Litigation in this matter commenced with the filing of a claim petition by the employee, Dale Banken, on November 12, 1999.  The claim petition alleged entitlement to benefits by reason of a low back injury which occurred on January 24, 1997 while the employee was employed at Lac Qui Parle Coop Oil.  The employee claimed entitlement to periods of temporary total and temporary partial disability compensation, payment of medical expenses, and penalties pursuant to Minn. Stat ' 176.225, subd. 1. 

Lac Qui Parle and its insurer, Farmland Mutual Insurance Company, filed a joint answer in which primary liability for the January 24, 1997, low back injury was admitted but which denied any obligation to pay the benefits claimed.  They alleged that there had been a subsequent work injury and/or a superseding intervening cause which ended their responsibility for the employees= condition. 

On May 14, 2001, Lac Qui Parle/Farmland petitioned for joinder of Chandler Industries and its insurer State Fund Mutual Insurance Company.  The petition was granted.

The case was heard by Compensation Judge William Johnson on October 2, 2001.  Before presenting evidence, the parties discussed the issues with the compensation judge.  Lac Qui Parle/Farmland claimed that Chandler/State Fund was responsible for a September 1, 1999 injury and a January 25, 2001 injury at Chandler Industries.  The attorney for Chandler/State Fund advised the court that it was accepting responsibility for a January 25, 2001 low back injury based upon the report of its IME, Dr. Mark Thomas.  Chandler/State Fund denied any injury occurred on September 1, 1999.  The attorneys for both employers and insurers stated that the employee=s claims for wage loss benefits and medical expenses would be paid by the insurers.  The attorneys for both employers and insurers agreed with the compensation judge that from their perspective the case was primarily a dispute about contribution and reimbursement between the insurers.

In addition to discussing the dispute between the insurers, the attorney for the employee stated that the employee had a claim for penalties and interest Aand subdivision 7 fees and 176.191 attorneys fees.  In the alternative, Roraff fees on the medicals that remain unpaid.@^[1]  In their opening statements, which were made after the comments of the employee=s attorney, neither insurer objected to or responded to the request for attorney fees.

The compensation judge issued his Findings and Order on December 21, 2001 (amended on December 28, 2001).  Among other determinations,  relevant to this appeal, were that the employee did not sustain a work injury on or about September 1, 1999.  The judge held that because of the January 24, 1997 work injury Lac Qui Parle and Farmland were responsible for benefits before January 25, 2001.  After the January 25, 2001 injury, Lac Qui Parle/Farmland and Chandler/State Fund were each 50% responsible for medical expenses incurred by the employee.  The two healthcare providers and the health insurer who had intervened in this matter were awarded reimbursement by Farmland and State Fund on a 50/50 basis.  The compensation judge further found that the employee=s attorney was entitled to fees pursuant to Minn. Stat. ' 176.191 and ordered that each insurer would be responsible for 50% of the attorney fees awarded.  The compensation judge also denied the employee=s claim for penalties.  

Chandler Industries and its insurer, State Fund, appeal the award of attorney fees under Minn. Stat. ' 176.191, the apportionment of those fees, and the apportionment of medical expense reimbursement.  We affirm in part, remand in part, and modify in part.

DECISION

1. Attorney Fees

Minn. Stat. ' 176.191, subd. 1 applies where workers= compensation benefits are payable to an employee and there is a dispute between two or more employers and insurers as to which is responsible for payment.  In such a case, the Aclaimant shall also be awarded a reasonable attorney fee, to be paid by the party held liable for the benefits@ (emphasis added).

State Fund argues that the issue of attorney fees was not properly before the compensation judge and that it had no notice that attorney fees pursuant to Minn. Stat. ' 176.191 might be awarded.  At the beginning of the hearing, the parties agreed that the primary issue for the compensation judge was the apportionment dispute between the employers and insurers.  The attorney for the employee indicated the employee=s claim was for penalties, interest and attorney fees.  In her trial memorandum the employee=s attorney specifically requested fees under Minn. Stat. ' 176.191.  In light of the issues and arguments in this matter the compensation judge appropriately considered the question of attorney fees and properly awarded attorney fees under Minn. Stat. ' 176.191.  The compensation judge=s order for the payment of attorney fees pursuant to Minn. Stat. ' 176.191 is affirmed.

State Fund also raises on appeal the apportionment of attorney fees awarded by the compensation judge.  The judge ordered each insurer to pay one half of the attorney fees.  State Fund argues that it had no opportunity to question the apportionment of attorney fees and requests that this issue be remanded to the compensation judge for a redetermination after argument by the parties.   Farmland did not file a brief in this matter but in a letter addressed to the court indicated its agreement with State Fund=s position.  The employee argues that attorney fees should be equally apportioned, citing the case of Lee v. Hauenstein, slip op. (W.C.C.A. April 28, 1992). 

It is true that in Lee this court affirmed an apportionment of attorney fees by the compensation judge in which each insurer was ordered to pay one half of the fees.  The Lee decision, however, is not a mandate that in every case Minn. Stat. ' 176.191 fees must be apportioned equally.  This court has affirmed different apportionments of attorney fees. See e.g., Murphy v. Frana & Son=s, slip op. (W.C.C.A. April 13, 1999) (affirming apportionment of fees on a 90/10 basis).  We note that the employee=s attorney has filed a statement of attorney=s fees with the compensation judge and the insurers have filed objections to that statement.  This matter will now proceed to a hearing before the compensation judge on the request for fees.  At that hearing, in addition to considering the amount of fees to be awarded, the compensation judge should afford the parties an opportunity to argue the issue of apportionment of fees between the insurers and should reconsider this issue at that time.  On this issue the compensation judge=s decision is reversed and remanded for further consideration.

2. Apportionment of Medical Reimbursement

In his decision the compensation judge ordered reimbursement to Abbot Northwestern Hospital, the Montevideo Clinic, and Blue Cross/Blue Shield of Minnesota.  The two insurers were ordered to reimburse these parties on a 50/50 basis.  On appeal, Chandler and State Fund point out that many of the expenses which were ordered reimbursed predated its injury of January 25, 2001.  They request a modification of the compensation judge=s Orders 9, 10, and 11 so that medical expenses before January 25, 2001 are held to be the responsibility of Farmland and that expenses after January 25, 2001 should be reimbursed equally by both insurers.  Farmland in a letter to this court agrees with the position of State Fund.  Accordingly the decision of the compensation judge is modified to reflect that in the reimbursement to Montevideo Clinic, Abbott Northwestern Hospital and Blue Cross/Blue Shield of Minnesota, Farmland Insurance Company shall be responsible for expenses incurred before January 25, 2001.  Expenses incurred after that date shall be reimbursed equally by the insurers.