NANCY FRENCH, Employee/Appellant, v. MINNEAPOLIS SPECIAL SCH. DIST. #1, SELF-INSURED, adm=d by SEDGWICK CLAIMS MGMT. SERVS., Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 29, 2004

 

No. WC04-253

 

HEADNOTES

 

JURISDICTION - SUBJECT MATTER; PRACTICE & PROCEDURE - EXPEDITED HEARING; NOTICE OF DISCONTINUANCE.  At an expedited proceeding initiated by the self-insured employer to discontinue temporary partial disability benefits, the compensation judge properly concluded that he did not have jurisdiction under Minn. Stat. ' 176.238 to address the employee=s claim for temporary total disability benefits.

 

Affirmed.

 

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

Compensation Judge: Gary M. Hall

 

Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant.  Kathleen M. Daly, Rider & Bennett, Minneapolis, MN, for the Respondent.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge.

 

The employee appeals from the compensation judge=s determination that the judge did not have jurisdiction under Minn. Stat. ' 176.238 to address the employee=s claim for temporary total disability benefits at an expedited proceeding initiated by the self-insured employer to discontinue temporary partial disability benefits.  We affirm.

 

BACKGROUND

 

Nancy French [the employee] sustained an admitted injury to her low back on November 30, 2003, while working for Special School District #1 [the employer], which was self-insured against workers= compensation liability on that date.  The employee was paid about two weeks of intermittent temporary total disability benefits and began receiving temporary partial disability benefits on January 26, 2004.  On March 11, 2004, the employer filed a Notice of Intention to Discontinue [NOID] the employee=s temporary partial disability benefits effective February 26, 2004,[1] on grounds that the A[e]mployee is off work due to personal reasons.@  The matter was heard at an administrative conference pursuant to Minn. Stat. ' 176.239 on April 8, 2004.  At the administrative conference, the employer evidently argued that temporary partial disability benefits should be discontinued because the employee was not working and because one of the employee=s treating doctors Ahad taken the employee off work so that she could go through a drug rehabilitation program.@  The employee evidently argued that she had changed doctors to Dr. Thomas Hennessey at the Institute for Low Back and Neck Care, that Ashe had gone through a drug rehabilitation program a year ago and that she had been sober since that time.@  By Order on Discontinuance filed April 13, 2004, a compensation judge found that the employer had not established reasonable grounds to discontinue the employee=s Adisability benefits@ and implicitly ordered payment of temporary total disability benefits continuing from February 25, 2004.

 

On April 21, 2004, the employer filed a Petition to Discontinue Benefits, reasserting the grounds set forth in its NOID filed March 11, 2004, and asserting also that the employee had been placed on a paid administrative leave as of February 25, 2004, Adue to performance issues.@  The employer also asserted that the employee was ultimately terminated by the employer on March 10, 2004.  The employer sought an order allowing the discontinuance of the employee=s temporary partial and temporary total disability benefits retroactive to February 25, 2004, and an award of a credit for benefits mistakenly paid pursuant to the earlier administrative decision.  By letter dated June 2, 2004, and identified as an AAddendum to the Petition for Discontinuance of Benefits,@ counsel for the employer emphasized that the only issue raised by the NOID filed March 11, 2004, was the employer=s entitlement to discontinue temporary partial disability benefits.  She asserted that the judge presiding at the administrative conference had no authority Ato expand the face of the NOID without a waiver, which was not given, to expand this claim to temporary total.@  Therefore, the employer viewed the issues to be considered at the hearing on its petition to discontinue benefits as only (1) whether it had reasonable grounds to discontinue temporary partial disability benefits and (2) its entitlement to a credit against future benefits for benefits mistakenly awarded at the discontinuance conference.

 

On June 10, 2004, the employee filed a claim petition for temporary total disability benefits continuing from February 25, 2004.  The employer=s Petition to Discontinue Benefits came

on for a hearing on July 14, 2004.  At trial, the parties identified the issues as (1) Awhether there are reasonable grounds to discontinue temporary partial disability benefits as proposed in the Notice of Intention to Discontinue Benefits form filed on March 1[1], 2004,@ and (2) Awhether the employee=s claim for recommencement of temporary total disability benefits should be addressed at this proceeding and, if so, whether recommencement is appropriate.@

 

By Findings and Order filed August 9, 2004, the compensation judge found that the employee had worked at a wage loss from January 26, 2004, to February 25, 2004, and had been paid temporary partial disability benefits accordingly.  The judge found also that, on February 25, 2004, the employee had been placed on administrative leave, with full wages paid until March 10, 2004, on which date the employee had been terminated for alleged misconduct.  The employee had not worked since February 25, 2004, and the judge found that temporary partial disability benefits had been properly discontinued effective on that date and that the employer was entitled to a credit for temporary total disability benefits paid subsequent to the NOID, pending any future determination on the merits of the employee=s claim.  The judge concluded further that he did not have jurisdiction under Minn. Stat. ' 176.238 to address the employee=s claim for temporary total disability benefits at that time and that that claim must be addressed at a hearing on the employee=s claim petition filed June 10, 2004.  The employee appeals.

 

DECISION

 

The hearing in this case was held on an expedited basis in accordance with Minn. Stat. ' 176.238, subd. 6, which reads in part, AThe hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.@ Here, the employer did not agree to an expansion of the issues beyond its alleged basis for discontinuing temporary partial disability benefits.  As noted by the compensation judge in his memorandum, the parties are not disputing the fact that temporary partial disability benefits are not payable to an employee who is not working.  See, Minn. Stat. ' 176.101, subd. 2(b); Parson v. Holman Erection Co., 428 N.W.2d 72, 41 W.C.D. 129 (Minn. 1988).  The issue here is whether the judge erred in concluding that he did not have jurisdiction to hear the employee=s claim for temporary total disability benefits when the matter came before him on an expedited basis on the employer=s petition to discontinue temporary partial disability benefits.  We conclude that the judge did not err in that decision.

 

Citing Violette v. Midwest Printing Co., 415 N.W.2d 318, 40 W.C.D. 445 (Minn. 1987), the employee argues that the employer=s Ahighly technical@ interpretation of Minn. Stat. ' 176.238 is simply an effort to thwart the employee=s claim for temporary total disability benefits, which is Apart and parcel@ of her claim for temporary partial disability benefits.  She asserts that consideration of the employee=s temporary total disability claim did not in this case involve an expansion of the issues, in that temporary total compensation was considered at the administrative conference and ordered paid by the initial judge and the employer raised the issue of discontinuance of such compensation in its petition to discontinue.  We are not persuaded.

 

We disagree with the employee=s assertion that consideration of her temporary total disability claim did not involve an expansion of the issues.  First of all, the NOID filed by the employer clearly delineated that it sought discontinuance of the employee=s temporary partial disability benefits.  Minn. Stat. ' 176.239, subd. 6, provides that A[o]nly information or reasons specified on the notice of discontinuance shall provide a basis for discontinuance, unless the parties agree otherwise.@  Even if the employee=s claim for temporary total benefits was discussed at the administrative conference, there is no evidence to suggest that the employer agreed to expand the issues.  The fact that discontinuance of temporary total disability benefits was raised in the employer=s petition to discontinue was merely a consequence of the mistaken award, not an agreement to expand the issues, especially in light of the employer=s letter of June 2, 2004, specifically identifying the issue it was raising by its petition.

 

In his memorandum, the compensation judge properly identified the statutory basis for the supreme court=s decision in Violette.  The judge stated,

 

In Violette the insurer proposed a discontinuance of Temporary Total Disability benefits based on a return to work at a wage loss under Section 176.101 3e or 3f.  In that case the employee argued that the expedited proceeding should also address the commencement of Temporary Partial Disability benefits.  The Minnesota Supreme Court agreed based primarily on specific statutory language that provided AAn employee who accepts a job under subdivision 3e or subdivision 3f and begins that job shall receive Temporary Partial Disability compensation pursuant to subdivision 2, if appropriate (emphasis added).  Minn. Stat. Section 176.101, 3h (1984).

 

We would also note that the discontinuance procedures at work in Violette under Minn. Stat. ' 176.242 were different from the procedures currently at issue under Minn. Stat. ' 176.238, the latter statute now providing, contrary to the statute at issue in Violette, for an expressly A[e]xpedited hearing before a compensation judge@ (underscoring added) and limiting the hearing to Athe issues raised in the notice or petition unless all parties agree@ otherwise.  Minn. Stat. ' 176.238, subd. 6.  In Reed v. Metro Ride, slip op. (W.C.C.A. June 9, 1997), this court noted that Athere is no statutory directive that temporary total benefits shall commence@ following discontinuance of temporary partial disability benefits.  In applying Minn. Stat. ' 176.238, subd. 6, to expedited hearings, we stated,

 

We believe that the best outcome for all cases is to base decisions on the strict reading of the statute, except in those cases which involve very rare and unusual circumstances.  In this case, as stated  above, there is clear statutory language in Minn. Stat. ' 176.238, subd. 6, that Athe hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.@  If the employee can unilaterally expand the issues at the expedited hearing by asserting a claim for other benefits in their objection to discontinuance, the language of the statute requiring agreement by the parties to expand the issues beyond those raised in the NOID is easily avoided, and has no functional purpose.

 

Here, in that the issue raised in the employer=s petition to discontinue was the employee=s entitlement to temporary partial disability benefits, the judge properly concluded that he did not have jurisdiction under Minn. Stat. ' 176.238 to address the employee=s claim for temporary total disability benefits at the expedited proceeding and that that claim must be addressed at a hearing on the employee=s claim petition filed June 10, 2004.  Accordingly, we affirm the judge=s decision in its entirety.