RONDA L. ALLEN, Employee/Appellant, v. NORTHWEST AIRLINES CORP., and LIBERTY MUT. INS. COS., Employer-Insurer, and MEDICA by  HEALTHCARE RECOVERIES, Intervenor.

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 26, 2004

HEADNOTES

NOTICE of DISCONTINUANCE; TEMPORARY TOTAL DISABILITY.  Where an employer and insurer originally admitted liability for the employee=s claimed injury and later denied primary liability for the employee=s entire claim, and where the employer and insurer filed a notice of intention to discontinue benefits and discontinued payment of temporary total disability benefits, and where in an unappealed finding the compensation judge found that the employee sustained no work-related injury, in view of the  unusual circumstances of this case, no additional benefits are due.

Affirmed.

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

Compensation Judge: Gary P. Mesna

Attorneys:  Michael J. Cuzzo, Cuzzo, Bradt & Envall, Duluth, MN, for the Appellant.  David J. Klaiman and Kelly M. Brewbaker, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for the Respondent.

OPINION

MIRIAM P. RYKKEN, Judge

The employee appeals from the compensation judge=s Findings and Order, contending that the compensation judge erred by failing to award temporary total disability benefits through the date of his Findings and Order.  We affirm, concluding that the compensation judge properly allowed a discontinuance of benefits.

BACKGROUND

Ms. Ronda Allen, the employee, was employed by Northwest Airlines as a reservation agent between March 15, 1999, and March 22, 2002.  The employee claimed to have sustained a work related injury on February 7, 2002, in the nature of left-sided carpal tunnel syndrome, which she claimed developed as a result of her keyboarding and telephone duties.  Northwest Airlines, the employer, and its insurer, Liberty Mutual Insurance Companies, originally admitted primary liability for such an injury, and paid various benefits to and on behalf of the employee, including temporary total disability benefits commencing March 22, 2002,  rehabilitation benefits, and medical expenses.  However, after the employee had received medical care and treatment relative to a carpal tunnel condition, her treating physicians determined that the employee had not sustained an injury of that nature and instead diagnosed the employee as having cervical  stenosis and degenerative changes of her cervical spine.  

The employer and insurer arranged for the employee to undergo a medical evaluation with Dr. James Allen.  Following his examination on October 11, 2002, Dr. Allen diagnosed long-standing multi-level degenerative disc changes of the cervical spine with secondary arthritic spurring, which he concluded were not related to the employee=s work for the employer.  He concluded that this condition preceded her employment by several years, and that she had sustained no specific work-related injury to her neck.

Based upon Dr. Allen=s opinion, the employer and insurer denied liability for the employee=s condition.  On October 29, 2002, they filed a Notice of Intention to Discontinue workers= compensation benefits (NOID), attempting to discontinue the employee=s temporary total disability benefits.  At the employee=s request, an administrative conference was held on December 2, 2002, before a compensation judge, and in an order dated December 9, 2002, the judge denied the proposed discontinuance of benefits, based upon his conclusion that the Aemployee=s medical condition causally related to her work activities prevents [her] return to the work force without accommodations.@  On January 2, 2003, the employer and insurer served a petition to discontinue workers= compensation benefits, and continued to pay temporary total disability benefits pursuant to the administrative order.

By notice filed on March 18, 2003, the Office of Administrative Hearings scheduled this matter for a hearing on April 22, 2003.  On that same date, the insurer served a second NOID and discontinued payment of benefits as of March 17, 2003, contending that they owed no additional benefits because they were not timely provided with an evidentiary hearing within 60 days of their petition to discontinue, as required by Minn. Stat. ' 176.238, subd. 6.^[1]   The employee responded to the NOID by filing a claim petition on April 2, 2003, seeking penalties against the employer and insurer for Ainterposing a proceeding which does not present a real controversy, but which is frivolous.@

On April 22, 2003, both an administrative conference and hearing were held before a compensation judge.  Evidently the conference was held to address the March 18, 2003, NOID and the hearing was held to address the employer and insurer=s petition to discontinue.  By agreement of the parties, the employee=s claim petition was also consolidated for that hearing.^[2]  Multiple issues were addressed at the hearing, including whether the employee sustained an injury arising out of and in the course of her employment, the nature of that injury, whether the employee=s current disability and need for medical care were causally related to the employee=s claimed work injury, whether the employee had fully recovered or had reached maximum medical improvement from any work injury, whether the employee had any work restrictions, whether the employer and insurer could discontinue temporary total disability benefits, whether the employee was entitled to penalties for filing of a frivolous NOID, and whether the intervenor was entitled to reimbursement for payment of medical expenses. 

In Findings and Order, served and filed on June 18, 2003, the compensation judge found that the employee had not sustained a work-related injury, specifically finding that the employee=s work from March 15, 1999, through March 22, 2002, was not a substantial contributing cause of the employee=s neck problems and resulting disability.  On that basis, the compensation judge also found that the employee was not entitled to any temporary total disability benefits and that the employer and insurer could discontinue payment of those benefits.  Finding that the employer and insurer=s pleadings were not frivolous, the compensation judge denied the employee=s claims for penalties.  Based on his determination that the employee did not sustain a work-related injury to her neck, the compensation judge concluded that the remaining issues were moot.  The employee appeals.

STANDARD OF REVIEW

"[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), summarily aff=d (Minn. June 3, 1993).

DECISION

In an unappealed finding, the compensation judge found that the employee=s work for the employer did not substantially contribute to the employee=s neck problems and resulting disability.  The employee did not appeal from that finding but only appealed from the compensation judge=s failure to award ongoing temporary total disability benefits between the time the NOID was  served on March 18, 2003, and date of the Findings and Order, June 19, 2003.  At the time this matter came on for trial, all of the issues raised by the petition to discontinue, the second NOID  and the employee=s claim petition were before the compensation judge.  The judge resolved all of the issues by concluding that the employee=s work from March 15, 1999, through March 22, 2002, was not a substantial contributing cause of the employee=s neck problems and resulting disability.   Finding the employer and insurer had no underlying liability for a work injury, the compensation judge allowed the employer and insurer to discontinue benefits as of March 18, 2003.

However, the employee contends that the employer and insurer had no basis, in the statutes or rules, to discontinue benefits before the findings and order were issued.  On appeal, the employee argues that the employer and insurer had no legal basis to discontinue benefits with their second NOID on the grounds that no hearing had yet been held, and argues that the employer and insurer must continue payment of benefits through the date the findings and order were issued, pursuant to Minn. Stat. ' 176.238. subd. 5.^[3]

In this case, the employer and insurer originally admitted the employee=s claimed injury but later contended that the employee had not sustained a work injury, that they mistakenly accepted the claim and that they now deny primary liability for the entire injury.  By the time they issued the NOID on March 18, 2003, the employer and insurer had paid temporary total disability benefits from March 22, 2002, until March 17, 2003, a total of 51 weeks, in the amount of $15,955.35, and they contend that no additional benefits are owed.

In certain circumstances, Minn. Stat. ' 176.239 allows a discontinuance of benefits before the date of an administrative conference.  Under Minn. Stat. ' 176.239, subd. 3(c), following the service of a NOID, compensation need not be paid through the date of the administrative conference if, Adue to unusual circumstances or pursuant to the rules of the division, the commissioner orders otherwise.@  Minn. R. 5220.2640 provides that A[i]f an employee requests an administrative conference within the time set out in this part, benefits must be paid through the date of the conference@ unless certain exceptions apply, such as cases where Athe workers= compensation claim was mistakenly accepted by the insurer and primary liability for the entire injury is now denied.@  Minn. R. 5220.2640, subp. 3.A. (11).  The hearing before the compensation judge was an administrative conference and an evidentiary hearing.  As the commissioner=s designee at the administrative conference, the compensation judge was entitled under the statute and rules to discontinue benefits effective March 18, 2003.  It is not clear from the compensation judge=s decision when the discontinuance was to be effective.  However, given the statute and rules quoted above, we find no sound basis to require the employer and insurer to pay through the date of the hearing, and conclude that in view of the unusual circumstances of this case, no additional benefits are due.