MONTE L. HEGG, Employee, v. BEMIDJI COOPERATIVE ASSN and FARMLAND MUT. INS. CO. Employer-Insurer/Appellants, and MN DEPT. OF LABOR AND INDUSTRY/VRU, CHIROPRACTIC SPORT AND SPINAL REHABILITATION, MN TEAMSTERS CONSTR. DIV. H&W FUND, and MN DEPT. OF ECON. SEC., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 19, 2003
CAUSATION - SUBSTANTIAL EVIDENCE; TEMPORARY BENEFITS - SUBSTANTIAL EVIDENCE; EARNING CAPACITY - SUBSTANTIAL EVIDENCE. Where it was not improperly based on the employee=s own testimony, where the employee=s temporary post-injury employment did not disqualify him from subsequently proving a work-injury-related wage loss, and where the judge did not improperly rely on expert chiropractic and other expert opinion, the compensation judge=s conclusion that the employee was disabled from full-time commercial truck driving was not clearly erroneous and unsupported by substantial evidence.
INTERVENORS; STATUTES CONSTRUED - MINN. STAT. ' 176.361, SUBD. 2(b). Where Minn. Stat. ' 176.361, subd. 2(b), required an itemization of rendered Adisability@ payments only Aif applicable,@ and where the Department of Economic Security=s payments to the employee were clearly not for disability and therefore were not subject to itemization on the intervenor=s application, the intervening Department of Economic Security was entitled to reimbursement of unemployment benefits paid to the employee for the period during which the employee was found entitled to wage replacement benefits.
Determined by Pederson, J., Johnson, C. J., and Wilson, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Frank J. Rajkowski, Rajkowski Hansmeier LTD, St. Cloud, MN, for Appellants. John P. Bailey, Bailey Law Office, Bemidji, MN, for Respondent.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's awards of temporary partial disability benefits to the employee and of reimbursement to the Department of Economic Security for unemployment compensation paid to the employee in 2000 and 2001, consequent to the employee=s work injury. We affirm.
In the late 1970's, Monte Hegg sustained an injury to his neck when he was rear-ended in a motor vehicle accident, subsequently receiving chiropractic treatment about two or three times a year over the course of the next sixteen or seventeen years. On November 3, 1995, Mr. Hegg sustained further injury to his neck, in addition to some low back injury, when he rolled the propane tanker truck that he was driving in the course of his employment with Bemidji Cooperative Association, for whom he had worked since 1988. In February of the following year, Mr. Hegg complained of continuing neck problems to orthopedic surgeon Dr. Thomas Miller, who ordered an MRI scan. The scan, conducted February 21, 1996, was read to be within normal limits, and Dr. Miller concluded that Mr. Hegg was not particularly restricted by any neck injury. In early August 1996, Mr. Hegg sustained another work-related injury, this to his right shoulder, while lifting a heavy crate onto a cart. He received treatment for the injury from chiropractor Dr. Gregory Fors, for various symptoms including neck and shoulder complaints. On a Health Care Provider Report dated January 10, 1997, Dr. Fors diagnosed the injuries as a cervical sprain/strain, a shoulder sprain/strain, and tendonitis, and he certified that the employee had reached maximum medical improvement [MMI] with regard to those injuries on that date, without any permanent partial disability.
On February 11, 1999, Mr. Hegg [the employee] sustained a third work-related injury, when he slipped and fell on some ice while still employed with Bemidji Cooperative Association [the employer]. On that same date, the employer completed a first report of injury, on which the injury was described as one to the employee=s right shoulder, ribs, and hip. On the date of this injury, the employee was forty years old and was earning a weekly wage of $585.27. The employee received initial treatment for his injury from family practitioner Dr. Gary Winkler, who diagnosed a bruised chest and restricted the employee from working until February 15, 1999. On February 15, 1999, the employee commenced treatment also with chiropractor Dr. Todd Wickmann, to whom he complained of right rib pain, right shoulder pain, right hip pain, and also neck pain. Dr. Wickmann diagnosed a sprain/strain of the ribs and restricted the employee from working.
On March 24, 1999, the employee was examined also by occupational health specialist Dr. Bruce Wilson, who diagnosed a right rib fracture, prescribed medications and a rib belt, and released the employee to sedentary work. A week later Dr. Wilson upgraded the employee=s restrictions to light work, and on April 14, 1999, noting that the employee had Aimproved greatly@ and had Avery little discomfort,@ he released the employee to return to work without restrictions, indicating that the employee had reached MMI without any permanent partial disability and was being discharged from care. About a month later, on May 12, 1999, Dr. Wickmann acknowledged Dr. Wilson=s diagnosis of a fractured rib, but he reiterated that the employee=s initial work injuries had also included sprain/strain injuries to his low back and neck. He indicated that the employee=s current complaints were of low back pain, right thoraco-lumbar pain, and neck pain, that the employee=s most severe pain at the present was in his right hip and low back, and that he was currently recommending up to twelve more treatments over the course of the next two months.
For reasons stipulated to be unrelated to his work injury, the employee did not return to his full-time job with the employer but instead, at some point in May of 1999, commenced part time work as a school bus driver for the Bemidji School District. On May 19, 1999, the employer and insurer filed a notice of intention to discontinue [NOID] the employee=s temporary total disability benefits, on grounds that the employee had been released to return to work without restrictions and had already, in fact, been mistakenly paid benefits through April 25, 1999. On May 28, 1999, the insurer also denied authorization for the twelve treatments recommended by Dr. Wickmann, for lack of objective findings and other supporting information. The matter was considered at an administrative conference on June 17, 1999.
The employee=s job with the school district had apparently ended about mid June 1999, upon conclusion of the school season, and the employee subsequently accepted a full-time job as a truck driver with Associated Pipeline, at an hourly wage of $17.00. The employee evidently experienced neck-related symptoms after commencement of this job, and on June 23, 1999, Dr. Wickmann wrote to the insurer, indicating that the employee had Arecovered rather well@ from his low back and right thoracolumbar pain but that headaches and neck pain, expressly left-sided and supported by examination findings, had continued to increase in intensity and frequency. On that date, Dr. Wickmann requested authorization for a cervical MRI scan and for continued chiropractic care for the employee. Nevertheless, by order filed June 24, 1999, the employee=s benefits were discontinued, pursuant to Dr. Wilson=s April 14, 1999, release of the employee to return to work without restrictions. On July 5, 1999, Dr. Wickmann certified that the employee had not reached MMI, and on July 12, 1999, the employee objected to discontinuance and requested a formal hearing.
On August 2, 1999, the employee underwent the cervical MRI scan recommended by Dr. Wickmann. The scan was read to reveal posterior disc bulges at C5-6 and C6-7 that were found to reflect a change by comparison with the study conducted on February 21, 1996. In a letter to the employee=s attorney dated September 21, 1999, Dr. Wickmann reiterated that he had not determined that the employee had reached MMI, that he had not released the employee to full time work without restrictions, and that, given the increase in intensity and frequency of the employee=s pain over the course of the time that he had spent driving for the school district and for the gas company, Ait may be necessary to re-examine whether or not he is able to continue in such a c[a]pacity.@
On October 15, 1999, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Gary Wyard. In his report on that date, in addition to apparent right rib contusion, Dr. Wyard diagnosed neck and low back pain Awithout significant objective clinical or radiographic findings,@ noting that the employee=s Acurrent subjective symptoms relate, by history, to the February 11, 1999, injury.@ Dr. Wyard concluded further, however, that the employee had Ano objective findings to support@ those subjective complaints, that any treatment postdating the work injury by more than three months was not reasonable and necessary treatment for that injury, that the employee was not subject to any restrictions consequent to the injury, and that the employee=s August 2, 1999, cervical MRI was unremarkable and not significantly changed since the February 1996 MRI.
About the end of October 1999, the employee was laid off from his job with Associated Pipeline, apparently as a result of seasonal conditions, and he applied for and eventually was found eligible for unemployment compensation. By the time of his layoff, the employee evidently had been putting in substantial overtime and had earned over $30,000 with that employer. About that same time, the employee returned to working part time and apparently intermittently as a school bus driver for the Bemidji School District at a weekly wage of about $206.44, a job that he apparently continued to work at as of the date of the eventual hearing in this matter.
The matter of the employee=s July 12, 1999, objection to discontinuance was heard on February 15, 2000. The issue at hearing was the employee=s entitlement to temporary total disability benefits for the period April 26, 1999, through May 11, 1999. Prior to the issuance of a decision on that issue, the employee was examined for cervical pain and left shoulder pain on March 27, 2000, by neurosurgeon Dr. Timothy Garvey and his associate Dr. Kimberly Kesling. In their notes on that examination, Drs. Garvey and Kesling reference the employee=s February 11, 1999, work injury, noting that the employee Aalso states that he had a history of a truck accident four or five years ago after which he had neck pain; however, he had completely resolved from any neck and arm pain.@ They reported that the employee=s neck x-rays had revealed Amultilevel degenerative changes, most notably at C5-6 and C6-7,@ and they diagnosed Aaxial neck pain with a minimal radicular component,@ Dr. Garvey recommending in a letter to the employee on that same date Arestriction of aggravating physical activities,@ pending a decline in the employee=s condition warranting surgery. By findings and order filed April 17, 2000, the compensation judge concluded that the employee had failed to prove that he had been temporarily totally disabled during the period at issue. Also in the spring of 2000, the employee was apparently invited back to his job at Associated Pipeline, but he declined to accept that offer or to register with his union for any other such job, opting instead to stay with his part-time bus driving job.
On June 5, 2000, the employee filed a claim petition and a rehabilitation request, claiming entitlement to temporary partial disability benefits continuing from May 11, 1999, and to a rehabilitation consultation with a QRC of his choice, both consequent to a work injury to his ribs, back, neck, and shoulder on February 11, 1999. In their answer to the claim petition, filed June 19, 2000, the employer and insurer affirmatively alleged that Athe Employee has failed to provide timely notice of any alleged injury to his neck and back,@ that Athe Employee had a significant pre-existing condition which is causing or contributing to his current condition,@ and that Athe Employee did not sustain any injuries with this Employer that are a substantial contributing factor [in] his need for medical treatment or time off work.@ On that same date, the employer and insurer also filed an objection to the rehabilitation request, contending that the employee=s claim petition was the first notice that the employee was claiming any disability since the employee=s claim for temporary total disability benefits was denied in April 2000 and that any action regarding rehabilitation should be deferred until the Employee provided documentation of his current claim and limitations.
In a letter to the employee=s attorney dated July 19, 2000, Dr. Wickmann opined that it would be inappropriate for the employee to continue in his present capacity as school bus driver, given specifically his herniated cervical disc, which Dr. Wickmann attributed to the employee=s work injury of February 11, 1999. Dr. Wickmann went on to cite as potentially responsible factors Athe vibrational and static stress associated with loading of the spine in the seated positions while driving a large motor vehicle such as a school bus or semi-truck.@ By an order filed July 28, 2000, the employee=s claim petition and rehabilitation request were consolidated for hearing. On August 23, 2000, the employee underwent a school bus driver=s medical examination, and in his report on that examination Dr. Franklin Drucker noted the employee=s February 11, 1999, work injury and indicated that it had resulted in A2 bulged discs in neck.@ About that same time, in the fall of 2000, the employee enrolled part time as a college student, changing to full time the following semester and apparently continuing to work in his part-time job as a school bus driver through both semesters.
In a report dated May 23, 2001, Dr. Wyard, having now examined hard copies of the radiological studies and a few additional medical records, reiterated his former opinion, that the employee=s cervical MRIs on February 21, 1996, and August 2, 1999, were both essentially normal and that there were no significant objective clinical or radiological findings to support the employee=s complaints of neck and low back pain. On June 4, 2001, Dr. Wickmann completed a Functional Capacities Evaluation form, on which he indicated in part that the employee was restricted from lifting over ten pounds more than occasionally, from ever lifting over thirty-five pounds, from doing any repetitive grasping or fine manipulation, and from doing any frequent flexing or rotating of his head and neck or keeping them in a static position. In a letter to the Department of Labor and Industry dated August 21, 2001, Dr. Wickmann indicated that those restrictions were permanent and that a rehabilitation program was appropriate.
On September 6, 2001, placement specialist Steve Kocher stated in a letter to the employee=s QRC, Kevin McCarthy, that the employee Ahas done an outstanding job of job search by anyone=s standards,@ having Aput forth [effort] seeking employment that is far better than most qualified employees.@
On October 19, 2001, Dr. Wyard reevaluated the employee for the employer and insurer, again concluding that the employee was subject to neck and low back Apain without significant objective clinical or radiographic findings@ and that A[n]othing has changed since my prior opinions and conclusions were reported two years ago.@
In a letter to the employee=s attorney dated January 29, 2002, QRC McCarthy reported that he was currently working on a retraining plan for the employee to prepare him for employment as a secondary school teacher. Subsequently, on February 1, 2002, the employee=s family physician, Dr. David Wilcox, indicated that the employee was continuing to experience Aback pain, neck pain, joint pain@ but Ano joint swelling, no joint stiffness, no muscle aches, no muscle weakness.@ Dr. Wilcox stated that the employee was in the process of retraining and that his work-injury-related Amild chronic neck, back and joint pain@ was Agradually improving.@ Later that same year, on October 31, 2002, on a Medical Examination Report for Commercial Driver Fitness Determination, Dr. Wilcox certified that the employee met the standards for a commercial driver=s license, pending periodic reevaluation.
On December 6, 2002, the employee was examined at the request of his attorney by vocational consultant Douglas Brown, to whom the employee reported being in Aalmost constant pain in his neck and left shoulder.@ Mr. Brown declined to render any opinion as to the employee=s specific retraining intentions pending a scheduled settlement conference, but he did conclude that the employee=s Aphysical capabilities, versatility, flexibility and employability have been diminished as a result of his functional limitations@ and that his Aearning capabilities have been significant[ly] diminished.@ Mr. Brown further indicated that he Aagree[d] with the QRC that retraining is the next appropriate step in the vocational rehabilitation process,@ retraining appearing to be the best means of providing the employee Awith employment opportunities, employment longevity, financial security and [the opportunity to] return him to the previous economic earning level he enjoyed post-injury.@
On December 10, 2002, Dr. Wickmann issued a narrative report in which he diagnosed a sprain/strain to the cervical spine that compromised the discs at C5-6 and C6-7. In that report, Dr. Wickman opined that, particularly in light of the comparison between the employee=s August 1999 MRI and his prior study in February 1996, Athe present condition of [the employee] as documented subjectively and objectively is the direct result of the injuries he sustained in the slip/fall of February 11, 1999.@ Dr. Wickmann reiterated his opinion that the employee=s restrictions were permanent, opining further that, based upon the increase in intensity and frequency of the employee=s symptoms during the time that he did extended driving, Ait is inappropriate for [the employee] to engage in [extended driving] because it will accelerate his regression and may lead to future herniation and potential surgery at the levels of the present disc bulges.@
The matter came on for hearing on January 14, 2003. At hearing, the parties stipulated in part that the employee=s rib injury had resolved. Issues for decision included whether or not the employee had sustained a spinal injury on February 11, 1999, that was severe enough to leave him disabled from his date-of-injury full-time work as a commercial driver and whether on the basis of that injury the employee was entitled to temporary partial disability benefits from May 12, 1999, to June 10, 1999, and from November 1, 1999, ongoing. Issues also included whether or not reimbursement was due to the intervenors in the case, including the Department of Economic Security [DES] for unemployment benefits paid to the employee in the amount of $10,649.00 from the week ending January 8, 2000, to the week ending September 23, 2000. The employee expressly stipulated at hearing that he was not claiming any temporary total disability benefits, and he proposed that the way to handle DES=s claim would be
to the extent that this overlaps or payments are made while [the employee] is employed at the School District which is the basis for our claim for temporary partial then to the extent that those benefits are being paid by Unemployment they should be deducted from any temp partial award.
The employer and insurer stipulated to the proposal, with the reservation that they were retaining their general objection to the intervention claim on grounds that it had nothing to do with the injury or any claimed disability. The employee subsequently also testified in part that any preexisting neck condition had resolved prior to his February 11, 1999, work injury. Under cross examination, the employee testified also that, in the summer and fall of that same year, he was able to work full time at his commercial trucking job with Associated Pipeline without chiropractic treatment until he began working sixty or seventy hours a week. He further agreed that his layoff from that job was the sort of seasonal layoff that he had anticipated when he took the job, that it had nothing to do with the fact that he was receiving chiropractic treatment for any sort of neck pain at that time, and that all of the unemployment compensation that he was paid subsequent to that layoff had nothing to do with any injury to his back.
By findings and order filed March 17, 2003, the compensation judge determined in part that the employee=s low back aggravation had resolved by June 23, 1999, but that the employee=s neck injury had not resolved completely and was a basis for restrictions that precluded his return to work as a truck driver, though not his work as a school bus driver. The judge explained in her memorandum that A[t]he employee testified credibly about . . . ongoing complaints and symptoms in his neck@ and that A[t]he opinions of Dr. Garvey and Dr. Wickmann regarding restrictions are accepted in this case, rather than the opinion of Dr. Wyard.@ The judge concluded further that the employee=s wages as a school bus driver were presumptively representative of his earning capacity and that he was entitled to temporary partial disability benefits for the periods claimed, based on these wages minus the $10,649.00 in unemployment benefits that he had received from the week ending January 8, 2000, to the week ending September 23, 2000. Finally, the judge also concluded that, because of his ongoing restrictions, the employee was eligible for rehabilitation services, though he had not demonstrated that a change of QRC would be in the best interests of the parties.. The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The compensation judge found in part that, in the context of the employee=s February 1999 work injury, the employee had sustained a neck injury that had not resolved completely and that precluded the employee=s working as a full-time commercial truck driver, though not as a part-time school bus driver. Pursuant to that conclusion, the judge ordered the employer and insurer to pay temporary partial disability benefits to the employee for the periods from May 12, 1999, to June 10, 1999, and from November 1, 1999, to the date of hearing, withholding and reimbursing to the Department of Economic Security unemployment benefits paid in 2000 and 2001 in the amount of $10, 649.00. The employer and insurer contend that substantial evidence does not exist to support these conclusions of judge.
1. Disability from Full-time Commercial Driving
The employer and insurer contend that substantial evidence does not support the judge=s finding that the employee was sufficiently disabled by an ongoing neck injury to preclude a return to full-time commercial truck driving. They argue that the compensation judge improperly based her award too importantly on the employee=s own subjective complaints of neck discomfort, contending that the employee has not proven a causal connection between any disability and his work injury and that the employee is at best subject to some minor neck symptoms probably related to problems pre-existing the work injury. They argue also that the employee demonstrated that he was capable of operating a commercial vehicle full time for five months running during his work at Associated Pipeline, that, for reasons unrelated to his work injury and without any basis for presuming long-term disability, the employee refused to return to such work, and that any continuing reduction in the employee=s earnings is by the employee=s choice and is unrelated to his work injury. They argue finally that no medical doctor has put any restrictions on the employee with regard to commercial driving activities and that chiropractor Dr. Wickmann=s concern over the mere possibility of future problems is an insufficient basis for an award of benefits. The employee=s attorney has offered no substantive argument to the contrary, but we conclude nevertheless that the compensation judge=s decision was not unreasonable in light of the evidence.
In this case, the compensation judge indicated in her memorandum expressly that the employee testified credibly about the injury to his neck and about his ongoing symptoms. In addition, Dr. Wickmann opined that there were objective examination findings to support the employee=s claim. Moreover, Dr. Fors=s January 10, 1997, Health Care Provider Report, in it=s certification that the employee had reached maximum medical improvement with regard to his previous neck condition without permanent partial disability, is evidence that any chronic or disabling neck condition consequent to the employee=s previous neck-related work injury had fully resolved by that date, prior to the work injury here at issue.
Nor are we persuaded that the employee=s post-injury ability to perform full-time work with Associated Pipeline for a few months disproves his entitlement to benefits for an eventual loss in earning capacity related to his work injury. The employee testified that his work for that employer resulted in increasing pain, and, notwithstanding the fact that that work ultimately included even substantial overtime, the compensation judge was entitled to credit the employee=s testimony that his pain was constant and his chiropractor=s opinion that that pain was related to the February 11, 1999, work injury. Given the increasing intensity in that pain testified to by the employee and apparently credited by the compensation judge, it was not unreasonable for the compensation judge to implicitly find reasonable the employee=s refusal of further such full-time commercial trucking work. We grant that the employee=s initial layoff from that work was ostensibly for seasonal reasons and not for reasons related to his work-related neck injury. However, placement specialist Kocher opined very affirmatively that the employee had done Aan outstanding job of job search by anyone=s standards@ and had Aput forth [effort] seeking employment that is far better than most qualified employees.@ On that basis, it was not unreasonable for the compensation judge to conclude that the employee=s restriction from continuing in such work was attributable to his work injury, which evidently occurred at a time when the employee=s work-injury-related neck pain was growing in intensity.
Nor, finally, is it determinative that no medical doctor has imposed any restrictions on the employee with regard to commercial driving activities. Dr. Wickmann has imposed such restrictions, and the compensation judge was entitled to credit his chiropractic opinion as expert opinion in that regard. Moreover, Dr. Garvey, a medical expert, also recommended generally, on March 27, 2000, Arestriction of aggravating physical activities.@ Nor was it other than reasonable even in a medical sense for Dr. Wickmann to impose his specific restriction against extended driving on December 10, 2002, in order to avoid acceleration of the employee=s regression and possible future herniation and surgery. The compensation judge relied on the opinions of Drs. Wickmann and Garvey over the opinions of Dr. Wyard, and her decision to do so is entitled to our deference. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence).
Because it was not unreasonable in light of the evidence, we affirm the compensation judge=s conclusion that the employee was disabled from full-time employment as a commercial driver. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Reimbursement to the Department of Economic Security
The employer and insurer contend that any unemployment compensation paid to the employee by intervenor Department of Economic Security was unrelated to the employee=s work injury. They assert that that intervenor=s rights are defined by Minn. Stat. ' 176.361, which provides at Subdivision 2(b)(1) that an intervenor=s application for intervention must include Aan itemization of disability payments@ made (underscoring added), arguing that A[t]he payments made by the Department of Economic Security in this case are not disability payments.@ The employee=s attorney has again offered no substantive argument to the contrary, but again we conclude nevertheless that the compensation judge=s decision was not erroneous.
The statute cited by the employer and insurer requires an itemization of rendered disability payments only Aif applicable.@ See Minn. Stat. ' 176.361, subd. 2(b). Clearly, the unemployment benefits paid by the Department of Economic Security are not benefits paid for disability, and therefore any itemization of such benefits would not be applicable. The Department of Economic Security remains, however, entitled to intervene and to reimbursement to the extent that the employee is determined to have been entitled to workers= compensation for disability during the period during which he was paid unemployment compensation by that intervenor. See generally Edquist v. Browning-Ferris, 380 N.W.2d 787, 38 W.C.D. 411 (Minn. 1986). In that we have affirmed the employee=s entitlement to workers= compensation during the period at issue, we affirm the compensation judge=s award of reimbursement to the intervening Department of Economic Security, pursuant to the judge=s order.
 No party has contested the payment of temporary partial disability benefits for this temporary period of unemployment on grounds that the employee was not working, and we will not address the issue on those grounds. See Malinoski v. North American Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989) (an issue raised for the first time on appeal is not properly before the court and will not be addressed). Cf. Minn. R. 9800.0900, subp. 1, AIssues . . . not addressed in the brief shall be deemed waived and will not be decided by the court.@