DWAYNE M. ROTH, Employee/Appellant v. USX CORP., a/k/a U.S. STEEL CORP., SELF-INSURED, Employer, and MN DEP=T OF HUMAN SERVS., Intervenor, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 21, 2003

 

HEADNOTES

 

PRACTICE & PROCEDURE.  Under the circumstances of this case, the compensation judge committed reversible error by adopting the employer and insurer=s proposed findings and order verbatim, without any explanatory memorandum.  Because it also appears that the judge may have failed to consider post-hearing evidence that the parties intended to have considered, and because the compensation judge is no longer available to reconsider the case, rehearing was required.

 

Reversed and remanded.

 

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

Compensation Judge: Donald C. Erickson

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s findings and order, contending that the judge=s verbatim adoption of the employer and insurer=s proposed findings and order constituted reversible error.  We reverse and refer to the Office of Administrative Hearings for rehearing.

 

BACKGROUND

 

The employee sustained a head injury on September 6, 1995, while working for USX [the employer] as a field millwright.  The employer was self-insured for workers= compensation purposes.  The employee treated for headaches thereafter, and at some point he returned to work. 

 

On July 30, 1997, a hearing was held at the Office of Administrative Hearings on the Employer=s Request for Formal Hearing and Petition to Discontinue filed on May 7, 1997.[1]  In Findings and Order filed on March 3, 1998, the compensation judge found that the work injury was a substantial contributing factor in precipitating the employee=s headaches, that the employee had not refused employment within his physical restrictions, that the employee was working as many hours as he was physically capable of working, and that the employer was not entitled to discontinue benefits.  The employer appealed, but, before a decision was served and filed, the parties entered into a stipulation for settlement.  Under the terms of the stipulation, the employer agreed that the employee had  sustained a compensable post-traumatic headache condition as a result of the work injury and agreed to pay outstanding medical expenses and future reasonable and necessary medical expenses related to the headaches.  In return, the employee agreed to participate in a work hardening program designed to increase his hours of work and productivity.  An award on stipulation was filed on August 24, 1998.

 

The employee participated in a work hardening program and increased his hours at work.  By October of 2000, he had been working in the same job for about a year while continuing to receive  temporary partial disability benefits.  In early September of 2000, the employer served and filed a notice of intention to discontinue temporary partial disability benefits based on the 225-week maximum set forth in Minn. Stat. ' 176.101(3) (1994).  The employee objected, and the matter went to an administrative conference.  An order issued following that conference apparently allowed the employer to discontinue temporary partial benefits.  On October 16, 2000, the employee removed himself from work.

 

On March 12, 2001, the employee filed a claim petition, seeking permanent partial disability benefits for a 5% whole body impairment, based on a Weber[2] rating, and payment of medical expenses.  An amended claim petition was filed on June 21, 2002, adding a claim for permanent total disability benefits continuing from October of 2000.

 

The claim petition proceeded to hearing on November 12, 2002.  In opening statements, counsel for the employer raised the issue of the compensability of narcotic medications.  Counsel for the employee claimed surprise as to this issue and asked for 30 days to secure an additional report on the subject of narcotics and also a report from Dr. Magee on the issue of causation for the employee=s depression.[3]  Defense counsel made no objection to the record remaining open for the additional evidence, and the compensation judge indicated, A[w]ell, we=ll initially set it at 30 days.  If there=s a problem with the 30 days, let=s have a telephone conference and discuss that.@

 

At the conclusion of the hearing that day, the compensation judge allowed the record to remain open for the employee to submit reports from Dr. Magee, Dr. Myerson, and Dr. Schandorf (or his physician=s assistant, Claude Erickson).  Defense counsel asked for time to respond to the post-hearing reports, and the compensation judge indicated that defense counsel should let him know if he needed time to respond and Awe=ll deal with it.@  The judge requested proposed findings and orders to be filed concurrently by the employee and the employer and stated that A[t]he record then will likely close on or about December 12^th.@

 

The employer=s attorney mailed his proposed findings and order on December 12, 2002, and it was stamped as received on December 13, 2002.  The employee=s attorney mailed reports from Dr. Magee and Claude Erickson, along with his proposed findings and order, on December 13, 2002.  Those documents were stamped as received on December 16, 2002.  On February 13, 2003, the compensation judge filed his findings and order, which were identical to the employer=s proposed findings and order.  The employee appeals.

 

DECISION

 

The employee contends that the compensation judge committed reversible error in adopting the employer=s proposed findings and order verbatim, also arguing that the judge=s February 2003 findings and order are directly contradictory to the judge=s 1998 findings.  We agree that, under the particular facts of this case, the judge=s verbatim adoption of the employer=s proposed findings and order, without a written memorandum, constitutes reversible error.

 

The employer cites the case of Goldman v. Bryn Mawr Nursing Home, slip op. (W.C.C.A. Nov. 23, 1998), for the proposition that a compensation judge=s decision may be affirmed based upon substantial evidence even when the judge adopts proposed findings and order as his own.  In Goldman, however, some changes were made in the proposed findings and order before the compensation judge signed them, and the findings and order included a memorandum explaining the judge=s decision.  In Goldman, this court cited the case of Hagg v. Olympic Steel, Inc., slip op. (W.C.C.A. Sept. 1, 1998), which held that, where the findings are supported by the record and a sufficiently detailed memorandum, it is not reversible error for the judge to adopt nearly verbatim proposed findings and order.

 

This court issued another decision addressing a compensation judge=s adoption of proposed findings and order in Webber v. Senior Friend Assocs., Inc., slip. op. (W.C.C.A. May 1, 2003).  In Webber, this court again affirmed the judge=s decision based on substantial evidence, but, again, the judge=s findings and order apparently differed at least somewhat from the proposed findings and order.[4]

 

In Anderson v. The Salvation Army, slip. op. (W.C.C.A. June 27, 2003), this court held that the submission of proposed findings does not change the compensation judge=s obligation to review and evaluate the evidence.  In that case, the compensation judge had adopted one party=s proposed findings and order Awith some modifications.@  This court stated that we Aprefer that the compensation judge mainly use the proposed findings as a guide or checklist and that the compensation judge redraft the findings and memorandum to reflect his or her independent judgment.@  However, citing Goldman and Hagg, the court went on to affirm the judge=s findings.

 

In the instant case, the parties agree that the compensation judge adopted the employer=s proposed findings and order verbatim.  No changes, whatsoever, were made.  In addition, there was no memorandum attached to the findings and order to explain the judge=s rationale for his decision.  We therefore find this case to be distinguishable from the cases cited above.  The judge=s verbatim adoption of a proposed findings and order here, without any memorandum, makes it impossible for this court to determine whether the judge independently determined all of the contested issues of fact and law submitted to him.

 

One other issue warrants discussion.  The record was left open at the conclusion of the hearing for employee=s counsel to submit additional medical reports.  A suggested date of December 12, 2002, was given for submission of the medical reports and the proposed findings and orders.  Neither party submitted their proposed findings and order by that date.  The employer=s findings and order were filed on December 13, 2002, and the employee=s reports and findings and order were filed on December 16, 2002.  After receipt of the medical reports, counsel for the employer wrote to the compensation judge on January 8, 2003, stating that he would not be submitting any new supplemental reports in rebuttal.  On January 27, 2003, employer=s counsel wrote to the compensation judge, specifically addressing the December 12, 2002, report of Claude Erickson, disputing the contents of that report but stating that he did Anot object to its admissibility.@  This correspondence suggests that both parties intended that the medical reports submitted by the employee=s attorney post-hearing be considered as evidence in this matter.  As the findings and order filed on February 13, 2003, state that the record closed on December 12, 2002, it is entirely possible that the compensation judge failed to review those medical records.

 

Under other circumstances, we might have remanded this case to the compensation judge for reconsideration and/or clarification, including consideration of the medical reports filed post-hearing.  In this case, however, the compensation judge has left the Office of Administrative Hearings.  We therefore reluctantly refer the case back to the Office of Administrative Hearings for a new hearing.