The employee appeals from the compensation judge’s denial of attorney Mark Freeman’s claim for additional attorney fees over and above the $28,000.00 in attorney fees he had been previously paid for his representation of the employee in this case.  We affirm.

This case has a long, complicated procedural history.  The employee, Jill Hansen, sustained a work injury on November 20, 1998, while working for the self-insured employer, Dayton’s (now known as Macy’s).  In August 1999, the employee originally retained attorney Mark Freeman, who was then with the Fitch Johnson law firm.  The employer admitted the employee sustained a work injury, and in 2002, the employee and employer entered into a settlement agreement.  They agreed to settle the employee’s claim on a full, final, and complete basis, with the exception of certain future medical expenses.

The employee went on to submit additional claims for medical treatment.  The employee and attorney Freeman filed a medical request in September 2008, which was the most recent pleading filed by or on behalf of the employee.  The self-insured employer submitted a medical response indicating, in part, that they were unable to determine what charges and expenses were being claimed and that some of the charges may have been settled through the 2007 stipulation.  The employer also indicated that it would be seeking an independent medical examination.

The matter eventually proceeded to hearing before Compensation Judge Jennifer Patterson on May 12, 2010.  At that time, there were a number of different medical claims before the compensation judge.  During the 2010 hearing, the employee raised issues relating to a 2003 sacroiliac joint fusion surgery, including possible reimbursement to the intervenor, Medica, for its payments relating to that surgery.  In addition, the attorney for the self-insured employer conceded payment for medical care and treatment at Allina Medical Clinic and Hennepin Faculty Associates (HFA), as well as related medical mileage.

Other than the bills and mileage that the self-insured employer agreed to pay, Compensation Judge Patterson denied the employee’s claims following the 2010 hearing.  The decision was appealed to this court and the Minnesota Supreme Court, and the compensation judge was affirmed, with the exception of the intervention issue.  Hansen v. Dayton’s n/k/a Macy’s, 71 W.C.D. 443 (W.C.C.A. 2011), summarily aff’d (Minn. Aug. 26, 2011).  The case was remanded for a determination of whether Medica was improperly excluded as an intervenor from the 2007 settlement because of a failure by the parties to provide due notice to Medica.  Id.

In January 2011, the employee discharged Mr. Freeman as her attorney.  She retained attorney Freeman again in March 2011, and she discharged Mr. Freeman in September 2011.  Mr. Freeman has not represented the employee since September 12, 2011.  The Office of Administrative Hearings has not received any notification that the employee may have retained a different attorney.

In December 2012, attorney Freeman submitted a statement of attorney fees seeking additional fees over and above the $28,000.00 in attorney fees that he had already been paid with relation to his representation of the employee regarding her 1998 injury.  In the 2012 statement of attorney fees, attorney Freeman claimed entitlement to additional fees in the amount of $63,635.00 pursuant to Minn. Stat. § 176.081 and the Roraff and Irwin cases.  Attorney Freeman also claimed entitlement to reimbursement of costs in the amount of $5,775.18 in his statement of attorney fees.

The employer objected to the statement of attorney fees submitted in 2012, and the matter proceeded to hearing before Compensation Judge Dallner on June 10, 2013.  Attorney Freeman updated his cost amount to $4,842.00 at the attorney fee hearing.

The compensation judge found that the employee was not the prevailing party at the hearing before Compensation Judge Patterson in May 2010 and that the employee was not the prevailing party on appeal to either this court or the Supreme Court.  The compensation judge noted that a substantial portion of the time expended by attorney Freeman after July 16, 2010, the service and filing date of Judge Patterson’s findings and order, was spent with regard to the appeals.  The compensation judge also indicated that portions of attorney Freeman’s time were related to being called as a witness by the intervenor, Medica, during the subsequent hearing to determine whether Medica had received notice of its intervention interest.  Furthermore, the compensation judge found that attorney Freeman’s itemization of time from early September 2011 improperly included time relating to communications about a settlement conference that was not scheduled, and notice issued, until November 2011.

Ultimately, Compensation Judge Dallner determined that attorney Freeman was not entitled to additional attorney fees over and above the $28,000.00 in attorney fees for which he had already been paid.  She also denied the claims for reimbursement of any costs that attorney Freeman was seeking.

In reviewing cases on appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1.  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Id.

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

Attorney Freeman is requesting the full $63,635.00 in attorney fees claimed in his statement of fees.  He argues that there was a genuine dispute about the bills the self-insured employer agreed to pay at the 2010 hearing and that the amount reimbursed to the intervenor should be used to calculate an appropriate attorney fee.  In addition, pursuant to Irwin and Roraff, he argues that all of the time included in the statement of fees should be awarded and that the $28,000.00 in fees he has already been paid was insufficient to compensate him for the total time spent on the case.

As an initial matter, an attorney’s entitlement to fees is dependent on the existence of a dispute.  See Minn. Stat. § 176.081, subd. 1(c).  Although the compensation judge denied the majority of the employee’s claims at the 2010 hearing, attorney Freeman argues that his services were a necessary part of the employee’s success in recovering payment of medical bills at HFA and Allina Clinic.  In particular, he argues that the bills at HFA and Allina Clinics were denied up until the date of hearing, and because the payment was not timely made, there was a legitimate, genuine dispute about those bills, for which attorney fees should be paid.

Minn. Stat. § 176.081, subd. 1(c) states that:

Attorney Freeman relies on Minn. R. 1415.3200, subp. 7.G., to argue that the delay in payment of the HFA and Allina bills until hearing necessarily resulted in a genuine dispute.  Minn. R. 1415.3200, subp. 7.G., states that “Benefits allegedly admitted but not timely paid may be used to compute the fee.”  (Emphasis added.)  Thus, under the rule, a delayed payment of a medical bill is not a “per se” genuine dispute.  Caselaw also indicates that a delay in payment does not necessarily result in a genuine dispute; rather, the delay and the reasons for it are factors that the finder of fact can consider in determining whether there is a genuine dispute.  See, e.g., Watson v. Wil-Kil Pest Control, 72 W.C.D. 673, 680 (W.C.C.A. 2012) (holding that substantial evidence supported a compensation judge’s determination that although the employer and insurer had delayed payment of certain bills, the delay was not unreasonable and that the evidence failed to support a conclusion that a genuine dispute existed to support an award of attorney fees).  Ultimately, the question of whether a genuinely disputed claim existed in this case was one of fact for the compensation judge.  See Freeman v. Tri County Hosp., slip op., (W.C.C.A. July 10, 2002); Biederman v. Win Stephens Buick, 58 W.C.D. 497 (W.C.C.A. 1998).

Attorney Freeman argues that because the employer did not agree to pay the bills at HFA and Allina until hearing, there was a genuine dispute about those bills, and his services helped establish primary liability.  However, Minn. Stat. § 176.081, subd. 1(c), gives an employer and insurer time to determine liability and makes it clear that “the holding of a hearing” does not automatically result in the existence of a genuine dispute.  When it filed its medical response, the self-insured employer indicated that it did not have enough information to determine what bills and charges were at issue, some of the bills may have been addressed in the 2007 settlement, and it requested an independent medical examination.  During the hearing, attorney Freeman stated that there were multiple indications that the self-insured employer might be willing to pay the bills at various points during the litigation, and there were “complications” resulting in the delay of independent medical examinations.  Given the circumstances disclosed in the record here, substantial evidence supports the compensation judge’s determination that despite the delay in payment and the self-insured employer’s ultimate agreement to pay some of the bills for HFA and Allina, there was not a genuine dispute as to those amounts paid.^[1]

In addition, attorney Freeman argues that he helped coordinate a return to Dr. Robert Wengler as a primary treating physician.  However, as the compensation judge correctly indicated, the issue of the employee’s treating physician was settled as a part of the prior stipulations.  Therefore, substantial evidence supports the compensation judge’s determination that there was no genuine dispute with regard to the treating physician.

Attorney Freeman also argues that the ultimate decision regarding reimbursement to Medica for payment of the 2003 surgery was a genuinely disputed benefit that was recovered, in part, due to his efforts.  Attorney Freeman also argues that even during the time when he was no longer representing the employee, the particular knowledge he obtained while he was representing the employee was utilized and was instrumental in obtaining payment for those medical services, including his testimony as a witness in Medica’s action to recover its intervention amounts.

Attorney Freeman relies on Minn. R. 1415.3200, subp. 7.J.(4), which states that “a benefit which was in dispute under this subpart [7] although reimbursable to an intervenor,” is a benefit that “may be used to compute the fee.”  (Emphasis added.)  Again, this rule allows for discretion in calculating a fee based on recovery by an intervenor.  Here, the compensation judge correctly determined that attorney Freeman is not entitled to payment of attorney fees for time that he expended as a witness on behalf of Medica.  In addition, the payment to Medica was made because of “the failure of the parties to include Medica in the settlement negotiations and the attempt to extinguish Medica’s interest” as related to the settlement proceedings in 2007.  Hansen v. Dayton’s/Macy’s, 73 W.C.D. 55, 67 (W.C.C.A. 2013).  Therefore, the compensation judge correctly determined that attorney Freeman is not entitled to attorney fees relating to the payments made to Medica.