The employee successfully petitioned to vacate a previous award on stipulation. The attorney for the employee now seeks fees for representing the employee in the petition to vacate.
A pro-se employee settled his claim at mediation on a full, final, and complete basis. He later hired an attorney seeking to vacate that award.
The employee’s attorney attempted to negotiate an agreement to vacate the award on stipulation, which was not successful. Therefore, he then gathered additional medical evidence, including a medical report, and drafted and filed a petition to vacate. Shortly after the petition was filed, the employer and insurer notified the court it was waiving its right to object to the petition. They submitted a proposed order granting the petition.
The employee’s attorney then filed a petition for attorney fees claiming 14.5 hours of work at an hourly rate of $350, and 3.2 hours of paralegal work for a total of $5,395. He also sought partial reimbursement of attorney fees under Sub. 7 in the amount of $1,543.50, and costs of $713.52.
The employer and insurer objected on the following bases: (1) the fees sought are excessive, (2) there was no actual litigation given that they did not object to the petition to vacate, (3) the fees are not supported by adequate information, and (4) the fees are not in compliance with Minn. R. 1415.3200. The employer and insurer made no objection to the request for partial reimbursement of attorney fees under Minn. Stat. § 176.081, subd. 7, nor did they object to his costs.
The employee’s attorney noted in his reply that there was actual litigation because they attempted to negotiate the petition to vacate before he filed it without success.
In its decision, the court noted the statute gives this court wide discretion to award both fees and disbursements; the statute clearly states this court “may” award fees and “may” award disbursements. The court then goes on to comment on the fact that the employer and insurer disputed the fees as “excessive” but made no argument to the number of hours, hourly rate, or total fee. The court found the time spent reasonable. The court also found that since the parties attempted to negotiate the petition before it was filed but were unsuccessful that there was in fact actual litigation. The court noted the employer and insurer’s argument that there was ‘not enough information’ submitted by the employee’s attorney to justify the fees but do not specify what information was lacking. The court found this objection vague. Lastly, the court took issue with the objection based on not complying with Rule 1415.3200 as they cited that rule does not apply to the award of attorney fees.
The court found the employee’s attorney justified his entitlement to fees. However, on their own they found $3,300 to be a more reasonable award, and consistent with their past awards of attorney fees on appeals and on petitions to vacate in non-oral argument settings. They also awarded costs. The court did not award Sub. 7 fees as they found them inapplicable to §176.511.