JANICE M. GAFFKE, Employee,
v.
SURF & SAND NURSING HOME and ASSIGNED RISK PLAN/EMPLOYERS INS. OF WAUSAU, Employer-Insurer/Appellants.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 23, 1999
MARCH
23, 1999
HEADNOTES
PRACTICE
& PROCEDURE - MOTIONS; PRACTICE & PROCEDURE -
DISCOVERY. Under the somewhat unusual circumstances of
this case, the compensation judge erred in applying Minn. R.
1415.2200, subd. 5, to order that the employee's claimed
weekly wage be deemed "admitted" by the employer
and insurer for alleged failure to comply with discovery
requests, where the employer and insurer had no reasonable
opportunity to be heard on the matter.
Vacated.
Determined by Wilson, J., Wheeler, C.J., and Hefte, J.
Compensation Judge: Karen C. Shimon.
OPINION
DEBRA
A. WILSON, Judge
The
employer and insurer appeal from the compensation judge's
order deeming the employee's claimed weekly wage
admitted. We vacate the judge's order to this
effect.
BACKGROUND
On
November 10, 1992, the employee sustained an admitted injury
to her leg while employed by Surf & Sand Nursing Home
[the employer]. The employer and its insurer paid the
employee various benefits following the injury, basing wage
loss benefit payments on a weekly wage of $354.67. On
January 12, 1998, the employee filed a claim petition
alleging entitlement to additional benefits, including
temporary partial disability benefits, and asserting a weekly
wage of $390.00. In its answer, the employer and insurer
admitted liability for the injury but alleged, among other
things, that the employee's disability, if any, was
unrelated to her work injury. With regard to the
employee's claimed weekly wage, the employer and insurer
indicated that they lacked sufficient information to answer
or otherwise respond. During the discovery process, the
employer and insurer allegedly provided the employee with a
complete copy of the employee's personnel file, among
other items.1
On June
23, 1998, a settlement conference was held, by telephone,
before Judge Jerome Arnold, who then referred the matter to
the Office of Administrative Hearings. About three
months later, on September 16, 1998, the employer and insurer
received a Notice of Settlement Conference, indicating that a
settlement conference before Judge Karen Shimon was scheduled
for 9:00 a.m., on October 7, 1998, and giving the address of
the Office of Administrative Hearings in Duluth, including a
suite number. According to Michael Tierney, the attorney
for the employer and insurer, the notice consisted of a
single piece of paper, which included proof of service.
By
letter dated September 24, 1998, the employee's attorney,
Louis Stockman, asked Mr. Tierney for more specific wage
information, including the employee's wage history for
the twenty-six week pre-injury period. Mr. Tierney was
unavailable due to a death in the family, but another
attorney in Mr. Tierney's office allegedly contacted the
employer to obtain additional information, and the employer
apparently responded by providing first reports of injury
showing the employee's hourly rates at various points
prior to the November 10, 1992, injury. This information...
