The employee appeals from the compensation judge’s Order determining that a fee previously awarded to his counsel on appeal under Minnesota Statutes section 176.511, subdivision 3, must be included in the $13,000.00 limit on attorney fees set forth in Minnesota Statutes section 176.081, subdivision 1(b).  We reverse.

On April 5, 2007, attorney Raymond Peterson filed a Statement of Attorney Fees, requesting fees in the amount of $12,373.37, to be paid from currently withheld benefits and from future permanent total disability benefits.  Acknowledging a $13,000.00 statutory limitation on fees,^[1] Mr. Peterson arrived at his claimed fee by subtracting from that $13,000.00 limit fee payments of $501.63 and $125.00 made previously, pursuant to awards issued in November 1995 and July 2000, respectively.  Mr. Peterson also acknowledged receipt of a fee of $750.00 paid to him by the employer on his successful appeal to this court, pursuant to a decision of this court dated November 12, 1998, but he did not apply this payment toward the $13,000.00 statutory maximum.  No objection was filed by the employer and insurer.

In an Order on Attorney Fees served and filed on April 18, 2007, a compensation judge ordered payment of a fee $750.00 less than the amount claimed, reflecting inclusion of the fee awarded on appeal in 1998 in the statutory maximum.  Citing Minnesota Statutes section 176.081, subdivision 9, the judge noted that the statute provides that “[t]he maximum fee allowed by law for legal services . . . [is] subject to a cumulative maximum fee of $13,000.00 for fees related to the same injury.”  Finding no statutory or case law support for treating fees awarded on appeal any differently than any other fees, the judge ordered a fee of $11,623.37, $750.00 less than that claimed by Mr. Peterson.  The employee appeals.

On appeal, the employee frames the issue as whether the fee limitation outlined in Minnesota Statutes section 176.081, subdivision 1(b), includes attorney fees that are awarded pursuant to Minnesota Statutes section 176.511, subdivision 3.  The employee argues that fees awarded under the latter provision are clearly distinguishable from those subject to the contingent fee limitation.  He contends that such fees are actually costs that an employee incurs in merely securing payment of an award already ordered and that such costs are taxable to the employer/insurer and should not be made the responsibility of the employee.  Nor, he argues, do the limitations imposed by Minnesota Statutes section 176.081, subdivision 1(b), preclude the award of additional fees upon appeal.  We agree that fees on appeal awarded under Minnesota Statutes section 176.511 are not to be included in the $13,000.00 limitation established under Minnesota Statutes section 176.081.

Minnesota Statutes section 176.511, subdivision 3, provides that the Workers’ Compensation Court of Appeals “may include in its award as an incident to its review on appeal an amount to cover a reasonable attorney’s fee, or it may allow the fee in a proceeding to tax disbursements.”  Minn. Stat. § 176.511 (underscoring added).  We construe fees awarded under this provision to be distinguishable by nature from those awarded under Minnesota Statutes section 176.081, which authorizes payment to the attorney of a certain percentage “of the . . . compensation awarded to the employee.”  Minn. Stat. § 176.081, subd. 1(a).  Moreover, an award of attorney fees incident to this court’s review on appeal is discretionary with the court.  It is not subject to a statutory formula, nor does the court analyze the reasonableness of the fee under the Irwin^[2] factors.  To include fees on appeal, as authorized under section 176.511, as part of the $13,000.00 cap established under section 176.081 would effectively preclude an award under section 176.511 in maximum fee cases, thereby restricting this court’s discretion under an entirely collateral statutory provision.  We therefore hold that an award of fees under Minnesota Statutes section 176.511 is not includable in the $13,000.00 cap under Minnesota Statutes section 176.081.  The Order of the compensation judge is reversed, and Mr. Peterson is awarded fees as claimed, in the amount of $12,373.37.