DAVID J. SCHULTZ, Employee, v. WHOLESALE PRODUCE SUPPLY CO., INC., and AMERICAN COMPENSATION INS. CO./RTW, INC., Employer-Insurer/Appellants, and PHY­SICIANS NECK & BACK CLINIC and UNIVERSITY OF MINN. PHYSICIANS, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 4, 2003

 

HEADNOTES

 

PRACTICE & PROCEDURE.  Where this court lacked subject matter jurisdiction to review an Order on Agreement issued after an administrative conference prior to a decision on the merits, there is no record of the proceedings at the administrative conference, and the appellants did not allege prejudice or insufficient time to prepare to litigate, the compensation judge=s decision concluding the Order was not binding in a hearing on the employee=s claim petition was not an abuse of discretion or legally erroneous.

 

Affirmed.

 

Determined by Johnson, C.J., Rykken, J., and Stofferahn, J.

Compensation Judge:  Penny Johnson.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s determination that an Order on Agreement issued after an administrative conference was not binding in a hearing on a claim petition.  We affirm.

 

BACKGROUND

 

The facts in this case are essentially undisputed.  David J. Schultz, the employee, worked for the employer, Wholesale Produce Supply Company, Inc., as a warehouse worker and delivery driver.  On April 27, 2000, the employee sustained a personal injury arising out of and in the course of his employment.  The employer was then insured by American Compensation Insurance Company/RTW, Inc.  The employer and its insurer admitted liability for the employee=s personal injury and commenced payment of wage loss and medical benefits. 

 

Following his injury, the employee obtained medical treatment at NowCare Medical Centers, Inc., primarily for neck and shoulder pain.  In July 2000, Dr. Louis Gramer performed an excision of the distal clavicle and a rotator cuff repair of the employee=s left shoulder.  In March 2001, the employee saw Dr. Michael Freehill with continued complaints of left shoulder pain and stiffness.  In July 2001, Dr. Freehill performed a second surgical procedure on the employee=s left shoulder.  Thereafter, Dr. Freehill began treating the employee=s right shoulder.  In October 2001, Dr. Freehill performed a coracoid decompression and repaired a labral tear in the employee=s right shoulder. 

 

In January 2002, the employee filed a claim petition seeking medical benefits^[1] and contending that on April 27, 2000, he injured his right and left shoulders, arms, hands and his back and leg.  In their answer, the employer and insurer admitted the employee sustained a personal injury on April 27, 2000, but denied the nature of the injury was to the shoulders, arms, hands, back and leg as claimed. 

 

On April 26, 2002, the employee was examined by Dr. Robert Barnett, Jr., at the request of the insurer.  The doctor diagnosed left shoulder pain with subacromial impingement and a cervical sprain/strain, which conditions he opined resulted from the April 2000 work injury.  Dr. Barnett opined the cervical sprain/strain was a temporary condition which had resolved by the date of his examination.  The doctor further noted the employee sustained a contusion to his hip as a result of the personal injury but stated this condition had also resolved by the date of his examination.  The doctor stated the employee had preexisting degenerative changes in his right shoulder and lumbar spine which were unaffected by the personal injury.  Dr. Barnett opined the employee needed no further medical treatment and stated the employee had reached maximum medical improvement (MMI) with respect to his cervical spine and left shoulder injuries.  The doctor further concluded the employee had reached maximum medical improvement with respect to his right shoulder and low back conditions, although those conditions were not causally related to the admitted injury.  Dr. Barnett=s report was served and filed on May 21, 2002.

 

The employee returned to see Dr. Freehill on August 27, 2002.  The doctor=s assessment was status post coracoid impingement of both shoulders and cervical disc degeneration with cervical spondylosis.  By report dated August 27, 2002, Dr. Freehill opined the employee had reached maximum medical improvement, and assigned permanent restrictions. 

 

On July 17, 2002, the insurer served and filed a Notice of Intention to Discontinue  Workers= Compensation Benefits (NOID).  The insurer contended the employee reached MMI on April 26, 2002 pursuant to Dr. Barnett=s report.  The employee requested an administrative conference under Minn. Stat. ' 176.239, which was held on August 29, 2002.  Compensation Judge Peggy A. Brenden served and filed an Order on Agreement on September 3, 2002, stating, in part,

 

The issue presented at the conference was whether/when the employee reached maximum medical improvement. 

 

The parties reached an agreement on the issue of maximum medical improvement, stipulating that the date of maximum medical improvement occurred on July 8, 2002 and that entitlement to temporary total disability benefits would expire 90 days later on October 6, 2002.

 

NOW THEREFORE IT IS HEREBY ORDERED that the employer/insurer shall continue to pay temporary total disability benefits through October 6, 2002 as long as the employee remains otherwise eligible for temporary total disability benefits.

 

The employee did not file an objection to discontinuance under Minn. Stat. ' 176.238, subd. 4.

 

The employee=s claim petition was heard before Compensation Judge Penny Johnson on February 13, 2003.  In a Findings and Order filed March 17, 2003, the compensation judge found the employee=s right shoulder condition resulted from the April 27, 2000 personal injury but found the claimed low back condition did not result from the injury.  The judge found the employee=s cervical injury had not resolved by April 26, 2002, the date of Dr. Barnett=s examination.  The judge further found the parties= agreement as reflected in the Order on Agreement of September 3, 2002 was not binding in the current proceedings.  The compensation judge found the Order Awas not a knowing waiver by the employee of a claim for additional temporary total disability benefits upon resolution of his Claim Petition, nor was it an agreement that MMI had been reached for conditions not admitted as work-related by the insurer or judicially determined to be work-related.@  (Finding 25.)  The compensation judge then ordered the insurer to pay temporary total disability benefits from October 7, 2002 through the date of the hearing and continuing as warranted by law.  The employer and insurer appeal.

 

DECISION

 

The employer and insurer contend the Order on Agreement, which incorporates the agreement of the parties that the employee reached MMI on July 8, 2002, is binding on the parties and bars any claim for wage loss benefits after October 6, 2002.  Noting it is well settled that to discontinue benefits, the employee must reach MMI from all compensable injuries, Hammer v. Mark Hagen Plumbing & Heating Co., 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989), the appellants argue the employee=s agreement at the administrative conference that he had reached maximum medical improvement could only mean he had fully recovered from the effects of his personal injury.  The agreement, they assert, covered all conditions, symptoms or body parts affected by the injury, whether admitted or denied.  Whether or not liability was admitted for the personal injury, the appellants argue, has nothing to do with whether the employee reached maximum medical improvement from the effects of that personal injury.  For these reasons, the employer and insurer contend the compensation judge erred as a matter of law in issuing MMI findings contrary to the September 3, 2003 Order on Agreement. 

 

The employee argues that Minn. Stat. ' 176.521 provides an agreement between the employee and the employer and insurer to settle any claim is valid only if it is in writing and signed by the parties.  Further, the employee asserts his stipulation of maximum medical improvement at the administrative conference related only to the admitted left shoulder condition.  Mr. Cody stated he did not agree his client had reached MMI from the effects of the right shoulder, neck or low back conditions, liability for which had been denied by the employer and insurer.  (T. 15-16.)  Accordingly, the employee contends the compensation judge correctly applied the law in concluding the employee had not reached MMI and awarding temporary total disability benefits. 

 

Initially, we note that had the judge at the administrative conference issued an interim administrative decision under Minn. Stat. ' 176.239, subd. 7, rather than the Order on Agreement, either party would have been entitled at any time to a de novo hearing on the MMI issue.^[2]  Further, this court would not have had subject matter jurisdiction to review the Order on Agreement prior to the compensation judge=s decision on the merits of the case.  Ahlman v. Lenfer Transmissions, 59 W.C.D. 619 (W.C.C.A. 1999); Mierau v. Alcon Indus., Inc., 387 N.W.2d 741, 38 W.C.D. 652 (Minn. 1986).  The Order on Agreement resulted from an administrative conference under Minn. Stat. ' 176.239.  An administrative conference is not the equivalent of an evidentiary hearing and is not intended to be a forum for the adjudication of disputed questions of fact or law.  Clay v. American Residential Mortgage Corp., 56 W.C.D. 37 (W.C.C.A. 1996).  The parties apparently disagreed about the meaning and effect of the MMI agreement reached at the conference.  There is, however, no record of the proceedings at the administrative conference.  Absent a record, the Workers= Compensation Court of Appeals is unable to review the question of the intent of the parties and the nature and effect of their stipulation as set forth in the Order on Agreement.  Bild v. Independent Sch. Dist. #625, 59 W.C.D. 343 (W.C.C.A. 1999); Stillson v. Holiday Co., slip op. (W.C.C.A. Aug. 11, 2000).

 

The compensation judge concluded the Order on Agreement was not binding in the current hearing.  Accordingly, the MMI issue was litigated at the scheduled hearing and no delay resulted.  Although they argue the compensation judge=s decision was legally erroneous, the appellants do not contend they were prejudiced by the decision.  Nor do they assert they had insufficient time to prepare to litigate the MMI issue.^[3]  Accordingly, the decision to litigate the MMI issue did not prejudice either party or adversely impact the underlying litigation.  Finally, we see no evidence of any bad faith or inexcusable neglect on the part of employee=s counsel.  See Cotroneo v. Pilney, 343 N.W.2d 645 (Minn. 1984).

 

Certainly, parties in litigation should be encouraged to enter into stipulations in order to facilitate a just and prompt disposition of the action.  In certain cases, however, the interests of justice may permit some modification of or relief from such a stipulation.  Under the circumstances here, we cannot conclude the compensation judge=s decision about the effect of the Order on Agreement was an abuse of discretion or legally erroneous.  Accordingly, the Findings and Order of the compensation judge are affirmed.