The employee appeals the compensation judge’s finding that he is not entitled to continued payment of permanent partial disability benefits.  We affirm.

The employee sustained an injury to his left foot on March 17, 2011, while employed as an inventory control specialist.  The employee claimed a pallet loaded with over 1,000 pounds of dog food had rolled on top of his left foot.  The employee sought immediate medical care.  Some swelling and a small hematoma were noted on examination; x-rays were normal.  The employee was sent home with crutches for weight-bearing and ibuprofen for pain.  The pain did not resolve and, in July 2011, the employee saw a neurologist, Dr. Jack Hubbard, who stated that it was “quite likely” that the employee had developed complex regional pain syndrome as the result of the work injury.  Subsequent treatment focused on the use of sympathetic nerve blocks in an effort to alleviate the employee’s pain.

A spinal cord stimulator was implanted in January 2012 by Dr. Lon Lutz.  The employee reported an inability to walk after the surgery.  After a follow up examination on February 9, Dr. Lutz stated in his chart note that he was “concerned” about the employee’s “unwillingness or inability to ambulate at the present time.”  The employee has continued to report paraplegia with an inability to walk since that time.  The spinal cord stimulator was removed in November 2012.  As the employee was recovering from the anesthetic, the surgeon noted leg movement, but the employee, when asked, reported continued inability to move the lower extremities.

An independent medical examination was done by Dr. Rupert Exconde, a neurologist, later in November 2012.  He diagnosed complex regional pain syndrome and a spinal cord injury following the implant of the spinal cord stimulator.  Based on his conclusion that the employee was experiencing paraplegia, Dr. Exconde rated the employee as having a 75 percent permanent partial disability under Minn. R. 5223.0360, subps. 6.A. and 7.E.(3)(d).

The employer and insurer filed a notice of intention to discontinue temporary total disability benefits based on maximum medical improvement and initiated payment of permanent partial disability as rated by Dr. Exconde.  The payments would be made at a rate of $169.22 per week, and would be paid for 22 years for a total of $198,750.00.  The employee’s attorney subsequently sent a letter to the attorney for the employer and insurer demanding payment of the permanent partial disability in a lump sum.  The employer and insurer did not do so.  The employer and insurer instituted surveillance of the employee in May 2013 which documented the employee driving a car.

The employer and insurer filed a petition to discontinue benefits and the employee filed a claim petition for a 75 percent permanent partial disability as well as penalties for failure to pay the lump sum demanded.  The answer of the employer and insurer denied the claim for permanent partial disability, contending that the employee did not have paraplegia related to the work injury.

The employee was evaluated by Dr. K. Stephen Kazi, an orthopedist, on July 23, 2013.  In addition to reviewing medical records, Dr. Kazi performed an examination and reviewed the surveillance video.  Dr. Kazi diagnosed the March 2011 work injury as being a “mild contusion to the left foot.”  He opined that there was no organic basis for paraplegia, and no objective findings to support such a diagnosis.  He also concluded that the medical records did not support a diagnosis of paraplegia, referring to comments made by some of the employee’s treating doctors.  Dr. Kazi concluded there was no permanent partial disability related to the work injury, no need for restrictions, and no need for medical care after March 25, 2011, that would be related to the work injury.

Dr. Kazi wrote a supplemental report in December 2013 after reviewing records of somatosensory evoked potential testing done on the employee in October 2013.  In his deposition testimony, Kr. Kazi described this testing as entailing stimulation of the posterior tibial nerve while recording the reaction in the brain.  Dr. Kazi stated the testing showed the spinal cord to be intact, further supporting his opinion that there was no objective evidence to support a diagnosis of paraplegia.

The employee’s claim petition and the petition to discontinue benefits filed by the employer and insurer were heard by Compensation Judge James Kohl on February 5, 2014.  The employee was the only witness to testify.  The employee admitted that he drove a car that did not have hand controls or that was otherwise adapted for paraplegic use.  The employee stated that he drove by lifting his legs with his hands and placing them on the floor pedals as needed and then pushing on the legs.  He also testified that he had driven from Mankato to Minneapolis and back using this method of driving.

The compensation judge issued his findings and order on April 15, 2014.  The compensation judge determined that the preponderance of the evidence did not support the employee’s claim for a 75 percent permanent partial disability as rated by Dr. Exconde.  He also concluded that the employee was not entitled to any penalties related to the claimed permanent partial disability.  The employee has appealed.

The compensation judge determined that the preponderance of the evidence did not support the employee’s claim for a 75 percent permanent partial disability and did not support an assessment of penalties against the employer and insurer.  In his brief on appeal, the employee does not challenge the compensation judge’s denial of his claim for a 75 percent permanent partial disability.^[1]  The employee instead contends that his permanent partial disability benefits may not be discontinued and raises a number of arguments in support of his position.

The employee argues first that the compensation judge erred in considering the petition to discontinue filed by the employer and insurer.  According to the employee, discontinuance of permanent partial disability benefits is governed by Minn. R. 5220.2550 alone.^[2]  Minn. R. 5220.2550, subp. 1, requires an employer to make payment of permanent partial disability within 30 days of the receipt of a medical report containing a rating unless the rating is disputed.  The employee contends that any dispute as to the extent of permanent partial disability or the compensability of the claimed permanency must be made within the 30 day period.  This argument, however, ignores the statute and case law.

Minn. R. 5220.2550 must be read in combination with Minn. Stat. § 176.238 which allows for the discontinuance of compensation benefits by an employer.  The employee argues that this section applies only to wage loss benefits, but the plain language of the statute demonstrates otherwise.  Subdivision 1 of Section 176.238 begins with the statement that this section applies “except as provided in section 176.221, subdivision 1.”  Section 176.221, subd. 1, identifies when payment of compensation must commence, but also allows an employer to deny liability within 60 days of the notice of the injury.  Minn. Stat. § 176.238 covers those situations in which an employer decides to discontinue payment of benefits and/or deny liability after the 60-day period.  If the benefits at issue are for wage loss, Minn. Stat. § 176.239 provides for an administrative conference to consider the request for discontinuance on an expedited basis.  All other compensation may be discontinued without an administrative conference.  The statute also provides in Minn. Stat. § 176.238, subd. 5, that, instead of filing a notice of intention to discontinue compensation, an employer may proceed by filing a petition to discontinue benefits.  An employer electing to proceed under this subdivision must continue to pay benefits until the filing of the decision of a compensation judge.  The employer and insurer in the present case followed this procedure.

The commencement of payment of benefits is not a waiver of an employer’s right to dispute entitlement to benefits at a later time.  “Commencement of payment by an employer or insurer does not waive any rights to any defense the employer has on any claim or incident either with respect to the compensability of the claim under this chapter or the amount of the compensation due.”  Minn. Stat. § 176.221, subd. 1.  Case law has also held that when an employer makes voluntary payment of benefits, the employer may subsequently assert that payments were made under a mistake of law or fact.  Hoch v. Duluth Clinic, No. WC06-311 (W.C.C.A. Aug. 3, 2007); Parker v. Univ. of Minn., 66 W.C.D. 373 (W.C.C.A. 2006).  “To hold otherwise would be to discourage voluntary payment of benefits.”  Enger v. General Sec. Servs., slip op. (W.C.C.A. July 28, 1998); Kingbird v. Anderson Fabrics, 63 W.C.D. 337 (W.C.C.A. 2002).

The employee argues however that the compensation judge should have estopped the employer and insurer from disputing his permanent partial disability rating because he was prejudiced by the change in their position.  Estoppel may be applied when an employee has been prejudiced by an employer’s misrepresentation.  Lofgren v. Pieper Farms, 540 N.W.2d 834, 53 W.C.D. 464 (Minn. 1995).  Here however, the employer and insurer made no misrepresentations to the employee when they advised him that payment of permanent partial disability benefits would begin since those benefits began to be paid.  The employee continued to receive those benefits during the pendency of the claim.  Finally, in contrast to Lofgren, the actions of the employer and insurer did not extinguish the employee’s claims.  The employee is not foreclosed from asserting future claims which he may have arising out of the injury.  We see no prejudice to the employee which justifies application of estoppel.

The employee further contends that his permanent partial disability benefits could not be discontinued because his right to those benefits is vested.  The employee cites Owens v. Water Gremlin Co., 605 N.W.2d 733, 60 W.C.D. 36 (Minn. 2000) and Oswald v. Boise Cascade, 63 W.C.D. 286 (W.C.C.A. 2003).  As the employer and insurer point out, however, the issue in those cases was whether claims for permanent partial disability survive an employee’s death.  We find nothing in those cases to suggest that voluntary payment of benefits results in the employee being vested in those benefits.  As we discussed previously, the statute and case law provide authority for the discontinuance of benefits after payment has commenced.

In his memorandum, the compensation judge provided a detailed recitation of the evidence he considered in making his determination.  The compensation judge stated that “the preponderance of the evidence overwhelmingly supports a conclusion that the employee does not have permanent partial disability to the extent of 75% under the Rule.”  (Emphasis added.)  The employee is not entitled to receive continuing payment of benefits for permanent partial disability that the compensation judge has determined does not exist.  Further, penalties are not due for nonpayment of a benefit to which the employee is not entitled.

The decision of the compensation judge is affirmed.