Joshua A. Repke v. Jacobs Engineering Group, et at. No. WC23-6508 (W.C.C.A. October 3, 2023)
Here, the employee appealed the comp judge’s denial of his claim for attorney’s fees. The employee sustained an admitted lumbar spine injury while working for the employer on October 19, 2015. The employee underwent treatment and the employer and insurer paid benefits. Then on May 2, 2016, the employee retained Mottaz & Sisk to represent him.
The employee was eventually diagnosed with significant disc degeneration at L1-2 and Dr. Rick Davis recommended an L1-2 fusion since the employee had exhausted conservative treatment. The employer and insurer got a report from Dr. Jeffrey Dick who opined the recommended fusion wasn’t necessary.
The parties settled on a full, final, and complete basis leaving open future medical in December 2017. In the stipulation, the employer and insurer maintained their denial of the proposed L1-2 fusion and reserved defenses of primary liability and nature and extent. A dispute over the surgery was certified by DOLI on January 2, 2018. The employee’s attorney filed a medical request seeking approval of the fusion and included a statement of Dr. Davis who reiterated his recommendation for the fusion and stated that the employee should cease smoking and be nicotine-free for 60 days prior to surgery.
The parties reached an agreement settling the dispute of the fusion. In a stipulation for settlement, the employer and insurer approved the L1-2 fusion subject to the employee producing 3 nicotine-free blood tests at agreed-upon intervals before surgery. The employer and insurer agreed to reimburse the employee’s counsel for incurred costs and the employee’s counsel agreed to reserve filing an attorney’s fee claim until after the employee underwent surgery.
The award on stipulation was issued on September 12, 2018. The employee has not undergone the surgery since the award was issued. On December 2, 2022, the employee’s counsel filed a statement of attorney’s fees seeking excess fees. The employer and insurer objected. A hearing was held on February 2, 2023 and the comp judge later issued a Findings and Order denying the attorney’s fee claim because the employee had not undergone the approved fusion surgery as required by the stipulation.
Employee’s counsel appealed and argued that pursuant to Lagasse v. Horton, attorney’s fees should be payable. They argued that approval of the proposed surgery constituted a genuine dispute and that an excess attorney’s fee award should be allowed.
The Court of Appeals disagreed. They found the request for payment of attorney’s fees was controlled by unambiguous language in the stipulation. The court noted that public policy generally favors settlement of disputed claims without litigation. The court stated that the stipulation was valid and that no argument had been made by the employee’s counsel that the stipulation and award were void or voidable. Because the stipulation controlled, the Court affirmed the comp judge’s denial.
Takeaway: Clear and unambiguous language in a stipulation for settlement will be enforced and can act as a defense to future claims by the employee and employee’s counsel.