RICHARD R. RUSICH, deceased employee, by PHYLLIS RUSICH, Petitioner, v. EVELETH TACONITE CO., and AMERICAN INT=L/AIG CLAIM SERVS., Employer-Insurer, and OGLEBAY NORTON, and AETNA CAS. & SURETY CO., Employer-Insurer/Appellants, and OGLEBAY NORTON, and CNA INS. COS., Employer-Insurer, and OGLEBAY NORTON, and NAT=L UNION FIRE/AIG/GAB ROBINS, Employer-Insurer, and ERIE MINING CO./LTV STEEL, SELF-INSURED, Employer, and PICKENS MATHER CO., UNKNOWN, Employer-Insurer, and MEDICARE PART A/NORIDIAN ADMIN. SERVS., Intervenor, and SPECIAL COMP. FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 6, 2006

 

No. WC05-257

 

HEADNOTES

 

PRACTICE & PROCEDURE - TEMPORARY ORDER.  Where the possibility existed that the party ordered to pay under a temporary order might have no way to recover benefits paid, the order should not have been issued.

 

Vacated.

 

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

Compensation Judge: Nancy Olson

 

Attorneys: Steven D. Hawn, Law Offices of Steven D. Hawn, St. Paul, MN, for the Petitioner.  Jeffrey J. Lindquist, and Louis R. Tilton, Pustorino, Tilton, Parrington & Lindquist, Minneapolis, MN, for the Appellants.  Sara J. Stoltman, St. Paul, MN, for the Special Compensation Fund.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

Oglebay Norton and Aetna Casualty & Surety appeal from a temporary order directing them to pay certain benefits pending final determination of liability.  We vacate the order.

 

BACKGROUND[1]

 

The petitioner, Phyllis Rusich, filed an amended claim petition for dependency benefits on April 2, 2004, contending that her husband, Richard Rusich [the employee], had developed an occupational disease, in the form of mesothelioma, while employed by Eveleth Taconite Company, Erie Mining Company/LTV Steel Mining Company, and/or Pickens Mather Company, and that he had died of that disease on April 14, 2003.

 

Aetna Casualty & Surety Company had insured Oglebay Norton (the parent company of Eveleth Taconite) from the date the employee began employment with Oglebay Norton in October 1965, through December 1986, when a different insurer came on risk.[2]  Oglebay Norton and Aetna answered the claim for dependency benefits by denying that the employee had sustained an injury or disease, denying that the injury or disease arose out of and in the course of his employment, denying the nature of the disease, denying notice of injury, denying that the employee had sustained permanent partial disability, and alleging that the statute of limitations had run.  The other employers and/or insurers also filed answers denying exposure to asbestos, denying primary liability or notice, and raising the defenses of the statute of limitations and/or the statute of repose.

 

On May 3, 2005, the petitioner filed a notice of motion and motion for temporary order, seeking to have a compensation judge direct one of the insurers to make payment of dependency benefits and/or permanent partial disability benefits pending a determination of liability.  In an affidavit attached to that motion, Steven D. Hawn, the attorney for the petitioner, stated that none of the employers and insurers were disputing the fact that the employee had been exposed to asbestos during his employments, that his occupational exposures to asbestos had caused his mesothelioma, or that the employee=s death on April 14, 2003, had been caused by mesothelioma.

 

Oglebay Norton and Aetna filed a response to the motion for temporary order on August 3, 2005, contending that a temporary order was inappropriate because the employers and  insurers were denying causation and/or primary liability for the injury.  In the alternative, Oglebay Norton and Aetna contended that some other employer/insurer should be directed to pay.

 

Oglebay Norton/Eveleth Taconite and National Union Fire Insurance Company, which was on risk from December 15, 1986, to December 15, 1989, filed a response indicating that,  if a temporary order was appropriate, it should be issued against Eveleth Taconite and American International Group.

 

Oglebay Norton and CNA Insurance Companies, which was on risk from December 15, 1989, to December 23, 1996, filed a response requesting that the temporary order be issued against some other party.

 

Eveleth Taconite and American International Group, which was on risk from December 23, 1996, to December 23, 1997, responded by arguing that the employee=s exposure to asbestos during American International=s coverage was not substantial and/or that the employee was not exposed to asbestos during their period of coverage.

 

A motion hearing was held, and, on September 20, 2005, the compensation judge filed a temporary order directing Oglebay Norton and Aetna to pay funeral expenses, dependency benefits, permanent partial disability benefits, and attorney fees.  Oglebay Norton and Aetna appeals.

 

DECISION

 

Minn. Stat. '176.191, subd. 1, (2004) provides in part as follows:

 

A temporary order shall be issued if the commissioner or compensation judge determines based on the evidence submitted by the employee that benefits are payable under this chapter and if two or more employers, insurers or the special compensation fund deny liability based on an assertion that another employer, insurer, or the special compensation fund is liable.

 

Oglebay Norton and Aetna contend that a temporary order is not appropriate where Aall of the employers/insurers - including Appellants - have denied primary liability.@  At oral argument, Oglebay Norton and Aetna confirmed that they are denying primary liability, that they have raised the statute of repose as a defense, and that they are not merely contending that some other employer or insurer is liable.  In addition, Oglebay Norton and Aetna contended that there was a Atheoretical possibility@ that the petitioner would not prevail on her petition for dependency benefits, meaning that Oglebay Norton and Aetna would have no means to recover benefits paid under the temporary order.

 

This court has held that, under the current version of Minn. Stat. '176.191, a temporary order should not be issued when all employers or insurers are denying causation and/or primary liability.  Garmaker v. Miller Masonry, slip op. (W.C.C.A. Aug. 12, 1998); Olson v. Bloomington Linoleum & Carpet, Inc., slip op. (W.C.C.A. Aug. 30, 2000).  Attorney Hawn has made representations to this court that the parties agreed at the motion hearing that benefits were due, disagreeing only with respect to who should pay.  However, we have no transcript to review because the motion hearing was not recorded.  Moreover, some of the defensive pleadings contain denials of primary liability, and the attorney for Oglebay Norton and Aetna indicated at oral argument that his client is still denying primary liability.  Because there is a possibility that Oglebay Norton and Aetna might be unable to recoup payments made to the petitioner under the temporary order, the temporary order should not have been issued.  We therefore vacate that order.

 

 


[1]  There was no formal hearing, no testimony was taken under oath, and no transcript was prepared.  These facts were taken from pleadings in the file and briefs on appeal.

[2] The employee was employed by Oglebay Norton throughout this period.