MARGARET J. SANDERS, Employee, v. AERO DESIGN & MFG. CO. and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 2, 2003

 

HEADNOTES

 

PRACTICE & PROCEDURE - EXPEDITED HEARING; PRACTICE & PROCEDURE - MATTERS AT ISSUE.  Where there was no indication in the record that the parties agreed to expand the issues beyond the employee=s medical request for surgical treatment to include a determination of primary liability or of the employee=s entitlement to temporary total disability benefits, and where the Findings and Order of the compensation judge were premised on a primary liability determination, the Findings and Order of the compensation judge were vacated and the matter was remanded to the Office of Administrative Hearings for further proceedings.

 

Vacated and remanded.

 

Determined by Pederson, J., Wilson, J., and Johnson, C.J.

Compensation Judge: James F. Cannon

 

Attorneys: Devin J. Murphy, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for Appellants.  Russell J. LaCourse, LaCourse Law Office, Duluth, MN, for Respondent.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s determination that the employee sustained a work-related right shoulder injury on January 16, 1997, and from the judge=s consequent award of surgical treatment and temporary total disability benefits.  We vacate the decision of the judge and remand for further proceedings.

 

BACKGROUND

 

On December 20, 2002, Margaret Sanders [the employee] filed a medical request with the Department of Labor and Industry, seeking Apreauthorization for a global right shoulder arthroplasty@ consequent to a January 16, 1997, work injury sustained in the employ of Aero Design and Manufacturing Company [the employer].  On January 14, 2003, Dr. Thomas Kaiser performed the surgery identified in the employee=s medical request.  Also on January 14, 2003, a Notice of Expedited Hearing was issued by the Office of Administrative Hearings, scheduling the employee=s medical request for an AExpedited De Novo Hearing pursuant to Minn. Stat. ' 176.106, Subd. 7, based upon the filing of a Request for Formal Hearing.@  The hearing was scheduled for February 20, 2003.  Neither party had requested a formal hearing,^[1] and on February 10, 2003, counsel for the employer and insurer filed a Motion for Continuance with the Office of Administrative Hearings to allow sufficient time to conduct an investigation and to prepare a proper defense.  According to an affidavit accompanying the motion, the first available date for an independent medical evaluation [IME] was February 21, 2003, one day after the scheduled hearing.  On February 12, 2003, a compensation judge issued a verbal order denying the motion.

 

The employee=s medical request came on for hearing before Compensation Judge James Cannon on February 20, 2003.  At the hearing, following brief opening statements by counsel for both parties, the court received exhibits that had been marked for identification before going on the record.  The case then immediately proceeded with the testimony of the employee.  The compensation judge did not identify for the record the issues to be tried, nor was there any indication that the parties agreed to expand litigation beyond that issue set forth in the employee=s medical request.  At the conclusion of the employee=s testimony, the judge indicated that the record would remain open to allow submission of the employer and insurer=s IME report within thirty days of the hearing date.  Following submission of that report, the parties were allowed an additional week to submit written letter briefs.

 

On March 19, 2003, counsel for the employer and insurer filed the report of their medical examiner, Dr. Richard Strand.  One of the opinions offered by Dr. Strand was that the employee=s work activities with the employer between April of 1996 and January of 1997 were not a substantial contributing factor in the employee=s right shoulder degenerative arthrosis.  Consequently, on March 21, 2003, the employer and insurer filed a Notice of Insurer=s Primary Liability Determination, denying primary liability for the employee=s claimed injury of January 16, 1997, stating that A[a]ll benefits previously paid by the insurer were the result of a mistake of fact.@

 

In a Findings and Order issued April 23, 2003, the compensation judge identified the following issues:

 

1.  Whether the employee sustained a right shoulder Gillette-type injury on January 16, 1997, while employed as an assembly worker for the employer?

 

2.  Whether the employee=s right shoulder surgery, in the nature of a global right shoulder arthroplasty, performed on January 14, 2003, was reasonable and necessary due to, and causally related to, a work-related right shoulder Gillette-type injury occurring on January 16, 1997?

 

3.  Whether the employee was temporarily totally disabled from January 15, 2003 to February 3, 2003, due to a work-related right shoulder Gillette-type injury of January 16, 1997?

 

The compensation judge found that the employee had sustained a Gillette-type injury^[2] on January 16, 1997, while employed by the employer and that the employee=s right shoulder surgery performed on January 14, 2003, constituted reasonable and necessary medical treatment causally related to that 1997 injury.  In addition to ordering them to pay for the employee=s surgery, the judge ordered the employer and insurer to pay a brief period of temporary total disability benefits.  The employer and insurer appeal.

 

DECISION

 

The employer and insurer contend that the issue of primary liability, upon which the judge decided this case, was not properly before the court.  The only issue raised by the employee=s medical request, they assert, was pre-authorization for a surgical procedure.  They contend that, absent an agreement to expand the issues, the judge exceeded his authority and committed an error of law.  Accordingly, the employer and insurer ask this court to vacate the judge=s decision and to remand the matter to the Office of Administrative Hearings.^[3]

 

In response, the employee contends that the issue of primary liability was properly before  the compensation judge.  In fact, she contends, it was the employer and insurer who raised the issue of primary liability after the hearing by way of the IME opinion of Dr. Strand.  She argues, ANot only did they ask for the issue to be considered by Judge Cannon but they wanted a further hearing on that issue even though the IME report came after the hearing because of their own delay in obtaining the IME opinion.@

 

Whether or not the employer and insurer may have dragged their feet in preparing a defense to the employee=s medical request, including the scheduling of the medical examination with Dr. Strand, the sole issue raised by the employee=s medical request was pre-authorization for a surgical procedure.  Had there been, as contemplated by Minn. Stat. ' 176.106, subd. 7, a request for a formal hearing, the issues raised at the hearing would have been limited to the issues raised in the medical request unless all parties agreed to expand the issues.  Cf. Minn. Stat. ' 176.238, subd. 6.  In this case, we see nothing in the record to indicate that the parties had agreed to expand the issues beyond the claim in the medical request.

 

In Eide v. Timberland Lumber Company, slip op. (W.C.C.A. Aug. 19, 2003), this court, in addressing a similar issue raised under the expedited hearing procedures in Minn. Stat. ' 176.238, noted that, when a hearing is expedited, Athe responding party has a very limited period of time to perform discovery and obtain medical records and medical reports.@  Citing Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988), the court in Eide noted that A[b]asic fairness requires the parties in a workers= compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.@  Accordingly, as in Eide, we conclude that any expansion of the issues in this case should have been made by a clear and unambiguous agreement of the parties.  We conclude that there was no such agreement in this case.

 

Finding no indication in the record that the parties agreed to expand the issues to include a determination of primary liability or of the employee=s entitlement to temporary total disability benefits, and concluding that the Findings and Order of the compensation judge are premised on his primary liability determination, we vacate the Findings and Order of the compensation judge issued April 23, 2003, and we remand the matter to the Office of Administrative Hearings for further proceedings.  On remand, the compensation judge should permit the parties to submit further evidence relevant not only to the issues of primary liability for a 1997 work injury and entitlement to consequent temporary total disability benefits but also to the issues of the reasonableness and necessity of the requested surgery and that surgery=s causal relationship to such an injury.  The judge should then make findings on all of these issues.