This matter comes before the court on the appeal of the employer and insurer from the compensation judge’s award of attorney fees to the employee’s attorney.The compensation judge’s September 15, 2014, order determining attorney fees is not in accord with Minnesota law and is therefore reversed.The matter is remanded for determination of whether Minn. Stat. § 176.081, subd. 12, attorney fees should be awarded.

Mimoon Alli, the employee, was employed by Great Pacific Enterprises, LLC, (also referred to as “Genpak”), the employer, on January 29, 2014, when she sustained an admitted low back injury.The employer was insured by ACE American Insurance and workers’ compensation claims were administered by Gallagher Bassett Services, Inc.The employee pinched a nerve while stacking boxes weighing 30 to 60 pounds resulting in low back pain and radiculopathy in both lower extremities. (App. B.)^[1]Dr. David Strothman, an orthopedic surgeon affiliated with the Institute for Low Back and Neck Care, recommended that the employee undergo a decompression-fusion surgery.On July 3, 2014, the doctor made a written request for pre-authorization to proceed with the recommended procedure.On July 22, 2014, the insurer approved the request.(App. A.)

On July 31, 2014, the employee retained the Law Office of Donald F. Noack to represent her in her workers’ compensation claims.(App. C).On August 4, 2014, the employee’s attorney filed a request for certification of dispute with the Workers’ Compensation Division of the Department of Labor and Industry (Division), requesting approval of the decompression-fusion surgery. (App. D.)That same day, the employee’s attorney filed a claim petition seeking “[a]pproval of surgery recommended by Dr. David Strothman,” temporary total disability benefits, and rehabilitation benefits.  The claim petition was served on the employee, the employer, and Gallagher Bassett.(App. E.)

By letter dated August 8, 2014, the Division issued its decision denying certification indicating,

In early August, the employee’s attorney referred the employee to a qualified rehabilitation consultant (QRC) with Vocational Restoration Services, Inc. (VRS).An August 11, 2014, entry of the QRC’s report, reads, “I received a call from Ms. Alli’s attorney who informed the recommended surgery had been authorized by the insurer.”(App. B, VRS Report.)

The employer and insurer retained legal counsel.On August 11 and 12, 2014, Ruth King, a paralegal in the office of the employer and insurer’s attorney, contacted the employee’s attorney’s office by telephone.Ms. King advised employee’s attorney’s office that their firm represented the employer and insurer in the matter, and requested information relating to the employee’s gender and clarification about her address.The requested information was provided by a female, possibly “Tami,” who answered the phone.On August 13, 2014, Ms. King faxed and e-mailed a notice of representation to the office of the employee’s attorney and served the notice on the employee’s QRC and on the Division.(App. G, H, & I.)

The following week, on August 18, 2014, the employee’s attorney filed a Statement of Attorney Fees with the Office of Administrative Hearings (OAH).He also served the employee and Gallagher Bassett by mail on August 14, 2014, but neither the employer nor its attorney were served.The employee’s attorney claimed $13,000.00, the maximum allowed pursuant to the 25/20 percent formula under Minn. Stat. § 176.081, subd. 1a, and $3,825.00 under Minn. Stat. § 176.081, subd. 7.(App. J.)

In paragraph 3 of the executed Statement of Attorney Fees, the employee’s attorney wrote:

On August 21, 2014, the employer and insurer served and filed an answer to the claim petition in which they accepted liability for the employee’s injury, asserted that the recommended surgery had been pre-authorized as of July 22, 2014, and made a demand for discovery.(App. K.)The employer and insurer did not respond to the Statement of Attorney Fees as their attorney had not been provided with a copy of the fee statement.^[3](App. M.)

On September 15, 2014, the compensation judge signed an attorney fee order, as proposed by the employee’s attorney, granting $13,000.00 in fees under Minn. Stat. § 176.081, subd. 1a, and $3,825.00 in subd. 7 fees.The order was served and filed upon the parties, including the employer, the claims administrator, and the employer and insurer’s attorney on the same date.(App. L.)The employer and insurer’s attorney first learned of the request for attorney fees by receipt of this order.(App. M.)

Upon learning of the attorney fee order, the employer and insurer’s attorney requested and obtained copies of the Statement of Attorney Fees from the employee’s attorney.On September 19, 2014, the employer and insurer filed their response to the request for fees, moved the judge to rescind the September 15, 2014 attorney fee order, and requested an on-the-record hearing to address the attorney fee claim.(App. M.)

On September 22, 2014, the employee’s attorney responded to the motion and argued that the judge did not have authority to rescind the order because the employer and insurer failed to file a timely objection to the Statement of Attorney Fees.^[4] (App. N.)

On September 24, 2014, the employer and insurer’s attorney sent a letter to the judge, with a copy to the employee’s attorney, indicating that she had not been served with the Statement of Attorney Fees and was unaware of its existence until the judge issued the order awarding fees.On the following day, September 25, the employer and insurer filed an amendment to the motion to rescind the order awarding attorney fees arguing that, contrary to the employee’s assertion, the judge did have jurisdiction to rule on the motion, and that the attorney fee award was premature since the surgery had not been performed.(App. O.)

On September 25, 2014, the judge entertained arguments in an off-the-record telephone conference.The judge served and filed a summary order without memorandum the following day, denying the employer and insurer’s motion to rescind the attorney fee order.The order contained no explanation of the basis for the judge’s ruling.The employer and insurer appeal.

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), summarily aff’d (Minn. June 3, 1993).The Workers' Compensation Court of Appeals has the “authority to raise the issue of the attorney fees at any time upon its own motion and . . . [has] continuing jurisdiction over attorney fees.”Minn. Stat. § 176.081, subd. 3.The court has broad discretion in considering attorney fees including an award based on either intentional deception or constructive fraud.^[5]

The relevant facts in this case are uncontroverted.A medical provider requested pre-approval of a recommended surgery for the employee on July 3, 2014.The insurer approved the medical provider’s request on July 22, 2014.The employee engaged the attorney herein on July 31, 2014.On August 4, 2014, the employee’s attorney filed a claim petition and made a written certification request to the Division.On August 8, 2014, the Division denied certification stating that the matter was not disputed and that the surgery had been pre-approved on July 22, 2014.The employee’s attorney’s knowledge of the surgery approval was confirmed in a note in the employee’s QRC report dated August 11, 2014.

In early August 2014, the employer and insurer engaged counsel to represent its interests in this matter and, presumably, to respond to the claim petition which had been filed on August 4, 2014.On August 11 and 12, 2014, a paralegal from that firm phoned the employee’s attorney’s office to advise that their firm had been retained to represent the employer and insurer.On Wednesday, August 13, 2014, the employer and insurer faxed a notice of representation to the employee’s attorney’s office and e-mailed a copy of the notice as well.

On Monday, August 18, 2014, the employee’s attorney filed a Statement of Attorney Fees with OAH and served Gallagher Bassett, but did not serve the employer and insurer’s attorney.In the statement of fees, the employee’s attorney claimed that the surgery benefit was “genuinely disputed” and “but for my involvement,” the surgery benefit would not have been recovered.The fee statement further states the fees requested are based on the “ascertainable value of the medical treatment provided as a result of the surgery and the aftercare . . . .”(App. J.)

In written argument before the judge, and in written and oral argument before this court, the employee’s counsel did not deny that their office was contacted by phone on August 11 and 12 nor that the notice of representation sent via facsimile and e-mail was received in their office on August 13.Instead, at oral argument, the employee’s attorney argued there was no record which this court could review, apparently because the compensation judge provided only an off-the-record telephone conference on the motion to rescind.We disagree.The documentary records, including those of the Division and of OAH, and affidavits from both parties’ attorneys, provide a sufficient record for this court’s review.

The employee’s attorney also made technical arguments that the notice of representation was not accepted because his office does not accept service by facsimile,^[6] that the employer and insurer failed to timely file an objection to the statement of fees and, finally, that the compensation judge did not have jurisdiction to rule on the motion to rescind.

The employer and insurer argued that their attorney did not become aware of the attorney fee statement until service by OAH of the judge’s $16,825.00 award of fees on September 15, 2014.In response, on September 22, the employer and insurer moved the judge to rescind his award of fees and requested a hearing.The employer and insurer argued they were denied due process as their attorney was deprived of knowledge of the statement of fees when the employee’s attorney knew, or should have known, that the employer and insurer were represented, and the employee’s attorney had approximately four weeks before the judge issued his attorney fee award to correct the omission of service of the fee statement.Absent this information, the employer and insurer assert they were prejudiced in their ability to timely file an objection.They further argued their due process rights were impinged because the judge failed to consider their motion to rescind the initial attorney fee award.

While the employee’s attorney argued that he properly served the statement of fees on the employee and insurer, as required by Minn. Stat. § 176.081, subd. 1(d) and Minn. R. 1415.3200, subp. 3.A.,^[7] the employee’s attorney failed to acknowledge the employer and insurer were represented by counsel as early as August 11, a week before the attorney fee statement was filed and approximately one month before the judge awarded the fees.At the oral argument, the employee’s attorney acknowledged that he was aware that the employer and insurer were represented after the statement of fees had been filed.Even if we accept the employee’s attorney’s argument that the employer and insurer’s notice of representation “crossed in the mail” with the filing of the attorney fee statement at OAH, he did not offer an explanation as to why he did not subsequently serve a copy of the statement on the employer and insurer’s attorney, as required by Minn. R. 1415.0700, subp. 2.^[8]

The employer and insurer’s motion to rescind was considered in an off-the-record telephone conference on September 25, 2014.On September 26, the judge denied the motion without explaining the basis for the ruling.The employee’s attorney argued the compensation judge had no jurisdiction to consider the employer and insurer’s motion to rescind the September 15, 2014, attorney fee award.There is no merit to this argument.As the employer and insurer accurately pointed out, a compensation judge retains jurisdiction over a case until a notice of appeal is filed or the appeal period has expired.Minn. R. 1420.3150, subp. 1.  The 30-day period for filing an appeal from the issuance of the September 15 attorney fee order had not lapsed nor had either party appealed when the employer and insurer filed their motion to rescind on September 19, 2014.See Minn. Stat. §176.421, subd. 1.

The WCCA has broad discretion in considering attorney fees.^[9]Minn. Stat. § 176.081, subd. 1(c), in relevant part, reads:

The employee’s attorney failed to provide any evidence to show that there was a “genuinely disputed” surgical benefit or that he provided legal representation that resulted in the procurement of that benefit when the surgery was pre-approved by the insurer before the employee’s attorney was engaged as counsel.  Given the absence of a colorable claim for attorney fees under Minn. Stat. § 176.081, he is not entitled to them, technical arguments notwithstanding.The judge’s September 15, 2014 order awarding attorney fees is hereby reversed.

Finally, it appears to us that the employee’s attorney may have made material misrepresentations in this case.^[10]  This court may vacate an award based on either intentional deception or constructive fraud, if the trial court relied on a misrepresentation.^[11]  Given the lack of specific findings and conclusions in the order, we cannot conclude that the judge relied on the employee’s attorney’s apparent misrepresentations.We do, however, remand the matter for a determination as to whether the employee’s attorney participated in good faith in the proceedings below, including the appearance at the motion to rescind telephone conference on September 25, 2014, and whether Minn. Stat. § 176.081, subd. 12, attorney fees^12[] should be awarded.