
    Tammy R. FISCHER, Relator, v. SAGA CORPORATION and Cigna Insurance Company, Respondents.
    No. C3-92-2542.
    Supreme Court of Minnesota.
    April 9, 1993.
    James W. Buckley and James J. Sieben, Minneapolis, for relator.
    Peter M. Banovetz, David A. Schooler, Charles S. Bierman, Minneapolis, for respondents.
   SIMONETT, Justice.

We affirm in part and reverse in part a decision of the Workers’ Compensation Court of Appeals relating to attorney fees.

In December 1988 employee Tammy R. Fischer filed a claim for compensation benefits. The compensation judge awarded medical expenses (while denying benefits) but declined to award Roraff fees because there was “no evidentiary basis” for doing so. See Roraff v. State, Department of Transportation, 288 N.W.2d 15 (Minn.1980); Minn.Stat. § 176.135, subd. 1. The compensation judge noted that the employee’s attorney had announced an intention at the beginning of the hearing to make a possible claim for attorney fees but failed to put in any evidence. “[I]f such claim is eventually made,” the judge stated, “another hearing date must be established in order to take testimony and receive evidence on such an issue.”

The judge’s decision was appealed to the WCCA, which reversed the compensation judge and awarded benefits. This court granted certiorari and, in November 1990, reversed the WCCA and “reinstate[d] the decision of the compensation judge.” Fischer v. Saga Corp., 463 N.W.2d 501 (Minn.1990).

While this proceeding was wending its way, the employee, following shoulder surgery, filed another claim petition in November 1989. This time the compensation judge awarded benefits and the WCCA affirmed.

In December 1991, the employee’s attorney filed a petition for attorney fees, which included a claim for Roraff fees for the medical expenses recovered in the earlier 1988 proceeding. The compensation judge awarded attorney fees including $4,678.50 for the 1988 claim. The WCCA affirmed the compensation judge’s award except for the $4,678.50, reasoning that res judicata barred the award.

We agree with the employee’s attorney that his claim for Roraff fees for the first award of medical expenses is not barred by res judicata. See 3 Larson, The Law of Workmen’s Compensation § 79.72(f) at 15-426.272(100) (1992) (“res judicata does not apply if the issue at stake was not specifically decided in the prior proceeding * * *.”). See also Westendorf v. Campbell Soup Co., 309 Minn. 550, 243 N.W.2d 157 (1976). It is clear the claim for fees was not decided by the compensation judge but was expressly left open for later determination. When this court reinstated the judge’s decision, we did no more than affirm that the Roraff fee issue remained open for determination.

As for the employer-insurer’s objection to any amount of Roraff fees and the employee’s disallowed claim for additional appellate fees, we agree with the WCCA and affirm its disposition. We reverse only as to the Roraff fees above referred to, which are reinstated.

Reversed in part and affirmed in part.  