The employer and insurer appeal the compensation judge’s finding that the employee had not reached maximum medical improvement, arguing that attainment of MMI was not at issue at the hearing.  We vacate that finding.

On September 5, 2006, Gordon H. Clausen, the employee, sustained an admitted work-related low back injury while working for Rupp Construction Company, the employer, which was insured for workers’ compensation liability by Acuity Group, the insurer.  The employer and insurer paid temporary total disability benefits from September 11, 2006, through December 3, 2006.  The employer and insurer filed a notice of intention to discontinue benefits as of December 4, 2006, based upon the employee’s return to work at a full wage.  The employee worked from December 4, 2006, through December 16, 2006, when he was taken off work by his treating physician for a cervical spine condition.  The employee filed an objection to the discontinuance on December 18, 2006.  In his objection, the employee claimed entitlement to temporary partial disability benefits from and after December 4, 2006.  He later amended his claim to include temporary partial disability benefits through December 16, 2006, and to include temporary total disability benefits from and after December 29, 2006.

On March 14, 2007, an expedited hearing was held.  The issues at the hearing included whether the employee had sustained a work-related cervical spine injury, whether the employer and insurer had demonstrated a reasonable basis for discontinuance of the employee’s wage loss benefits, whether the employee was entitled to temporary partial disability benefits, whether the employee had conducted a reasonable job search, and whether the employee was temporarily and totally disabled from December 29, 2006, through the date of the hearing.

In Findings and Order served and filed March 26, 2007, the compensation judge listed various stipulations concerning the employee’s date of injury, the employer’s insurance coverage and the employee’s return to work at a full wage on December 4, 2006, including that “Dr. John Dowdle’s report, opining that the employee had reached maximum medical improvement on 12/4/06, was filed and served on the employee and his attorney on 2/22/07.”  In his findings, the compensation judge found that the employee had not sustained a work-related cervical spine injury, denied the employee’s claims for temporary partial disability benefits and temporary total disability benefits, and dismissed the employee’s objection to discontinuance.  The compensation judge also  found that the employer and insurer “failed to prove by a preponderance of the evidence that the employee has reached maximum medical improvement from the effects of his 9/5/06 injury.”  The employer and insurer appeal this finding, arguing that attainment of MMI was not at issue at the hearing.  No appeal was taken from the denial of the employee’s claims for temporary disability benefits.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1.  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

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).

The employer and insurer appeal the compensation judge’s finding that the employer and insurer “failed to prove by a preponderance of the evidence that the employee has reached maximum medical improvement from the effects of his 9/5/06 injury.”  The employer and insurer argue that attainment of MMI was not at issue at the hearing.  In an expedited proceeding under Minn. Stat. § 176.238, the “hearing shall be limited to the issues raised by the notice [of discontinuance] or petition unless all parties agree to expanding the issues."  Minn. Stat. § 176.238, subd. 6(d).  The Findings and Order list as one of the stipulations that “Dr. John Dowdle’s report, opining that the employee had reached maximum medical improvement on 12/4/06, was filed and served on the employee and his attorney on 2/22/07.”  The parties did not stipulate that the employee had reached MMI.  Neither the statement of issues listed in the Findings and Order nor the issues outlined in the hearing transcript indicate that attainment of MMI was at issue.  The parties did not mention MMI at the hearing.

The employee argues that the compensation judge did not allow the discontinuance of benefits on the basis that the employee had returned to work as listed on the notice, but because he had not conducted a reasonable job search, and claims that this is also an expansion of the issues.  The statement of issues at the hearing, however, indicates that the job search was an issue.  In addition, the employer and insurer’s attorney indicated at the hearing that they were contending that the employee had not made diligent job search from and after December 29, 2006.  No objection was made to the job search issue being presented to the compensation judge at the hearing.

A compensation judge may not, in expedited proceedings under Minn. Stat. § 176.238, consider just "any argument, theory, or evidence relevant to [the] ultimate question" of the employer's right to discontinue wage loss benefits.  Molik v. State Fund Mut. Ins. Co., slip op., (W.C.C.A. Aug. 5, 1992); see also Sacco v. Minneapolis Convention Ctr., slip op., (W.C.C.A. Jan. 22, 1990).  The issue of whether the employee had reached MMI was not properly before the compensation judge at the hearing, and we vacate his finding on that issue.  See id.; Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988) (basic fairness requires reasonable notice and opportunity to be heard before decisions on benefit entitlement may be made).