The employee appeals from the compensation judge’s apportionment of liability for the employee’s permanent total disability, from her finding that the employee’s entitlement to permanent total disability benefits is governed by an injury date of October 27, 2003, and from the related finding that the employee is not entitled to supplementary benefits.  We vacate the findings and order.

James R. Peterson, the employee, was employed by Hibbing Taconite Company, from 1978 to October 2003.  On January 15, 1982, while working for the employer, the employee slipped and sustained an injury to his low back.  The employer, which on that date was self-insured for worker’s compensation liability in the state of Minnesota, admitted primary liability for the employee’s injury, and paid benefits to and on behalf of the employee.

The employee returned to work following his injury, and over the course of his employment with the employer, sustained numerous work-related injuries, including additional injuries to his low back.  By approximately 1998, the employee began to miss time from work as a result of his increased low back symptoms and was paid either temporary partial disability or temporary total disability benefits during various periods of time.  The employee last worked for the employer in October 2003, and has received temporary total disability (TTD) benefits since then.  The employee later applied for Social Security Disability Income (SSDI), and, after appeals, the Social Security Administration ultimately awarded the employee benefits, assigning an effective date of disablement of January 1, 2005.

On May 1, 2009, the self-insured employer filed a Petition for Permanent Total Disability (PTD), alleging injury dates of January 15, 1982, and October 8, 1998, and seeking a judicial determination of the date of injury which would serve as the controlling event for purposes of benefit calculations.  The employer sought to establish the employee’s PTD status in order to re-characterize prior payments of TTD benefits to PTD benefits, and to obtain an offset for SSDI benefits under Minn. Stat. § 176.101, subd. 4.

The Special Compensation Fund was named as a party in the petition because of the potential payment of supplementary benefits under Minn. Stat. § 176.132 (repealed effective October 1, 1995) in the event that the 1982 date of injury was deemed controlling for purposes of benefit calculation.  In its response to the employer’s petition, the Special Compensation Fund argued that any supplementary benefit claim should be barred, because the later injury in 1998 post-dated the repeal of the supplementary benefits statute.  See Minn. Stat. § 176.132 (repealed 1995).

An evidentiary hearing was held on October 23, 2009, to address the self-insured employer’s petition.  Shortly before the hearing, the Special Compensation Fund advised the parties that it intended to assert an additional Gillette^[1] injury date not already listed on the employer’s petition; that date, October 27, 2003, evidently was the employee’s last day of employment and was referred to in one of the medical reports in evidence.^[2]  In addition, prior to or at the hearing, the self-insured employer and the Special Compensation Fund listed additional alleged injury dates for the compensation judge’s consideration, including June 30, 1998, July 13, 1998, and October 8, 1998.^[3]

At the hearing, the parties agreed that the employee had been permanently and totally disabled since January 1, 2005, as defined by the Minnesota Workers’ Compensation statute.  The issue at the hearing, therefore, was identification of the controlling date of injury for purposes of determining permanent total disability benefits.  The employee contended that his initial work injury of January 15, 1982, represented the controlling injury date, whereas the employer and Special Compensation Fund contended that later dates of injury should be considered as controlling for purposes of calculating benefits.

In her findings and order issued following the hearing, the compensation judge determined the date of injury governing the employee’s permanent total disability benefits is October 27, 2003.  In her findings and order, the compensation judge apportioned liability for the employee’s permanent total disability, as follows:

During the pendency of the appeal, and at oral argument held on May 3, 2010, the parties acknowledged that a dispute now exists concerning insurance coverage for the employer since 1992.  Based on the discussions held at the hearing, as recorded in the hearing transcript, and based on the employer’s petition, it appears that the parties originally assumed that the employer had been self-insured since the employee’s initial injury in 1982.

By contrast, according to information provided in a brief of amicuscuriae filed on behalf of the employer and American Home Assurance Company,^[4] the employer evidently has been insured from at least January 1, 1992, through January 1, 2009, either by Insurance Company of the State of Pennsylvania or American Home Assurance Company, with claims administered by either Sedgwick Claims Management Services, Inc., or Chartis.

It appears that at the time of the hearing on October 23, 2009, the parties and the compensation judge misapprehended the employer’s insurance coverage on the various dates of injury.  Accordingly, during the entire litigation, including the evidentiary hearing, the employer and its insurer or insurers at the time of the alleged 1998 or 2003 work injuries were not represented by separate counsel.  The employee contends that it was error for the compensation judge to assign liability to the alleged 1998 and 2003 injury dates, in the absence of separate representation at the hearing for the insurers on the risk at the time of those injuries.

As to the substantive determinations by the compensation judge, the employee contends that the findings and order are contrary to law and unsupported by substantial evidence, and that the compensation judge erred in finding that the employee’s permanent total disability was, in part, attributable to 1998 and 2003 injuries despite the absence of adequate medical opinions supporting such findings.

“Basic fairness requires that the parties in a workers' compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made."  Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988); see, e.g., Poole v. Farmstead Foods, 42 W.C.D. 970, 976-79 (W.C.C.A. 1989) (in an expedited hearing, employer and insurer received inadequate notice of claim for retraining benefits).  Where a party necessary to a litigated claim has not been provided with notice of the litigation, and therefore has had no opportunity to be represented during the pendency of the claim, the findings and order resulting from that litigation should be vacated.  See Sanchez v. McLane Minnesota, slip op. (W.C.C.A. Oct. 11, 2006) (where one employer and insurer necessary to the litigation had never been served with various pleadings including a claim petition and petitions for contributions and/or reimbursement, and therefore were not represented at the evidentiary hearing, the findings and order were vacated).  In this case, the employer and its insurer or insurers at the time of the alleged 1998 and 2003 injuries were not provided with notice of the self-insured employer’s petition nor with an opportunity, if desired, to conduct discovery, investigate, take the employee’s deposition, obtain an independent medical examination, participate in settlement negotiations, or defend the claim at the hearing.  They were not represented at the hearing, and had no opportunity to be heard on the issue before the compensation judge.  We therefore vacate the compensation judge’s decision in its entirety.