THOMAS R. ADAMS, Employee, v. HYMAN FREIGHTWAYS, and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 16, 2006
NOTICE OF DISCONTINUANCE; PRACTICE & PROCEDURE - REMAND. Under the specific circumstances of this case, where the insurer was determined to have liability for ongoing temporary partial disability compensation and was ordered to be the paying agent for those benefits and where the insurer determined after the hearing that it had no obligation to pay temporary partial disability compensation under Minn. Stat. ' 176.101, subd. 2(b), the compensation judge did not err in denying the insurer=s NOID, and the matter is remanded for further consideration.
Affirmed and remanded.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: William G. Moore, Law Office of William G. Moore, Fridley, MN, for the Respondent. Sandra J. Grove, Law Offices of Bakken and Robinson, St. Paul, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
Hyman Freightways and Liberty Mutual Insurance Company appeal from the compensation judge=s denial of their request to discontinue temporary partial disability compensation. We affirm the denial of the discontinuance. We also remand for further consideration of the issues in this matter.
The pertinent facts are not in dispute. In an unappealed Findings and Order of August 9, 2005, the employee was found to have sustained three work-related injuries which resulted in ventral hernias. The initial injury was on November 11, 1993, when the employee was working for Hyman Freightways, insured by Liberty Mutual. The second injury was on December 28, 1998, at Viracon, insured by the Insurance Company of Pennsylvania (Pennsylvania), and the third injury was on September 9, 2002, at Filister Enterprises, insured by Cambridge Integrated Services (Cambridge).
The employee was awarded temporary partial disability compensation from December 12, 2004, and continuing through the date of hearing. Liability for these benefits was apportioned by the compensation judge: 50 percent against the 1993 injury and 25 percent against each of the two later injuries. Liberty Mutual was ordered to be the paying agent.
On October 21, 2005, Liberty Mutual filed a Notice of Intention to Discontinue Compensation Benefits, seeking to discontinue the employee=s temporary partial disability compensation. The stated basis for the requested discontinuance was that temporary partial disability benefits were not payable after 450 weeks after the date of injury pursuant to Minn. Stat. ' 176.101, subd. 2(b), and that, according to the notice, the 450-week period for the 1993 injury expired on June 6, 2002.
The employee objected to the discontinuance and, after an administrative conference, this matter was set for hearing before a compensation judge on February 9, 2006. The 1998 and 2002 insurers were not parties at the administrative conference or at the hearing. In her Findings and Order, served on March 3, 2006, the compensation judge denied the requested discontinuance of benefits. The compensation judge found:
The employee has proven entitlement to ongoing temporary partial disability benefits. The employer and Liberty have the burden, not the employee, to seek an allocation of liability among other employers and to apply the applicable law to each separate injury. As the paying agent, Liberty is responsible for payment of benefits. Reasonable grounds have not been proven for Liberty to discontinue their apportioned share of temporary partial disability benefits.
Liberty Mutual appeals.
On appeal, the employee argues that Liberty Mutual should be barred from asserting the 450-week defense to the payment of temporary partial disability benefits. The employee points out that, given an end date for the 450 weeks of June 6, 2002, Liberty Mutual could have raised the issue in the 2005 hearing to avoid liability. Its failure to do so has resulted in prejudice to the employee since, despite the lack of appeal from the 2005 decision, no payment of temporary partial disability compensation had been made to the employee as of the date of hearing in 2006.
The employee argues that either equitable estoppel or laches should be applied to bar Liberty Mutual=s position. However, neither equitable estoppel nor laches applies in this case. Equitable estoppel requires reasonable reliance on the representations of a party. Northern Petroleum Co. v. United States Fire Ins. Co., 277 N.W.2d 408 (Minn. 1979). There has been no showing in this matter of reliance on the representations of Liberty Mutual. Laches requires the showing that a party=s rights have been prejudiced because the other party failed to assert its rights within a reasonable period of time. Peterson v. Tri-County Electric, 38 W.C.D. 398 (W.C.C.A. 1985). While the employee=s payment of benefits has been delayed by Liberty Mutual=s actions, we conclude that this delay in payment does not rise to the level necessary to preclude Liberty Mutual=s assertion of the statute.
We agree with the compensation judge that the relevant question in this matter is the procedure to be followed at this point. While it is understandable that Liberty Mutual would be concerned only with its own obligation to pay and would file an NOID dealing only with its own liability, the fact remains that rights of the employee and the obligations of the other two parties remain at issue in this case.
The compensation judge cited Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634, 640 (Minn. 1989). In that decision, the insurer was ordered to continue to pay temporary total disability compensation where the employee had not reached maximum medical improvement from all injuries despite the fact that the employee had reached maximum medical improvement from the injury covered by the insurer. To allow the insurer to discontinue compensation would, in the words of the court, Acreate an unwarranted gap in the employee=s benefits.@ The same consideration exists in this unusual case in which there is no question as to the employee=s entitlement to temporary partial disability compensation and in which all of the parties necessary to reach a final adjudication regarding the payment of these benefits are not present. We affirm the compensation judge=s denial of the requested discontinuance of compensation.
Minn. Stat. ' 176.421, subd. 6, allows this court to Aremand or make other appropriate order@ in matters which are on appeal. Accordingly, we remand this matter to the Office of Administrative Hearings for a hearing before a compensation judge. An order for joinder should be issued adding Cambridge and Pennsylvania as parties to the pending litigation. The compensation judge should allocate liability, determine an appropriate paying party, make findings as to the correct amounts to be paid to the employee for temporary partial disability benefits, and may consider any other issues raised by the parties which will decide the claims and issues in dispute.
 Minn. Stat. ' 176.101, subd. 2(b) provides, in relevant part, Atemporary partial compensation may not be paid for more than 225 weeks, or after 450 weeks after the date of injury, whichever occurs first.@