JULIE MUNSTERMANN, Employee/Appellant,
v.
APPLETON MUN. HOSP., SELF-INSURED/BERKLEY ADM'RS, Employer-Insurer,
and
APPLETON MUN. HOSP. and AMERICAN COMPENSATION INS./RTW, INC., Employer-Insurer,
and
BLUE CROSS and BLUE SHIELD OF MINN. and ALEXANDRIA ORTHOPAEDIC ASSOCS., Intervenors.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 16, 1999
HEADNOTES
ATTORNEY
FEES - .191 FEES. Where the primary dispute is between
the employers or the insurers, an employee is entitled to
attorney fees under Minn. Stat. § 176.191, subd. 1, as
amended effective July 1, 1995, whether or not a temporary
order was issued.
Reversed.
Determined by Johnson, J., Hefte, J., and Wheeler, C.J.
Compensation Judge: Jennifer Patterson
OPINION
THOMAS
L. JOHNSON, Judge
The
employee appeals from the compensation judge's denial of
a request for attorney fees under Minn. Stat. § 176.191,
subd. 1, and Minn. Stat. § 176.081, subd. 8. We reverse
the denial of attorney fees under Minn. Stat. § 176.191.
BACKGROUND
The
facts essential to this appeal are undisputed. On
November 8, 1991, Julie Munstermann, the employee, sustained
a personal injury to her left knee while employed by Appleton
Municipal Hospital, the employer, then self-insured with
claims administered by Berkley Administrators. Her
weekly wage was $303.12. The self-insured employer
admitted liability and paid wage loss and medical benefits to
the employee.
Dr.
Terence Kennedy, an orthopedic surgeon, treated the
employee's left knee. In December 1991, Dr. Kennedy
performed arthroscopic surgery to repair a tear of the medial
meniscus and cartilage damage to the lateral medial femoral
condyle. In April 1992, the employee was released to
return to work with the employer. The self-insured
employer paid the employee a 3 percent permanent partial
impairment secondary to her left knee injury. The
employee reached maximum medical improvement (MMI) from the
1991 knee injury on August 14, 1992.
On
February 2, 1996, the employee sustained a second injury to
the left knee while working for the employer. On this
date, the employer was insured by American Compensation
Insurance/RTW, Inc. (American). The employee's
weekly wage was $448.91. The employer and insurer
admitted liability and commenced payment of temporary total
disability benefits. In May, the employee returned to a
part-time job with the employer. On July 2, 1996, the
employer and American filed a Notice of Intention to
Discontinue Benefits (NOID) seeking discontinuance of
temporary partial disability benefits contending the employee
returned to full-time work. By order dated July 31,
1996, a settlement judge with the Department of Labor and
Industry allowed the employer and American to discontinue
benefits effective June 26, 1996
In
April 1997, the employee filed a claim petition seeking
additional wage loss benefits from and after March 10,
1997,1 based on her injuries of November 8,
1991, and February 2, 1996. In their answers, both
insurers admitted liability for their respective personal
injuries but denied liability for temporary total disability
benefits. Neither the employee, the employer or either
insurer petitioned for a temporary order under Minn. Stat. §
176.191, subd. 1. The case came on for hearing before
Judge Patterson at the Office of Administrative Hearings on
March 31, 1998. The parties then agreed all benefits
claimed by the employee from and after March 10, 1997 were
due...
