DONALD P. WENDERSKI, Employee, v. JOHN A. DALSIN & SON, INC., SELF-INSURED/BERKLEY RISK ADM=RS, Employer/Appellant, and ROOFERS LOCAL NO. 96 HEALTH & WELFARE FUND, ANESTHESIA ASSOCS. OF ST. CLOUD, ST. CLOUD ORTHOPEDIC ASSOCS., and ST. CLOUD HOSP., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 18, 2003

 

HEADNOTES

 

JURISDICTION - SUBJECT MATTER; INTERVENORS.  Where the employer had paid the employee his full salary instead of workers= compensation benefits during the period of temporary work-related disability at issue, and where the employee had also received weekly disability benefits from his union during the same period, the compensation judge=s order that the self-insured employer reimburse the intervening union for the benefits that it had paid was vacated for lack of statutory authority, and the WCCA had no jurisdiction to order the employee to reimburse the Fund directly.

 

Vacated.

 

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

Compensation Judge:  Paul D. Vallant.

 

Attorneys:  Edward Q. Cassidy and Karen M. Charlson, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for Employer.  Stephen Kelly, Rosene, Haugrud & Staab, St. Paul, MN, for Roofers Local No. 96 Health & Welfare Fund.  Jerry J. Lindberg, Drewski & Lindberg, Sauk Rapids, MN, for Employee.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The self-insured employer appeals from the compensation judge=s order directing it to reimburse the intervenor, Roofers Local No. 96 Health and Welfare Fund, for disability payments made to the employee from March 27, 2001, to July 5, 2001, together with statutory interest.  We vacate the judge=s order for reimbursement.

 

BACKGROUND

 

Donald Wenderski [the employee] has worked in the commercial roofing industry since 1965.  In 1988, he began working for John A. Dalsin & Son, Inc. [the employer].  The employee=s jobs were described as very physically taxing on his knees.  On March 27, 2001, the employee underwent a right total knee arthroplasty performed by Dr. Steven Mulawka.  The employee was subsequently off work on a medical leave until July 5, 2001.  While on leave, the employer continued to pay the employee=s full salary.  Around this same time, the employee applied for weekly disability benefits provided under a plan sponsored by the Roofers Local No. 96 Health and Welfare Fund [the Fund].  The Fund paid weekly benefits to the employee from March 27, 2001, through July 22, 2001.  On April 30, 2001, the employee filed a claim petition, alleging Gillette-type^[1] injuries to his right knee culminating on November 12, 1993, and March 27, 2001.^[2]  The employer, which was self-insured at the time, denied liability for the claimed injuries, and the Fund intervened for reimbursement of medical and disability benefits paid.

 

The employee=s claims came on for hearing before a compensation judge on December 10, 2002.  At the hearing, the judge identified the following issues:

 

1.Whether the employee had sustained Gillette-type injuries to his right and left knees on November 12, 1993, or March 27, 2001, as alleged.

 

2.Whether the employer had had knowledge or due notice of the alleged injuries.

 

3.Whether the employee is entitled to temporary total disability benefits from March 7, 2001, through July 5, 2001.

 

4.Whether the employee is subject to an 8% permanent partial disability of the whole body related to his alleged right knee injury.

 

5.Whether outstanding medical bills, medical mileage, and out-of-pocket expenses should be paid or reimbursed.

 

6.Whether the intervenors herein should be reimbursed.

 

The parties stipulated to a weekly wage of $1,133.38 with regard to the claimed injury of March 27, 2001, stipulating also that, if the employee=s claim were to be found to be compensable, the intervenors would be entitled to reimbursement of medical expenses pursuant to the fee schedules.^[3]

 

In a Findings and Order issued February 10, 2003, the compensation judge found that the employee sustained Gillette injuries to his right and left knees culminating on March 27, 2001, and that the employer received proper notice under the statute.  He also found that the employee was temporarily totally disabled from March 27, 2001, through July 5, 2001, and had sustained an 8% permanent partial disability of the body as a whole as a result of the right knee injury.  At Finding 18, the judge also found that the employee received salary continuation from the employer from March 27, 2001, through July 5, 2001, together with disability payments from the Fund during that period of time.  Based on these findings, the judge ordered the employer to pay permanent partial disability benefits to the employee and to pay the employee=s outstanding medical expenses, as well as to reimburse the Fund for medical expenses it paid on behalf of the employee.  The judge did not order the employer to pay temporary total disability benefits to the employee, but he did order the employer to reimburse the Fund for disability payments it had made to the employee from March 27, 2001, through July 5, 2001.  The employer appeals from the judge=s order for reimbursement of disability benefits paid by the Fund.

 

STANDARD OF REVIEW

 

A[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.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

It is undisputed that the employee was temporarily totally disabled from March 27, 2001, through July 5, 2001.  It is also undisputed that, during the period of his disability, the employee received both salary continuation from his employer and weekly accident and sickness (disability) benefits from the Fund.  The employer argues that the employee, not the employer, must be ordered to reimburse the Fund, because the judge=s order requires a double payment by the employer and allows a double recovery by the employee, contrary to the principles of Lemmer v. Batzli Elec. Co., 267 Minn. 8, 125 N.W.2d 434, 23 W.C.D. 77 (1963).  The employee argues that this court has no authority to enter an order of reimbursement against the employee except pursuant to Minn. Stat. ' 176.179,  that it was appropriate for the judge to order the employer to reimburse the Fund in lieu of an award of temporary total disability to the employee, and that the employer failed to plead a claim for reimbursement or offset for the salary continuation benefits.  The Fund asserts that no timely response was made to its proposed stipulation and that therefore the amounts paid on behalf of the employee are deemed to be accurate and related to the employee=s alleged work-related injury.  Therefore, the Fund argues, because both the employer and the employee waived their right to object, the Fund=s claim should be granted pursuant to the compensation judge=s order or, in the alternative, this court should order the employee to reimburse the employer for its additional payments and leave in effect the judge=s order regarding reimbursement to the Fund.

 

It is well settled that an intervenor can intervene only in a proceeding commenced by the employee, Tatro v. Hartmann=s Store, 295 Minn. 282, 204 N.W.2d 125, 26 W.C.D. 576 (1973), and that Athe intervenor=s right to reimbursement is contingent upon the employee=s successful pursuit of the employee=s basic claim.  As a result, the intervenor=s rights are derivative and indirect in nature.@  Douglas v. Marc=s Country Inn, slip op. (W.C.C.A. Oct. 31, 1995), citing Freeman v. Armour Food Co., 380 N.W.2d 816, 38 W.C.D. 445 (Minn. 1986).  In this case, there is no dispute about the Fund=s right to reimbursement for medical expenses paid on behalf of the employee.  The dispute arises over the judge=s order requiring the employer to reimburse the Fund for disability payments made by the Fund to the employee from March 27, 2001, through July 5, 2001.  Nowhere in the judge=s Findings and Order does the judge identify a source of payment to the employee from which reimbursement to the Fund may be made.  Nor does the judge indicate that reimbursement to the Fund was in lieu of temporary total disability benefits due and owing to the employee.  Presumably, in light of his finding that the employee received salary continuation, the judge did not order payment of temporary total disability benefits.

 

Minn. Stat. ' 176.221, subd. 9, permits an employer to pay full wages to an injured employee rather than paying temporary total disability benefits.^[4]  The compensation judge found the self-insured employer did pay full wages to the employee during his disability, and substantial evidence supports this finding.^[5]  The employee, therefore, has no claim against the employer for wage loss benefits.  Since the Fund=s right to reimbursement is derivative of the employee=s right to wage loss benefits,^[6] the compensation judge=s award to the Fund is legally erroneous and is vacated.  We agree also with the employee=s assertion that this court lacks jurisdiction to order the employee to directly reimburse the Fund.  See Immerman v. Independent Sch. Dist. #625, 51 W.C.D. 34 (W.C.C.A. 1994).