the
employee’s attorney successfully procured retraining
benefits, contingent fees did not adequately compensate him,
and the judge applied the Irwin[2] factors in determining
the attorney fee, we affirm the judge’s award of
Heaton fees.
BACKGROUND
In
April 2012, Richard Peterson, the employee, injured his low
back in the scope and course of his employment with Viracon,
the employer. Due to the injury, the employee became
physically unable to return to his job. With the help of his
QRC, the employee proposed a six-semester retraining program
in accounting. The employer and its insurer disputed the
employee’s retraining proposal, and the matter went to
hearing. The compensation judge awarded the claimed
accounting program in a Findings and Order served and filed
August 20, 2015.
On
September 22, 2015, the employee’s attorney petitioned
for excess Heaton fees, contingent fees, and Minn.
Stat. § 176.081, subd. 7, fees. The employer and insurer
objected to payment of the fees as unreasonable and
premature. Following a hearing on attorney fees, the judge
ordered the release of withheld attorney fees, payment of
ongoing contingent fees from weekly retraining wage loss
benefits,[3] and payment of subd. 7 fees in a
Findings and Order served and filed January 29, 2016. The
judge did not award the claimed excess Heaton fees,
noting in the memorandum that it was premature as long as the
employee continued to receive a stream of retraining wage
loss benefits from which contingent attorney fees were
withheld. Furthermore, because it was not possible to fully
evaluate the amount involved or the result obtained, pursuant
to Irwin, the judge explained that it was also
premature to determine whether the employee’s
contingent attorney fees were adequate. The judge reasoned
that once the retraining plan was completed the
employee’s attorney could petition for excess fees if
he believed that the contingent fees had not provided...
