The employee appeals from the compensation judge’s award of “payment of 10 hours of fees pursuant to the provisions of Minn. Stat. § 176.191” and argues that her attorney is, instead, entitled to payment for a total of 156 hours worth of attorney fees pursuant to Minn. Stat. § 176.191.  We affirm.

This case has a long, complicated procedural history.  The employee, Ms. Charlene Keck, worked as a custodian for the employer herein, Independent School District #877, which is located in Buffalo, Minnesota.  The employee claimed a number of different injuries with the employer, dating back to October 25, 2002.  At the time of the October 2002 injury, the employer was self-insured, with claims administered by Berkley Risk Administrators Company.  In addition to the October 2002 injury, the employee also claimed injuries on March 4, 2003, December 11, 2003, and February 24, 2004, resulting in a total of four claimed injuries against the employer while it was self-insured.

The employer subsequently obtained insurance coverage from RTW, Inc.  During RTW’s coverage period, the employee claimed injuries on February 21, 2006 and April 6, 2006.

The employee’s current attorney, Mr. James T. Hansing, began representing the employee in August 2006, with relation to “all injuries.”

There was prior litigation in this case, including two prior hearings and two prior decisions from this court.  See Keck v. Indep. Sch. Dist. #877, No. WC08-109 (W.C.C.A. July 23, 2008); Keck v. Indep. Sch. Dist. #877, 71 W.C.D. 661 (W.C.C.A. 2011).  As a result of the prior litigation, the compensation judge concluded that the February 21, 2006 and April 6, 2006 claimed injury dates should be narrowed to an injury date of April 6, 2006.  The 2006 injury primarily involved the employee’s right knee and low back.  The employer and RTW accepted primary liability for that injury and treatment.

The injuries that occurred between October 2002 and February 2004 involved various other body parts, including the employee’s shoulders, as well as trigger finger and carpal tunnel conditions and treatment.  Primary liability for those injuries and treatment were ultimately accepted by the School District, which was self-insured for those injuries, with claims administered by Berkley.

The employee lost her job with the School District in July 2006.  In April 2007, the employee found a part-time job as a custodian, which paid less than her wage in April 2006.  The employee filed a claim petition seeking temporary partial disability benefits from and after April 30, 2007.  The claim petition sought benefits relating only to the 2006 injury date, which occurred during RTW’s coverage period.  RTW denied the claim for ongoing benefits, including temporary partial disability benefits.

The case came on for hearing before Compensation Judge Schultz on October 26, 2007.  The compensation judge awarded temporary partial disability benefits from April 30, 2007 through September 26, 2007.  The employee appealed the partial denial of temporary partial disability benefits, and this court affirmed.  Keck, No.WC08-109.

In December 2008, the employee filed a claim petition seeking, among other things, ongoing temporary partial disability benefits from and after October 27, 2007.  The December 2008 claim petition only sought benefits relating to the 2006 injury dates, for which RTW had coverage.  RTW filed an answer admitting an injury to the employee’s right knee and low back in April 2006, but it maintained that any such injury would have been temporary and resolved, and it denied entitlement to any ongoing benefits.

In the meantime, RTW filed petitions for joinder, for a temporary order, and for contribution and reimbursement against the employer for the employee’s injuries sustained between 2002 and 2004, when the employer was self-insured.  In the petition for a temporary order, RTW indicated that there was “no serious dispute” as to the compensability of the benefits sought and that the primary dispute was between the insurers.  However, RTW agreed to pay only vocational rehabilitation benefits, pending a determination of liability as between the employer and its insurers.  A temporary order was issued on April 7, 2009, under which the employer and RTW continued paying rehabilitation benefits.

In August 2009, the employee filed an amended claim petition seeking temporary total disability, temporary partial disability, medical, and permanent partial disability benefits.  The claim petition alleged entitlement to such benefits as a result of the injuries sustained from 2002 to 2004, when the employer was self-insured, and those sustained in 2006, when RTW had the coverage.

On October 12, 2010, the various claims came on for another hearing before Compensation Judge Schultz.  The compensation judge concluded that the employee had restrictions on her employment as the result of her injuries during both coverage periods, including her right knee and left shoulder injuries, and that the employee had sustained a reduction of her earning capacity as the result of those injuries.  He determined that the employee did not engage in a diligent job search from October 2007 through January 2008, and he denied temporary partial disability benefits during that period of time.  However, the compensation judge found that the employee did cooperate with rehabilitation after January 2008 and that she was entitled to temporary partial disability benefits after that date.  He also ordered the self-insured employer to reimburse RTW for 50 percent of the rehabilitation services and 50 percent of the award of temporary partial disability benefits.

RTW appealed the award of temporary partial disability benefits in general, along with apportionment of liability for the benefits.  The self-insured employer cross-appealed the award of temporary partial disability benefits and the order requiring it to partially reimburse RTW for rehabilitation expenses and wage loss benefits.  As a part of that appeal, Compensation Judge Schultz and the parties had to prepare a reconstruction of the record because the recording equipment at the hearing had malfunctioned.

In this court’s November 30, 2011 decision, we spent a great deal of time reviewing the employee’s entitlement to temporary partial disability benefits, including issues involving whether there was a work-related disability, whether there was any loss of earning capacity, and whether the employee had engaged in a diligent job search.  See Keck, 71 W.C.D. at 668-73.  We reviewed medical evidence and expert vocational evidence presented at hearing by both the self-insured employer and RTW.  Id. at 672-73.  The employee’s QRC had also been brought in to testify at the hearing.  Id.  Ultimately, this court affirmed the compensation judge’s determinations with regard to the temporary partial disability benefits at issue.  Id. at 673.

This court then went on to review the compensation judge’s apportionment decision, noting that RTW paid for rehabilitation services under the temporary order that was served and filed April 7, 2009.  Keck, 71 W.C.D. at 673.  At the time of the hearing in 2010, however, there had been no expert opinion apportioning liability.  Id. at 673-74.  On that basis, RTW challenged the compensation judge’s decision to apportion liability.  The self-insured employer argued that any loss in earning capacity was not due to the employee’s shoulder or carpal tunnel conditions.  Id. at 674.  Ultimately, this court determined that equitable apportionment was a question of fact for the compensation judge, and the judge had made a reasonable decision given the evidence presented.  Id.  The judge had found that the employee’s reduction in earning capacity was due equally to the work injuries covered by the self-insured employer and RTW.  Id.

In September 2012, the parties submitted a stipulation for settlement to the Office of Administrative Hearings, addressing a number of different injury dates.  The employer and insurers denied liability for all injuries other than October 25, 2002 and April 6, 2006.  As a result of the settlement, the employee received $42,500.00 in benefits.  Out of that amount, the employee’s attorney, Mr. Hansing, received $8,500.00 in fees pursuant to Minn. Stat. § 176.081.  Each insurer was responsible for $4,250.00 in fees.  On October 8, 2012, the Office of Administrative Hearings received a notice of benefit payment from the employer and RTW, indicating that RTW had paid the employee’s attorney a total of $20,678.58 in contingency fees and $3,500.00 in Roraff fees over the course of the litigation.

On October 19, 2012, Attorney Hansing submitted a statement of attorney fees and costs.  He asserted that he had recovered more than $61,000.00 for the employee and had received $16,428.00 in fees.  Pursuant to Minn. Stat. § 176.191, Attorney Hansing alleged entitlement to an additional $35,100.00 in fees, for 156 hours worked at the rate of $225.00 per hour, against the employer and insurers.  The employer and insurers filed a timely objection to the statement of attorney fees.  The matter came on for hearing before Compensation Judge Schultz on November 19, 2012.

At the hearing, the compensation judge asked Attorney Hansing about the chronology of services he had submitted.  Attorney Hansing confirmed that the chronology was an itemization of all of his time spent on the employee’s case between December 2008 and March 2012.  The compensation judge asked Attorney Hansing the following question:  “You’re not saying that - - I mean this is all of your time and some it may have been spent on issues for which a 1-9-1 fee would not be justified.”  Attorney Hansing responded, “Correct.”  The compensation judge went on to state the following:  “My job, if you’re entitled to 1-9-1 fees is to kind of go through and try to determine what would be, what hours would be attributable to that 1‑9-1.”  The employee’s attorney responded as follows:  “Sure.  May I rejoin comments made by opposing counsel?”  The employee’s attorney then went on to argue that if apportionment was an important issue, then the case should qualify as a dispute primarily between two employers or insurers, and he should be entitled to all of the .191 fees claimed.

In his memorandum of law, Compensation Judge Schultz indicated that this was a “difficult case to decide because it is unclear as to what Attorney Hansing has received in attorney fees.”  The compensation judge accepted the calculations of RTW that it had paid more than $24,000.00 in fees pursuant to Minn. Stat. § 176.081 and Roraff.  He also accepted the fact that the self-insured employer/Berkley had paid at least $4,250.00 in fees pursuant to Minn. Stat. § 176.081 and the September 2012 stipulation for settlement.  Compensation Judge Schultz went on to indicate that “Attorney Hansing is to be commended for his efforts in this litigation which was vigorously defended.”  The compensation judge found that “there is a basis for an award of fees pursuant to Minn. Stat. § 176.191 for efforts Attorney Hansing put in on the case from December 2008 through April 2009, at a minimum.”  However, the compensation judge stated that “under the theory of the statement of attorney fees, seeking an award under Minn. Stat. § 176.191, the recovery in this matter is made in the amount of $2,250.00.”  In other words, the compensation judge felt the preponderance of the evidence showed that Attorney Hansing was entitled to ten hours of fees pursuant to the provisions of Minn. Stat. § 176.191.  The employee now appeals.

Minn. Stat. § 176.191, subd. 1, states that where workers’ compensation benefits are payable, but a dispute exists between two or more employers or two or more insurers, and liability is determined so that the employee is entitled to benefits, “The claimant shall also be awarded a reasonable attorney’s fee, to be paid by the party held liable for the benefits.”  In other words, Minn. Stat. § 176.191, subd. 1, allows a reasonable attorney fee (hereinafter referred to as .191 fees) for a claimant’s attorney, which may be assessed against the employers and insurers when the dispute is primarily between the employers and insurers, and the sole issue of real importance was the apportionment of liability.  See, e.g., Sundquist v. Kaiser Engineers, Inc., 456 N.W.2d 86, 88, 42 W.C.D. 1101, 1103-04 (Minn. 1990); Patnode v. Lyon’s Food Products, Inc., 251 N.W.2d 692, 693, 29 W.C.D. 392, 393-94 (Minn. 1977).

An “award of attorney fees under § 176.191 is discretionary.”  Kirchner v. Anoka County, 410 N.W.2d 825, 830, 40 W.C.D. 197, 205 (Minn. 1987).  The determination of whether a dispute is primarily between insurers is a finding of fact for the compensation judge, and it is to be upheld if it is “sustained by the record as a whole.”  Patnode, 251 N.W.2d at 693, 29 W.C.D. at 394.  Analysis of the primary issue in dispute centers on the evidence presented at the hearing.  See Marsden v. Village of Mabel, 253 N.W.2d 275, 29 W.C.D. 514 (Minn. 1977).  For example, in Marsden, the case centered on a dispute regarding apportionment, and the parties presented significant evidence, including expert medical opinions and testimony, regarding apportionment.  253 N.W.2d at 277, 29 W.C.D. at 515-16.  The Supreme Court held that:

Here, the compensation judge found that the employee’s attorney was entitled to at least some .191 fees, and the employer and insurers do not dispute that finding.  However, based on the circumstances of the litigation in this matter, the compensation judge determined that the employee’s attorney was only entitled to ten hours of .191 fees and not the 156 hours claimed.  In awarding only ten hours of .191 fees for the time period between December 2008 and April 2009, the compensation judge necessarily concluded that the primary dispute was no longer between the employer and insurers after April 2009 and that the dispute after April 2009 was primarily focused on the employee’s entitlement to temporary partial disability benefits.

Substantial evidence supports the compensation judge’s conclusion with regard to the primary dispute after April 2009.  The initial proceedings against RTW alone involved issues of entitlement to temporary partial disability benefits.  Once the self-insured employer was joined into the case, RTW continued to vigorously defend against entitlement to temporary partial disability benefits, as did the self-insured employer.  The evidence presented at hearing, including voluminous vocational evidence, focused on the issues surrounding entitlement to temporary partial disability.^[1]  After April 2009, regardless of which insurer was involved, the employee needed the assistance of her attorney to establish a loss of earning capacity and entitlement to temporary partial disability benefits.  Therefore, it was reasonable for the compensation judge to determine that the dispute after April 2009 was no longer primarily between the insurers.

The employee argues, however, that when there is a determination that .191 attorney fees may be awarded, all attorney fees for representing the claimant should be paid pursuant § 176.191.  We disagree.  Minn. Stat. § 176.191 “does not provide for payment of all of the claimant’s attorney’s fees, but rather a reasonable fee under the circumstances.”  Beall-Vincent v. Minneapolis Med. Research Found., slip op. (W.C.C.A. Feb. 28, 1994) (emphasis in original).  In Beall-Vincent, the compensation judge determined that .191 fees were appropriate under the facts of that case because the issue of contribution or apportionment was a significant issue in the litigation.  However, the compensation judge also found that the issues of the employee’s entitlement to whole body disability and other benefits were significant.  Substantial evidence supported the compensation judge’s finding that the issue of contribution or apportionment between the employers and insurers was not the sole significant issue in the litigation.  Therefore, this court held that “Where an apportionment dispute between two employers/insurers was litigated, and there was a genuine dispute over permanent partial disability, substantial evidence supported the determination of an award of contingent fee under Minn. Stat. § 176.081, subd. 1, as well as an award of attorney’s fees to the employee’s attorney of a reasonable attorney’s fee under .191.”  Id. (citing Olson v. Regis, slip op. (W.C.C.A. Feb. 25, 1992)).

The employee also argues that because apportionment continued to be an issue after April 2009, the full amount of .191 fees should be awarded.  While it may be true that apportionment was an issue in this case, it was not the primary issue in dispute. In Turek v. Northfield Equip., slip op. (W.C.C.A. Aug. 23, 1999), for example, an employer and insurer argued that a dispute was not primarily between the insurers because the insurers had denied liability for temporary total disability benefits due to insufficient job search.  However, this court held that it was evident from the questioning at hearing, as well as the reports from the independent examiners that included detailed apportionment opinions, that apportionment was “a primary if not the primary concern of the insurers here.”  Id. (emphasis in original).  Therefore, this court could not conclude that the compensation judge erred in determining that the employee was entitled to attorney fees pursuant to Minn. Stat. § 176.191, subd. 1.  Id. (citing Sundquist, 456 N.W.2d 86, 42 W.C.D. 1101).  Here, by contrast, the compensation judge determined, based on the evidence presented, that the dispute after April 2009 primarily concerned the employee’s entitlement to temporary partial disability benefits.

The employee goes on to argue that the compensation judge erred in failing to grant the entire amount claimed under Minn. Stat. § 176.191 and that he incorrectly considered the fees awarded under Minn. Stat. § 176.081.  “Generally, an award of attorney’s fees may not be made under both Minn. Stat. § 176.081, subd. 1, and § 176.191.”   Fredrickson v. Posey Miller Florists, 46 W.C.D. 116, 121 (W.C.C.A. 1991).  However, under the circumstances of a given case, it may be appropriate to award both types of fees.  See Beall-Vincent, slip op.

In Fredrickson, the courts had issued prior orders that included awards of .081 attorney fees on disputed permanent partial disability benefits.  46 W.C.D. at 119-20.  The attorneys for the parties later agreed that the majority, but not all, of the time spent on the case was in connection with a dispute between the insurers.  Id. at 124.  Therefore, under the circumstances, this court indicated that the proper method for determining attorney fees would be to determine the total amount of reasonable .191 attorney fees awardable and then deduct the .081 fees already awarded so as to avoid a double recovery of fees.  Id. at 122.  Here, as in Fredrickson, the case had already been the subject of significant litigation, and a number of prior orders and awards had been issued, including .081 fees.  Therefore, it was not error for the compensation judge to consider both the .081 and .191 fees involved.

The employee then argues that the compensation judge did not calculate the .191 fees correctly and that ten hours worth of .191 fees was unreasonable.^[2]  However, attorney fees awarded pursuant to Minn. Stat. § 176.191 are discretionary because the compensation judge is in the best position to determine the nature of the litigation and whether the dispute is primarily between the employers and insurers.  See Kirchner, 410 N.W.2d at 830, 40 W.C.D. at 205.  Here, the compensation judge was clearly familiar with the nature of the proceedings, having been very involved with the case at multiple stages in the litigation dating back to the hearing and other proceedings in 2006 and 2007.  In fact, he was very complimentary of the employee’s attorney for the way he handled the case.  However, as the compensation judge noted, the employee’s attorney had received approximately $24,000.00 from RTW and $4,250.00 in contingent attorney fees from the self-insured employer pursuant to Minn. Stat. § 176.081 before making the claim for .191 fees.  In addition, the employee’s attorney conceded at hearing that he had submitted all of his time, “and some it may have been spent on issues for which a 1-9-1 fee would not be justified.”  Therefore, we can not conclude that the compensation judge erred in determining that the employee’s attorney was entitled to no more than ten hours worth of time for services provided because of a dispute that was primarily between the employers.

Given the circumstances and complex procedural history of this unique case, substantial evidence supports the compensation judge’s conclusion that the employee’s attorney was entitled to no more than ten hours of .191 fees, and we affirm.