ROSALIE LINDAHL, Employee, v. UNITED TECHNOLOGIES f/k/a AMOCO ENG'G PLASTICS, SELF-INSURED/ESIS, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 4, 2005
File No. WC04-190
PRACTICE & PROCEDURE - DISMISSAL. Where the employer did not attach documentation to its petition to discontinue, the compensation judge did not err by granting the employee=s motion to dismiss the petition to discontinue.
Determined by: Rykken, J., Pederson, J., and Wilson, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Thomas D. Mottaz and David B. Kempston, Law Office of Thomas D. Mottaz, Anoka, MN, for the Respondent. Kyle T. Kustermann and Deborah K. Sundquist, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for the Appellant.
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals the compensation judge=s dismissal of the employer=s petition to discontinue filed February 9, 2004. We affirm.
On December 18, 1979, and October 13, 1980, Rosalie Lindahl, the employee, sustained admitted injuries to her low back while working for United Technologies, formerly known as Amoco Engineering Plastics, the employer, which was self-insured for workers= compensation liability. The employer paid various workers= compensation benefits, including temporary total disability benefits during various periods of time between 1980 and 1997, in addition to benefits paid pursuant to a 2002 award on stipulation. The employee apparently returned to work for the employer until 2000, when she was laid off for economic reasons. The employee began receiving rehabilitation assistance in May 2000, and the employer resumed payment of temporary total disability in April 2002.
On December 5, 2003, the employer filed a notice of intention to discontinue benefits (NOID) as of December 3, 2003. The NOID sought to discontinue wage loss benefits on the following basis:
The FCE recently conducted (attached) establish[es] that the employee has significant symptom magnification, self-limiting behavior and unwillingness to perform at her maximum ability. The rehabilitation records reflect that the employee has looked for work for three and a half years. That the FCE findings in conjunction with the rehabilitation reports establish that while the employee continues to look for work, her job search is not Adiligent.@ Her injury date is 1979 which requires that the employee conduct a diligent job search if temporary total benefits are to continue. Based on the FCE findings, it appears that we currently do not have an accurate or reliable set of restrictions.
Attached to the NOID was a five-page functional capacity evaluation report from Jonathan Reynolds, a physical therapist, dated November 16, 2003, a three-page placement report prepared by the employee=s QRC and dated October 22, 2003, and six pages of job logs from September and October 2003. A letter later sent by the employer to the Office of Administrative Hearings, supplementing the NOID, alleged that the employee had received ongoing temporary total disability benefits in bad faith during periods of time that she was working. The employer therefore contended that benefits should be discontinued pursuant to Minn. Stat. ' 176.178, due to the employee=s alleged fraudulent receipt of benefits.
A discontinuance conference was held on January 7, 2004, after which discontinuance was denied. In an order on discontinuance pursuant to Minn. Stat. ' 176.239, dated January 14, 2004, a compensation judge determined that the employee had permanent restrictions, had been cooperating with her QRC, and had reported those times she had been working to the employer. The judge concluded that there were not reasonable grounds to discontinue the employee=s temporary total disability benefits.
On February 9, 2004, the employer filed a petition to discontinue workers= compensation benefits, alleging that it was entitled to discontinue benefits on the following bases:
1. The employee has not made a diligent search for work or has not cooperated with rehabilitation services and/or job placement services.
2. Pursuant to Minn. Stat. ' 176.155, subd. 3, the employee has effectively refused to be examined by the functional capacities evaluator and the compensation should be discontinued while the employee continues in her refusal.
The petition also stated that Atrue and correct copies of medical records, rehabilitation records, job placement records, job logs, and other documentation to support the claims of the employer and insurer are attached hereto.@ No such records were attached to the petition.
At the hearing on A-pril 23, 2004, the employee=s attorney made a motion to dismiss the petition on the grounds that the petition did not include attached supporting documentation as required by statute, and did not specify the dates or times when the employee was not diligent in her job search or was not cooperative with rehabilitation. The compensation judge granted the motion, dismissed the petition at the hearing, and issued an order dismissing the petition to discontinue on April 26, 2004. The self-insured employer appeals. The notice of appeal indicates that the issue on appeal is A[w]hether the compensation judge was correct in dismissing the Petition to Discontinue benefits based on the findings that the Petition lacked specificity and proper notice.@
STANDARD OF REVIEW
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers' Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).
Although the dispute in this matter originally arose from a notice of intention to discontinue benefits, filed by the employer on December 5, 2003, the hearing on April 23, 2004, was held to address the employer=s petition to discontinue temporary total disability benefits, filed on February 9, 2004. The employer filed the petition following receipt of an order on discontinuance, in which a compensation judge determined that there were not reasonable grounds to discontinue the employee=s temporary total disability benefits. In its petition to discontinue, the employer alleged that the employee had not made a diligent search for work, had not cooperated with rehabilitation services, and had effectively refused to be examined by the functional capacities evaluator.
Petitions to discontinue are allowed under Minn. Stat. ' 176.238, subd. 5, which provides that the Apetition shall include copies of medical reports or other written reports or evidence in the possession of the employer bearing on the physical condition or other present status of the employee which relate to the proposed discontinuance.@ In this case, although the petition states that Atrue and correct copies of medical records, rehabilitation records, job placement records, job logs and other documentation to support the claims of the employer and insurer are attached hereto,@ there is no dispute that supporting records were not included with the petition when it was served and filed. The compensation judge dismissed the petition to discontinue, concluding that the petition Adid not provide notice to provide a reasonable person with sufficient information of the allegations in order to prepare a proper response.@
Failure to attach documentation does not mandate dismissal of the petition. The compensation judge has discretion to determine whether an employer had substantially complied with the attachment provisions of Minn. Stat. ' 176.238, subd. 5. See Leininger v. Dayton Hudson Corp., slip op. (W.C.C.A. Aug. 9, 2000) (where documents were provided with the NOID but were not attached to the subsequent petition to discontinue, and where the hearing record was kept open post-hearing for supplementation, the compensation judge=s denial of a motion to dismiss the petition to discontinue was not legally erroneous). However, A[b]asic fairness requires that the parties in a workers= compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.@ Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894 (Minn. 1988). A judge Amay, on the judge=s own motion or upon motion of a party with notice to the parties, dismiss an action . . . for failure . . . to substantially comply with this chapter, the act, or an order of a judge.@ Minn. R. 1415.1700, subp. 2. Here, the judge noted in her memorandum that the petition Aattached no medical reports, no rehabilitation reports, no placement vendor records, and no job search records,@ and that this lack of records resulted in a lack of notice to the employee of the basis for the petition to discontinue benefits.
Based on the circumstances of this case, where no records, reports or other documents were attached to the petition to discontinue benefits as required by the statute, the compensation judge could reasonably conclude that the petition to discontinue Adid not provide notice to provide a reasonable person with sufficient information of the allegations in order to prepare a proper response.@ Accordingly, we affirm.