KELLY D. MILLER, Employee, v. R225 ENT, LTD. and MINN. ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 14, 2003

 

HEADNOTES

 

ATTORNEY FEES - SUBDIVISION 7 FEES.  Under the unique facts of the case, including the fact that the employer and insurer did not file an objection to counsel=s statement of attorney fees, the compensation judge could reasonably infer that a dispute existed over benefit payment so as to warrant an award pursuant to Minn. Stat. ' 176.081, subd. 7.

 

Affirmed.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge:  Cheryl LeClair-Sommer.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the judge=s award pursuant to Minn. Stat. ' 176.081, subd. 7.  We affirm.

 

BACKGROUND

 

The employee sustained a work-related injury on June 29, 1999, while working for R225 ENT Limited [the employer].  The employer and insurer admitted liability for the injury and paid temporary total disability benefits.  On October 19, 2000, the employer and insurer filed a notice of intention to discontinue benefits [NOID], based on the employee=s return to work on July 31, 2000, indicating that temporary partial disability benefits would be paid based on the difference between a date-of-injury weekly wage of $1,722.00 and the employee=s current weekly wage.  On October 23, 2000, the employer and insurer filed a notice of benefit reinstatement, indicating that payment had been voluntarily resumed as of September 21, 2000, when the employee had again lost time from work.

 

On November 19, 2002, the employer and insurer filed an amended NOID, based on a return to work on July 31, 2000, indicating that temporary partial disability benefits would be paid based on the difference between a date-of-injury weekly wage of $1,000 and the employee=s current weekly wage.  The employee objected and retained an attorney, and the matter proceeded to an administrative conference under Minn. Stat. ' 176.239.  An order on discontinuance filed on December 23, 2002, indicated that the NOID had alleged that the employee had returned to work on July 31, 2002;^[1] that the employee contended that Athe employer/insurer verbally indicated that temporary partial disability benefits would not be paid;@^[2] and that the employee had agreed that the employer and insurer might be entitled to a credit for up to 20% of future benefits.  For the purposes of the conference, the parties stipulated that the employee had returned to work on July 31, 2002,^[3] that temporary total disability benefits could be discontinued, and that the employee was entitled to temporary partial disability benefits from July 31, 2002, through the date of the conference and continuing -- although the amount of the temporary partial disability benefits could not be determined at that time since the parties could not agree as to weekly wage.

 

 

 

 

On January 17, 2003, the employee=s attorney, David Kempston, filed a statement of attorney fees, requesting $978.00 in fees for representing the employee at the .239 conference and an additional $218.40 pursuant to Minn. Stat. ' 176.081, subd. 7.  No objection was filed to the statement of attorney fees, and the compensation judge filed an order determining attorney fees on March 17, 2003.  The employer and insurer appeal from the judge=s award of subdivision 7 fees.

 

DECISION

 

Minn. Stat. ' 176.081, subd. 7, provides in part:

 

If the employer or insurer files a denial of liability, notice of discontinuance, or fails to make payment of compensation or medical expenses within the statutory period after notice of injury . . . or otherwise unsuccessfully resists the payment of compensation or medical expenses . . . and the injured person has employed an attorney at law, who successfully procures payment on behalf of the employee . . . , the compensation judge . . . upon application, shall award to the employee against the insurer or self-insured employer, in addition to the compensation benefits paid or awarded to the employee, an amount equal to 30 percent of that portion of the attorney=s fee which has been awarded pursuant to this section that is in excess of $250.

 

The employer and insurer contend that subdivision 7 fees are not payable as there was no denial of benefits and no Aunsuccessful resistence@ to payment of benefits.  We are not persuaded.

 

There is no formal record here for our review as no record is created at a .239 conference.  However, the employee asserts, in his brief, that, although the 2002 NOID indicated that temporary partial disability benefits would be paid, he was told otherwise in a phone conversation with the insurer, and this assertion also appears in the order on discontinuance.  Nothing in the order on discontinuance or in the employer and insurer=s brief on appeal contradicts the employee=s assertion to this effect. 

 

When the NOID was filed in 2000, proposing to reduce temporary total disability benefits to temporary partial disability benefits based on a return to work, the employee did not secure an attorney or object to the NOID.  However, the employee did secure an attorney and object shortly after the 2002 NOID.  This fact, coupled with the employer and insurer=s failure to dispute the employee=s allegation at the .239 conference or in their appeal brief, and the employer and insurer=s failure to object to the statement of attorney fees,^[4] provides evidence from which a compensation judge could infer that a dispute existed over the payment of  benefits.  Accordingly, under the unique facts of this case, we affirm the judge=s award of subdivision 7 fees.