The employee filed a workers’ compensation claim in 2015 for work-related aggravations to a low-back condition that resulted in an admitted injury in 2009. When the employee sought benefits for the later aggravations, the 2009 employer and insurer denied liability, asserting the 2014 and 2015 aggravations were subsequent injuries. The new employer denied liability, contending the older injuries were a continuation of 2009. A compensation judge determined 2009 was a substantial contributing factor to the later aggravations, but held the new employer liable for reasonable medical and other benefits for the 2014 and 2015 aggravations.
On post-hearing motion, attorney fees under 176.191 were denied because the compensation judge concluded the dispute presented by the 2015 claim petition was whether the 2009 injury continued to be a substantial contributing factor to her later aggravations and was not a dispute between employers. The WCCA reversed, holding the compensation judge failed to fully consider the extent to which each employer sought to shift liability to the other employer. The WCCA vacated the award and remanded for reconsideration in light of the correct legal standard regarding fees.
The Supreme Court affirmed the WCCA. They noted that it was clear that despite denials of primary liability, both insurers at least implicitly conceded that the employee was entitled to compensation from one or the other. The Supreme Court also found that the compensation judge’s determination that Hufnagel’s attorney was not entitled to fees for time spent trying to establish liability for the 2009 injury because it was not successful was in error. The Supreme Court found that it was necessary for the attorney to thoughtfully and fully prepare for all potential arguments and awarded fees.