The employer and insurer appeal from the judge’s finding as to an incident allegedly occurring three weeks after his work injury.  We vacate that finding.

The employee sustained an admitted work-related injury to his right forearm on August 19, 2013, when lifting a pipe in his job with Summit Fire Protection [the employer].  The employer and insurer paid the employee wage loss benefits and medical expenses, including expenses for a right biceps repair.

The employee was examined by Dr. Tilok Ghose on April 7, 2014, at the request of the employer and insurer.  Dr. Ghose ultimately opined that the work injury of August 19, 2013, was a minor injury to the employee’s lower right arm, in the form of a strain/sprain, and did not involve an injury to the employee’s right biceps tendon.  Therefore, he concluded that the employee’s medical treatment, including the right biceps tendon surgery, was not causally related to the August 19, 2013, injury.  Dr. Ghose opined that the employee had limitations as to lifting and repetitive elbow flexion but that none of those restrictions was necessitated by the August 19, 2013, injury.

The employer and insurer filed a notice of intention to discontinue benefits^[1] and the employee filed an objection to discontinuance.

When the matter came on for hearing at the Office of Administrative Hearings, the issues were whether the employee had suffered a right biceps tendon tear as a result of the August 19, 2013, work injury, and, if so, whether the employee was entitled to temporary total disability benefits and the intervenors were entitled to reimbursement.  A findings and order was filed on June 20, 2014.  In that decision, the judge concluded that the employee did not sustain an injury to his right biceps tendon on August 19, 2013, that the employee was not entitled to temporary total disability benefits, and that the intervenors were not entitled to reimbursement.^[2]  These findings are undisputed.  However, the employer and insurer appeal from finding 7, which indicates that the employee was moving scaffolding three weeks after August 19, 2013, when he felt a pop in his right arm.

The employer and insurer contend that the compensation judge made a finding of fact that was outside the scope of the contested issues identified at the hearing.  We agree.

The only date of injury at issue at hearing before the compensation judge was the injury of August 19, 2013, and the primary issue there was whether the employee had sustained a biceps tendon tear at that time.  The compensation judge found that the employee did not sustain a right biceps tendon tear as a result of the August 19, 2013, work injury.  The judge went on, however, to find that, three weeks after the August 19, 2013, incident, the employee was moving scaffolding and felt a big pop in his right arm that dropped him to his knees.  While not identifying that incident as a work injury, the employee testified that the incident occurred at work.  The compensation judge, in his memorandum, described the onset of symptoms three weeks after the August 19, 2013, work injury as “a significant event,” and he went on to state that “it was after that incident that the employee noted pain on the inside of his upper arm, weakness and deformity in his biceps” and that it was not until “after the significant event approximately three weeks following the work injury . . . that [Dr. Cahill] suspected that the employee had a biceps tendon tear.”

The parties made it clear both at the beginning of the hearing and in closing arguments that the only injury at issue occurred on August 19, 2013.  Russell Sundquist, representing the employee, argued, “it’s clear that the employee suffered an injury on August, in August of 2013, August 19th, that involved his right arm and as a result of that injury that he ended up having surgery to the right arm and he has been restricted from that surgery to the current time and he should be entitled to benefits.”  William Laak, representing the employer and insurer, argued, “we are dealing with one date of injury.  The date of injury that’s contended and alleged and asserted here is August 19th of 2013.  The issues that we have outlined are the nature and extent of that injury.”

The judge’s finding regarding the onset of symptoms three weeks after August 19, 2013, and his memorandum discussing the employee’s condition thereafter, represent an expansion of the issues beyond those submitted to him for decision.  While the employer and insurer were aware of the incident three weeks after the work injury and had in fact provided a hypothetical to their doctor that included that incident, the effect of that alleged incident was not at issue before the compensation judge.^[3]  Because Finding 7 was outside the scope of the issues contested at hearing, it is vacated.