The employee appeals the compensation judge’s denial of the claim for attorney fees.  The employer and insurer appeal the compensation judge’s finding that there was a genuine dispute whether the employee was entitled to a medical consultation.  We affirm.

Eizu D. Shaw, the employee, sustained a personal injury on or about May 31, 2005.  Flame Metals Processing Corporation, the employer, and its insurer admitted liability for the employee’s injury.

The employee retained H. Rick Fritz, Attorney at Law, on May 4, 2007.  In August 2007, Mr. Fritz contacted a claims representative at RTW, Inc., to discuss obtaining a medical consultation with Dr. Mark Engasser for the employee.  Thereafter, Mr. Fritz called or spoke with the claims representative on several other occasions.  Mr. Fritz was unsuccessful in obtaining approval from RTW, Inc., for the consultation.

On October 11, 2007, Mr. Fritz served upon the employer and insurer a Medical Request seeking a medical consultation with Dr. Engasser.  The employer and insurer did not file a response to the Medical Request.  By letter dated October 22, 2007, Donna Olson, an employee of the Department of Labor and Industry, Workers’ Compensation Division, wrote to Mr. Fritz acknowledging the receipt of his Medical Request which was filed with the Department on October 15, 2007.  Ms. Olson advised Mr. Fritz the dispute was not being certified under Minn. Stat. § 176.081, subd. 1(c),^[1] because “[t]he claim representative, Jean Desmarais, agrees to a second opinion with Dr. Engasser.”  (Resp. Ex. 1.)  It is undisputed that at the time the medical request was filed, primary liability had been admitted for the employee’s injury and no other litigation was pending at the Department or at the Office of Administrative Hearings.

The attorney for the employee filed a Statement of Attorney Fees in February 2008, requesting attorney fees of $1,867.50 for representing the employee in obtaining the consultation with Dr. Engasser.  The employer and insurer objected to the claim for attorney fees.  Following a hearing at the Office of Administrative Hearings, the compensation judge denied the employee’s  claim for attorney fees because the Department had not certified there was a dispute pursuant to Minn. Stat. § 176.081, subd. 1(c).  The employee appeals the denial of the attorney fee claim.  The compensation judge further found there was a genuine dispute whether the employee was or was not entitled to a second opinion.  The employer and insurer cross-appeal this finding.

Attorney fees may be awarded only on genuinely disputed claims or portions of claims.  Minn. Stat. § 176.081, subd. 1(c).  If there is no other litigation pending at the Department of Labor and Industry or at the Office of Administrative Hearings in which the employee is represented by an attorney, attorney fees may not be charged for a medical or rehabilitation issue performed, “before the employee has consulted with the department and the department certifies that there is a dispute and that it has tried to resolve the dispute.”  Id. The certification process is not a mere technicality that may be ignored.  Jorgenson v. Nova - Fleck, Inc., 638 N.W.2d 760, 62 W.C.D. 89 (Minn. 2002).

Mr. Fritz contends he engaged in conversations with the insurer over a period of several weeks regarding the employee’s request for a medical consultation.  The appellant asserts an insurer should not be allowed to delay a decision on a medical issue until they are contacted by the Department of Labor and Industry.  The compensation judge found an actual dispute existed.  Accordingly, the employee contends an award of attorney fees is appropriate and the compensation judge’s decision to the contrary should be reversed.  We disagree.

The employer and insurer admitted primary liability for the employee’s personal injury and there was no other litigation pending at the Department or the Office of Administrative Hearings.  Minn. Stat. § 176.081, subd. 1(c) provides no attorney fee may be charged for services with respect to a medical issue without certification from the department.  The department did not certify there was dispute in this case because the insurer agreed to a consultation with Dr. Engasser. The compensation judge properly denied the employee’s claim for attorney fees and the judge’s decision is affirmed.

The employer and insurer cross-appealed the judge’s finding that there was a genuine  dispute.  Since we have affirmed the compensation judge’s denial of the claim for attorney fees, the cross-appeal is moot.