*1 from un- position protect Gilbertson had no injury
known and she protect would her
expectation they injuring Harper, herself. See
from (explaining context that, legal host in the absence of a
a social
duty, negligence not established even “superior the defendant has knowl-
when condition”).
edge dangerous of a these On
facts, Leininger we conclude and Hess special relationship
did not with
Gilbertson.
Therefore, Leininger we hold that duty legal protect
Hess did not have a when, unbeknownst from harm
Gilbertson Hess, Leininger she sustained injury evening drinking
head after an in a manner
and then behaved that was multiple diagnoses, with
consistent includ-
ing intoxication.
Reversed. Relator, IRWIN,
John
v. LIQUOR
SURDYKS and American
Compensation Insurance/RTW,
Inc., Respondents.
Craig Frisch, Relator, L. Carpet Designs &
S S State Farm Respondents. Company,
Insurance C6-99-95,
Nos. CX-99-178.
Supreme Court of Minnesota.
Sept. give duty. legal Leining- injured rise to a similar mine whether Gilbertson was affirmatively merely symptoms place er and Hess did not Gil- intoxicated because her Thus, danger, help diagnosis. were bertson and neither line consistent with either paramedics Depue dispositive. nurse nor the were able deter- is not *2 Wulff,
Law of David Office C. David C. Wulff, Roseville, employee-relator. Cousineau, Anderson, Chtd., McGuire & Patera, Minneapolis, Michael J. for em- (c69995). ployer-respondent McCollum, Vehanen, Crowley, Moschet Miller, Ltd., Lamo, Nancy Blooming- E. & (cx99178). ton, employer-respondent awarded, just paid by those fees. We employee through contingent proper reading of that this is a conclude OPINION statute, and re- plain language *3 holding contrary. to the the WCCA’s verse GILBERT, Justice. Surdyk’s Liquor et al. Irwin v. cases consolidated in these The relators by the attorney fees awarded challenge in a work-relat- was involved John Irwin judge and Workers’ September accident on ed motor vehicle (WCCA) Appeals of Compensation Court accident, of that he 1996. As a result § 176.081 pursuant neck, shoulder, jaw pain and and suffered amend- that the 1995 assert The relators Liquor and its insur- Surdyk’s headaches. limit the to section ments er, Compensation Insurance American of amounts availability and (hereinafter to collec- Company referred and Due Separation of Powers violate the liability, and “Surdyk’s”) denied tively as of the Minnesota Consti- Process Clauses attorney David C. Wulff. Irwin retained Const, Ill, 1,§ art. tution. See represent- petition a claim and Wulff filed I, § of the lower 7. Neither and art. hearing. at the Irwin claimed ed Irwin constitutionality of courts addressed disability, payment permanent partial 15% statute, they acknowledging physician a for a billed of treatment from that the stat- jurisdiction. We hold lacked $4612.53, payment of treatment amount of fees imposed limitation utorily for a billed amount physician another from pow- the doctrine violates $4955.12, mileage of medical payment by subject to review as it is ers insofar $15.12, in the amount of reimbursement grants final court duly a established on all benefits. interest non-judi- to a attorney fees authority over compensation judge awarded Irwin and re- therefore reverse body. cial We permanent partial disability for 8% $6000 mand. benefits, por- payment of all of one and a pro- further assert that the The relators charges pur- physicians’ other tion of the for allowing visions of Minn.Stat. schedule, mileage to the fee medical suant on “the attorney fees based an award of $15.12, interest on each benefit award- dollar value of the medical compensation judge these amounts. The interpreted to mean the be ed” should of costs and ordered reimbursement also provider dollar amount billed by Wulff and con- disbursements advanced benefit, sched- rather than the fee medical withheld from Irwin’s tingent fees to be disagree, and amount awarded. We ule disability award of permanent partial Relator holding of the WCCA. affirm the appealed the award. party Neither $6000. argu- Irwin makes two additional John 5, 1998, an February Wulff filed that where the On He first asserts ments. withheld application payment of the expenses is right to future medical receive fees based secured, contingent fees and additional attorney fees should the award of recovery of medical on and related those future medical include an award on commonly called fees. expenses, where future expenses. We hold that Roraff State, 288 N.W.2d generally disputes based there- See medical benefits and Roraff (Minn.1980). application, In this Wulff is not enti- speculative, on are performed he 37 hours of expenses, claimed that an based on such tled to award sought payment professional services. He Secondly, and therefore affirm the WCCA. with- already being contingent fees to Minn.Stat. Irwin asserts that partial dis- permanent Irwin’s employees held from awards to award, payable ability upon percentage based Roraff Surdyk’s in the amount $4150. all paid be based on should requested contingent fees and the provides “the current statute no standards Roraff $5550, fees totaled which would have com- for determining contingent whether a pensated Wulff for his 37 hours at the award is inadequate to reasonably compen- hourly rate of $150. an attorney sate representing em- ployee in a medical or rehabilitation dis- Following hearing, pute.” noting While that there was some judge spent found that the 37 hours merit position to Irwin’s challenging the Wulff were reasonable and necessary constitutionality of Minn.Stat. light of the issues involved in the case. the WCCA acknowledged that it Surdyk’s did per not contest that the $150 jurisdiction lacked to determine the consti- hour rate compensa- was reasonable. The tutionality of the statute. The WCCA con- tion judge found that the $1400 *4 cluded that the statute allowed an addi- fee was inadequate reasonably compen- tional award based on medical benefits services, sate Wulff for his 37 hours of and only in precise accordance with the per- that Wulff was therefore entitled to Roraff centage-based formula of Minn.Stat. expenses fees based on the medical paid. 1(a). 176.081, § subd. Accordingly, the Those fees were based on 20% of the fee WCCA did not address the reasonableness paid, schedule and totaled of the requested attorney fees. Combined with the con- $1682.99. $1400 fee, tingent compensation judge award- The WCCA found “no merit” in Irwin’s ed Wulff a total of $3082.99. assertion that the attorney fee award compensation judge also awarded should be based on the actual amount Irwin attorney paid 30% of all fees provider. billed The WCCA deter- $250, Wulff in excess under Minn.Stat. 1(a) 176.136, § mined that Minn.Stat. subd. 176.081, § subd. 7. The judge interpreted (1998) limits the liability employer of an or (not provide this statute to “an award amount, insurer to the fee schedule and reimbursement)” all attorney based on because compensation “the judge could not paid pursuant fees to claimant’s attorney award a medical benefit in excess of that 176.081, § just to Minn.Stat. contin- schedule,” provided in this the fee schedule Further, gent fees. proper amount was the amount on which judge although determined that Wulff re- attorney to base fees. quested attorney fees for future medical As to Irwin’s contention that attorney benefits that might payable, any become fees should be awarded for future medical premature, such award would be as no benefits, stated WCCA that “the future medical paid benefits had been or phrase ‘benefit awarded’ [as used Minn. disputed by employers or insurers. 1(a)(1) plain and ] Cross-appeals filed by parties. were both unambiguous and limits the fees appeal, Surdyk’s On did not contest the to the dollar amount of the award- benefits compensation judge’s finding that the con- proceeding.” ed tingent fee award was inadequate rea- sonably compensate attorney, Irwin’s but Finally, the WCCA determined that the disputed judge’s finding compensation judge ordering pay- erred in that the amount of spent time Wulff on the ment to employee of 30% of all attor- case was reasonable. The upheld ney fees under Minn.Stat.
the award of fees based on medical 7. The purpose WCCA looked to the Roraff expenses paid compensa- held that the subdivision im- which is “to reduce the tion judge’s method of determining pact of withholding adequacy of contingent com- fees as fees from the benefits to pensation for the was reasonable. which the is entitled.” The After outlining the 1995 amendments to WCCA determined that because “courts stated, the WCCA traditionally have treated subdivision paid fees employee,” pay Frisch 30% all as reimbursement
fees on based 176.081. Neither should be subdivision paid by employee, party appealed the award. employer. paid by the those application Wulff filed Roraff Carpet Design et al. v. S & S Frisch fees. claimed that he contingent Wulff sustained a work-related Craig Frisch 43.4 hours of services. He performed 20, 1995. S & S injury on November back be contingent sought $401.16 insurer, and its State Carpet Designs from withheld Frisch’s award $1604.65.1 (hereinafter re- Company Insurance Farm sought payable Wulff also Roraff S”) accepted collectively & as “S ferred S, together & with S temporary total liability paid primary $6510, fees, totaled that would an amount 20, 1995 disability benefits from November compensated Wulff for his hours 15,1996. January January through On hourly rate of $150. an as- accepted position as Frisch Following a hearing, the training at a retail manager sistant spent by judge found 43.4 hours store, than he had pay at a lower rate of reasonable, was was Wulffs rate Wulff January early earned at S & S. late hour, per given experience his of $150 *5 told February, & S contacted Frisch and S compensation expertise in the area. The that work was & S did him available. S thus that was a judge determined $6510 type pay, the of work or rate of specify compensa- reasonable fee. The informed & that he was and Frisch S S judge contingent tion found that the unavailable. already employed and thus compensate to inadequate reasonably was & S then pay refused medical ex- to S services, for his that Wulff Wulff and was benefits, wage loss and Frisch penses and to therefore entitled fees based on Roraff retained Wulff.- However, expenses paid. the medical the repre- petition filed a claim and Wulff compensation judge that Minn. determined hearing. Frisch at Frisch sented the 1(a) limits Roraff temporary partial disability, and claimed awarded, of the and fees to 25% first $4000 be- sought of the difference that Wulff was entitled to therefore at S tween what he would have earned S & $179.48, on based 25% of the fee schedule job, until what he earned at his new and paid plus mileage. amounts medical The job paid equivalent job his the new to judge thus awarded Wulff a permanent also S & S. Frisch claimed 5% total of $575.94 Roraff disability, partial payment of treatment fees, that stating because of the chiropractors, two one for a billed from limits, authority “the no undersigned has other for a amount of $326.90 attorney’s award fees and to amount of The billed $358. must, instead, the award the fee based on permanent found Frisch have a judge awarding rea- contingent fee. Instead of 0%, disability and did not partial rating of fees, attorney’s undersigned sonable the any permanent partial award benefits for permissible attorney’s awarded disability. compensation judge The or- provides.” which is what the law now temporary partial & to pay dered S S appeal, the com- disability benefits Frisch’s earn- On WCCA the based on affirmed job, judge’s to its lack of ings chiropractic pensation at his new both bills order as schedule, authority the fee and costs and to award in excess of pursuant limitation, acknowledged Pursu- disbursements advanced Wulff. jurisdiction ant to Minn.Stat. that it lacked to determine the claims. compensation judge ordered S & S merits Frisch’s constitutional also wage compensation judge that Wulff’s therefrom 1. The found and that $1569.82, $392.46, paid $401.16. total than loss benefits Frisch were would rather preserved government. The instead the constitu- the three branches Separation of this Powers Clause tional claims determination reads: appeal, S did not court. On S & contest powers of government shall be di- compensation judge’s determination into vided three distinct departments: the attorney to the reasonableness of legislative, judicial. executive and No sought, given holdings, its other person persons belonging or con- this issue. The WCCA did address stituting departments one of these shall rejected Frisch’s arguments WCCA also powers exercise properly be- Rorajfiees be should based on longing except either of the others than provider provided amount billed rather the instances expressly this paid the fee under schedule constitution. Const, fees should be awarded Ill, § Roraff art. 1. weAs possible based medical expenses. future noted, previously deep
doctrine “has
history
roots
Anglo-American
political
philosophy.”
I.
Tax
Appeals,
Court
288 N.W.2d
Wulff v.
firstWe
address relators’ conten
(Minn.1979).
221, 222
In Wulff, we ac
tion that Minn.Stat.
vio
knowledged that:
Separation
lates the
of Powers Clause
* * *
actual workings
[w]hile
the Minnesota Constitution. See Minn.
government
such
balanced
has been
Const,
Ill, §
To challenge
art.
altered
through
years,
the basic
statute,
constitutionality
party
of a
must
remains;
principle
too
much
raise the issue before the lower court and
governmental
the hands of one
branch
notify
attorney general
of the intended
*6
corruption
invites
and tyranny. Not-
in a
challenge
timely fashion. See Auto
withstanding
separation
powers
of
Merchandise,
Smith,
Inc. v.
motive
297
doctrine, there
never
been an abso-
475, 476-77,
678,
Minn.
212 N.W.2d
679-80
governmental
lute division of
functions
(1973);
144
Civ.App.
see also Minn. R.
P.
in this country, nor was such even in-
(1999).
party
A
is deemed to have waived
tended.
any
challenge by failing
such
to raise the
Id. at 223.
notify
in
general
issue and
a
timely manner.
Automotive Merchan
compensation
Workers’
are han
claims
Cf.
Minn,
dise,
476-77,
297
at
212
at
Department
dled
of
and In
Labor
(refusing
party
679-80
review where
failed
an
dustry,
agency.
executive branch
See
(1998).
notify generally
§
raise issue at trial
and to
court
Minn.Stat.
175.006
Depart
attorney general).
requirements
Both
The industrial commission of the
cases,
Industry
ment
Labor
were satisfied
these
we
of
handled these
thus
1973,
turn
until
they
to the merits of relators’ assertion.
claims
when
were trans
compensation
ferred
the workmen’s
All statutes come to us with a
19, 1973,
May
commission.2 See Act of
ch.
strong
con
presumption
favor of their
388,
3,
787, 789-90,
§
1973 Minn. Laws
stitutionality,
party challenging
§
at Minn.Stat.
175.006. Under
codified
prov
the statute bears a
burden of
heavy
commission,
compensation
workers’
ing
City
it unconstitutional.
v.
See Mack
workers’
claims are heard
744,
Minneapolis, 333 N.W.2d
751
of
(Minn.1983).
compensation judge, member of the
executive
branch.
See Minn.Stat.
7a(3) (1998).
§
The Minnesota Constitution delineates
subd.
The deter
powers
among
of
necessary
judge may
division
minations of the
1975,
4, 1975,
2.
name of the commission was
See
of June
ch.
commission.
359,
Act
23,
changed
1168,
from the workmen’s
§
1975
Laws
Minn.
1189.
to the
commission
workers'
138
1(a);
be amendments, ap- these awards were Minn. 1995 executive branch. agency WCCA, (1998). decision was to the whose 175A.01, pealable subd. § Stat. by certiorari. See in turn reviewable us jurisdiction to hear has exclusive (1994); subd. under the Workers’ allowed appeals all (1994). 175A.01, Because See id. Act. Compensation however, judicial review of (1998). court, allowed re- statute This contingent fee from the fees and deviation all decisions authority to review tains amount did not ade- where that the WCCA’s formula to ensure the WCCA up- compensate attorney, we Compen- quately to Workers’ order conforms against separa- pre-1995 statute has not com- held the Act, the WCCA sation Mack, See, e.g., law, powers challenges. tion of and that the error of any mitted other sup- N.W.2d at 754. fact are findings order and See Minn. evidence. ported by substantial amended, the statute reads: As (1998). (a) legal A ser- fee Subdivision $ n former fee upheld the We have percent vices of 25 first Compensation the Workers’ provisions employee compensation awarded to chal- $60,000 against Act percent the next Mack, See, 333 N.W.2d e.g., lenges. to the compensation awarded Beckman, 752-53; Breimhorst permissible maximum is the cf. 733-34 35 N.W.2d approval by Minn. the com- require does (1949) powers of (upholding quasi-judicial missioner, compensation judge, or commission). However, each of industrial including All fees for party. other under the challenges brought was these medical or rehabilitation bene- obtaining The 1995 amend- statute. predecessor fits, according be calculated must changes subdivision, significant enacted except ments formula under this (1) it Compensation Act as relates provided Workers’ in clause otherwise ability regulate fees and our contingent attorney fee such fees. according monetary benefits recovery of pre- to the formula this section amendment *7 Prior to its recovery cover adequate to be sumed contingent a fee provided § 176.081 benefit or of medical and rehabilitation attorney were de- by formula concurrently dispute. in Attor- services 176.081, § subd. Minn.Stat. termined. See recovery of medical or reha- ney fees for 1(a) (1994). attorney allowed The formula or shall be bilitation benefits services of the first awards of 25% $4000 fee employer the or insur- against assessed the next employee and 20% of awarded an attorney er if the establishes id. $60,000 employee’s award. See of the inadequate to rea- fee is judge determined a Where compensate for sonably inadequate, sec- contingent fee to be in employee the medi- representing the judge a tion 176.081 allowed dispute. cases cal or rehabilitation attor- award reasonable to determine and inadequate contingent fee is where the factors, such ney fees based on several liable for employer or insurer is of the issues the difficulties on the formula attorney fees based 176.081, § id. amount of the claim. See or in clause this subdivision 5(d). involving medical In cases subd. applying the for- purposes For the benefits, apply also for attorneys could employer or insurer is fees, mula where the limited which were Roraff fees, the amount liable for up awarded amount but could be obtaining dis- compensation awarded for compensate necessary reasonably point 176.081, and rehabilitation benefits puted medical § subd. attorney. id. 176.102, 176.135, and under sections $4000 awarded to the 176.136 shall be the dollar value of the percent and 20 of the next $60,000 medical or rehabilitation benefit award- awarded to ed, where ascertainable. employee subject to a cumulative $13,000 maximum (2) for fees related The maximum fee for * * * * * * to the same injury. any disputed or medical rehabilitation benefit for which dollar (1998) § Minn.Stat. (emphasis 176.081 add- ascertainable, not reasonably value is ed). charged hourly the amount fees for $500, representation or whichever is amended, As section 176.081 sets “the less, paid by employer to be permissible maximum fee” based exclu- insurer. sively on the dollar amount of the recov-
(3) obtaining disputed The fees for ery. 176.081, 1(a) § Minn.Stat. subd. medical or in- rehabilitation benefits are (1998), (re- 176.081, § see also id. subd. 9 $13,000 in paragraph cluded limit quiring an attorney retained in a workers’ * * * (b). compensation claim to include the writ-
ten
agreement
retainer
notice of “[t]he
law”).
maximum
fee allowed
(b)
legal
All
services related
fees for
regard
is set without
to factors
injury
to the same
are cumulative and
* * *
that were previously considered in deter-
$13,000.
may not exceed
mining
such as
n n
‡
$
involved,
the amount
expense
the time and
(e) Employers
may
and insurers
necessary
prepare
trial,
respon-
for
pay attorney
wages
legal
fees or
sibility
counsel,
assumed
expertise
$13,000
services of
than
per
more
case.
counsel,
issues,
the difficulties of the
involved,
proof
nature of
and the results
party
Subd. 3. A
that is dissatisfied
176.081,
Compare
§
obtained.
with its
may
appli
file
1(a)
with Minn.Stat.
cation
review
the workers’ com
5(d) (1994).
1(a),
subds.
While
pensation court
appeals.
appli
the current version of Minn.Stat.
cation shall state the
for the
basis
need
provides
WCCA,
appeal
means of
* *
n . The workers’
compen
of review
(1998),
see Minn.Stat.
subd. 3
it
sation court
appeals
shall
specifically
also
sets the “maximum per-
authority to raise the issue of the attor
fee,”
WCCA’s,
missible
limiting
thus
ney
upon
fees at
time
its own mo
turn,
and in
this court’s
of review.
tion and shall have continuing jurisdic
1(a) (1998).
*8
tion over
fees.
recognized
WCCA
that
1995
“[t]he
Subd. 9. An
amendments
a
by
change
who is hired
effected
radical
in
an
provide legal
statutes,
to
the
services
Minnesota
fee
signif-
with respect
to a claim for
icantly altering both the
at-
availability of
pursuant
made
chapter
pre
to this
shall
torney fees and
in
the manner which attor-
pare
agreement
a retainer
in which the
ney fees are to
determined
paid.”
be
provisions of
specifically
this section are
Dee, Inc.,
Ramirez v.
at
determine
175A.01,
generally Minn.Stat.
reserved to the court.
See
Venem,
(1998);
N.W.2d
Hagen v.
366
5
199,
(emphasis
12
at 518
Id. at
N.W.2d
(1985)
280,
is a
(noting that WCCA
added).
jurisdiction
juris-
having
limited
court of
416,
Hatfield,
In
296 Minn.
Sharood
arising out of
only over matters
diction
(1973),
down
Ill
power
of the
to determine facts
to be a violation
provi-
inclusive
of the constitutional
in
apply
employ-
the law thereto
separation
powers
sion for the
of
gov-
in
ment-accident controversies —is not
so
the
long
ernment
as
determinations of
provi-
of state
violation
constitutional
agencies
judicial
those
lack
finality
are
powers
for the division of the
sions
subject
judicial
Quam State,
to
review.”
v.
government
vesting
(Minn.1986) (em-
or for the
391
n.
N.W.2d
courts,
long
judicial power in
as
as
added).
the
phasis
awards and
commission’s
determina-
Thus,
by
commission,
actions
subject
by
to
tions are
review
including regulation of attorney
are
certiorari,
judicial
but lack
in not
finality
permissible only
long
judi
so
as they lack
by execution
being enforceable
or other
finality
subject
cial
judicial
and are
to
re
in
process
binding judg-
the absence of a
view.
we do
Accordingly,
not take issue
by a duly
ment entered thereon
estab-
with the actual percentage or dollar limita
lished court.
adopted by
tions
legislature
in Minn.
added).
(emphasis
Id.
stat
We
since
§
Stat.
176.081
The legislature has
criteria
out in
ed that “the
set
Breimhorst
been vested with
making
wide discretion in
quasi-
mark the outside limit
allowable
poli
laws and determining
public
issues of
judicial
power
Wulff,
Minnesota.”
cy,
when
even
those issues involve estab
recently
N.W.2d at 228. We
declined
guidelines. However,
lishing attorney fee
adopt
stringent
limit
Breimhorst or
less
for the legislative guidelines
order
to be
separation
powers
in our
standard
anal
constitutionally permissible,
must
we
re
ysis.
v.
Holmberg
Holmberg,
See
authority
tain final
over
fee de
(Minn.1999).
N.W.2d
terminations.
Mack,
upheld
we
section
as it
176.081
us to
Respondents urge
conclude that
prior
existed
amendments.
(1998)
Minn.Stat.
subd. 3
Mack,
There,
N.W.2d at
allows
review of
employee’s attorney, whose client was
WCCA, provides
judicial
sufficient
review
$700,000
benefits,
awarded over
chal
so
to render
the statute constitutional.
lenged
process
the statute on due
However,
provision
review
separation
grounds. See id. at
subject
addressing
746. In
pow
permissible
“maximum
fee”
out in
as set
challenge,
ers
we synthesized the Sharood
1(a).
Respon-
v.
opinions
Hollister
Ulvi
Hatfield
if
dents concede that even we read subdivi-
and concluded that “these cases indicate
court,
as allowing
sion 3
review this
our
regulation
that not all conceivable
of attor
sole
review
would be limited
de-
ney
constitutionally permis
fees would be
termining
formula
whether the
Mack,
sible.”
752. We
properly applied by
compen-
had been
that
determined
WCCA,
judge
mem-
sation
both
not grant
authority
did
“final
over
* n *
branch.
bers of
executive
non-judicial body,
to a
ultimately
since
we
review all attor
[could]
beyond merely
limitation
indi-
goes
This
ney fee decisions.” Id. We thus
that
held
cating
legislature
what the
desir-
deems
“power
commission
set
here,
able. Even as
where
was a
there
constitutionally permissible,
be
[was]
that
finding
the fees awarded were inade-
cause the awards
reviewable
this
[were]
compensate
quate
reasonably
relators’
court.” Id. at 753.
attorney,
prohibited
legislature
Similarly,
addressing a
maxi-
challenge
deviation from
statute,
prior
prohibits
this court
Legislation
we stated
“we have mum.
delegation
quasi-judicial
deviating
precise statutory
not found the
from
from
*10
* *
*
powers
im-
agencies
attorney
to executive
of
branch
awardable
fees
See to main
power
inherent
valid.
pinges
judiciary’s
the
on
(1998).
by
Therefore,
attorneys
attorney
fees
we remand to the
oversee
final, independent
a
court of
depriving this
judges’
review the
legislative
fees.
attorney
This
review of
attorney
of reasonable
fees.
determination
regulation
attorney fee
exclu-
delegation of
review,
only
should not
its
the WCCA
sively
govern-
branch of
to the executive
statutory guidelines,
consider the
but also
separation
doctrine of
of
ment violates the
involved,
expense
time and
the amount
the
Const,
Ill, §
art.
1. Ac-
powers of Minn.
trial,
necessary
prepare
respon-
for
impinges
extent it
on our
cordingly, to the
counsel,
sibility
experience
by
assumed
attorneys and
power to oversee
inherent
issues,
counsel,
of
the difficulties
final,
deprives us of a
attorney fees and
involved,
of
proof
nature
and the re-
of
we
independent
attorney
review
decision,
of this
sults obtained. Because
hold
176.081 is unconstitution-
that section
we do not
the issue of whether Minn.
reach
al.3
process.
176.081violates due
compensation judges
finding
made a
of
fees
both cases under
II.
However, because
consideration.
Minnesota Statute
it
WCCA in both cases determined
1(a),
to 25% of
limits
fees
the first
authority
had no
to exceed
maximum
and 20% of
next
awarded
$4000
statute,
by
amount allowed
the WCCA
$60,000
employee.
to the
awarded
Where
address the reasonableness of
declined to
inadequate,
that amount
subdivision
por-
fees.
requested
Those
1(a)(1)
attorney fees to be awarded
allows
tions of section 176.081
do not violate
percentages
on
of medical
separation
re-
based
the same
doctrine
attorneys repre-
on the
for state-funded
The dissent relies
common law
limitations
senting indigent
conclud
clients in criminal cases is
"American Rule”
fees in
ing
misplaced. Contrary
that section 176.081 is
unconstitution
also
sertion, Makemson,
dissent’s as-
However,
applies
Supreme
al.
American Rule
Florida
valid,
provided
"[a]lthough facially
when
are not
Court
we
held that
AlyeskaPipeline
applied
Co. v. Wilderness
statute. See
find the
unconstitutional when
statute
240, 247, 257,
Soc’y, 421 U.S.
95 S.Ct.
in such
as to curtail the court's
a manner
(1975).
adequate
L.Ed.2d 141
Because the Work
repre-
inherent
to ensure
provides
Compensation
specifically
ers'
Act
criminally
sentation of the
accused.” Id. at
fee-shifting,
the American Rule has never
accordingly
en-
1112. The court
held this
upon by
been
this court in workers’
relied
to be a violation of the Florida
croachment
Furthermore,
compensation cases.
none of
powers provision.
Constitution's
our
cited
the dissent involve or even
cases
statutory
Id. It further found such
máximums
cases,
workers'
but in
mention
applied
with the
Sixth
interfered
accused's
law,
stead deal with common
rather than
right
counsel and
Amendment
the facts
See,
statutory,
e.g.,
of action.
Kallok v.
causes
sufficiently extraordinary
the case were
Medtronic, Inc.,
(Minn.
N.W.2d
warrant
of fees
the trial court in
the award
1998) (dealing with tortious interference of
statutory
excess
máximums.
Id. at 1113.
claim, yet
applying
still not
contract
Finally, the dissent seems to conclude that
Rule);
American
Fownes Hubbard Broad
we
the statute constitutional be
should hold
540, 542,
Inc.,
casting,
310 Minn.
246 N.W.2d
cause
restrictions
"most states
(1976) (dealing
with successful
However,
on
fees.”
workers’
mandamus,
applying
shareholder writ of
majority
that the
the dissent fails to note
Rule);
Creamery
Coop.
Benson
American
provision whereby
at
state statutes include
Ass’n,
520, 530,
Ass'n v. First Dist.
necessary,
torney
may
when
be increased
(1967) (applying
Ameri
and that
which do not include
those statutes
claims). Accordingly,
can Rule to contractual
universally
provision
such a
almost
do not
wholly
the American Rule is
irrelevant to
attorney's acceptance of
make the
additional
statutorily
mandated
discussion
crime,
as does
Compensation
the Workers'
Act.
under
(1998).
subd. 10
10 Arthur
Larson,
v. Ma
Larson and Lex. K.
Larson's Workers'
The dissent’s reliance Makemson
Law,
B,
(Fla.1986)
App.
County,
Compensation
18B-2 — 18B-4
rin
medical benefits is expenses claimed proof the medical III. reasonably necessary to cure and were amendments, Prior relieve the from the effects part attorney’s when of an work involved personal injury. dispute If a arises obtaining future medical benefits for the respect expenses, medical with future claimant, taken into that work could be may employee’s attorney be entitled determining the reason consideration on the amount to additional fees based of the fees awarded. See Minn. ableness ultimately awarded. of the benefits (1994). However, subd. 1 Thus, court and provides the statute now differently, yet read the statute awarded based on the medical bene to be that an both came to the conclusion award fits awarded. Minn.Stat. present -inthe case. inappropriate was 1(a) (1998). When the dollar value of in the record to readily nothing There is awarded is not ascertain benefits necessarily need fu able, show that Irwin will maximum fee for ob “[t]he * n * Thus, an award of ture medical benefits. disputed other medical taining * * * specula additional fees based benefit is the rehabilitation inappropri tive future medical benefits charged hourly fees for $500, less, dispute arise ate at this time. Should representation or whichever is expenses, medical respect with to future paid by employer or insurer.” to be 1(a)(2). at that time seek reimburse- may §id. Wulff *12 144 1991). dispute. February relating recently, to More
ment for services
holding
with WCCA refused to award subdivision 7 fees
We thus affirm WCCA’s
for a different reason. See Salahud-Din
attorney
award of
fees
respect
to
Compassionate
Group,
Care
1997
expenses.
medical
WL
based on future
(Minn.
Comp. Ct.App.
815380
Workers’
IV.
1997).
There,
December
the WCCA
reasoned that because traditional
Irwin’s final assertion is that attor
Roraff
paid pursuant
fees
were
Minn.Stat.
employee
ney fee reimbursement
to the
176.135,
176.081,
§
§
rather
than
which
176.081,
§
7
pursuant
to Minn.Stat.
subd.
previously
provision
made no
for an award
(1998),
attorney
be based on all
fees
should
expenses,
based on medical
fees
176.081,
§
paid pursuant
to Minn.Stat.
Roraff
paid “pursuant
were not
to [section
paid
than
fees
rather
and thus
7
176.081]”
subdivision fees were
employee’s award. The com
out of the
Id. at n appropriate.
7
pensation judge awarded subdivision fees
awarded,
attorney
based on all
fees
However,
changes
reversed, holding
that subdivi
§
provision
Minn.Stat.
176.081 added a
for
sion 7 is intended to reimburse the em
attorney
expenses.
fees based on medical
ployee only
attorney
paid by
fees
176.081,
1(a) (1998).
§
See Minn.Stat.
subd.
employee.
Subdivision
allows an award to the em
in part:
Subdivision 7 states
ployee
“attorney’s
on an
fee which has
pursuant
been awarded
employer
If the
or insurer files a denial
this section.”
* *
*
(1998)
176.081,
§
(emphasis
Id.
subd. 7
liability,
pay
or fails to make
added).
Mack,
In
at
compensation
ment of
or. medical ex
we
* * *
statute,
plain
followed
language
of the
penses
statutory period
within the
provided,
as does the current stat
unsuccessfully
or otherwise
resists the
ute, for an award of
subdivision
payment
compensation
or medical ex
* * *
“pursuant
based on
fees awarded
injured
penses,
person
(citing
to this section.”
Id.
Minn.Stat.
law,
employed
an
has
who
176.081,
(1982))
(emphasis
subd. 7
add
successfully procures payment on behalf
n * *
ed). We there held that subdivision 7
employee
of the
awards should be made on all
commissioner,
judge,
or the workers’
176.081,
fees awarded under section
even
appeals upon ap
court of
paid by
employer.
those fees
Id.
peal, upon application, shall award to the
n * *
Thus,
plain language
under the
of the stat
employee
against
insurer
ute, a subdivision 7 award should be based
addition to the
benefits
paid pursuant
on all
to Minn.
paid
employee,
or awarded to the
176.081,
including attorney
equal
percent
por
to 30
expenses pursuant
based on medical
attorney’s
tion of the
fee which has been
1(a).
subd.
We
pursuant
awarded
this section that
is
holding
therefore
reverse
in excess of $250.
WCCA.
part,
part,
Affirmed in
reversed
treated
WCCA has
subdivision
remanded.
awards as reimbursement
STRINGER, J.,
part
took no
in the con-
fees deducted from his com
sideration or decision of this case.
pensation
award
to the contin
gent fee formula. See Sailes v. Ford Mo
ANDERSON,
RUSSELL A.
Justice
Co.,
(Minn.
tor
ment Rule,” the “American unless au Under state, in view power of the agree thorized statute or contractual courts to which American Rule parties, ment between the “the prevailing the unsuccess- may against not award fees ordinarily not entitled to collect litigant or in the absence of a statute party ful loser,” attorneys’ a reasonable fee from the contract, statutory I can conclude Soc’y, v. Alyeska Pipeline Co. Wilderness not violate shifting limitations on fee do 240, 247, 1612, 421 U.S. 95 S.Ct. 44 our Separation of Powers Clause of (1975). 141 L.Ed.2d The rule dates back con- the limitations constitution. While beginning to the of the United States fed might im- legislation tained in the current See, e.g., Arcambel v. system. eral Wise to the process serious due concerns plicate (3 Dall.) man, 306, 306, 1 claimant of 3 U.S. L.Ed. 613 they might deprive a extent (1796). in representation, they may do not That not be shifted adequate legal assumption judicial power. of amount to an the absence of a statute or contract was years ago more than 100 in this settled in on majority large The relies measure 146, Rogers, 21 by Kelly state v. Minn. Minne City in Mack v. dictum found of (1874). exception, 152-53 With limited (Minn.1983), 744, apolis, 333 N.W.2d to the consistently this court has adhered limitations on fees statutory conclude that See, e.g., Rule. Kallok v. Med American review, effectively deny judicial (Minn. tronic, Inc., 356, 573 N.W.2d 363 may not be awarded be that fees sense 1998); Broadcasting, maximum, Fownes v. Hubbard statutory and there yond the 542, 700, Inc., 540, 246 Separation of Powers 310 fore violate the (1976); Creamery Cooperative See id. at 752-53. The relators 702 Benson Clause. powers Ass’n, separation Mack asserted Dist. 276 Minn. Association First legislative imposition (1967). challenge 530, 422, 520, 151 N.W.2d assignment of re limits on fees and oft-recognized corollary of this obvious work sponsibility to set those fees to the absent may rule that fees not be shifted See id. ers’ commission. authorization is legislative contractual or consti Although the Mack court surmised court, has the legislature, that the regulation tutional boundaries when, if, an attor power to determine assignment of legislative it was the attorney fees be awarded ney should workers’ functions to the quasi-judicial litigants. my In view against unsuccessful commission, the executive power to determine legislature branch, which caused and in fees should be awarded when such of stat and not the establishment concern inherent within this possesses, addition in on fees in the first utory limitations statutory power, authority establish id. Given legislature. stance ap is to review the máximums. Our role com review of fees set this court’s to ensure plication of this scheme mission, nearly uniform and in view of the applied prop it lower courts have that the country assign practice throughout erly. supervision of responsibility for the ing that a statu- majority also contends handling or court fees to the commission court’s infringes maximum on this administration, tory we declined law. I practice power regulate allowing the com to invalidate the statute context of disagree. fees as a violation mission to set those LANCASTER, attorneys representing indigents (dissenting). Justice cases, courts elsewhere have ac criminal join I the dissent Justice RUS- on knowledged máximums A. SELL ANDERSON. the court’s infringe fees do not See, regulate practice e.g., of law. State, Ark.
Pickens v. S.W.2d (1990); County, v. Martin Makemson (Fla.1986), cert. de
491 So.2d
nied, 107 S.Ct. 479 U.S. legis
L.Ed.2d The role of the restricting attorney fees in work
lature *14 PERGAMENT, Respondent, Brian A. compensation has long ers’ matters been proper recognized as exercise v. police power of the state. Yeiser v. PROPERTIES, LTD., LORING 541, 540, 399, Dysart, 267 U.S. S.Ct. petitioner, Appellant. (1925). fact, most L.Ed. 775 states No. CX-98-1031. restrictions on workers’ 8 Arthur fees. See Larson Supreme Court of Minnesota. Larson, and Lex K. Larson’s Workers’ Law, § Compensation 15-1416 Sept.
(1998). regulation In that the of workers’ proper legislative fees is
function, Separation I would not invoke the
of Powers as a basis for invalidat Clause
ing the statute. however, say,
That is not to ceiling recovery
absolute fees for the necessarily
medical benefits would be con-
stitutionally permissible. But unless it can that a regulatory
be shown scheme makes unavailable,
legal representation evidenc- scheme,
ing illegitimacy pro-
scheme does not violate constitutional Dep’t
tection. See United States
Labor
Triplett,
U.S.
S.Ct.
Although
relators that the limitation recovery
on fees for the of medical benefits
deprives adequate legal repre- claimants of
sentation, was heard no evidence or factual
findings made. I would remand these
cases to the division for the record,
development factual findings of a legal pertaining conclusions to wheth-
er claimants are workers’ qualified
unable to retain counsel and inability
whether the cause of such is the system up by legislature. set