RICHARD J. PASCUZZI, Employee, v. JIVERY CONSTR., and AMERICAN INT=L/AIG CLAIM SERVS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 20, 2005

 

No. WC05-144

 

HEADNOTES

 

PRACTICE & PROCEDURE - EXPEDITED HEARING.  Where the employee claimed temporary  partial disability in his objection to discontinuance of temporary total disability and the hearing was held more than four months after OAH received the file, the employer and insurer had sufficient notice to defend the claim and it was not error for the compensation judge to consider the employee=s temporary partial disability claim.

 

Affirmed in part and vacated in part.

 

Determined by: Stofferahn, J., Wilson, J., and Pederson, J.

Compensation Judge: Nancy Olson

 

Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul, MN, for the Respondent.  Christie D. Ahern, Erstad & Riemer, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the compensation judge=s award of temporary partial disability compensation, contending that there was an improper expansion of issues at an expedited hearing and, in the alternative, that substantial evidence does not support the award.  We affirm in part and vacate in part.

 

BACKGROUND

 

Richard Pascuzzi was employed as a drill operator by Jivery Construction on September 30, 2002, when he was involved in a work related motor vehicle accident and sustained an injury to his cervical spine.  The employer and its insurer, American International, accepted liability for the employee=s injury and began paying temporary total disability benefits.

 

On March 5, 2004, a hearing was held before Compensation Judge Jane Gordon Ertl on a petition for discontinuance filed by the employer and insurer.  The employer and insurer claimed that the employee=s work injury was a temporary aggravation which had resolved so that wage loss benefits were no longer payable.  In her Findings and Order, served and filed March 26, 2004, the compensation judge found the employee had not recovered from the effects of his work injury and denied the petition for discontinuance.  Ongoing payment of temporary total disability compensation was ordered.  The compensation judge=s decision was not appealed.

 

On July 6, 2004, the employer and insurer filed a Notice of Intention to Discontinue benefits.  It was alleged that the employee was not cooperating with rehabilitation services, was not performing a diligent job search, had removed himself from the labor market by failing to consider jobs outside the construction trade, had been taken off work completely due to a non-work related condition, and had reached maximum medical improvement.  The employee requested an administrative conference and a compensation judge allowed the discontinuance, finding that the employee had reached maximum medical improvement from all admitted conditions resulting from the work injury.  The employee filed an objection to discontinuance on August 12, 2004, alleging entitlement to temporary total disability compensation from AJuly 1, 2004 to date and continuing@ and temporary partial disability compensation from AAugust 8, 2004 to date and continuing.@

 

A hearing was held on January 12, 2005, before Compensation Judge Nancy Olson.  Before the hearing, the parties and the compensation judge discussed the issues to be determined at the hearing.  The compensation judge determined that the issues would be the employee=s entitlement  to temporary total disability benefits, the employee=s entitlement to temporary partial disability, the employee=s requested treatment with Dr. Dulebohn, and whether the work injury was a temporary aggravation or a permanent injury.^[1]  The employer and insurer objected to consideration of the employee=s temporary partial disability claim, arguing that this would be an improper expansion of the issues under Minn. Stat. ' 176.238, subd. 6.  In her Findings and Order, served on February 9, 2005, the compensation judge determined that the employee had not returned to his pre-injury status, she allowed the requested treatment with Dr. Dulebohn, awarded temporary total disability benefits, and awarded temporary partial disability from August 8, 2004 to August 10, 2004, and December 15, 2004 to the date of hearing and continuing.  The employer and insurer appeal from the award of temporary partial disability compensation.

 

DECISION

 

Expansion of Issues

 

The employer and insurer argue that the compensation judge improperly expanded the issues at hearing to include the employee=s claim for temporary partial disability benefits.  The employer and insurer rely on Minn. Stat. ' 176.238, subd. 6, which provides, with regard to expedited hearings, that Athe hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.@  The employer and insurer argue that under this provision, the only wage-loss issue which should have been considered at the hearing was the discontinuance of temporary total disability benefits.

 

The compensation judge determined that consideration of the employee=s temporary partial disability claim was warranted by the supreme court=s decision in Violette v. Midwest Printing Co., 415 N.W.2d 318, 40 W.C.D. 445 (Minn. 1987).  In Violette, the employer sought to discontinue the employee=s temporary total disability on the grounds that the employee had returned to work.  At the hearing, the compensation judge allowed the employee=s temporary partial disability claim to be raised and the employer appealed.  In considering the issue, the supreme court referred to the Aexpress statutory directive@ that an employee whose benefits cease because of a return to work Ashall receive@ temporary partial disability benefits.  Given this statutory directive and the fact that the employee had filed a claim petition seeking temporary partial disability benefits, the court held that the issue of temporary partial disability compensation was properly before the compensation judge and was not an improper expansion of the issues.

 

The employer and insurer point to this court=s decision in Reed v. Metro Ride, slip op. (W.C.C.A. June 9, 1997).  In Reed, this court held that where the employer sought to discontinue temporary partial disability on the grounds that the employee had recovered from his work injury, consideration of the employee=s temporary total disability claim was an improper expansion of issues.  This court noted the lack of a Aexpress statutory directive@ as found in Violette and the absence of a claim petition.  In accord, on facts very similar to Reed was this court=s decision in French v. Minneapolis Special Sch. Dist. No. 1, slip op. (W.C.C.A. Dec. 29, 2004).  The employer and insurer argue that Reed applies to the present case because there is no Aexpress statutory directive@ for payment of temporary partial disability benefits after temporary total disability benefits cease because the employee was more than 90 days post MMI.

 

We conclude that neither Violette nor Reed determine the results in this case. The intent of Minn. Stat. ' 176.238, subd. 6, was to establish a Afast track@ in limited cases, primarily those in which primary liability is not at issue.  In that context, the prohibition against expansion of issues serves to prevent prejudicial surprise to a party.  There is an assumption in the statute that discovery is not feasible in the 60-day period between the date when Office of Administrative Hearings receives a file and the date when the hearing Ashall be held.@ The present case was not heard within 60-days after the Office of Administrative Hearings received the file.^[2]  It was instead heard more than four months later.  In addition, it is arguable that the expedited hearing procedures set out in the statute are inapplicable here because the parties had already expanded the issues by including the employee=s medical request in addition to the objection to discontinuance at the hearing.  While we are not deciding at this time that the provisions in Minn. Stat. ' 176.238, subd. 6, do not apply when a case is not heard within the time frame required by the statute, we conclude that in such a case when considering the issues to be decided at the hearing, the proper inquiry is whether a party has had sufficient notice of the expanded claim to present a defense to the claim.  Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988).

 

In the present case, the employee indicated in his objection to discontinuance, filed on August 12, 2004, that he was claiming entitlement to temporary partial disability compensation after August 8, 2004.  Further, the employee=s QRC supplied regular reports to the insurer and, as early as the report of September 4, 2004, provided details of the employee=s return to work on August 8, 2004, and his cessation of work on August 10.  Given these factors, it was not inappropriate for the compensation judge to consider the employee=s claim for temporary partial disability compensation benefits from August 8 to August 10, 2004.

 

We reach a contrary conclusion, however, on the employee=s claim for benefits from December 15, 2004 to the date of hearing and continuing.  The employment after December 15 was with an employer different from the one for whom the employee worked in August.  The last report filed by the QRC before the hearing indicated that job search was on hold and provided no information about a possible return to work.  At the hearing, the employer=s attorney advised the court that she had not seen the wage records from this new job until that morning. In those circumstances, the employer did not have sufficient information of the claim for temporary partial disability compensation after December 15, 2004, to warrant consideration of that issue.  We vacate the compensation judge=s award of temporary partial disability benefits after that date.

 

Temporary Partial Disability

 

The employer and insurer also appeal from the award of temporary partial disability compensation to the employee.  The employer and insurer contend that the employee failed to provide sufficient documentary evidence of his earnings to establish his entitlement to those benefits.

 

The employee testified to his earnings at his part-time job in August.  The QRC advised the employer and insurer of the employee=s earnings and the employee testified that he had faxed copies of his earnings to the insurer.  We find substantial evidence to support the compensation judge=s decision on this issue.