Gerald Grace v. Smith Foundry Co., No. WC21-6409 (W.C.C.A. October 5, 2021
The WCCA affirmed the compensation judge’s award of Roraff and Irwin fees. The court reasoned that where the compensation judge weighed all Irwin factors, it was within her discretion to give more weight to the factor regarding the difficulty of the issues than to that of the results obtained factor.
This case involved an Employee who suffered a personal injury to his left upper extremity. He later claimed that the 2015 work incident caused injury to his cervical spine for which he sought workers’ compensation benefits. A compensation judge denied this claim. With the assistance of his attorney, the Employee then claimed further injury in the nature of thoracic outlet syndrome as a result of the 2015 work incident. A compensation judge found that injury compensable and awarded various benefits. The Employee’s attorney then filed a statement of attorney fees seeking payment of contingent fees in the amount of $8,786.11, excess fees in the amount of $26,000.00. The compensation judge awarded a combined total fee of $26,000.00. The Employer appealed the award of the Roraff/Irwin portion of this fee. WCCA affirmed part of the compensation judge’s award, but vacated the excess fee award and remanded the issue.
On remand, the compensation judge found that the $8,786.11 was inadequate to compensate the Employee’s attorney. The judge found that Employee’s attorney is entitled to an excess fee of $10,213.89, for a total attorney fee award of $19,000.00. The Employer appealed and asserted that the compensation judge erred in concluding that the contingent fees were insufficient and that awarding more than $10,000.00 in Roraff/Irwin fees to the Employee’s attorney was an abuse of discretion.
If a contingent fee is found to be inadequate, the attorney may petition for additional fees. In determining whether a fee is inadequate, a compensation judge must consider the statutory guidelines together with seven Irwin factors, which are: “the amount involved, the time and expense necessary to prepare for trial, the responsibility assumed by counsel, the expertise of counsel, the difficulties of the issues, the nature of proof involved, and the results obtained.”
Here, the compensation judge gave the most weight among the factors to the difficulty of the issues. The judge noted that considerable time, effort, and expense had been required in developing a new theory of the case that established liability for the thoracic outlet syndrome and in proving a causal link between that condition and the Employee’s work injury. Absent these efforts, the Employee would not have recovered any of the benefits awarded to him.
WCCA emphasized that the compensation judge abuses his or her discretion only when the award of fees is based upon a clearly erroneous conclusion given the record. The compensation judge’s excess fee determination was reasonable given the facts of this case.
Takeaway: The compensation judge may give more weight to different Irwin factors and it will not be considered to be an abuse of discretion, as long as it is reasonable given the facts.