The employer and insurer, Northwest Airlines Corporation and Kemper Insurance Company/Broadspire, appeal from the compensation judge’s finding that the employee was permanently and totally disabled as of November 12, 2004, and the judge’s denial of reimbursement to the employer for sick leave paid to the employee.  In the alternative, the appellants seek vacation of the Findings and Order of June 6, 2006, on the basis of a mutual mistake of fact.  The employer and insurer also appeal from the compensation judge’s award of additional attorney fees.  We affirm the compensation judge’s findings and orders and deny the petition to vacate.

Harold M. Zupon, the employee, sustained a personal injury to his low back on January 23, 1975, while working as a forklift mechanic for Forklifts, Inc., then insured by State Farm Insurance Company.  Forklifts and its insurer admitted liability for the employee’s personal injury.  In 1990, the employee entered into a settlement with Forklifts and State Farm settling out claims to the extent of a 30 percent permanent partial disability of the spine.  An Award on Stipulation was filed on June 6, 1990.

The employee went to work for Northwest Airlines Corporation (NWA) in 1990 as a plant maintenance mechanic.  On or about July 27, 1993, the employee sustained a work-related injury to his neck and back.  NWA was then insured by Kemper Insurance Company/Broadspire and they admitted liability for the employee’s personal injury.

Following the employee’s injury at NWA, Dr. Edward Hames performed a left C5-6 microdiscectomy and a C6 foraminotomy for compression of the left C6 nerve root in December 1993.  In June 1994, the employee was released to full-time work with restrictions and returned to work for NWA as an aircraft mechanic.  In 2001, the employee was reassigned to work in the carpenter shop building wooden crates.

Dr. Steven Noran, a neurologist, first examined the employee in September 1993 and continued to provide medical care and treatment thereafter.  On July 27, 2004, Dr. Noran took the employee off work due to increased symptoms and opined the employee was then medically unable to continue working as a result of his injuries.  The employee returned to see Dr. Noran on November 12, 2004, and reported he had returned to work approximately one month previously.  Dr. Noran again took the employee off work due to his worsening upper back and neck symptoms.

At a deposition taken in March 2006, Dr. Noran stated he last saw the employee on November 30, 2005.  The doctor’s diagnosis was a double crush phenomenon in both hands, causing numbness and carpal tunnel like syndromes in the employee’s hand and arms with some degree of thoracic outlet syndrome and persistent nerve injuries.  The doctor opined the employee’s 1993 personal injury was a substantial contributing factor to these diagnoses.  With respect to the employee’s low back, Dr. Noran diagnosed an L2 compression fracture which contributed to the evolution of sacroiliac problems and trochanteric bursitis problems secondary to the 1975 personal injury.  The doctor referred the employee to Saunders Physical Therapy for a functional capacity evaluation in January 2005.  Based on that evaluation, Dr. Noran opined the employee was limited to sedentary work only with frequent position changes and opined the employee should work no more than four hours a day.  The doctor’s restrictions included no repetitive hand work, no repetitive movement of the neck, no work over shoulder height, limited lifting, no percussion to the neck or back, and limited kinetic movement or bending of the back.  The doctor apportioned responsibility for the employee’s permanent restrictions 80 percent to the 1993 injury and 20 percent to the 1975 injury.

Dr. Richard Galbraith, a neurologist, examined the employee on May 18, 2005, at the request of State Farm.  The doctor diagnosed a healed compression fracture at L2 resulting from the 1975 personal injury with maximum medical improvement reached in August 1975.  Dr. Galbraith stated the 1993 injury caused a C5-6 herniated disc but the doctor had no explanation why the employee continued to have neck pain.  Dr. Galbraith opined the employee reached maximum medical improvement from that injury in April 1994, and stated the employee needed no restrictions as the result of either work injury.

Dr. Joel Gedan, a neurologist, examined the employee in May 2005, at the request of NWA and Kemper.  The doctor diagnosed an L2 compression fracture and left C6 radiculopathy secondary to a C5-6 disc herniation and subsequent surgery with a good neurological result.  Dr. Gedan concluded the employee’s current generalized neck, elbow, hand and arm complaints did not relate to the 1993 injury.  The doctor opined the employee could work subject to a 25-pound lifting restriction with frequent lifting of no more than 10 pounds, the ability to change positions as necessary and no prolonged or repetitive neck flexion or extension or repetitive work with arms outstretched or above the head.  Dr. Gedan stated the employee was medically able to continue working in a light-duty position in November 2004 and thereafter.

Dr. William Leuchter, a neurologist, performed a record review of the employee’s medical records at the request of NWA.  The doctor stated the employee had “ongoing disease involving his neck and shoulders, as well as bilateral carpal tunnel syndrome, and intermittent low back pain, all of which can causally be related to his work activity.”  (NWA Ex. 2.)  Dr. Leuchter opined, however, the employee was not permanently and totally disabled but was able to work within the restrictions outlined in the functional capacity evaluation.

The employee filed a claim petition seeking temporary total disability benefits from July 27, 2004 to October 27, 2004, and permanent total disability benefits commencing on November 12, 2004.  NWA claimed entitlement to reimbursement for sick leave benefits paid the employee between July and October 2004.  The case was heard by a compensation judge at the Office of Administrative Hearings.  In a Findings and Order filed June 6, 2006, the compensation judge awarded the requested benefits and apportioned liability 20 percent to the 1975 injury and 80 percent to the 1993 injury.  The compensation judge found NWA failed to prove entitlement to reimbursement for the sick leave benefits paid and denied its claim.  Finally, the compensation judge awarded contingent attorney fees of up to $13,000.00.

Following the hearing, the employee’s attorney filed a petition for excess/disputed fees and a second hearing was held before the compensation judge.  In a Findings and Order on Attorney Fees, filed July 3, 2006, the compensation judge awarded the employee’s attorney an additional $13,000.00 in attorney fees for a total fee of $26,000.00.

NWA and Kemper Insurance/Broadspire appeal both the June and July 2006 findings and order, and petition to vacate the June 6, 2006, Findings and Order based upon a mutual mistake of fact regarding the denial of fee reimbursement for sick leave paid to the employee.

The compensation judge found the employee was temporarily and totally disabled from July 27 to October 27, 2004, and became permanently and totally disabled on November 12, 2004.  The appellants contend the employee’s condition did not change after July 27, 2004, and there is no evidentiary basis to support the judge’s finding that the employee’s disability between July and October was temporary rather than permanent.  Accordingly, the appellants assert the employee became permanently and totally disabled on July 27 rather than November 12, 2004.  We are not persuaded.

In July 2004, Dr. Noran took the employee off work.  After receiving updated restrictions from Dr. Noran, NWA instructed the employee not to come to work because they could not accommodate the restrictions.  Between July and October 2004, the employee called NWA and the union on numerous occasions in an attempt to return to work.  However, during this period, employee testified his symptoms worsened.  Dr. Noran allowed the employee to return to work on October 27 but the employee was unable to continue the job due to his symptoms.  Dr. Noran removed the employee from work on November 12, 2004, and later opined the employee was permanently unable to work.  By letter dated January 5, 2005, NWA advised the employee he should apply for total and permanent disability benefits under his group life insurance plan.

The date on which permanent total disability commences is a question of fact for the compensation judge.  Christensen v. Whirlpool, 41 W.C.D. 1047 (W.C.C.A. 1989).  Substantial evidence supports a factual finding if, in the context of the entire record it is “supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  In this case, substantial evidence supports the compensation judge’s decision and that decision is affirmed.

The employee received intermittent periods of on-the-job injury (OJI) pay from August 3, 2004, through April 29, 2005.  NWA contended it was entitled to be reimbursed from the employee’s total disability benefits for the OJI payments the employee received.  In support of this claim, NWA relied upon a copy of a contract between NWA and the International Association of Machinist and Aerospace Workers governing sick pay and occupational leave. (Resp. Ex. 3.)  The agreement was for the period October 3, 1996, through February 25, 2003.  The OJI payments in issue, however, were made after the effective date of the contract.  The compensation judge found NWA failed to prove entitlement to reimbursement of the OJI pay and denied the requested reimbursement.

NWA petitions to vacate this finding.  In an affidavit, NWA’s attorney stated that at hearing he submitted an exhibit which he believed to be the relevant labor contract between NWA and the employee’s union.  Subsequent to the hearing, counsel determined the employee belonged to the Aircraft Mechanics Fraternal Association.  Counsel attached to his affidavit a copy of a labor contract which he contends is the correct copy of the contract for the time period in issue.  NWA asserts the failure to introduce the correct contract at hearing constituted a mutual mistake of fact justifying a vacation of the compensation judge’s denial of the reimbursement claim.

A mutual mistake of fact occurs when opposing parties both misapprehend some fact material to the disputed claim.  Shelton v. Schwann’s Sales Enters., slip op. (W.C.C.A. May 18, 1995).  While the failure to introduce the correct agreement may have been a material mistake, we cannot conclude it was a mutual mistake.  We find no evidence the employee made a mistake regarding the union contract or the claimed reimbursement.  Rather, the employee testified he understood he would not have to repay the OJI payments once he left the employ of NWA.  Whether NWA was entitled to reimbursement was disputed by the employee, and NWA had the burden of proving entitlement to reimbursement.  Rine v. City of Minnetonka, 67 W.C.D. 7 (W.C.C.A. 2007).  While we are sympathetic to NWA’s argument, we find no material mistake of fact upon which to base vacation of the judge’s decision on the reimbursement issue.

In the June 6, 2006, Findings and Order, the compensation judge awarded contingent attorney fees of up to $13,000.00.  In the July 3, 2006, Findings and Order, the compensation judge awarded an additional $13,000.00 in attorney fees.  The employer and insurer appeal this award contending the $13,000.00 attorney fee award in the June 6, 2006, Findings and Order was not appealed and is the law of the case.  Accordingly, the appellants contend the attorney fee awarded on July 3, 2006, is legally incorrect and must be reversed.  We disagree.

In Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), the court held a $13,000.00 limitation on attorney fees was unconstitutional.  An attorney, at any time, may request an attorney fee in excess of $13,000.00.  That is exactly what the employee’s attorney did in this case.  The compensation judge considered the Irwin factors and stated in her memorandum,