1 STATE OF MINNESOTA IN SUPREME COURT A13

- 2141 Workers’ Compensation Court of Appeals Anderson, J. Dissenting, Stras, J. Donald D. David, Respondent,

vs. Filed: November 26, 2014 Office of Appellate Courts Bartel Enterprises (Nitro Green),

Relator, and SFM Mutual Insurance Company,

Relator.

________________________ Scott H. Soderberg, David R. Vail, Soderberg Law Firm LLC, Minneapolis, Minnesota, for respondent. Andrew W. Lynn, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for relators.

________________________ S Y L L A B U S As a matter of comity, we recognize the Legislature’s formulation of attorney fees for workers ’ compensation cases under Minn. Stat. § 176.081, subd. 1(a) (2012), as presumptively reasonable , and will not , absent exceptional circumstances, review whether the fee calculated using the statutory formula is excessive

. Affirmed.2 O P I N I O N ANDERSON , J ustice

. The issue presented by this case is whether Minn. Stat. § 176.081, subd. 1(a) (2012) , 1 violates the separation of powers by requiring employers and insurers to p ay attorney fees calculated by a statutory formula not subject to judicial review. A lthough we held in Irwin v. Surdyk’ s Liquor , 599 N.W.2d 132, 134 (Minn. 1999) , that a statutory maximum on an attorney

- fee award violate d the separation of powers because there was

no final judicial review of that award , we have not considered whether an a ttorney

- fee award less than the statutory maximum must also be subject to judicial review . Relators Bartel Enterprises and SFM Mutual Insurance Company contend that in the absence of judicial review to ensure a fee award is not excessive , the statutory fo rmula violates the separation of powers and is unconstitutional. We conclude that , as a matter of comity , we will recognize the Legislature’s statutory formula as presumptively reasonable , and that absent exceptional circumstances, further judicial review of a presumptively reasonable, correctly calculated attorney

- fee award is unnecessary. Because Bartel and SFM did not identify any exceptional circumstances that would overcome this stro ng presumption in

1 After the events in this case, the Legislature amended section 176.081 to simplify the statutory formula, raise the maximum fee, and limit when employers must reimburse employees for their attorney fees, among other things. See Act of May 16, 2013, ch. 70 , art. 2, §§ 3

- 4, 2013 Minn. Laws 362, 369

- 71. Because the provisions of the workers’ compensation law in effect on the date of injury control the rights and obligations of the parties, however, we apply the pre

- amendment version of the statute. See Sher man v. Whirlpool Corp. , 386 N.W.2d 221, 225 (Minn. 1986).3

favor of concluding the fee award is reasonable, and there is no dispute that the fee was calculated correctly using the statutory formula, we affirm. Respondent Donald David injured his back while working for Bartel Enterprises. David i ncurred medical expenses for surgery , other treatment, and hospitalization. Bartel and its insurer, SFM Mutual Insurance Company, initially disputed liability under the Workers’ Compensation Act, Minn. Stat. ch. 176 (2012) , but, after negotiating with Dav id’s health

- care providers, eventually agreed to pay $233,054.50 to settle all of David’s medical bills. For his work in representing David over the course of the dispute, David’s attorney sought an award of contingent attorney fees in the amount of $36,81 0.90 , pursuant to Roraff v. State , 288 N.W.2d 15 (Minn. 1980) , and Minn. Stat. § 176.081

. T he claimed fee was calculated by applying the statutory formula in section 176.081 to th e dollar v alue of David’s medical benefits and disregarding the upper limit set by the statutory formula

. 2 Bartel and SFM objected, arguing in part that the claimed fee exceeded the statutory limit

. S ee Minn. Stat. § 176.081, subd. 1(b) (“ [F] ees . . . may not exceed $13,000

. ”)

. Bartel and SFM also asserted that a mechanical ap plication of the statutory formula

— without judicial review to determine whether the resulting fee award

was excessive

—

unconstitutionally intrudes up on judicial aut hority over attorneys and attorney fees and therefore violates separation

- of

- powers principles

.

2 David’s counsel later recognized that he had made an arithmetic error and the correct amount of his fee request should have been $46,810.90 instead of $36,810.90.4

The compensation judge concluded that $13,000, the fee calculated by applying the statutory formula , would adequately co mpensate David’s attorney for his work and that a fee award above the statuto ry limit was unwarranted. Relying on decisions of the Workers’ Compensation Court of Appeals (WCCA), the compensation judge refused to consider whether the statutory fee was reasonable in light of the factors identified in
Irwin for an award exceeding the statutory limit

. See Irwin , 599 N.W.2d at 142. Bartel and SFM appealed to the WCCA, arguing that the fee award was unreasonable and again asserting a constitutional challenge based on Irwin , 599 N.W.2d 132. The WCCA acknowledged that it lacked the jurisdiction to address the constitutional challenge

. David v. Bartel Enters. (Nitro Green) , No. WC13

- 5567 , 2013 WL 5911429 , at * 4 (Minn. WCCA Oct. 23, 2013) (citing Irwin , 599 N.W.2d at 139

- 40) ;

see Minn. Stat. § 175A.01, subd. 5 (2012)

. The WCCA t hen concluded , “ Irwin did not invalidate application of the [statutory] formula to attorney fees amounting to the statutory maximum or less,” and therefore affirmed the compensation judge’s fee award decision. David , 2013 WL 5911429, at *4. Bartel and SF M sought review by writ of certiorari. I. The constitutional interpretation of a statute presents a question of law, which we review de novo. E.g. , Gluba ex rel. Gluba v. Bitzan & Ohren Masonry , 735 N.W.2d 713, 719 (Minn. 2007). We apply the plain meaning of unambiguous statutes, e.g. , Larson v. State , 790 N.W.2d 700, 703 (Minn. 2010); see also Minn. Stat. § 645.16 (2012), and5

declare statutes unconstitutional “only when absolutely necessary,” Gluba , 735 N.W.2d at 719; see also Minn. Stat. § 645.17 (2012). To put the dispute in its proper context, we begin with an overview of the workers ’ compensation statutory attorney fee provisions that govern this case

. Minnesota Statutes § 176.081 governs the fees that attorneys may receive in contested workers’ compensation cases. It provides a formula to use in calculating “[a]ll fees” for attorneys representing employees

. Id. , subd. 1(a). The formula generates a fee equal to 25 percent of the first $4,000 in compensation benefits recovered by the employee plus 20 percent of the next $60,000 in benefits recovered. Id. Typically , the fee award is withheld from the periodic payments the employee receive s , s ee Minn. Stat. § 176. 081, subd. 1(c) (providing for making the fee a lien against the amount payable to the employee) , although , as here, the employer may be liable for the fee

. S ee id. , subd. 1(a)(1) (“In cases where the contingent fee is inadequate the employer or insurer i s liable for attorney fees based on the formula .

. . .” ( e mphasis added)); id. , subd. 7 (requiring the employer or insurer to reimburse the employee for a portion of the fee ). We have recognized th at th e legislative policies underlying the statutory fee formula include “ (1) protecting compensation claimants from excessive legal fees which might otherwise severely deplete funds badly needed by the employee and his or her dependents; and (2) insuring that attorneys who represent claimants will receive

reas onable compensation, so that competent counsel will be available to injured employees.” Mack v. City of Minneapolis , 3 3 3 N.W.2d 744, 749 (Minn. 1983) (citing Kahn v. Univ. of Minn. , 327 N.W.2d 21, 24 (Minn. 1982)) ; s ee also Sarja v. Pittsburgh6

Steel Co ., 154 Minn. 217, 219, 191 N.W. 742 (1923) (“[F]or the purpose of securing to those intended to be protected or aided by the [Workers’ Compensation] act the full benefits thereof, [ a fee provision ] was enacted.”). But , section 176.081 uses mandatory language that does not contemplate adjustments to the fee amount generated by the statutory formula. See Minn. Stat. § 176.081 , subd. 1(a) (providing that a fee calculated by applying the formula to an employee’s monetary compensation “is the maximum permissible fee and does not require approval by the commissioner, compensation judge, or any other party” (emphasis added)).
I n Irwin v. Surdyk ’ s Liquor , we held that Minn. Stat. § 176.081 was unconstitutional as a violation of the “ doctrine of separation of powers . . . to the extent it impinges on [the judiciary’s] inherent power to oversee attorneys and attorney fees and deprives us of a final, independent review of attorney fees.” 599 N.W.2d 132, 1 42 (Minn. 1999) . We noted in pa rticular that because “ the judiciary retains final control over attorneys ,” id. at 140, legislation that regulates attorney fees must allow for judicial review , see i d. at 141

- 42 (“ Legislation that prohibits this court from deviating from the precise statu tory amount of awardable attorney fees imping es on the judiciary’ s inherent power to oversee attorneys and attorney fees by depriving this court of a final, independent review of attorney fees. ” ). Thus, while we did “not take issue with the actual percent age or dollar limitations adopted by” the Legislature, we required judicial review for the “legislative guidelines to be constitutionally permissible.” Id

. at 141. To the extent that Minn. Stat. § 176.081 “ impinges on our inherent power to oversee7

attorneys and attorney fees and deprives us of a final, independent review of attorney fees , ” we held the statute unconstitutional. Irwin , 599 N.W.2d at 142

. Bartel and SFM now argue that Irwin ’s reasoning compels a similar conclusion her e

— that the stat ute is unconstitutional to the extent it precludes judicial review of whether fee awards under the formula are excessive

. We agree that the central point of
Irwin

— the judiciary’s final control over attorneys

— applies regardless of whether a statutory formula establishes a ceiling or a floor for a fee award

. See id

. at 140. Though

w e acknowledged in Irwin that the “portions of section 176.081 that do not violate the doctrine of separation of powers remain valid , ” we ultimately conclude d th at a statute that precludes the judiciary from reviewing an award of attorney fees violates the separation of powers doctrine. I d

. at 142. II. While we reaffirm the holding in Irwin today, we conclude that it is unnecessary to decide the extent to which Irwin applies to a presumptively reasonable fee award , calculated according to statute , that is alleged to be excessive . As we have done on other occasions when the Legislature has encroached on a judicial function in violation of the separation of powers , we choose to recognize the legis lative formula in Minn. Stat. § 176.081 as a matter of comity. See, e.g. , State v. McCoy , 682 N.W.2d 153, 160 (Minn. 2004) (choosing to “ exercise our supervisory power over Minnesota courts by adopting a reasonable statut e ,” even though that statute conflicted with an earlier court rule
rega rding the admission of evidence ) ; Cowern v. Nelson , 207 Minn. 642, 647, 290 N.W. 795, 797 (1940) (accepting, by comity, a law authorizing non

- lawyers to act as real estate8

brokers, even though such actions could be construed as the unauthorized practice of law). We acknowledge that “[d]ue respect for the co

- equal branches of government commands us to exercise great restraint before striking down a statute as unconstitutional.” McCoy , 6 82 N.W.2d at 160 (citation omitted) (internal quotation marks omitted). Restraint is particularly appropriate in a workers’ compensation matter , which is “solely a creature of statute” based on “policy decisions” that “are properly for the Legislature.” Meils by Meils v. N w. Bell Tel. Co. , 355 N.W.2d 710, 713 (Minn. 1984) ; see also Maxwell Commc’ns v. Webb Publ’g Co. , 518 N.W.2d 830, 834 (Minn. 1994) (Coyne, J., concurring specially) ( noting that the workers’ compensation system is “a creature of statute withou t counterpart in the common law ”)

. W e therefore return to the policies underlying section 176.081

. In order to provide quick and efficient delivery of benefits to injured workers at a reasonable cost to employers, the Legislature created a system of workers’ compensation that, while offering numerous benefits to all parties, also requires a mutual renunciation of rights and remedies that were available to employers and employees at common law. Minn. Stat. § 176.001 ; see also Boryca v. Marvin Lumb er & Cedar , 487 N.W.2d 876, 879 n.3 (Minn. 1992) (“The whole scheme of workers’ compensation is one of reciprocal concessions by the employer and employee

. ”)

. The Legislature also sought to balance the interests of the injured employee and retained counsel by “ protecting compensation claimants from excessive legal charges and at the same time

. . . ensuring that their counsel receive reasonable fees for their services ” through regulation of attorney fees. In re Award of9

Attorney ’ s Fees ( Rock v. Bloomington Sch. Dist. #271 ) , 269 N.W.2d 360, 363 (Minn. 1978)

. T he formula for calculating workers’ compensation attorney fees designed by the Legislature in Minn. Stat. § 176.081 i s based on the contingen t

- fee model , which has a long tradition in workers’ compensation cases

. Stewart Jay, The Dilemmas of Attorney Contingent Fees , 2 Geo. J. Legal Ethics 813, 815 (1989) (“C ontingent fees became prevalent in an era of escalating industrial and transportation accidents, whose victims frequently cou ld not afford lawyers to obtain redress for their injuries .”) ; see also Krueger v. State Dep’t of Highways , 295 Minn. 514, 516, 202 N.W.2d 873, 875 (1972) (upholding finding s that employee and attorney entered into contingent

- fee agreement and a fee in accordance with that agreement was reasonable)

. W e have previously explained : Contracts for contingent fees are as much for the benefit of the client as for the attorney, because if the client has a meritorious cause of action, but no means with w hich to pay for legal services unless he can, with the sanction of the law, make a contract for a contingent fee to be paid out of the proceeds of the litigation, he cannot obtain the services of a law

- abiding attorney

. . . . Hollister v. Ulvi , 199 Minn. 269, 276

- 77, 271 N.W. 493, 497 (1937) (quoting 2 R.C.L. § 121 )

. Similarly, we have acknowledged that the Legislature’s contingent

- fee structure in section 176.081 is not unreasonable. Mack , 333 N.W.2d at 751 (“ [T] he legislature could reasonably believe that 20

- 25% is a fair contingent fee for handling compen sation matters of moderate size

. ”).10

While in a particular case th e Legislature’s formula may result in a higher fee than the attorney might receive if paid by the hour or under a different formula, see Krueger , 295 Minn. at 516

- 17, 202 N.W.2d at 876 (concluding that a 33 percent contingen t fee was not unreasonable, even though “the time and effort devoted to the settlement of respondent’s claim may not have been extensive or difficult”), this feature is always an element of the risk

- spreading inherent in contingen t fee formulas. See Lester Brickman, Effective Hourly Rates of Contingency

- Fee Lawyers: Competing Data and Non

Competitive Fees , 81 Wash. U. L.Q. 653, 655

- 56 (2003) (“ Contingency fees are de s igned
to

— and do

— yield higher effective hourly rates than do hourly rate fees to reflect the risks that lawyers bear .”); K atherine M. Mongoven, Impact of Contingency Fee Agreements on “

Reasonable ” Attorney Fees Awarded Pursuant to Wisconsin Fee

Shifting St atutes , 88 Marq. L. Rev. 1013, 1023

- 24 (2005) (arguing that because of the risk of no compensation in some cases, attorneys must be allowed to “ recover fees in the amount of their contingent fee

— no more or no less

— despite that the fee may seem

‘ unreasonabl e ’ for the amount of work they performed in a particular case ”). We are “reluctant to set the exact amount of attorneys fees . . . in any compensation case, .

. . because in our view it is impossible to say that only one fig ure represents a proper award. ” In re Award of Attorney’s Fees , 269 N.W.2d at 362. To promote its objective of ensuring the “quick and efficient delivery” of benefits to injured workers at a reasonable cost, Minn. Stat. § 176.001, the Legislature reasonably adopted a formula for calculating fee awards that mimics the risk

- spreading features of contingent

- fee retainer agreements.11

To be sure, the contingent

- fee award in some workers’ compensation cases is paid by the employer, rather than under a contract between t he employee and the employee’s attorney. See Minn. Stat. § 176.081, subd. 1(a)(1). But this feature reflects a legislative policy choice that we have previously upheld. Kahn , 327 N.W. 2d at 24 (“[T]he statute is designed to protect [employees] from exces sive legal charges which might otherwise severely deplete funds badly needed by the employee

. . . .”). Conducting a case

- by

- case determination of attorney fees, as urged by the relators, neglects this legislative policy , would disrupt the risk

- spreading and incentive features of the current fee

- formula structure, and would undermine other legislative objectives. See, e.g., Kahn , 327 N.W.2d at 24 (statutory authority for attorney fees furthers “the public policy of this state that injured employees have access to representation by competent counsel knowledgeable of the intricacies of the workers’ compensation law”)

. It is also worth noting that the public policy choice made by the Legislature to permit contingent fees reflects the reality that there are any number of ways attorney fees could be calculated (including , but not limited to , contingent fees, flat fees, hourly fees , and various combinations of types of awards) , and the implicit assumption by Bartel and SFM that an hourly based fee is superior i s just that

— an assumption . This assumption, at least for baseline attorney fee calculations in workers’ compensation matters , is not one that is shared by the Legislature. The dissent would have us intervene here, as we did in Irwin

. We apply comity on

an as - needed basis and it does not follow that merely because we deployed constitutional principles in Irwin we must necessarily apply them here . That said, there are differences12

between the circumstances here and those in Irwin. We ex plained in Irwin that we “ do not take issue with the actual percentage or dollar limitations adopted by the legislature in Minn. Stat. § 176.081.” 599 N.W.2d at 141. Instead, we challenged the Legislature’s “prohibit[ion on] any deviation from the statut ory maximum.” Id. Unlike the fee

formula structure at issue here, the statutory maximum is a stark departure from the contingen t

- fee framework that the Legislature adopted. Because this case does not invoke the statutory maximum, we need not employ Irwi n ’s reasoning.
III

. Thus, w e elect to recognize as a matter of comity the legislative determination that a fee calculated according to the statutory formula is not excessive . We therefore will not review the reasonableness of a correctly calculated fee to determine whether it is excessive , absent exceptional circumstances. We have previously s aid that contingen t fees are condemned “ only where an attorney has taken advantage of a client’ s circumstances to exact an unreasonable or unconscionable proportion of the client’ s claim

. ” Holt v. Swenson , 252 Minn. 510, 514, 90 N.W.2d 724, 727

- 28 (1958) . On the other hand, we have recognized that a fee is reasonable even though the “time and effort devoted to the . . . claim may not have been extensive or difficult , [if]

. . . services were in fact performed and . . . such services materially contributed to a most favorable result on the client’s behalf.” Krueger , 295 Minn. at 516

- 17, 202 N.W.2d at 876. W e see no reason to conclude that a fee award calculated cons istently with the statutory formula requires judicial review to ensure it is not excessive when the Legislature has already established a reasonable and fair balance between the interests of employer and employee13

in achieving a speedy, efficient, and inexp ensive resolution of a dispute. Absent exceptional circumstances, we presume a correctly calculated fee that does not exceed the statutory limit is reasonable. 3
Bartel and SFM ha ve not presented any exceptional circumstances here

. Bartel and SFM ’ s prim ary evidence that the fee is excessive is that it equates to an hourly rate of $1 , 000 as compared to the attorney’s normal hourly billing rate of $300

. 4 But the central feature of a contingent fee is the possibility of an award that exceeds the value of fees on an hourly basis. In other words, it “ would make no economic sense for the attorney to accept a contingent case unless the effective hourly rate for work would exceed by some amount that which otherwise could be e a rned from noncontingent sources.” Jay, supra , at 837 . Thus, the mere fact that the contingen t fee, when translated to an hourly rate, is higher than an attorney’s billing rate in a noncontingent case , does not overcome the presumption that the statutory formula generates a fee that is not excessive

.

3 We note that an “exceptional circumstances” standard for review of alleged excessive fees is consistent with standards previously adopted by the Legislature, see Minn. Stat. § 176.081, subd. 4 (1984) (providing for review of fee award “up on the ground that it is arbitrary and unwarra nted by the evidence”), repealed , Act of May 22, 1985 , ch. 234, § 22, 1985 Minn. Laws 739, 755, and with the ethical standards that govern licensed lawyers, see In re Dvorak , 554 N.W.2d 399, 403 (Minn. 1996) (concluding that a fee that is in excess of that authorized by statute or court order is unreasonable); In re Simmonds , 415 N.W.2d 673, 675

- 76 (Minn. 1987) (detailing “exorbitance” in fees).

4 Contrary to the dissent’s assertion that we lack sufficient evidence to reach this conclusion, our review o f the record uncovers no facts that would support a finding of exceptional circumstances, making a remand to the compensation judge unnecessary.14

Therefore, b ecause we exercise a strong presumption against finding that the statutory formula in Minn. Stat. § 176.081 results in an excessive attorney fee , and because Bartel and SFM ha ve not presented any exceptional circumstances to challenge this presumption, we affirm. Affirmed.D

- 1 D I S S E N T STRAS, Justice (dissenting).
In Irwin v. Surdyk’s Liquor , we held that Minn. Stat. § 176.081, subd. 1(a) (2012), infringes on the judicial power by prohibiting judicial review of statutory awards of attorney fees to ensure that they provide adequate compensation for attorneys litigating claims for workers’ compensation benefits. 599 N.W.2d 132, 141

- 42 (Minn. 1999); see also Minn. Const. art. III, § 1. This case presents the other side of the same question: whether the statute violates the separation of powers by prohibiting judicial review of excessive attorney

- fee awards under the statute. I continue to har bor doubts about our decision in Irwin , because the Legislature typically has the authority to regulate recoveries in civil actions, including the amount of attorney fees available, particularly when a case involves a statutory cause of action like a claim for workers’ compensation benefits. Cf. Irwin , 599 N.W.2d at 144

- 46 (Anderson, Russell, J., dissenting). Irwin , nonetheless, is good law, and no one has asked us to modify it here. Our task is simply to clarify whether Irwin ’s holding that we must reta in “final, independent review” over an award of attorney fees that is too low , id. at 142, extends to instances in which an award is too high . As the court recognizes, the answer to that question is straightforward, because “the central point of Irwin

. . . applies regardless of whether a statutory formula establishes a ceiling or a floor for a fee award.” In my view, the foregoing analysis fully answers the question presented and I would proceed no further.D

- 2 I. Instead, as a matter of comity, the court de clines to apply Irwin ’s constitutional reasoning here. 1 When we have deferred to the Legislature as a matter of comity, even when a statute encroaches on the judicial power, as it does here, our decision to defer to the Legislature is itself an exercise o f judicial power. Cf. State v. Willis , 332 N.W.2d 180, 184 (Minn. 1983) (deciding to enforce a statute as a matter of comity “since it neither interferes with nor impairs a judicial function”). However, unlike in those instances in which we have elected to enforce a statutory provision that would otherwise violate the separation of powers, there is good reason not to do so here. The court justifies its decision by emphasizing that the formula for calculating attorney fees under the statute resembles a con tingent

- fee arrangement. 2 See Minn. Stat. § 176.081, subd. 1(a) (2012) (providing for a fee equal to 25 percent of the first $4,000 recovered plus 20 percent of the next $60,000). “[T]he Legislature reasonably adopted a formula for calculating fee awards that mimics the risk

- spreading features of contingent

-

1 The court insists it is “reaffirm[ing] the holding in Irwin ,” and therefore attorneys representing injured em ployees should not worry. See Irwin , 599 N.W.2d at 142. But if a party responsible for paying an attorney (the employer and an insurer in this case, but perhaps an employee in a different case) wants to argue that the statutory fee is excessive, the cour t will refuse to entertain such a challenge absent exceptional circumstances. In short, the court decides to err on the side of overcompensating attorneys

— an approach that is in tension with Minn. R. Prof. Conduct 1.5(a) (“ A lawyer shall not make an agree ment for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. ”).

2 Of course, as illustrated by this case, the statutory scheme governing attorney fees in workers’ compensation cases differs from a normal contingent

- fee arrangement because it sometimes requires the employer or an insurer, rather than the employee, to pay the employee’s attorney. See Minn. Stat. § 176.081, subd. 1(a)(1).D

- 3

fee retainer agreements,” the court explains, so it is natural that, “in a particular case, the Legislature’s formula may result in a higher fee than the attorney might receive if paid by the hour or u nder a different formula.” Thus, according to the court, there is no reason for the court to review the fee to ensure that it is not excessive. The flaw in the court’s argument, however, is that its rationale applies equally to the situation in Irwin . Th e possibility that “the Legislature’s formula may result in a [lower] fee than the attorney might receive if paid by the hour or under a different formula” is just as much “an element of the risk

- spreading inherent in contingency formulas” as is the possib ility of the formula generating a higher fee in a particular case. Indeed, the fact that the attorney bears the risk of a low recovery, or even non

- recovery, in an unsuccessful case is precisely what justifies charging the higher fee in a successful

case. Cf. Gisbrecht v. Barnhart , 535 U.S. 789, 810 (2002) (Scalia, J., dissenting) (explaining that a contingent

- fee arrangement “assign[s] the risk of an unsuccessful outcome to the attorney, in exchange for a percentage of the recovery from a successful
outc ome that will (because of the risk of loss the attorney has borne) be higher . . . than what the attorney would receive in hourly billing for the same case”). Accordingly, the fact that the Legislature has adopted a contingent

- fee approach for setting att orney - fee awards in workers’ compensation cases does not provide a basis for adopting a different approach here than in Irwin

. II. The court also asserts that adhering to Irwin in this case would undermine the legislative objectives embodied in Minn. Stat. § 176.081, subd. 1(a). What the court failsD

- 4

to acknowledge, however, is that our decision in Irwin has already undermined the legislative scheme. The court does not assert, nor could it, that the text of Minn. Stat. § 176.081, or of any other provision of the Workers’ Compensation Act for that matter, expresses a legislative preference for judicial review of only those attorney

- fee awards that are allegedly too low, while leaving intact awards that are potentially too high. In fact, by reviewing only at torney

- fee awards that may be too low, the court is likely doing more damage to the legislative scheme by creating an asymmetric preference in favor of higher attorney

- fee awards in workers’ compensation cases. Enforcing only part of the statute, in other words, has the potential to undermine the delicate “compromise struck in the workers’ compensation statute balancing certain, but limited, benefits provided to employees injured in the course of their employment with the limitations on the ability of work ers to recover damages in tort actions.” Stringer v. Minn. Vikings Football Club, LLC , 705 N.W.2d 746, 755

- 56 (Minn. 2005). Moreover, the various legislative policies that the court claims would be undermined by judicial review of attorney

- fee awards were announced in cases under prior versions of the Workers’ Compensation Act that expressly permitted judicial review of attorney

- fee awards. See, e.g. , Mack v. City of Minneapolis , 333 N.W.2d 744, 752 (Minn. 1983) (noting that, under the Workers’ Compensation Act, “ultimately we can review all attorney fees decisions”); see also Minn. Stat. § 176.081, subds. 3

- 4 (1982) (providing that an employee could seek review of an award of at torney fees in the workers’ compensation court of appeals and in this court); Minn. Stat. § 176.081, subd. 4 (1980) (providing that an employee could seek review of an award of attorney fees in thisD

- 5

court); Minn. Stat. § 8201 (1913) (“No claim for legal se rvices or disbursements pertaining to any demand made or suit brought under the provisions of this act shall be [valid] . . . unless the same be approved in writing by the judge presiding at the trial

. . . .”). Indeed, some of the decisions applied versi ons of the statute that required courts to review fee awards under a list of factors that were almost identical to the factors that we adopted in Irwin

. Compare Minn. Stat. § 176.081, subd. 5(d) (1982), and Minn. Stat. § 176.081, subd. 5(d) (1980), with I rwin , 599 N.W.2d at 142. The court does not explain how the possibility of judicial review in this case would undermine legislative policies that our previous decisions have said were furthered by a similar type of judicial review for reasonableness. E.g

. , Kahn v. Univ. of Minn. , 327 N.W.2d 21, 24 (Minn. 1982) (noting that the “ statutory scheme for application and review of attorney fee requests [by the agency] evinces two distinct purposes”: to protect claimants from excessive charges and to insure that the attorneys representing them receive reasonable compensation). Finally, the court fails to directly address the argument made by the employer and the insurer (collectively, “the relators”). According to the court, the relators urge us to review attorne y - fee awards by “[c]onducting a case

- by

- case determination of attorney fees.” However, the relators actually request a “determination of an attorney fee pursuant to the Irwin factors,” through consideration of, among other things, “the amount involved, th e 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.” Irwin , 599 N.W.2d at 142. The court fails to explainD

- 6

how the sort of review the relators actually seek, based on the factors that we already endorsed in Irwin , undermines the statute. III. The court also purports to create an exception for truly excessive awards in “exceptional circumstances,” but t hen deprives the relators of the benefit of that exception based on another misreading of their argument. This time, the court conclusively determines that the relators “have not presented any exceptional circumstances” because they did not present eviden ce that the fee in this case was excessive. The problem is that the relators had no reason to present evidence of the excessiveness of the fee to this court, and no way of knowing that they were supposed to do so, because they did not ask this court to ho ld that the particular fee in this case was excessive. Rather, what the relators requested was that the “matter be reversed and remanded to the Compensation Judge” for review of the statutory

- fee award. That is what we did in Irwin , 599 N.W.2d at 142 (re manding to the workers’ compensation court of appeals, not to a compensation judge, because the compensation judges had already made findings regarding the reasonableness of the fees), and the relators would have had no reason to know that, in this case, t he court would create a new barrier to judicial review of a statutory

- fee award. Because they expected to have a chance to prove excessiveness before the compensation judge in the first instance, in accordance with
Irwin , they could not have known that th ey needed to prove the excessiveness of the fee to this court.D

- 7

In short, the court penalizes the relators for failing to meet a standard that had not yet been announced because they failed to present evidence that they would have had no reason to present t o this court. Even if I agreed that this case is distinguishable from
Irwin , the court’s decision simply goes too far.
IV. For the foregoing reasons, I respectfully dissent.