MINETTE BARNES, Employee/Appellant, v. HYATT CORP. and NATIONAL UNION FIRE INS. CO./CRAWFORD & CO., Employer-Insurer, and MINNEAPOLIS ORTHOPAEDIC & ARTHRITIS INST., and MN DEP=T OF HUMAN SERVS., Intervenors, and SPECIAL COMPENSATION FUND.
WORKERS' COMPENSATION COURT OF APPEALS
MAY 24, 2002
TEMPORARY BENEFITS - FULLY RECOVERED. Substantial evidence, including expert medical opinion and medical records supported the finding that the employee had fully recovered without restrictions from the effects of her July 1999 work injury by November 27, 1999, and the denial of temporary benefits following that date.
NOTICE OF DISCONTINUANCE; PRACTICE & PROCEDURE. Where there was no commencement of benefits which were paid to the employee on an ongoing basis, a notice of intention to discontinue under Minn. Stat. 176.238 was not required.
Determined by: Pederson, J., Stofferahn, J, and Johnson, C.J.
Compensation Judge: Joan G. Hallock
DAVID A. STOFFERAHN, Judge
The employee appeals from the denial of wage loss benefits subsequent to September 27, 1999. We affirm.
The employee, Minette Barnes, sustained a personal injury to the low back and knees on or about July 10, 1999, while employed as a housekeeper by the employer, Hyatt Corporation, when she slipped on a wet floor and fell, landing on her knees. At the time of injury the employee was working full time at a rate of $7.93 per hour.
She was seen that day by Dr. Frederick R. Olson, M.D., at the Abbott Northwestern Hospital emergency room. X-rays of the employee's knees showed mild degenerative changes to the right knee and mild degenerative joint disease at the left knee, with no acute traumatic abnormalities. She was diagnosed with a contusion to the left and right knees and treated with pain medication.
The employee was next treated for the work injury on July 13, 1999 by Dr. Ron Wahlberg, M.D., at the Pilot City Health Center. She reported that she had experienced knee pain since the work injury and had also developed back pain over the next day or so. She had not been able to return to work. Dr. Wahlberg noted that the employee's low back and knees were tender. He restricted the employee's work activities to no more than two hours bending or stooping per day, with a 25-pound lifting restriction. The employer provided the employee with a part-time light-duty job in its laundry folding linens and towels.
On July 19, 1999, the employee returned to the Pilot City clinic and reported that she had experienced increased back pain since returning to work. Examination of the employee's back revealed normal configuration, full muscle strength, no muscle spasms and no point tenderness of the paravertebral muscles bilaterally. The employee was advised that she could return to work the next day under the work restrictions already in place. The employee went to the emergency room at North Memorial Hospital on July 21, 1999 complaining of back pain which had worsened after resuming cleaning rooms at work. She was diagnosed with mechanical back pain, given medications, restricted to four hours per day and told to follow up at the Pilot City clinic.
On July 27, 1999, the employee returned to Dr. Wahlberg complaining of continuing low back pain. The doctor noted that, following her emergency room visit on July 21, the employee was now restricted to four hours work per day, with no lifting greater than 10 pounds, and no squatting, kneeling, twisting, turning or bending. The employee reported that she had been switched to lighter duties at the employer's laundry but still found the work very painful and wanted to be off work completely for one to two weeks. Examination showed tenderness across the employee's lower back and her back range of motion was decreased. Dr. Wahlberg scheduled the employee for physical therapy, but advised her to continue working under the existing restrictions.
The employee returned to Dr. Wahlberg on July 29, 1999 and stated that she had been unable to go to work that day as her feet were numb when she woke up and her back was sore. She needed a note for her return to work. Dr. Wahlberg decided to refer her to occupational medicine for further evaluation. The employee again returned to Dr. Wahlberg on August 6, 1999 stating she had not gone to work either that day or the previous day because of pain and would like a note. Dr. Wahlberg did not perform an examination. He authorized the employee to return to work within her current restrictions.
On August 12, 1999 the employee was seen by Dr. Benjamin Gulli, an orthopedic surgeon, for evaluation of her bilateral knee and low back pain. She reported some pain radiating from the low back down the right leg and into the right foot and toes, with occasional numbness and tingling in the foot and toes. She was seen to move slowly in visible discomfort. The left knee showed mild pre-patellar swelling but no gross instability. The employee's low back showed diffuse tenderness in the paraspinal muscles with some mild muscle tightness. The employee had a markedly reduced low back range of motion secondary to pain. Straight leg raising was positive for low back pain at 30 degrees but elicited no radicular pain. Reflexes were absent at both the patellas and the Achilles bilaterally. X-rays showed bilateral changes in both the medial and lateral compartments of both knees, with narrowing of the medial compartment space and spurring, which the doctor considered moderately severe for the employee's age. Dr. Gulli diagnosed a lumbar strain and bilateral knee contusions. He advised the employee to rest the next few days and then to return to light-duty work where she could sit and alternate positions with minimal bending.
On August 27, 1999 the employee filed a claim petition claiming entitlement to temporary total disability compensation from July 11, 1999 through July 13, 1999 and from August 12 through August 16, 1999, and to temporary partial disability compensation from July 14, 1999 through August 11,1999 and from August 17, 1999 and continuing. The claim petition also sought payment of the employee's medical expenses. On September 15, 1999 the employer and insurer filed an answer generally denying the employee's claims. However, on September 17, 1999 the employer and insurer filed a Notice of Insurer=s Primary Liability Determination in which it accepted primary liability for the employee=s July 10, 1999 injury. The Notice indicated that temporary total disability would be paid for the periods July 11 through July 13, 1999 and August 12 through August 16, 1999. The notice further advised that temporary partial disability would be paid following receipt of wage loss verification from the employee or employer. At the time of filing, the employee continued to work for her preinjury employer. The employee then dismissed her claim petition. The temporary total benefits were paid to the employee but no temporary partial benefits were paid. At no time did the employer and insurer file an NOID.
The employee testified that she first saw Dr. Beth Baker at the Occupational Medicine Clinic at Hennepin County Medical Center on August 16, 1999, and that Dr. Baker referred her to physical therapy. Those medical records are not in evidence. The first material from Dr. Baker in evidence is a Work Ability form of October 1, 1999, taking the employee off work for a non work-related condition, depression, through October 18, 1999. On October 18, 1999, Dr. Baker saw the employee and noted that she was still having some pain down both legs to the knee and some tingling over both feet but no pain below the knee. There was no tenderness over either the lumbar or paralumbar region, strength and sensation were normal in both legs, and straight leg raising was negative bilaterally. Dr. Baker opined that the employee's subjective complaints were out of proportion to her objective findings. She released the employee to return to work advising her to avoid lifting more than 20 pounds, to change position frequently and to avoid bending and twisting at the waist.
On October 21, 1999, the employee went to the emergency room at North Memorial Hospital and reported increased back pain. She stated that she had been able to return to work first part time and then full time for the past three weeks but that her back pain had increased. Forward and backward bending were minimal and straight-leg raising exacerbated the employee=s lower back pain. There was diffuse non localized tenderness at both knees, but no effusion or synovial thickening and no sign of any joint instability. The employee was diagnosed with an exacerbation of low back pain. The doctor noted, however, that her symptoms, especially those at the knees, were Amore or less out of proportion to the mechanism of injury.@ The employee was given medications and was restricted to 20 pounds lifting, carrying, pushing and pulling, and advised to squat or kneel only occasionally and to twist or turn only rarely.
The employee sought treatment from a new physician, Dr. Douglas A. Becker, M.D., on October 25, 1999. Dr. Becker recorded the employee=s complaints at that time as bilateral anterior knee pain, worse with prolonged standing and walking, and some diffuse discomfort at the L4 level of the back. On examination there was tenderness without spasm at the L4 level but straight leg raising was negative. Both knees showed full motion without swelling and with normal stability. Minimal patellofemoral crepitus and tenderness was present. X-rays of both knees and the lumbar spine showed no evidence of severe degenerative change. Dr. Becker diagnosed bilateral knee chondromalacia patella and a musculoligamentous lumbar strain. The employee was instructed in knee and back exercises and given bilateral knee braces. Work restrictions were given which included temporary limits on bending, twisting, stooping, standing, walking, squatting, kneeling and stair climbing, but Dr. Becker anticipated a return to work without restrictions effective November 27, 1999.
On October 28, 1999, the employer terminated the employee, alleging excessive absenteeism. The employee started a new full-time job for the employer Sun Ridge Assisted Living Center on November 2, 1999, cleaning rooms at a rate of $10.00 per hour. The employee testified that she had not advised this employer of her work restrictions when she was hired. However, her back pain increased and when she informed this employer that she needed to work under medical restrictions, she was terminated on December 3, 1999 as unable to perform the duties of the job.
While working for Sun Ridge the employee had been seen by Dr. Baker on November 15, 1999. She complained of constant back pain and of radicular pain down both legs to the knee. Dr. Baker noted mild bilateral paralumbar tenderness, but that the employee moved well around the room and appeared to have no discomfort while sitting. Strength and sensation were normal in both legs. The employee was able to flex at the waist only to 15 degrees when asked, but was observed to flex to 90 degrees while getting in and out of a chair without obvious pain. Dr. Baker=s assessment was of low back pain with subjective complaints of pain out of proportion to objective findings. She advised the employee to continue to work, but suggested she not lift more than 25 pounds.
On November 24, 1999, Dr. Becker signed a Health Care Provider Report indicating that the employee would reach maximum medical improvement effective November 27, 1999 with no permanent partial disability. The employer and insurer served the MMI report on the employee on December 2, 1999.
The employee=s attorney wrote to the employer and insurer on December 10, 1999 requesting reinstatement of temporary total disability compensation due to employee=s loss of her job at Sun Ridge Assisted Living on December 3, 1999. When the employer and insurer failed to initiate wage loss benefits, the employee filed a petition for penalties on January 26, 2000 alleging that the employer and insurer had failed either to pay any temporary partial disability benefits or to resume payment of temporary total disability benefits, and that no Notice of Intent to Discontinue (NOID) had ever been filed. In the Answer to the Claim Petition, the employer and insurer denied the employee was entitled to penalties and claimed to be without sufficient information to respond to employee=s allegations. No affirmative defenses to employee=s claims were raised.
On December 28, 1999, the employee returned to the Noran Clinic, where she had previously treated between 1992 and 1997 for a lumbosacral strain from a 1992 work injury to her low back with a different employer and for cervical and lumbar strain/sprains from a 1995 motor vehicle accident. The employee was seen by Dr. Michael D. Bromer, M.D. She complained to Dr. Bromer that both Dr. Baker and Dr. Becker had released her to return to work without restrictions, but that she did not feel she could work full time due to pain in her knees and back. Dr. Bromer noted that the employee displayed restricted mobility and that spasm was present in her low back. Her knees were seen to flex normally and there was no obvious swelling. Dr. Bromer prescribed back stabilization exercises and recommended that the employee undergo an MRI scan of her low back.
The MRI scan was performed on January 10, 2000. Findings were read as consistent with very mild degenerative disc disease at the L5-S1 level. There was no evidence for disc herniation or spinal stenosis. The MRI scan was compared to a CT scan of the lumbosacral spine done on October 14, 1992 and showed no interval changes. The employee met the same day with Tammy K. Melhaus, a physician=s assistant at the Noran Clinic, to discuss the scan. Ms. Melhaus recommended an aggressive rehabilitation program of back stabilization and restricted the employee from lifting over 35 pounds and from frequent bending or twisting. She recommended that the employee follow up for her knee problems with an orthopedic physician. Thereafter, the employee continued to be followed for her low back condition at the Noran Clinic by Ms. Melhaus and by Dr. Ronald M. Tarrell, an osteopath. Between February and mid-May, 2000, the employee underwent physical therapy and pool therapy without significant benefit.
The employee was seen by Dr. Thomas J. Raih, M.D., on March 2, 2000 for her right knee problem. She was noted to ambulate with a normal gait, but in sitting position had crepitation on knee extension. There was tenderness laterally over the joint line of the right knee. Motor and sensory function was intact. X-rays showed slight lateral positioning of the patella with mild patellofemoral changes. Dr. Raih diagnosed patellofemoral arthritis. He recommended an MRI of the employee=s right knee to rule out a tear of the lateral meniscus.
The employee had worked for a day in mid December in 1999 in a temporary job through employer Atlas Staffing, and after early April 2000 began performing house cleaning for a private party, initially at $74.00 per week. On April 13, 2000, the employee=s attorney wrote to the employer and insurer enclosing pay records for this work and requesting payment of temporary partial disability compensation. No specific response was made to this inquiry.
Dr. Tarrell saw the employee on July 24, 2000 and opined that she continued to suffer from a lumbar strain injury directly related to the work incident in 1999. He further opined that the employee was subject to permanent restrictions as a result of her low back condition.
An MRI scan of the employee=s knees was performed on November 14, 2000. It showed degenerative changes to the right knee and a probable tear of the meniscal apex of the lateral meniscus of the left knee without suggestion of instability, along with grade 4 chondromalacia. The employee began treating for her knee problems with Dr. Robert A. Wengler, who saw the employee on December 21, 2000. Dr. Wengler recorded that the employee had full knee motion but exhibited pain behavior when the knees were moved, although there was no crepitation or anything else to indicate a significant internal derangement. The doctor reviewed the MRI scan of the employee=s knees and informed her that there was not a surgically correctable problem. He prescribed Celebrex and opined that the employee could return to productive work. On February 2, 2001, the employee returned to see Dr. Wengler with persistent pain in both knees, notably on the left. Dr. Wengler found diffuse tenderness at the left knee but no effusion or significant synovial reaction. The knee joint was stable. He injected the employee=s left knee with steroids. The employee returned to Dr. Wengler on February 23, 2001, and reported that she was getting no relief from the Celebrex and had experienced only temporary relief from the steroid injection. Dr. Wengler advised the employee to consider a second series of steroid injections, which were carried out in March 2001.
On March 21, 2001, Dr. Tarrell saw the employee for her low back and noted that the employee had been through most forms of conservative management without improvement. He suggested that the employee continue with home exercises but had no recommendations for any further therapies for the employee=s low back.
On April 17, 2001, the employee was seen by Dr. Mark C. Engasser, an orthopedic surgeon, on behalf of the employer and insurer. Dr. Engasser noted that the employee ambulated without a limp and was able to get on and off the examination table without difficulty, but showed significant pain behavior during the examination of her lower back. Active range of motion of her lumbar spine was noted to be self-limited. There was no spasm or tightness. The employee described pain with any degree of motion, but when moving to other positions moved quite easily. She was able to heel and toe walk without any evidence of motor weakness. Straight leg raising was negative bilaterally.
Dr. Engasser=s examination of the employee=s knees revealed no evidence of swelling or deformity and knee range of motion was from zero to 140 bilaterally. The employee complained of left knee pain with maximum straight leg raising on the left, which the doctor noted to be a non-organic finding. There was no medial or lateral joint tenderness, no medial or collateral laxity in extension or flexion, and no evidence of anterolateral rotator instability in either knee. Some bilateral patella femoral crepitus was present, but there was no patellar malalignment or subluxation and the employee had no popliteal pain or calf pain.
Dr. Engasser diagnosed a mild ligamentous lumbosacral strain, with bilateral knee contusions and underlying degenerative changes in both knees. In his view, the employee had sustained a temporary aggravation of an underlying low back condition which would have lasted at most four months, after which maximum medical improvement was reached and further treatment was not reasonable or necessary. The doctor noted that x-rays of the employee=s knees performed at the time of her injury showed evidence of degenerative changes consistent with an osteoarthritic process which the doctor attributed to the employee=s obesity. He opined that the effects of the work injury on employee=s knee injuries had also been temporary in nature and would similarly have resolved after four months. In his view, the employee had no physical limitations related to the July 10, 1999 work incident and no permanent partial disability.
The employee was seen again by Dr. Wengler on August 17, 2001. She reported continuing pain in her left knee since the work injury. X-rays of the employee=s knees demonstrated degenerative change medially and laterally, as well as some patellar spurring. Dr. Wengler diagnosed mild degenerative osteoarthritis of the left knee, with a documented tear of the posterior horn of the medial meniscus.
A hearing was held before a compensation judge at the Office of Administrative Hearings on August 28, 2001. Following the hearing, the compensation judge found that the employee had fully recovered from the effects of her injury within four months and had reached maximum medical improvement with no continuing restrictions. The compensation judge awarded temporary partial and temporary total disability benefits through November 27, 1999 but denied the employee=s wage loss claims thereafter. She awarded penalties to the employee for the employer and insurer=s failure to pay temporary benefits from the date of injury through November 27, 1999. The employee appeals from the denial of temporary benefits following November 27, 1999.
1. Temporary Benefits
An employee is entitled to temporary benefits if her inability to find and hold employment and any resulting wage loss is causally related to her work‑related injury. Marsolek v. George. A. Hormel Co., 438 N.W.2d 922, 924, 41 W.C.D. 964, 968 (Minn. 1989). However, "where the employee is found medically able to return to work without restrictions, having suffered no residual disability from [her] work injury," there is no basis for payment of temporary wage loss benefits after that date. Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987). Subsequent to the court=s decision in Kautz, this rule was partially codified in Minn. Stat. ' 176.101, subd. 1(h), which provides that "[t]emporary total disability compensation shall cease if the employee has been released to work without any physical restrictions caused by the work injury."
The compensation judge found that the employee had fully recovered from the effects of her 1999 work injury by November 27, 1999, with no medical restrictions. Accordingly, the compensation judge denied the employee=s claims for wage loss benefits after that date.
The employee appeals from the judge=s finding of a full recovery on two grounds. First, she contends that the finding that she had recovered from the effects of her work injury by November 27, 1999 is unsupported by substantial evidence and clearly erroneous.
In reaching this finding, the compensation judge expressly relied upon the expert medical opinions of Dr. Becker and Dr. Engasser. In Dr. Becker's chart note of October 25, 1999, he projected that the employee would be able to return to work without restrictions by November 27, 1999. On November 24, 1999, Dr. Becker reaffirmed his opinion by issuing a report stating that maximum medical improvement would be reached effective November 27, 1999 with no permanent disability attributable to the work injury.
Dr. Engasser, who saw the employee on April 17, 2001, opined that the work injury had resulted in a temporary aggravation to the employee's preexisting low back condition and that the employee had long since reached maximum medical improvement, which he believed had occurred about four months after the July 19, 1999 work injury. He opined that the work injury had similarly caused a temporary aggravation to a pre-existing osteoarthritic degenerative condition of the knees, noting that x-rays of the employee's knees done just after the work injury had shown degenerative changes consistent with an osteoarthritic process.
The employee contends that the compensation judge should have found these opinions unpersuasive. She argues that Dr. Becker's opinion was merely predictive in nature, and that, as he did not continue to treat the employee, greater deference should have been given to those physicians who continued to see and treat the employee subsequent to November 27, 1999. The employee further points out that Dr. Becker was, obviously, unaware of the results of the MRI scan done of the employee's knees in November, 2000, which showed a probable tear of the meniscal apex of the lateral meniscus of the left knee. The employee argues that Dr. Engasser's opinion, on the other hand, should have been discounted because that physician did not examine the employee until almost two years after the work injury.
The trier of fact's choice between experts whose testimony conflicts is to be upheld on appeal unless the opinion of the expert relied on is based upon an insufficient foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Accordingly, we have considered the employee=s arguments as objections to the adequacy of the foundation for the opinions of Dr. Becker and Dr. Engasser. The medical report of Dr. Engasser demonstrates his familiarity with the prior medical records and history of the employee=s condition, and, together with his own examination findings, we conclude that adequate foundation was present for that physician to render an opinion.
With respect to Dr. Becker, we do not think that the fact that he did not continue to treat the employee after November 27, 1999 is a sufficient basis in itself to render his opinion ill-founded, at least with respect to the employee=s back condition, as the medical records subsequent to the period of Dr. Becker=s treatment do not show any significant changes in the employee=s condition or diagnosis. We acknowledge that the MMI finding of a tear of the posterior horn of the medial meniscus of the employee=s left knee could call into question the adequacy of the foundation for Dr. Becker=s opinion if the tear were a material factor in the work injury. However, the compensation judge=s opinion read as a whole suggests that she found, in essence, that this tear was simply the result of a independent degenerative process unrelated to the employee=s work injury. As such, its existence would not be a material factor to the rendering of an opinion regarding maximum medical improvement from the work injury. In any event, even if Dr. Becker=s opinion is discounted with respect to the employee=s knee condition, Dr. Engasser was fully aware of the MRI findings, and his opinion is a sufficient evidentiary basis for the compensation judge=s findings.
The employee further argues that, even if the medical opinions the judge relied on had adequate foundation, it was error to find the employee to have fully recovered if her knees were asymptomatic prior to the work injury and continued to be symptomatic thereafter past November 27, 1999. The employee=s theory is that this demonstrates a causal link between the work injury and the employee=s ongoing knee symptoms, so that the judge=s acceptance of medical opinion attributing any ongoing problems to a non work-related degenerative process was clearly erroneous.
The employee cites Vanda v. Minnesota Mining Co., 300 Minn. 515, 218 N.W.2d 458 (1974), for the proposition that a work injury is compensable where it aggravates, accelerates, or combines with a pre-existing non work condition to produce disability. While this principle is still good law, the employee=s argument assumes, first, that the compensation judge was required to accept as credible the employee=s testimony regarding the history and ongoing nature of her knee symptoms, and second, that the absence of symptoms prior to a work injury and the emergence of symptoms thereafter is conclusive proof that the work injury did in fact so aggravate or accelerate the non work condition. Neither of these implicit assumptions is correct. This court has long held that a compensation judge may rely on an employee=s testimony regarding the absence of symptoms prior to a work injury and their emergence shortly thereafter in finding a causal nexus between the work injury and ongoing disability, but a judge is not required to do so, particularly where, as here, the judge finds contrary expert medical opinion persuasive. In addition, the medical records in this case reveal very clearly that many of the physicians who have treated the employee noted significant symptom magnification and discrepancies between the employee=s subjective symptoms and objective findings. It was not here unreasonable for the compensation judge to give significantly less weight to the employee=s history of symptoms than to the medical opinions of Dr. Becker and Dr. Engasser.
It is not the role of this court to make its own evaluation of credibility or the probative value of conflicting testimony, or to choose different inferences than those drawn by the compensation judge. Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). "The point is not whether [this court] might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate. Id. at 734, 40 W.C.D. at 957. Given the evidence and expert opinions in this case, the compensation judge could reasonably conclude that employee was not disabled as a result of her work injury after November 27, 1999.
2. Failure to Serve Notice of Intent to Discontinue
The second basis for the employee=s appeal is her contention that the compensation judge erred in failing to order the continued payment of wage loss benefits to the date of hearing because of the employer and insurer=s failure to file a NOID.
The employee filed a claim petition on August 27, 1999, alleging an injury on July 10, 1999, and claiming two periods of temporary total disability and ongoing temporary partial disability. The answer filed by the employer and insurer generally denied the claims of the employee. Within days of the answer, the employer and insurer changed their position and filed a Notice of Insurer=s Primary Liability Determination, which indicated that primary liability was accepted. The notice also provided that the two prior periods of temporary total disability claimed would be paid and that temporary partial disability would be paid after receipt of wage loss verification from the employee or the employer. The employee dismissed her claim petition.
On December 10, 1999, after the employee had been laid off from her employment at Sun Ridge, the employee=s attorney wrote to the adjuster requesting reinstatement of temporary total disability. Temporary partial disability benefits were not mentioned. No temporary total disability benefits were paid in response to the December 10, 1999 letter. It was not until the employee=s attorney sent a letter to the adjuster on April 13, 2000 that the employee and her attorney provided any verification of earnings to demonstrate the employee=s wage loss after her return to work in August 1999. Even after this, however, no temporary partial disability benefits were ever paid to the employee before the hearing in August of 2001.
The parties and the compensation judge characterized this situation as one in which payment of benefits had commenced. An issue identified at hearing was whether the Awage loss@ benefits had been properly discontinued. We disagree with that characterization.
Minn. Stat. ' 176.238, subd. 1, provides that, A[o]nce the employer has commenced payment of benefits@, the employer may not discontinue those benefits without filing a notice of its intention to do so. The purpose of such notice is to Aensure that the employee is aware that the insurer intends to stop paying benefits prior to the discontinuance, and on what basis, and to notify the employee of the procedures available to her to protect any right she may have to continuing benefits.@ Mellema v. Tool Prods., slip op. (W.C.C.A. Nov. 2, 1993). Accord, Woelfel v. Plastics, Inc. 371 N.W.2d 215, 38 W.C.D. 43 (Minn. 1985). By implication, no notice of an intent to discontinue is required under this provision where an employer has not Acommenced payment of benefits, @ nor is notice required where there is no claim that a particular benefit paid is ongoing, such as where an employer and insurer pay a lump sum for benefits ordered or otherwise due for a period of entitlement which has already ended.
Temporary total disability benefits were paid, but only in the form of a lump sum for two accrued prior periods of time claimed by the employee. At the time this payment was made, the employee was not claiming current and ongoing entitlement to temporary total disability compensation. It was intrinsic in the scope of the employee=s temporary total disability claim, then encompassing only these prior periods of entitlement, that upon its payment as a lump sum the payment of temporary total disability would cease. This payment was not a Acommencement@ of the payment of benefits within the meaning of Minn. Stat. ' 176.238, subd. 1.
The employee=s claim, as of the date that the employer and insurer filed their notice of primary liability determination, was for temporary partial disability benefits. Despite accepting primary liability, the employer and insurer never initiated any temporary partial disability benefits.
Since no payment of temporary partial disability benefits was ever commenced, the notice requirement of Minn. Stat. ' 176.238, subd. 1, does not apply. Where an employer and insurer fail to initiate timely payment of benefits, the employee=s remedy is to file a claim petition with a request for penalties for nonpayment of benefits. The employee did so in this case and penalties were awarded.
Since we conclude that filing of a notice to discontinue benefits was not mandated in this case, we do not reach the arguments of the parties on that issue. The decision of the compensation judge is affirmed.