Ansello v. Wis. Cent. Ltd., et al.

Ansello v. Wis. Cent. Ltd., et al. No. WC20-6333 (W.C.C.A. June 19, 2020)

The employee suffered an admitted low back injury in 2006 while employed by Wisconsin Central Ltd. as a longshoreman in Duluth. Indemnity and medical benefits, including two low back surgeries, were paid under the Longshore and Harbors’ Workers’ Compensation act.

The Employee aggravated his low back in August 2014 and underwent a previously scheduled fusion surgery in September 2014. Wage loss benefits were paid based on the August 2014 aggravation, but medical expense related to the third surgery were denied based on the contention that the surgery was not reasonable or necessary.

The Employee filed a medical request seeking payment of medical expenses alleging the expenses arose from the January 2006 injury. The Employee had the same attorney for the LHWCA and MCWA claims.

On April 5, 2016 the compensation judge dismissed the employee’s workers’ compensation claim for lack of jurisdiction. The Employee appealed; the decision was reversed and remanded on the basis that there was concurrent jurisdiction under the MWCA and LHWCA over the employee’s claim. The Minnesota Supreme Court affirmed the decision. The employee’s attorney was awarded $3,500.00 in fees from the Workers’ Compensation Court of Appeals and $3,500.00 in fees from the Minnesota Supreme Court.

In September 2017, a federal administrative law judge awarded certain medical expenses from an intervenor under the LHWCA in an undetermined amount. A few months later, the administrative law judge awarded $37,199.66 in attorney’s fees for the LHWCA claim and an additional $5,085.00 in attorney’s fees for expenses for representation of the employee for that claim at the program level. The insurer spent the next year and a half working to comply to pay the intervenor.

In December 2018, the employee filed a claim petition under the MWCA for an additional amount of PPD which was voluntarily paid in May 2019 with $4,190.00 withheld as attorney’s fees. The parties settled the medical expenses to the intervenor in August 2019 and left attorney’s fees open. The attorney filed a statement of attorney’s fees in June 2019 for an additional $59,025.00 in fees for medical expenses recovered under Minn. Stat. 176.081 subd. 7.

After a hearing in November 2019, the compensation judge awarded $12,000.00 in Irwin fees, release of fees withheld from the PPD award, and subd. 7 fees of $2,525.00 and $1,257.00. The Employee appealed the amount the Irwin fee award.

Fees above and beyond contingency attorney’s fees may be assessed when contingency fees are inadequate to compensate the attorney for their representation. To determine additional fees, the Irwin factors need to be considered including the amount involved, the time and expense necessary to prepare for trial, the responsibility assumed by counsel, the experience of counsel, the difficulties of the issues, the nature of the proof involved, and the results obtained.

The compensation judge considered all of the Irwin factors in determining the award of Irwin fees. Irwin factors alone are not determinative, the factors need to be considered collectively and the amount must be reasonable based on this collective consideration. The compensation judge reasonably concluded the amount of Irwin fees to award based on all Irwin factors.

Takeaway: If a compensation judge reasonably concludes an amount of Irwin fees to award after considering all of the Irwin factors, it is unlikely to be found that the judge abused his discretion.