MARK E. GILBERTSON, Employee, v. FRONTIER PIPELINE, LLC, and WESTERN NAT’L INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 23, 2008
JURISDICTION - SUBJECT MATTER; DISCONTINUANCE. The Workers’ Compensation Court of Appeals does not have subject matter jurisdiction to consider an appeal from an administrative conference decision issued pursuant to Minn. Stat. § 176.239.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Adam S. Wolkoff
Attorneys: Robert C. Falsani, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent. James A. Wade, Johnson, Killen & Seiler, Duluth, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal from the compensation judge’s order granting their request to discontinue temporary total disability benefits and ordering the employer and insurer to commence payment of temporary partial disability benefits. We conclude the court lacks jurisdiction over the appeal and the employer and insurer’s appeal is dismissed.
Mark E. Gilbertson, the employee, sustained a personal injury arising out of his employment with Frontier Pipeline, LLC, the employer. The employer and its insurer admitted liability for the employee’s personal injury and commenced payment of temporary total disability benefits.
In April 2008, the employer and insurer filed a Notice of Intention to Discontinue Workers’ Compensation Benefits in which they sought to discontinue temporary total disability benefits alleging the employee reached maximum medical improvement [MMI] on March 4, 2008. The employee objected to the proposed discontinuance and the matter was scheduled for an administrative conference pursuant to Minn. Stat. § 176.239 before Adam S. Wolkoff, a compensation judge with the Office of Administrative Hearings. In an Order on Discontinuance, served and filed June 20, 2008, the compensation judge concluded the employee reached maximum medical improvement on March 4, 2008. Since more than 90 days had elapsed since the employee reached MMI, the compensation judge allowed the employer and insurer to discontinue payment of temporary total disability benefits. The compensation judge further found, however, the employee returned to work on May 26, 2008, at a wage loss and under continued restrictions from Dr. Konowalchuck. The compensation judge then ordered the employer and insurer to commence payment of temporary partial disability benefits effective May 26, 2008.
The employer and insurer filed a notice of appeal to the Workers’ Compensation Court of Appeals. Thereafter, the employee filed a motion to dismiss the appeal for lack of jurisdiction and sought an award of penalties and attorney fees. The employer and insurer objected to the employee’s motion.
The employee contends the Workers’ Compensation Court of Appeals lacks jurisdiction to consider the employer and insurer’s appeal. Rather, the employee contends the appellants’ remedy is to file a petition to discontinue benefits as provided in Minn. Stat. § 176.239, subd. 8. The employer and insurer assert this court has jurisdiction over “an award or disallowance of compensation, or other order effecting the merits of the case” citing Minn. Stat. § 176.421, subd. 1. Since the compensation judge awarded benefits, the appellants argue the court does have jurisdiction over this appeal. The appellants further argue the compensation judge improperly expanded the issues at the administrative discontinuance conference by allowing the issue of entitlement to temporary partial disability benefits to be decided. By ordering payment of temporary partial disability benefits, the appellants contend the compensation judge granted the employee a new benefit which the employer and insurer cannot recover by filing a petition to discontinue. For these reasons, the employer and insurer request the employee’s motion to dismiss be denied.
Minn. Stat. § 176.239 allows “parties to obtain an expedited interim administrative decision in disputes over discontinuance of temporary total” compensation. Minn. Stat. § 176.239, subd. 1. Subdivision 7 of the statute provides that following an administrative conference, the commissioner shall provide to all interested parties a written decision on payment of compensation. Minn. Stat. § 176.239, subd. 8, states “an employer who disagrees with the commissioner’s decision under this section may file a petition to discontinue under section 176.238, subdivision 5.”
Minn. Stat. § 176.442 is entitled “Appeals from decision of commissioner” and provides, in part:
Except for a commissioner’s decision which may be heard de novo in another proceeding, including but not limited to a decision from an administrative conference under section 176.102, 176.103, 176.106, 176.239, or a summary decision under section 176.305, any decision or determination of the commissioner effecting a right, privilege, benefit or duty which imposed or conferred under this chapter is subject to review by the Workers’ Compensation Court of Appeals.
A decision pursuant to Minn. Stat. § 176.239 may be heard de novo in another proceeding by filing a petition to discontinue under section 176.238, subd. 5. Thus, under the plain language of the statute, this court does not have jurisdiction to consider the employer’s appeal from the order of the commissioner’s designee. See Blum v. Madison Lutheran Home, slip op. (W.C.C.A. Jan. 6, 2003); Stearns v. Janel Decorators, slip op. (W.C.C.A. Oct. 27, 1988).
The employer and insurer contend the compensation judge erred by expanding the issues at the conference to include the employee’s claim for temporary partial disability benefits. They further argue if the judge’s decision is allowed to stand, they will be forced to pay temporary partial disability benefits which they may not be able to recoup. These arguments cannot, however, confer jurisdiction on this court where jurisdiction is specifically denied by statute. Further, the employer and insurer’s concern about paying benefits not otherwise owed to the employee is governed by Minn Stat. § 176.239, subd. 9, which permits a compensation judge, this court, or the supreme court to allow recovery for an overpayment. Accordingly, the employer and insurer’s appeal is dismissed.
The employee is awarded attorney’s fees of $1,000.00 pursuant to Minn. Stat. § 176.511. We decline to consider the employee’s claim for penalties. The employee is free to raise that claim before a compensation judge.
 There was no hearing on the record in this matter. The facts set out in this decision come from the pleadings and the undisputed facts in the parties’ briefs.
 See Minn. Stat. § 176.101, subd. 1(j).
 Minn. Stat. § 175.16 provides that the commissioner “may delegate authority to compensation judges and others to make determinations under sections 176.106, 176.238, and 176.239.”