WILLIE SMITH, Employee/Appellant, v. INTEGRITY PLUS, INC., Employer/Cross-Appellant, and CALIFORNIA STATE COMPENSATION INS. FUND, Insurer/Cross-Appellant.

 

WORKERS' COMPENSATION COURT OF APPEALS

DECEMBER 18, 2000

 

HEADNOTES

 

JURISDICTION.  In accepting the employer=s proof of California workers= compensation coverage as complying with the requirement that the employer maintain workers= compensation insurance for work performed on federal land within the state of Minnesota, the federal government, through the contracting federal agency, did not affirmatively elect to withdraw the grant of state workers= compensation jurisdiction made to Minnesota under 40 U.S.C. ' 290 for those employees working for the employer under that contract. 

 

JURISDICTION; STATUTES CONSTRUED - MINN. STAT. § 176.041, SUBD. 4. Although the employee did take some affirmative steps to initiate and cooperate with the voluntary payment of benefits by the California insurer, the employee never instituted any claim for California benefits in a California workers= compensation agency or tribunal.  His filing of a Minnesota claim petition constituted an affirmative election to forego California benefits under Stolpa v. Swanson Heavy Moving Co., 315 N.W.2d 615, 34 W.C.D. 423 (Minn. 1982), and thus the compensation judge did not err in concluding that jurisdiction was present in Minnesota pursuant to Minn. Stat. '176.041, subd. 4.

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including lay testimony, medical evidence and opinion, and expert vocational testimony, supported the compensation judge=s finding that the employee was permanently totally disabled.

 

INSURANCE - COVERAGE.  Where it is clear from the unambiguous language of the contract of insurance that the contract was not one which covered the employer=s liability to pay compensation under the Minnesota workers=s compensation act, there is no basis under Minn. Stat. '176.185, subd. 2 to reform the contract between the employer and the insurer to cover Minnesota workers= compensation benefits.  Where Minnesota coverage is not provided, the compensation judge erred in including the insurer in her order for the payment of benefits.  The compensation judge did not err in concluding she lacked jurisdiction to determine what other rights the contract of insurance affords the parties inter se as the jurisdiction of a Minnesota workers= compensation tribunal is limited to questions arising under the Minnesota workers= compensation act.

 

Affirmed in part and modified in part.

 

Determined by Pederson, J., Rykken, J., and Wheeler, C.J.

Compensation Judge:  William R. Johnson

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The cross-appellant employer and the cross-appellant insurer both appeal from the compensation judge=s determination that the employee was entitled to claim Minnesota workers= compensation benefits under Minn. Stat. '176.041, subd. 4.  The employer also appeals from the compensation judge=s determination that federal law does not preclude the employee=s claim for Minnesota workers= compensation benefits.  The employer further appeals from the finding that the employee was permanently and totally disabled and from the judge=s recital of the stipulation of the parties as to whether and in what amount overtime earnings were includable in the calculation of the employee=s weekly wage.  The cross-appellant employer and the appellant employee appeal from the compensation judge=s determination that she lacked jurisdiction to determine whether the contract of insurance between the employer and insurer permitted the employer to claim coverage from the insurer for Minnesota workers= compensation benefits. The cross-appellant insurer appeals from the judge=s factual finding concerning certain language contained in the insurance contract between the employer and insurer, alleges that the compensation judge failed to include in her recital of the stipulations of the parties a stipulation that any Minnesota benefits awarded would be subject to a credit for benefits already paid under California law.  Finally, the cross-appellant insurer appeals from the language of Order 2 insofar as it includes the insurer in its order for the payment of permanent total disability benefits.

 

BACKGROUND

 

The employee, Willie Smith, was born in Tennessee on June 16, 1946 and is 54 years old.  He dropped out of school after the seventh grade to work for a few years as a migrant laborer harvesting fruit, but later completed the ninth grade.  In about 1961 the employee moved to Chicago, where he held various jobs, including working in restaurants making pizza and spaghetti, cutting and boxing meat, driving a truck to deliver frozen meat, driving a cab, cleaning and preparing rental cars, and driving a rental car company=s shuttle bus.  In 1979 the employee moved to Mississippi, where he obtained a job in which he learned to operate heavy construction equipment.  About 1980 or 1981 the employee was hired by a company engaged in concrete work repairing runways and taxiways at the U.S. Air Force base in Columbus, Mississippi.  (T. 43-49.)

 

Not long afterwards, the employee began working for a succession of companies owned variously by Edward Dickson or his wife.  These companies were engaged in concrete repair work at military bases throughout the United States under short-term contracts for which they were the successful bidder.  From about 1988 or 1989 the employee worked for the employer, Integrity Plus, a California corporation owned by Mr. Dickson=s wife for which Mr. Dickson serves as general manager.  In performing this work, the employee typically worked about nine to ten months per year.  He drove to job locations throughout the United States, usually remaining about three to four months at each location.  While at a job site, the employee lived in a motel or apartment for the duration of the job.  The work was generally performed by four-person crews and involved cleaning and resealing joints, taking out bad concrete, and installing new concrete.  The crew members used  Atugs@ (vehicles designed to tow aircraft) which had been modified by the addition of hydraulic rams to clean out joints in the concrete, then used jack-hammers to break up deteriorated concrete, and finished the job using a joint sealing machine.  Also in use was sandblasting equipment to clean concrete, a front end loader, dumpster and fuel truck, and shovels for manual cleanup of concrete fragments.  The employee  was able to operate all of this equipment.  (T. 50-57, 370-377.)

 

In May 1996 the employer was the successful bidder on a job to perform repair work at the U.S. Air Force Reserve facility at the Twin Cities= International Airport in Minnesota.  A contracting official for the Air Force signed an award, consummating the contract, on July 2, 1996.  As part of the underlying conditions of the contract, the employer was required to complete a form entitled AAcknowledgment and Certification of Compliance with Liability Insurance Requirements.@  The employer executed a form for this purpose on July 24, 1996.  The form certified that workers= compensation insurance would be maintained during the course of the work under the contract.  The employer filled out a blank designating that ACalifornia@ workers= compensation insurance would be provided.  (Er. Exh. F.)

 

The actual work was not performed until the following year, and in late May 1997 the employee began working for the employer at the Minnesota site.  On June 3, 1997 the employee sustained a work injury to his left leg when he was pinned between two tugs.  The employee was hospitalized at the Hennepin County Medical Center for seventeen days, and his leg was amputated above the knee.  The parties have stipulated to a 36 percent whole-body permanent partial disability rating resulting from the injury.  (T. 54-62.)

 

While the employee was in the hospital, he was visited by Harvey Feaster, the employer=s project manager for the job in Minnesota, who provided the employee with a form to initiate benefits from the employer=s workers= compensation carrier, the California State Compensation Insurance Fund (hereinafter, the Ainsurer@).  The employee signed this form, which had been filled out by Mr. Feaster.  Another document, in Mr. Feaster=s handwriting, was in evidence which provided language regarding the situs of the employee=s residence; a note setting forth the same language was typed by the employee=s wife and also signed by the employee for submission to the insurer in conjunction with the request for the payment of benefits and medical expenses.  The insurer=s claims adjustor, Leilani Cuesta, testified that the insurer accepted the claim and, on June 3, 1997, voluntarily began paying benefits provided by the California workers= compensation statute.  (T. 59-60, 186-187, 347-353, 432-433.)

 

The employee retained an attorney in Missouri, Spencer Edwards, on or about July 6 or 7, 1997.  Mr. Edwards wrote to the insurer on July 9, 1997 advising that he represented the employee.  The insurer subsequently sent various medical release and employer authorization forms to Mr. Edwards for the employee to execute, and Mr. Edwards sent them on to the employee and then returned the signed forms to the insurer on the employee=s behalf.  The employee and his wife continued to have direct contact with the insurer for reimbursement forms later in 1997.  The insurer=s adjustor testified that it was her understanding that Mr. Edwards was only representing the employee in conjunction with a possible third-party claim and not on his workers= compensation claim.  (T. 244-247, 445-447.)

 

On April 23, 1998, after retaining Minnesota counsel, the employee filed a claim petition with the Minnesota Department of Labor & Industry seeking permanent total and permanent partial disability compensation benefits.  Following initial answers and other motions, the employer and insurer each appeared under separate representation, as a result of the emergence of an issue between them as to the nature of the insurer=s liability under the contract of insurance.  The insurer also filed a complaint in May, 1999 in the Superior Court of California in San Francisco seeking a declaratory judgment regarding the nature of its coverage under the contract of insurance. The insurer subsequently moved for summary judgment in that matter, and on December 15, 1999, the California court granted summary judgment in favor of the insurer, holding that A[u]nder the unambiguous terms of State Fund=s insurance policy with Integrity Plus, Inc. (the APolicy@), State Fund=s liability for workers= compensation benefits under the Policy is limited to amounts payable under the workers= compensation laws of the State of California.@  (Judgment Roll; Ins. Exh. F.)

 

A hearing on the Minnesota case was held before a compensation judge of the Office of Administrative Hearings on February 1 and 2, 2000.  The primary issues presented included whether the employee was permanently totally disabled, whether Minnesota jurisdiction was proper, whether the compensation judge had jurisdiction to interpret the insurance contract, and if so, what the proper interpretation of the contract was.  The compensation judge found that Minnesota jurisdiction was present and that the employee was permanently totally disabled.  She declined to interpret the contract of insurance.  The present appeals followed.

 

STANDARD OF REVIEW

 

On appeal, this court must determine whether the compensation judge's  findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  Substantial evidence supports the findings if, in the context of the record as a whole, they "are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed."  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Factfindings may not be disturbed, even though this court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  Id.

 

DECISION

 

Jurisdiction over the Claim

 

The employer has raised two objections to the determination that the employee=s work injury falls under the coverage of the Minnesota workers= compensation laws.  The insurer has joined in the second of these objections.

 

Whether Minnesota Jurisdiction Is Precluded by Federal Law

 

The employer points out that, as the employee=s injury occurred on federal property within the State of Minnesota, Minnesota has no jurisdiction over the employee=s injury except to the extent that the federal government has permitted that exercise of state workers= compensation jurisdiction.  The employer acknowledges that just such a grant of state authority was enacted by 40 U.S.C. ' 290, which gave each state the power to enforce its workers= compensation law on all land and premises within that state held or owned by the federal government.  The employer contends, however, that this grant of authority is permissive, and that the federal government Atook back@ the statutory grant of jurisdiction to Minnesota in the contract with the employer under which the employee=s work was performed.  Specifically, the federal contract required the employer to furnish proof of workers= compensation coverage; and the employer submitted a form entitled  AAcknowledge [sic] and Certification of Compliance with Contract.  Insurance Requirements Certificate.@  In that document, the employer listed the name and address of its insurer, and filled in the word ACalifornia@ as follows: AThe undersigned Contractor hereby acknowledges . . . (3) that ACalifornia@ (state) Workmen=s Compensation Insurance, or letter of reciprocal agreement with another sate [sic], shall be maintained on this contract for and during the entire performance period . . . .@

 

The employer in essence argues that, in accepting this document as complying with the requirement that the employer maintain workers= compensation insurance, the federal government, through the contracting federal agency, affirmatively elected to withdraw the grant of state workers= compensation jurisdiction made to Minnesota under 40 U.S.C. ' 290 for those employees working for the employer under that contract.  We disagree.  The provisions of 40 U.S.C. ' 290 extend to the states the power to apply state workers= compensation law to federal premises Ain the same way and to the same extent@ as other premises in that state.  The purpose of the act was to free state workers= compensation laws from any restraint on their enforcement arising from the federal jurisdiction over specific lands, and to assure privately-employed workers on federal projects equal treatment with other laborers in the state.  See, e.g., Roelofs v. United States, 501 F.2d 87 (CA5 LA 1974); Capetola v. Barclay White Co., 139 F.2d 556 (CA3 PA 1943); Prescott v. United States, 523 F.Supp. 918 (DC NEV 1981).  Such a purpose would be thwarted if any contracting federal agency had the power to arbitrarily withdraw or modify, piecemeal, the act=s specific grant of authority.  We see no provision in the act which empowers federal agencies to withdraw certain work activity from its scope. 

 

The employer argues that such a power is implicit in that portion of the act=s language which provides that Aby the passage of this section the United States of America in nowise relinquishes its jurisdiction for any purpose over the property named, . . .@  The employer however fails to note that the clause immediately following this continues Awith the exception of extending to the several States within whose exterior boundaries such place may be only the powers above enumerated relating to the enforcement of their State Workers= compensation laws as herein designated.@  The language cited by the employer merely provides for the retention of all jurisdiction except over the extension to the states of the power to exercise the full extent of their workers= compensation laws over private employees working on or at such federal property.  As such, it clearly provides no support for the premise that a contracting agency of the federal government has the power to withdraw the grant of authority made in 40 U.S.C. ' 290.

 

Finally, even if we accepted the employer=s contention that the agency-contractor agreement in this case could affect jurisdiction over the injury, and even if the contract here were interpreted as extending workers= compensation coverage under California law to injuries sustained by employees performing work under this contract, we note that federal courts have interpreted the states= exercise of workers= compensation jurisdiction under 40 U.S.C. ' 290 as non-exclusive, such that more than one state may have a right to assert jurisdiction so long as the injury would otherwise fall within each state=s jurisdiction under its workers= compensation laws.  See, e.g., Travelers Ins. Co. v. Carillo, 141 F2d 362 (CA DC 1944).  Thus, even if we accepted the employer=s interpretation of this contract as one specifically extending a right to assert California jurisdiction over the employee=s injury, there is no basis to conclude that the contract thereby excludes a concurrent right of Minnesota courts to assume jurisdiction under Minnesota law.

 

We therefore affirm the compensation judge=s determination that Minnesota jurisdiction was not precluded as conflicting with federal authority.

 

Minnesota Jurisdiction Pursuant to Minn. Stat. '176.041, subd. 4 

 

The employee in this case is a resident of Missouri, hired in California by a non-Minnesota employer, but injured while working temporarily in Minnesota.  The employee alleged jurisdiction in Minnesota pursuant to Minn. Stat. '176.041, subd. 4, which provides:

 

Subd. 4. Out-of-state employments. If an employee who regularly performs the primary duties of employment outside of this state or is hired to perform the primary duties of employment outside of this state, receives an injury within this state in the employ of the same employer, such injury shall be covered within the provisions of this chapter if the employee chooses to forego any workers= compensation claim resulting from the injury that the employee may have a right to pursue in some other state, provided that the special compensation fund is not liable for payment of benefits if the employer is not insured against workers= compensation liability pursuant to this chapter and the employee is a nonresident of Minnesota on the date of the personal injury.

 

There is no dispute that the employee=s primary duties in the employment for employer Integrity Plus were regularly performed outside Minnesota, and this provision, if applicable, is the sole basis for Minnesota jurisdiction.  It is also undisputed that the employee has received workers= compensation payments from the insurer pursuant to California law.  The issue in dispute is whether the employee=s receipt of compensation under California law in this case defeats application of section 176.041, subd. 4.

 

In Stolpa v. Swanson Heavy Moving Co., 315 N.W.2d 615 at 617, 34 W.C.D. 423 at 427 (Minn. 1982), our supreme court held that the statutory language of '176.041, subd. 4

 

. . . warrants a construction which permits an injured employee, in spite of his acceptance of compensation voluntarily paid by a compensation insurer pursuant to the laws of another state, to make an affirmative election of Minnesota coverage by filing a claim petition in this state after obtaining legal advice concerning his rights.  The filing of that petition is, in effect, an intelligent choice on the worker=s part >to forego any workers= compensation claim resulting from the injury that he may have a right to pursue in some other state.=

 

The employer argues that the supreme court=s holding in Stolpa was subsequently overruled by its holding in Pauli v. Pneumatic Systems, Inc., 328 N.W.2d 743, 35 W.C.D. 551 (Minn. 1983).  In Pauli, an employee was held to not have foregone a compensation claim in Oregon where the employee, even after filing his claim petition in Minnesota, filed an appeal in Oregon with assistance of counsel and had not dismissed the claim in Oregon as of the date of the hearing in Minnesota, but instead filed an affidavit with the compensation judge which indicated he wished to preserve jurisdiction in Oregon pending a ruling on his petition in Minnesota.  The Pauli case held that an employee who has affirmatively made a claim in the workers= compensation courts of another state, and has not dismissed this claim, has not foregone his claim in the other state so as to render jurisdiction appropriate in Minnesota under our statute.  We do not agree with the employer that Pauli overruled the basic holding of Stolpa, which, in our view, remains intact.  The supreme court=s opinion in Pauli specifically stated that Stolpa would have been dispositive had that case involved only the voluntary receipt of Oregon benefits, rather than an affirmative and still-pending claim by the employee in the Oregon courts.  See 328 N.W.2d at 746, 35 W.C.D. at 555. 

 

The issue before the compensation judge was whether the employee=s actions more closely resembled the kind of active pursuit of a workers= compensation claim discussed in Pauli or the passive receipt of benefits discussed in Stolpa.  The factual questions the compensation judge considered in resolving the dispute are (1) whether the employee=s role in initially obtaining benefits under the California statute was active or passive, and (2) whether the employee=s Missouri attorney was retained to assist in the California workers= compensation claim or solely in connection with a third-party action.

 

The compensation judge found that the employee signed a form which was provided by his foreman, Harvey Feaster, for initiating workers= compensation benefits from the California insurer, and that the employee also submitted an affidavit to the insurer about his residence which was prepared in accordance with his foreman=s specific suggestions.  She determined that in so acting the employee was not consciously making a decision to elect California benefits, but was merely requesting payment of weekly benefits and medical expenses from a source offered by his employer.  The judge found that the employee=s attorney in Missouri was retained solely for the purpose of pursuing a third-party claim, rather than to obtain workers= compensation benefits in California.  Finally, the judge determined that the employee had voluntarily received workers= compensation benefits from the insurer without having taken any formal action or filing any pleadings in California.  These findings are amply supported in the record, specifically by the testimony of the employee and of Harvey Feaster, and by the written evidence, including the insurer=s own records. 

 

Accepting the compensation judge=s resolution of the factual issues, we conclude, as did the compensation judge, that the facts of this case more closely resemble that presented in Stolpa than that presented in Pauli.  Although the employee did take some affirmative steps to initiate and cooperate with the voluntary payment of benefits by the California insurer, the employee never instituted any claim for California benefits in a California workers= compensation agency or tribunal.  His filing of a Minnesota claim petition constituted an affirmative election to forego California benefits under Stolpa, and thus the compensation judge did not err in concluding that jurisdiction was present in Minnesota pursuant to Minn. Stat. '176.041, subd. 4.

 

Permanent Total Disability

 

The compensation judge determined that the employee is permanently and totally disabled.  The employer appeals, arguing that the judge=s determination is unsupported by substantial evidence.  Specifically, the employer claims that the employee was not medically totally disabled, but instead is medically capable of working within certain restrictions.  The employer=s position relies primarily on its offer of work within the employee=s medical restrictions operating a modified tug with automatic transmission. 

 

The compensation judge, however, determined that the employee was unable to perform the job offered by the employer on a sustained basis.  Included in the evidence on which the compensation judge based her determination was the employee=s testimony regarding his inability to dress himself, bathe, and to care for his amputation stump, and the physical problems he encounters with sustained use of his leg prosthesis.  These factors reasonably permitted the judge to conclude that the job, requiring travel and temporary accommodations away from the employee=s home, would not in reality prove feasible for the employee.  The medical evidence further indicated that frequent breaks would be necessary if the employee were to attempt this work, and the employee testified that he would have difficulty getting on and off of a tug without assistance.  Although he agreed that the job as described was technically within the employee=s restrictions, the employee=s treating physician, Dr. Rickey Lynn Lents, expressed serious doubts that the employee would be able to perform this work. Similarly, Philip Haber, PhD, a vocational expert, testified that based on the employee=s capabilities as revealed by interviews and testing in his office, the employee was, in his opinion, not employable in the job offered by the employer.  Although differing conclusions might have been reached on this issue, the conclusion reached by the compensation judge regarding the suitability of the job offered by the employer was supported by substantial evidence, and we must affirm.

 

A[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@   Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133‑34, 24 W.C.D. 290, 295 (1967).  "Permanent total disability is primarily dependent on an employee's vocational potential, rather than his physical condition."  Thompson v. Layne of Minn., 50 W.C.D. 84, 100 (W.C.C.A. 1994),  summarily aff'd (Minn. Jan. 19, 1994); see McClish v. Pan‑O‑Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983) (concept of total disability depends on employee's ability to find and hold job, not on his or her physical condition). 

 

Beyond the prospect of working in the job offered by the employer, there was little indication that the employee was capable of obtaining work meeting this standard.  In the opinion of the employee=s vocational expert, Dr. Haber, the employee is permanently totally disabled.  Considering the expert vocational and medical opinions, the employee=s age at the time of the hearing, his physical condition and ninth grade education, substantial evidence supports the compensation judge=s determination that the employee is permanently and totally disabled.  We therefore affirm.

 

Insurer=s Liability

 

The compensation judge found that the contract between the employer and insurer contains language indicating that employees injured outside of the State of California would be covered for workers= compensation benefits but that the coverage was limited to payment at California rates.  (Finding 3 at page 5.)  The compensation judge, however, went on to conclude that she was barred from making a determination of fact interpreting the contractual obligations of the insurer in light of the assumption of jurisdiction by the California courts on that issue. 

 

The employee and the employer appeal from the compensation judge=s failure to interpret the contract of insurance.  They further contend that the contract must be reformed to require that the insurer pay full Minnesota benefits, citing Minn. Stat. ' 176.185, subd. 3.  That subdivision provides that A[w]here the employer=s risk is covered by an insurer the insurance policy shall provide compensation for injury or death in accordance with the full benefits conferred by this chapter.@

 

The insurer appeals from the factual finding regarding the language of the contract, and from the wording of the judge=s order for the payment of benefits, which orders Athe employer/insurer@ to pay permanent total disability compensation.  (Order 2.)  The insurer contends that this finding and this order are inconsistent with the judge=s determination that she lacked jurisdiction to interpret the insurance contract. 

 

We modify the compensation judge=s determination on this issue.  The judge certainly had sufficient jurisdiction to review and interpret the contract to determine whether the contract provided coverage insuring the employer=s risk under the Minnesota workers= compensation law.  We need not decide whether the California court=s decision was a Afinal order@ or whether the compensation judge was required to give deference to the interpretation reached in that court, as it is clear from the unambiguous language of the contract of insurance that the contract was not one which covered the employer=s liability to pay compensation under the Minnesota workers=s compensation act.^[1]  The provisions of Minn. Stat. '176.185 govern A[a] policy of insurance covering the liability to pay compensation under this chapter written by any insurer licensed to insure such liability in this state.@  Minn. Stat. '176.185, subd. 2.   The contract between the employer and the insurer was not such a policy, and the statutory provision of subdivision 3 construing such a policy to cover full Minnesota benefits is inapplicable. 

 

The insurer has taken the position that it was required under its contract with the employer to accept coverage for the employee=s injury, and that it continues to be liable to pay benefits, but that its payment obligations extend only to the same extent as the level of benefits which would be provided under California workers= compensation law.  Our jurisdiction to review and interpret this contract here goes no further than to determine that it does not provide Minnesota workers= compensation insurance. We cannot reach the question as to what other rights it affords the parties inter se as our jurisdiction is limited to questions arising under the Minnesota workers= compensation act. 

 

In accordance with the foregoing, we modify the compensation judge=s order for payment by deletion of the language referring to the insurer.  The employer remains fully liable for payment of Minnesota benefits awarded to the employee.  The liability of the insurer is governed by  a contract whose interpretation and enforcement does not fall within our jurisdiction.  Any issues which may arise with respect to that liability must be pursued in another forum.

 

Miscellaneous Matters

 

There remains solely the question of whether the compensation judge erred in her description of the stipulation of the parties respecting the employee=s overtime and weekly wage.  The statement complained of by the employer on appeal is contained in Finding 3 on page 2 of the Findings and Order, and provides that A. . . it was stipulated that if in fact overtime was not used the employee=s weekly wage was $859.33 . . . and if overtime wage was included, his weekly wage was $1,093.45.@

 

The employer contends first that this does not accurately set out the parties= stipulation.  The transcript discloses that the compensation judge recited essentially this language at the beginning of the hearing as a stipulation of the parties and that no party objected, although an opportunity was afforded to do so.  (T. 6-7.)   In its appeal brief, the employer implicitly acknowledges that this matter was so stipulated, stating Ain their trial brief, the Employer expressly withdrew the stipulation in light of the unanticipated testimony of Edward Dickson on behalf of the Employer Integrity Plus.  It was anticipated by the employer that Mr. Dickson would be able to provide clarity to certain of the wage records provided . . . but Mr. Dickson was uncertain and equivocal regarding his explanation of those wages.@  (Appeal Brief of Employer at 25.)

 

We conclude that the compensation judge did not err in stating or relying on the stipulation as to the choice of wages to be used depending on whether overtime was found to be regular and frequent.  The employer stipulated to certain facts, then sought to withdraw the stipulation post-hearing, based on unfavorable testimony from its own witness.  The other parties relied upon the stipulation in putting in their evidence, and if the employer were able to rescind the stipulation post-hearing, the other parties would be unfairly prejudiced.  Having made the stipulation at the time of the hearing, the employer may not Awithdraw@ it after the close of the evidence.

 

The wage finding of the compensation judge is accordingly affirmed.