The Minnesota Department of Labor & Industry/Workers’ Compensation Division appeals the compensation judge’s denial of a penalty assessment.  We vacate and remand.

On June 5, 2006, Steinbrecher Painting, Inc., the employer, received notice from Garrett M. Marshall, the employee, claiming an injury to his right arm and shoulder arising out of his employment.  A first report of injury was prepared on that date and forwarded to Meadowbrook Claims Services, the insurer.  The investigation of the claim was assigned to a claims representative, Cheryl Anderberg, who then called the employee and was told he injured his right arm and shoulder picking up a paint bucket.  The employee also told Ms. Anderberg he had prior shoulder injuries resulting in two surgeries with ongoing symptoms for which he treated periodically.  Ms. Anderberg then sent the employee an Injured Worker Questionnaire which the employee completed, dated June 8, 2006, and faxed to the insurer that same day.  On June 12, 2006, Ms. Anderberg prepared a form entitled Notice of Insurer’s Primary Liability Determination (NOPLD) in which the insurer denied primary liability for the employee’s claimed injury.  The form requires a reason for the denial which stated:

In response to the NOPLD, Marion Halvorson, a compliance officer with the Department, sent a letter to the insurer dated August 9, 2006, stating the denial of primary liability failed to meet the specificity requirements of Minn. Stat. § 176.84, subd. 1, and Minn. R. 5220.2570, subp. 2.  Ms. Halvorson requested the insurer

On September 20, 2006, the Department issued a Notice of Penalty Assessment assessing a $500.00 penalty against the insurer pursuant to Minn. Stat. § 176.84, subd. 2, and Minn. R. 5220.2570, subp. 11.  The employer and insurer filed an Objection to Penalty Assessment which was heard by a compensation judge on May 31, 2007.  At the outset of the hearing, the employer and insurer filed with the court a memorandum of law in support of its position.  At the close of the hearing, counsel for the Department requested the opportunity to respond to the memorandum.  The compensation judge agreed to keep the record open for a period of 10 days, until June 11, 2007, to allow the Department to file a memorandum of law.  The compensation judge then served and filed a Findings and Order on June 4, 2007.  The Department’s memorandum was timely filed on June 7, 2007.  The Department appeals.

The Department contends the compensation judge improperly served the Findings and Order prior to the date the record closed and without considering the memorandum filed by the Department.  The respondents agree the Findings and Order were served and filed without consideration of the Department’s brief and before the record was closed.  They assert, however, the Department’s memorandum provided no additional argument or legal support for its positions beyond those advanced at the hearing.  Accordingly, the employer and insurer argue the premature service and filing of the Findings and Order constitutes harmless error and contend the compensation judge’s decision should be affirmed.  We are not persuaded.

In Swonger v. Graco, Inc., slip op. (W.C.C.A. Nov. 1, 1995), a compensation judge filed a findings and order prior to the expiration of the time granted to the parties to file briefs.  On appeal, this court concluded it was error to issue the decision prior to the close of the post-trial briefing period and without considering the parties’ briefs.  Accordingly, the court vacated the compensation judge’s findings and order and remanded the case to the judge for a redetermination of all the issues after review of the briefs.  See also Benko v. McGarvey Coffee, Inc., slip op. (W.C.C.A. Oct. 23, 1991) (compensation judge’s decision filed and served prior to the date the compensation judge agreed to keep the record open to permit the submission of post-hearing brief, and rendered without a review of the briefs, vacated and remanded for reconsideration upon review of the authorized briefs).

It appears the compensation judge’s service and filing of the Findings and Order without consideration of the Department’s memorandum was an inadvertent error.  Nevertheless, the Department was granted the right to file a memorandum of law and is entitled to have its memorandum considered by the compensation judge.  Accordingly, we vacate the Findings and Order and remand the case to the compensation judge for redetermination of the issues after a review of the parties’ briefs.