ATTORNEY FEES – CONTINGENT FEES; STATUTES CONSTRUED – MINN. STAT. §176.081, SUBD. 1(a). Temporary total disability paid pursuant to an order on discontinuance that an employee is ultimately determined not to be owed by a compensation judge’s decision is not “compensation awarded to the employee” under Minn. Stat. § 176.081, subd. 1(a) and, therefore, an employee is not entitled to contingent attorney fees on those benefits. Disputed temporary total disability paid during a period before the date a compensation judge found an employee to have recovered from a work injury, however, is “compensation awarded to an employee” and the employee is entitled to attorney fees on those benefits.
Compensation Judge: Stacy P. Bouman
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Ltd., Minneapolis, Minnesota, for the Appellant. Sarah M. Hunter, O’Meara, Leer, Wagner & Kohl, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed in part and reversed in part.
MANUEL J. CERVANTES, Judge
This is an appeal by the employee of the compensation judge’s dismissal of an attorney fee petition based on the judge’s underlying decision, subsequent to a hearing on the merits, that the employee was not entitled to temporary total disability benefits. We affirm in part and reverse in part.
Ursula Paniagua, the employee, sustained an admitted right wrist injury while working for the employer on February 15, 2015. The employer and insurer paid temporary total disability benefits for two periods during April 2015 through January 14, 2016. On January 21, 2016, the employer and insurer filed a notice of intention to discontinue benefits (NOID) based on the employee’s alleged noncooperation with medical and rehabilitation assistance. An administrative conference was held on March 4, 2016, and the compensation judge denied the request to discontinue benefits in an order served and filed March 7, 2016. The employer and insurer then paid temporary total disability benefits from January 15, 2016, and continuing.
The employee filed a statement of attorney fees on March 16, 2016. The employer and insurer objected, arguing that the claimed attorney fees were premature since they had 60 days to appeal the order on discontinuance and therefore, there was no final determination of the employee’s entitlement to benefits. The employer and insurer also requested a hearing on attorney fees.
On March 28, 2016, the employer and insurer filed another NOID based on a report from Dr. L.T. Donovan after a February 29, 2016, independent medical examination, stating that the employee’s wrist injury had resolved. On April 22, 2016, another administrative conference was held and the judge again denied the request to discontinue benefits. The employer and insurer resumed paying temporary total disability benefits from March 29, 2016. Attorney fees were withheld from these benefits.
On May 3, 2016, the employer and insurer filed a petition to discontinue benefits. The employee filed an amended statement of attorney fees on May 4, 2016. The employer and insurer objected, again arguing that the claim for fees was premature. The petition, a medical request, a rehabilitation request, and the statement of attorney fees were consolidated for hearing, which was held on July 20, 2016. In Findings and Order, served and filed August 19, 2016, the compensation judge granted the employer and insurer’s petition to discontinue benefits, finding that the employee’s right wrist injury had resolved by February 29, 2016, the date of Dr. Donovan’s examination. The employer and insurer stopped paying temporary total disability benefits as of August 19, 2016. Repayment of temporary benefits was not requested or ordered. The judge dismissed the medical request, rehabilitation request, and the statement of attorney fees. The employee appeals the compensation judge’s dismissal of the statement of attorney fees.
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 employee argues that the compensation judge erred by not addressing the statement of attorney fees in the findings and order. The statement claimed that attorney fees were payable for successful representation by the attorney at the two administrative conferences and for continuation of temporary total disability benefits from January 15 to August 19, 2016. The compensation judge did not award contingency attorney fees on temporary total disability benefits which were paid from the date of the first NOID in January 2016 through the end of payments in August 2016. The employer and insurer argue that the compensation judge did not err since the benefits paid under the orders denying discontinuance were later determined to be not owing to the employee when the petition to discontinue was granted.
An employee’s attorney is entitled to contingency fees based on a percentage of the “compensation awarded to the employee.” Minn. Stat. § 176.081, subd. 1(a). Pursuant to Minn. Stat. § 176.239, subd. 9, payments made under an interim administrative decision and order which are later found to be not owing to the employee are treated as overpayments which may be recovered by the insurer as a credit against future payments. Such payments therefore have not been “awarded to the employee” and the employee is not entitled to attorney fees on those payments. See Derosier v. Albrecht Co., slip op. (W.C.C.A. Feb. 5, 1999). Whether the employer and insurer seek to recover an overpayment or a credit does not affect the employee’s entitlement to attorney fees. The employee in this case would have this court selectively choose the interim administrative orders, made under Minn. Stat. § 176.239, which denied the employer and insurer’s requests for discontinuance of benefits, and elevate them to final order status, thus assuring payment of attorney fees for all benefits paid pursuant to those orders. We decline to do so.
In a similar case, this court specifically held that temporary total disability benefits paid pursuant to an order on discontinuance had not been “awarded” to the employee since the compensation judge ultimately determined that the employee was not entitled to those benefits, and affirmed the denial of contingent fees on those benefits. Derosier, slip op. at 4. We hold the same in this case, and affirm the compensation judge’s denial of the employee’s claimed attorney fees for the temporary total disability benefits paid after the employee’s work-related right wrist injury was found to be resolved.
The compensation judge’s denial of attorney fees in this matter, however, included a period of disputed benefits which were ultimately awarded to the employee. The employer and insurer filed the first NOID in this matter on January 21, 2016, after stopping payment of temporary benefits on January 14, 2016. Benefits from and after January 15, 2016, were therefore disputed. The compensation judge found that the employee’s work injury had resolved by February 29, 2016, and granted discontinuance of temporary total disability benefits, which would be effective as of that date. The employee was therefore entitled to the temporary total disability benefits paid before her injury resolved. While the employee is not entitled to attorney fees for benefits which were ultimately determined she was not owed, she is entitled to fees for disputed benefits which were awarded since they were paid for a period before the compensation judge allowed discontinuance. Compare Derosier, slip op. at 4 (all of the denied attorney fees at issue were for benefits paid for a period after the date the compensation judge found the employee had recovered from his work injury). We therefore reverse the compensation judge’s denial of attorney fees for disputed benefits awarded before the date the employee’s injury was found to have been resolved.