JANIE P. MCCARTY, Employee/Cross-Appellant, v. ANDERSEN WINDOWS, SELF-INSURED/GALLAGHER BASSETT SERVS., INC., Employer.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 7, 2012
PENALTIES. Substantial evidence supports the compensation judge’s award of penalties, as modified, under Minn. Stat. § 176.225, subd. 1, for late payment of an award on stipulation, and the compensation judge’s denial of penalties under Minn. Stat. § 176.225, subd. 5.
Affirmed as modified.
Determined by: Stofferahn, J., Johnson, J., and Wilson, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: David R. Vail, Sodergerg & Vail, Minneapolis, MN, for the Cross-Appellant. James Pikala and Christina E. VonderHaar, Arthur, Chapman, Kettering, Smetak, & Pikala, Minneapolis, MN, for the Appellant.
DAVID A. STOFFERAHN, Judge
The employer and insurer have appealed the compensation judge’s award of a penalty under Minn. Stat. § 176.225, subd. 1, for neglect in payment of an award on stipulation. The employee cross-appeals from the compensation judge’s denial of a penalty for inexcusable delay in payment pursuant to Minn. Stat. § 176. 225, subd.5. We affirm the compensation judge’s decision but modify the amount of the penalty.
Janie McCarty alleged that she sustained a number of work injuries during her employment at Andersen Windows. In August 2009, she filed a claim petition against Andersen and its insurer, Gallagher Bassett Services, claiming various workers’ compensation benefits resulting form those injuries. In April 2010, the parties entered into a settlement of Ms. McCarty’s claims.
The stipulation for settlement provided for a full, final, and complete settlement of all claims relating to the employee’s alleged work injuries with the exception of future medical care. The employee was to receive a net payment of $37,800 and the employee’s attorneys were to receive separate payment for fees and costs. Payment was also to be made to Hartford, an intervenor, that had paid long term disability benefits, and to a number of health care providers, who had intervened for payment of their bills. The award on stipulation was issued May 18, 2010. The parties agree that payment of the award was due June 1, 2010.
The employee’s attorneys received their payment in a timely manner. There was no evidence as to when the medical intervenors received payment and, while the employee subsequently argued that Hartford’s payment was late, no evidence from Hartford on that point was introduced and the compensation judge made no finding on that question. The employee did not receive her check until well after June 1, 2010, and the issue for the compensation judge was whether or not this was the result of neglect or inexcusable delay by the employer and insurer.
At the time of the settlement and award, the employee lived in Stillwater, Minnesota. On May 24, 2010, a paralegal at the office of the employee’s attorneys sent an email to James Pikala, the attorney for the employer and insurer, and to Mr. Pikala’s paralegal in which she advised them that the employee was temporarily living in Florida, provided the Florida address, and asked that the employee’s settlement check be sent to the employee in Florida.
On May 27, 2010, there was an exchange of emails between Mr. Soderberg, one of the employee’s attorneys, and Mr. Pikala concerning the date payment of the award was due. Another exchange took place the next day when Mr. Soderberg advised Mr. Pikala that no checks had been received. Mr. Pikala responded by stating that he had checked with “the claim representative and she said they were issued yesterday, May 27.”
At the hearing, the employer and insurer presented an affidavit from Jena Hackenmueller, identified as the Gallagher Bassett employee currently handling workers’ compensation claims for Andersen. With her affidavit, Ms. Hackenmueller provided copies of computer screen images that indicated a check for $37,800 had been issued to the employee on May 27, 2010, and sent to her at her address in Stillwater. Similar attachments also indicated that payments had been made to the employee’s attorneys and Hartford on May 27, 2010, as well.
Apparently there was no further contact between the parties until June 11, 2010, when Mr. Pikala’s paralegal sent an email to Mr. Soderberg stating, “I came in this morning to a voice mail from your office, indicating that Ms. McCarty has not received her settlement check, and that she lives in FL. Unfortunately I do not see that we have a FL address for her, and I suspect that our client does not either. Would you please provide me with this address? I’ll forward it on to our client and ask that, if the settlement check has not been forwarded/cashed, it be re-issued to the FL address.”
An email response was sent the same day by the employee’s attorneys, indicating that the Florida address had been provided on May 24, 2010, and asking when the employee’s check had been sent and what address had been used. Mr. Pikala’s paralegal replied on June 11 and apologized “for the confusion” stating that she would “try to get this remedied today/Monday at the latest.” In a follow up email sent later on June 11, Mr. Pikala’s paralegal stated, “Our client advises that the check was issued on May 27th, and mailed to her Stillwater address. To date, it has not been returned or cashed. If you would like to have a stop pay put on that check, it will take at least one business day before our client can re-issue the check. It would be mailed to the temporary FL address. Please let me know how you would like to proceed with this. Thanks.”
Mr. Soderberg responded by email on June 14, 2010, and stated, “I need to know the specific date the check was mailed (not issued) to our client and the exact address to which it was sent. My client intends to check with the post office, because as of today, the check has still not arrived at the 3571 Settlers Way, Stillwater MN 55082 address.” He added, “Once I receive the above information, I will let you know how our client wishes to proceed.”
There was, apparently, no additional communication until June 21, 2010, when an email was sent from Mr. Soderberg’s office to Mr. Pikala’s office, asking when the stop payment order on the check had been issued by the insurer. The response, sent later that day, replied that “Mr. Soderberg never got back to me, so a stop pay has not been accomplished. I’m waiting to hear from him. If he wants a stop pay and a re-issue, it will take 24 hour/business day. Just let me know.” In reply, Mr. Soderberg’s paralegal referred to the June 14, 2010, and the information Mr. Soderberg wanted. She also stated, “please get back to me ASAP so that we can update our client on the status of this matter.” The response from Mr. Pikala’s office, also on June 21, was that the checks had been issued on May 28, 2010, and the employee’s check had been sent to her Stillwater address. In an email on June 22, 2010, Mr. Soderberg’s paralegal asked for a stop payment order on the employee’s check and for a new check to be re-issued and sent to the Florida address. An email from the claims person at Gallagher Bassett to Mr. Pikala indicates that the stop payment order was issued on June 28, 2010, and a replacement check was issued June 29, 2010, and sent overnight by UPS to the employee in Florida. The employee received her check on June 30, 2010.
The employee filed a claim petition in July 2010, seeking a penalty for late payment on the award. The claim petition was heard by Compensation Judge Jane Gordon Ertl on October 12, 2011. There were no witnesses at the hearing; the evidence consisted of copies of documents and emails. The compensation judge issued her Findings and Order on November 28, 2011.
The dispute in this case centers on the use by the employer and insurer of the employee’s address in Stillwater rather than the address in Florida for sending the settlement check. Both at the hearing and on cross-appeal, the employee has contended that the employer and insurer were made aware of the employee’s desire to have the check sent to her in Florida by the email sent to Mr. Pikala’s office on May 24, 2010. The employee’s claim for penalties was based on the alleged failure of the employer and insurer to use the Florida address and, as a result, their failure to provide the employee with payment on the award in a timely manner.
On the question of timely mailing and the use of the Florida address, the compensation judge stated in her memorandum, “Here the insurer established evidence of payment and mailing of the check by May 28, 2010, resulting in timely payment, presumably using what they would have reasonably assumed was the proper address. Unfortunately, the insurer mailed the check to the address that was listed on the Stipulation and on the proof of service for the Award on Stipulation. There is no indication at that time that they had actually received change of address information. There was no acknowledgement of the May 24, 2010, e-mail regarding the employee’s Florida address.”
In her brief on cross-appeal, the employee refers to the conclusion that the insurer was not shown to have received the change of address as being “simply not believable.” In reviewing the evidence, however, we note that in the email correspondence between the parties’ attorneys email messages containing substantive information almost always generated a response of some kind. The lack of a response to the May 24, 2010, email at least raises the question as to whether the insurer received the information in the email. In the absence of any evidence to the contrary, we cannot conclude that the compensation judge erred in reaching her conclusion.
The employee also contends that, although the notice of benefits payment (NOBP) was dated as being served on May 27, 2010, the envelope in which the NOBP was sent was postmarked June 7, 2010, thereby establishing, according to the employee that the date the checks were “issued” and the date the checks were mailed were not the same. As a result, it is argued that the compensation judge’s conclusion as to the date of the mailing of the initial checks is not supported by the evidence. We are not persuaded. The check to the employee’s attorneys was evidently issued and mailed on time and there was no evidence that the checks to the intervenors were late. A reasonable inference, and the one reached by the compensation judge, is that the check to the employee was mailed at the same time but was sent to the address in Stillwater. The date when the NOBP might have been placed in the mail is not relevant.
Based on these factual determinations, the compensation judge concluded that the employer and insurer were not guilty of inexcusable delay in paying the employee and denied the employee’s claim under Minn. Stat. § 176.225, subd. 5. We affirm the denial of a penalty under this subdivision.
We turn then to the compensation judge’s award of a penalty under Minn. Stat. § 176.225, subd. 1, for neglect in payment. The compensation judge stated in her memorandum, “By June 11, 2010, it was clear that the check that had been mailed on May 28, 2010, did not reach the employee, and was not forwarded to the employee in Florida. Efforts to make payment should have been made promptly and the employer and insurer should have followed up on the stop pay information to reissue the check at that time. The employee has established entitlement to a penalty under subdivision 1 for unreasonable delay or neglect to make payment as of June 11, 2010.”
On review, we conclude the evidence does not support this conclusion. By June 11, 2010, the employer and insurer were aware the employee had not received her check. The email sent by the paralegal at Mr. Pikala’s office to Mr. Soderberg stated there was no record of a Florida address, referred to the possibility of a stop payment order and ended, “Please let me know how you would like to proceed with this.” Mr. Soderberg’s reply on June 14, 2010, asked for information as to the address used by the insurer and the date of mailing and concluded, “Once I receive that information, I will let you know how our client wishes to proceed.” This evidence does not support a conclusion that the insurer should have issued a new check on June 11, 2010. Not until June 22, 2010, was there a request by the employee’s attorneys for a stop payment on the previous check and the issuance of a new check.
As of June 22, 2010, however, the insurer was aware that a new check was to be issued and, based on previous representations from Mr. Pikala’s office, a new check should have been sent in 24 hours or by June 23, 2010. Instead the replacement check was not sent until June 29, 2010, a delay of six days. We agree with the compensation judge that there was neglect in payment of compensation for those six days and a penalty under Minn. Stat. § 176.225, subd. 1, is appropriate. The compensation judge had ordered a penalty of $250 per day and there has been no argument that this daily amount is inappropriate. Accordingly, we modify the compensation judge’s decision on this point and award a penalty against the employer and insurer of $1,500.