ROBERT R. STEWART, Employee, v. CHICAGO BRIDGE & IRON SERVS. and AMERICAN INT=L GROUP/CRAWFORD & CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 8, 2003
CALCULATION OF BENEFITS - SUBSTANTIAL EVIDENCE. Substantial evidence does not support the judge=s decision that the employee was underpaid benefits; rather, the record establishes an overpayment.
Determined by Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Carol A. Eckersen.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee was underpaid temporary total and temporary partial disability benefits. Concluding that there has actually been an overpayment, we reverse the judge=s decision.
The employee sustained a work-related injury to his left knee on or about December 14, 1993, while working for Chicago Bridge & Iron Services [the employer], whose workers= compensation claims were administered by Crawford & Company. On January 14, 2002, the employee filed a claim petition, alleging an underpayment of temporary disability benefits, stating that Ait does not appear as if escalations have been done properly.@ The employee also sought payment of subdivision 7 fees and payment of ongoing attorney fees under Minn. Stat. ' 176.081, subd. 1.
When the matter proceeded to hearing, the parties stipulated that the employer and insurer would release $2,222.98 to the employee=s attorney in attorney fees. The employee was claiming an underpayment of $1,816.95, after inclusion of the $2,222.98 in fees, for the period May 1, 1999, through April 19, 2002. The employer and insurer contended that, while mistakes had been made in calculations of benefits throughout that period, some of the mistakes had benefited the employee and that he had in fact been overpaid temporary total and temporary partial disability benefits.
At hearing, the employee offered as an exhibit calculations indicating the weeks during which he claimed to be underpaid [Petitioner=s Exhibit B], and he testified regarding two periods that he was off work completely because of knee surgeries (February 21, 2000, through June 5, 2000, and November 9, 2000, though April 20, 2001). The employer and insurer offered a computer print-out of all payments actually made by Crawford & Company [Respondent=s Exhibit 1], an exhibit containing payroll stubs and the adjustors handwritten calculations of temporary partial disability [Respondent=s Exhibit 2], a typed exhibit of defense counsel=s calculations regarding overpayment [Respondent=s Exhibit 3], and the testimony of Stephanie Bailey, a workers= compensation adjuster with Crawford & Company, who testified that many mistakes were made in the calculation of the employee=s benefits but that the computer print-out was the most accurate accounting of what had actually been paid to the employee.
In Findings and Order filed on April 21, 2003, the compensation judge found that the employee had been paid $58,948.29, and that the correct calculation of benefits due, including a period of temporary total disability from September 22, 2001, through November 2, 2001, was $62,440.59, resulting in an underpayment of $3,492.30. 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 employer and insurer concede that the compensation judge used the wrong figure for the amount paid in disability benefits and attorney fees during the disputed period. The employer and insurer contended, and their witness confirmed at hearing, that the most accurate record of what was actually paid was Exhibit 1, the computer generated print-out of Crawford & Company=s paysheet. That exhibit establishes that the employee was actually paid $57,852.17, in disability benefits and attorney fees, for the period from May 1, 1999, through April 19, 2002. The additional $2,222.98 in attorney fees, which the employer and insurer agreed to pay at the time of trial, should be added to that figure, for a total of $60,075.15. The judge=s findings are modified accordingly.
The employer and insurer next contend that the compensation judge erred in her calculation of benefits properly payable to the employee by including a period of temporary total disability from September 22, 2001, through November 2, 2001, which the employee was not claiming. We agree.
Petitioner=s Exhibit B itemizes the employee=s underpayment claim. It does not include a claim of entitlement to any benefits during the period from September 22, 2001, through November 2, 2001. Basic fairness requires that all parties be given notice and an opportunity to be heard before decisions are made regarding benefits. Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988). The compensation judge committed an error of law by deciding an issue not presented to her. We therefore reverse the judge=s finding that the employee was entitled to $3,798.96 in temporary total disability benefits for the period from September 22, 2001, through November 2, 2001.
Neither party otherwise disputes the judge=s calculations of benefits payable to the employee. Therefore, $3,798.96 must be subtracted from the judge=s calculation of $62,440.59, to arrive at a total of $58,641.63 as the amount of temporary disability benefits and attorney fees to which the employee was actually entitled during the relevant period. As the employer and insurer have already paid $60,075.15, the employee has been overpaid $1,433.52. The employer and insurer may take a credit for this overpayment from future benefits, if any, pursuant to Minn. Stat. ' 176.179.
 The judge relied on Exhibit 3 for her finding on benefits paid. Exhibit 3 was offered for illustrative purposes only. We note that Exhibit 3 lists a payment of $487.11 for the period December 17, 2000, to December 21, 2000, and a payment of $121.70 for the period January 19, 2001, to January 25, 2001, payments that are not confirmed on Exhibit 1. In addition, Exhibit 3 lists a payment of $487.11 to the employee, for the period from June 5, 2000, to June 9, 2000, which both parties agree the employee returned.
 The employee contends that even Exhibit 1 contains inaccuracies, in that if the entries from May 1, 1999, through April 19, 2002, are added, the result is different than arrived at by taking the claim total as of April 19, 2002, and subtracting the claim total as of April 30, 1999. However, we obtain the same result using both calculation methods.
 Employee=s Exhibit C, received at hearing for illustrative purposes, establishes that the employee also intended for the $2,222.98 in attorney fees to be included in the total of what the employer and insurer had paid in benefits for the period at issue. In Exhibit C, employee=s counsel calculated the underpayment payable to the employee but then subtracted the attorney fees stipulated to at time of trial, thus reducing the employee=s claim of underpayment by $2,222.98.
 The employer and insurer alleged for the first time on appeal that the employee was disabled from work during this period due to a nonwork-related myocardial infarction, and they attached medical records to this effect to their brief. This court=s review is limited to the evidence submitted to the compensation judge. Gollop v. Gollop, 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986).
 The employee=s attorney does not address the issues raised by the employer and insurer on appeal, instead choosing to focus on the numerous mistakes made by the adjustors on the file, including failure to file NOIDs or NOBPs, stopping payment of attorney fees for a period of time without explanation, failing to escalate benefits and escalating them incorrectly, and making mathematical errors, etc.