Decker v. Midwest Hearing

DANIEL D. DECKER, Employee, v. MIDWEST HEARING and SECURA INS. CO., Employer-Insurer/Appellants.

PRACTICE & PROCEDURE - EXPEDITED HEARING. The compensation judge did not err in making a finding as to maximum medical improvement [MMI] where one of three NOIDs sought discontinuance based on MMI, an administrative decision referred to that NOID, and the employee filed an objection to that decision.

PRACTICE & PROCEDURE - MATTERS AT ISSUE. The compensation judge erred in awarding temporary partial disability benefits where there was no clear claim for temporary partial disability benefits at the hearing and where no evidence whatsoever was submitted concerning the employee=s alleged employment.

The employer and insurer appeal from the judge=s findings regarding maximum medical improvement and the employee=s entitlement to temporary partial disability benefits. We affirm the judge=s finding as to maximum medical improvement and vacate the judge=s findings regarding temporary partial disability.

The employee sustained a work-related injury to his lumbar spine on January 5, 2001, while employed by Midwest Heating [the employer]. The employer and insurer admitted liability for an injury and paid temporary total and temporary partial disability benefits.

The employee was examined by independent medical examiner Dr. David Boxall on July 10, 2002. Dr. Boxall diagnosed, in part, a history of low back strain and suggestion of functional overlay or symptom magnification. It was Dr. Boxall=s opinion that the employee=s work injury Ahad resolved completely by May 1, 2001," and that the employee had sustained a new, discrete nonwork-related injury to the lumbar spine in early May of 2001, which had caused the employee=s symptoms, disability, and need for medical treatment thereafter. Dr. Boxall also opined that the employee had reached maximum medical improvement [MMI] from the January 5, 2001, injury as of May 1, 2001.

On July 23, 2002, the employer and insurer filed a notice of intention to discontinue benefits [NOID], seeking to discontinue temporary total disability benefits after July 19, 2002, as AMaximum Medical Improvement reached 5-1-2001 regarding 1-5-01 injury per Dr. Boxall. See attached report. No permanent partial disability resulted.@ On July 26, 2002, the employer and insurer filed an amended NOID, seeking to discontinue benefits after July 19, 2002, because A[t]he effects of the 1-5-01 injury resolved by 5-1-01 pursuant to the 5-1-01 report of Dr. Christiana and the 7-10-02 report of Dr. Boxall. (See reports sent with NOID filed 7-23-02). Employee=s back symptoms and complaints after 5-1-01 are the result of a superseding, intervening injury.@ On August 13, 2002, the employer and insurer filed another amended NOID, seeking to discontinue temporary total disability benefits after July 23, 2002, for exactly the reasons specified on the July 26, 2002, NOID.

The three NOIDs proceeded to an administrative conference under Minn. Stat. '176.239. In an order served and filed on September 5, 2002, a compensation judge of the Office of Administrative Hearings allowed the discontinuance. The employee filed an objection to discontinuance, which proceeded to hearing on December 3, 2002.

In Findings and Order filed on January 2, 2003, the compensation judge found, in relevant part, that the employee was not yet at MMI, that the employee had returned to work on September 20, 2002, at a wage loss, and that the employee was entitled to temporary partial disability benefits from September 20, 2002, through the date of hearing and continuing. The employer and insurer appeal.

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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 evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id., at 60, 37 W.C.D. at 240. Similarly, A[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). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.

The employer and insurer contend that the compensation judge exceeded her jurisdiction in making a determination regarding MMI, as the NOID seeking discontinuance based on MMI had been withdrawn. We are not persuaded.

The employer and insurer filed three NOIDs. The NOID filed on July 23, 2002, alleged that A[MMI] reached 5-1-2001." The two subsequent Aamended@ NOIDs alleged that Athe effects of the 1-5-01 injury resolved by 5-1-01.@ Minn. Stat. ' 176.238, subd. 6, provides that the hearing on an objection to discontinuance shall be limited Ato the issues raised by the notice or petition unless all parties agree to expanding the issues.@ The order on discontinuance filed on September 5, 2002, referenced all three NOIDs. The employee filed an objection to that order, and all three NOIDs were therefore appropriately before the compensation judge at the hearing on January 2, 2003. The compensation judge did not exceed her authority is making a finding as to MMI, and we therefore affirm that finding.^[1]

The employer and insurer also contend that the compensation judge erred in deciding the issue of temporary partial disability. We agree.

At hearing, the compensation judge initially listed the issues for decision as Aentitlement to temporary total disability benefits July 19, 2002, to September 20, 2002, and temporary partial disability benefits September 20, 2002, to present and continuing,@ but she then asked the employee=s attorney to explain Awhat is at issue today.@ Counsel for the employee did not list temporary partial disability as an issue nor did counsel for the employer and insurer ever agree to litigate the issue of the employee=s entitlement to temporary partial disability benefits. We also note that return to work and the issue of temporary partial disability benefits were not raised by any of the NOIDs.

In his brief, the employee asserts that his counsel disclosed to the compensation judge at hearing that, because the employee had returned to work on September 20, 2002, he was not seeking temporary total disability benefits after that date.^[2] However, nowhere in his brief does the employee contend that he was seeking temporary partial disability benefits at the time of trial. In addition, there is no evidence of record about the employee=s alleged return to work. The employee did not testify about returning to work in September of 2002, and no records concerning earnings from the alleged September 2002 job were introduced at hearing. As such, the compensation judge erred in making a finding regarding temporary partial disability. See Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988) (due process requires notice and reasonable opportunity to be heard before decisions as to benefit entitlement may be made). The judge=s findings and order regarding the employee=s return to work in September of 2002 and his entitlement to temporary partial disability benefits are therefore vacated.

^[1] The employer and insurer did not argue that substantial evidence does not support the judge=s finding that the employee has not reached MMI.

^[2] This discussion is not contained in the hearing transcript.