WALLACE OLSON, Employee, v. BLOOMINGTON LINOLEUM & CARPET, INC., and EMPLOYERS INS. OF WAUSAU, Employer-Insurer, BLOOMINGTON LINOLEUM & CARPET, INC., and SENTRY INS. CO., Employer-Insurer, BLOOMINGTON LINOLEUM & CARPET, INC., and GAN NORTH AM. INS. CO./ATLANTIC RISK SERVS., Employer-Insurer, and BLOOMINGTON LINOLEUM & CARPET, INC., and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer/Appellants, and PAIN ASSESSMENT AND REHAB. CTR., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 30, 2000

 

HEADNOTES

 

PRACTICE & PROCEDURE - TEMPORARY ORDER.  The compensation judge erred in ordering payment under a temporary order where all insurers were denying primary liability/causation and the insurer ordered to pay might, depending on the ultimate decision at trial, have no way to recover benefits paid under the order.

 

Vacated.

 

Determined by Wilson, J., Johnson, J., and Rykken. J.

Compensation Judge:  John Ellefson

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and St. Paul Fire & Marine Insurance Company appeal from the compensation judge=s temporary order requiring St. Paul Fire & Marine to pay certain benefits pending final determination of liability.  We vacate the order.

 

BACKGROUND

 

On March 19, 1987, and July 21, 1988, the employee was working as an installer for Bloomington Linoleum and Carpet, Inc. [the employer], when he sustained work-related injuries to his low back.  The employer was insured for workers= compensation liability by Employer=s Insurance of Wausau [Wausau], which admitted liability for the injuries and paid temporary total and permanent partial disability benefits, rehabilitation benefits, and medical expenses.  The employee also sustained an admitted work-related injury to his back on February 17, 1992, and an admitted work-related injury to his elbow on April 9, 1992, while the employer was insured by Sentry Insurance Company [Sentry].

 

On May 11, 1993, the employee filed a claim petition, which was later amended, claiming medical expenses and permanent partial disability benefits.  Subsequently, in June of 1994, the employee, the employer, Wausau, and Sentry entered into a stipulation for settlement regarding the admitted injuries, as well as injuries allegedly occurring on May 24, 1991, and in June of 1991, wherein the employee agreed to accept $15,000, from Wausau, in full, final, and complete settlement of all past, present, and future claims, with the exception of future nonchiropractic medical expenses, and $1,000, from Sentry, in full, final, and complete settlement, including medical expenses.  An award on stipulation was filed on June 17, 1994.

 

On September 2, 1999, the employee filed another claim petition, this time against the employer and Wausau, Sentry, GAN North America Insurance Company [GAN], and St. Paul Fire and Marine Insurance Company [St. Paul], seeking temporary total and permanent partial disability benefits and medical expenses as a result of injuries allegedly sustained on March 19, 1987, July 21, 1988, May 24, 1991, June of 1991, February 17, 1992, April 14, 1998, and June 23, 1999.^[1]  All insurers answered the claim petition by denying liability for the claimed benefits.

 

During a settlement conference that eventually took place on March 17, 2000,^[2] the employee=s attorney made a motion for the issuance of a temporary order.  On March 22, 2000, a compensation judge of the settlement division of the Office of Administrative Hearings issued a temporary order, ordering St. Paul to pay the employee temporary total and temporary partial disability benefits beginning August 4, 1999, as well as reasonable and necessary medical expenses and rehabilitation benefits, pending a final determination of liability.  St. Paul appeals.

 

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.  Krovchuck v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

In 1997, the Minnesota legislature amended Minn. Stat. '176.191, subd. 1, to include the following language:

 

A temporary order shall be issued if the commissioner or compensation judge determines based on the evidence submitted by the employee that benefits are payable under this chapter and if two or more employers, insurers, or the special compensation fund deny liability based on an assertion that another employer, insurer, or the special compensation fund is liable.

 

St. Paul contends that a genuine dispute exists as to the employee=s entitlement to benefits and that a temporary order was therefore improper.  We note, at the outset, that no written petition for temporary order was apparently ever filed, and there was no formal hearing, no testimony under oath, and no transcript in this case.  Nothing in the briefs indicate what, if any, evidence was submitted to the compensation judge at the settlement conference, and the judge did not indicate what evidence he relied upon in issuing the order, other than to say, A[b]ased on the Compensation files and records for this matter . . . .@  Therefore, we base our review on the file of the Department of Labor and Industry submitted with this appeal and the briefs of the parties.

 

The judgment roll contains medical records from Dr. A.V. Anderson attached to a motion to intervene filed by Pain Assessment=s Rehabilitation Center on September 17, 1999.^[3]  Dr. Anderson stated in those records that he had excused the employee from working, from June 23, 1999, to August 23, 1999, and that, at least through September 9, 1999,^[4] he recommended restrictions on the employee=s work activities and on the number of hours per day and days per week that the employee could work.  In his report of August 11, 1999, Dr. Anderson stated that the employee=s symptoms were consistent with work-related aggravations of the employee=s 1991 injury, occurring on April 14, 1998, and June 23, 1999.  Finally, St. Paul attached to its brief the February 17, 2000, report of the independent medical examiner, Dr. John Sherman.  Dr. Sherman opined that the employee had sustained a temporary aggravation of a pre-existing condition in a work injury on June 23, 1999, and that the employee did not reach maximum medical improvement from that injury until September 1, 1999.  This evidence supports the judge=s decision to issue the order.^[5]  However, other factors persuade us that the compensation judge erred.

 

All of the insurers in this matter have denied liability for the claimed benefits.  If the compensation judge is persuaded by certain of the asserted defenses in the upcoming hearing on the employee=s claim petition, the judge could well deny some or all of the benefits that St. Paul has been ordered to pay under the temporary order.  It may be true that St. Paul=s independent examiner found a temporary work injury; however, St. Paul has raised the employee=s credibility as an issue, which would provide an alternate basis for denial of the employee=s claim.  It is also important to note that nearly all benefits for the employee=s earlier injuries were closed out by the 1994 stipulation for settlement, and, if the employee=s alleged disability is ultimately attributed to those injuries, St. Paul will have no way to recoup payments made to the employee under the temporary order.

 

Under the circumstances of this case, the temporary order should not have been issued, because all the insurers have denied causation and/or primary liability.  See, e.g., Garmaker v. Miller Masonry, slip op. (W.C.C.A. Aug. 12, 1998).  We therefore vacate that order.