KAREN WHITLOCK, Employee, v. MINNEAPOLIS COLLEGE OF ART & DESIGN and HARTFORD INS. GROUP, Employer-Insurer/Appellants, and MINNEAPOLIS COLLEGE OF ART & DESIGN and CNA COMMERCIAL INS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 1, 2002

 

HEADNOTES

 

PRACTICE & PROCEDURE - TEMPORARY ORDER.  Where only one employer and insurer were parties to the action, the compensation judge erred in ordering the employer and insurer to pay benefits pursuant to a temporary order under Minn. Stat. ' 176.191.

 

Temporary order vacated.

 

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

Compensation Judge:  Gary M. Hall.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and Hartford Insurance Group appeal from the compensation judge=s temporary order requiring Hartford to pay certain benefits pending final determination of liability.  We vacate the order.

 

BACKGROUND

 

According to a First Report of Injury, the employee sustained a work injury on October 5, 1993, described as A[p]ain in wrists, palms of hands and fingers, right and left numbness in all fingers--pain in elbows and down arms - right and left loss of strength in hands.@  The report was received by Hartford Insurance Group (workers= compensation insurer for the employer on the claimed injury date) on March 7, 1994, and was filed with the Department of Labor and Industry [the Department] on May 7, 2001.

 

On December 13, 1999, another First Report of Injury was filed with the Department, listing an injury date of October 29, 1999, when the employee Afell on knee (right knee).@  The employee was employed by the same employer at the time, but the employer=s workers= compensation insurer was CNA Insurance Companies.

 

On May 11, 2001, the employee filed a claim petition listing the October 5, 1993, injury and seeking payment of out-of-pocket prescription expenses and approval for surgery recommended by Dr. Benjamin Levine.^[1]  The employer and Hartford answered, admitting the occurrence of an injury on October 5, 1993, but denying that the injury was work-related and alleging that the employee=s need for medical treatment was solely the result of a disease process unrelated to the alleged work injury, that the need for treatment was solely the result of superseding, intervening injuries or nonwork-related activities, or that the injuries had been sustained while the employee was employed by other employers and/or while other insurers were on risk for the coverage.^[2]

 

The claim petition was scheduled for hearing on September 6, 2001.  At that time, the case caption reflected that CNA was a party to the action; however, an attorney appearing at the hearing for CNA informed the court that CNA had not been formally joined in the proceeding.  The employee then moved for a temporary order against Hartford.

 

In an order filed on October 5, 2001, the compensation judge found, in part, that the employer and Hartford had admitted an October 5, 1993, work injury in the nature of a bilateral upper extremity cumulative injury, that the medical records since the date of injury reflected a variety of tentative diagnoses, all of which were consistent with the admitted injury, that neither the medical evidence presented at hearing nor the employee=s deposition provided a good faith basis to deny the disputed medical expenses, and that the employee was likely to prevail against Hartford.  The judge then ordered that, pursuant to Minn. Stat. ' 176.191, Hartford should pay the disputed medical expenses.  Hartford 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

 

Minn. Stat. '176.191, subd. 1, states:

 

Where compensation benefits are payable under this chapter, and a dispute exists between two or more employers or two or more insurers or the special compensation fund as to which is liable for payment, the commissioner, compensation judge, or court of appeals upon appeal shall direct that one or more of the employers or insurers or the special compensation fund make payment of the benefits pending a determination of which has liability.  .  .  . 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.

 

In the instant case, neither the employee nor Hartford has formally joined CNA as a party to this action.  Accordingly, there is no formal dispute between two or more insurers, and Minn. Stat. ' 176.191 does not apply.  Hartford has not voluntarily agreed to pay under a temporary order.  We therefore vacate the temporary order filed on October 5, 2001.^[3]