DONNA M. NYREEN, Employee,
v.
INDUSTRIAL CUSTOM PRODS. and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer/Appellants.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
April 23, 1999
HEADNOTES
APPORTIONMENT
- EQUITABLE; CALCULATION OF BENEFITS - CONCURRENT
BENEFITS. Kirchner I and II are inapplicable
and do not require the employer and insurer to continue
payment of temporary partial disability benefits when the
employee's second and totally disabling injury is a
work-related injury subject to another state's law and is
not compensable under the Minnesota Workers' Compensation
Act.
PRACTICE
& PROCEDURE - EXPEDITED HEARING. The compensation
judge erred by considering the employee's earning
capacity at an expedited discontinuance hearing where that
issue was not raised by the NOID and there was no agreement,
as required by Minn. Stat. § 176.238, subd. 6, to expand the
issues.
Reversed
in part and vacated in part.
Determined by Wilson, J., Pederson, J., and Hefte, J.
Compensation Judge: William R. Johnson.
OPINION
DEBRA
A. WILSON, Judge
The
employer and insurer appeal from the compensation judge's
decision that the employee is entitled to continuing
temporary partial disability benefits following the
employee's totally disabling Wisconsin work injury and
from the judge's decision as to the employee's
earning capacity following her return to work after the
Wisconsin injury. We reverse in part and vacate in part.
BACKGROUND
On
October 30, 1991, the employee sustained a work-related low
back injury in the course and scope of her employment at
Industrial Custom Products [the employer]. Her weekly
wage at the time was $418.00. The employee subsequently
underwent several surgical procedures to her low back, and
the employer and insurer paid various Minnesota workers'
compensation benefits, including medical benefits, temporary
total disability benefits, and permanent partial disability
benefits.
1 Notice of maximum medical
improvement [MMI] with regard to the 1991 injury was served
and filed in August of 1997, and there is apparently no
dispute that the employee reached MMI at that time.
On
October 27, 1997, the employee began a valet parking
attendant job, at a wage loss, at the St. Croix Casino in
Wisconsin, and the employer and insurer commenced payment of
temporary partial disability benefits based on reported
casino earnings of $222.40 a week. Subsequently, on May
27, 1998, the employee sustained an injury to her knee while
performing her duties at the casino. Her physician took
her off work "due to knee ligament strain," and St.
Croix Casino and its workers' compensation insurer began
paying temporary total disability benefits, under Wisconsin
law, based on a weekly wage of $222.40. On July 4, 1998,
the employee returned to modified sedentary work at the
casino, earning less than she had before because of slow
business. The employer and insurer apparently continued
paying temporary partial disability benefits but on July 15,
1998, filed a Notice of Intention to Discontinue Benefits
[NOID], requesting discontinuance of temporary partial
disability benefits effective May 27, 1998, on the following
grounds:
The employee is no longer working due to a superseding,
intervening cause of disability. She is not entitled to
payment of temporary partial disability benefits when she is
not working, generating an income and generating an income at
a wage loss in relation to our date of injury.
The
employee filed an objection to discontinuance the following
day, and the matter was set for expedited hearing pursuant to
Minn. Stat. § 176.238, subd. 6.
The
discontinuance hearing was held before a compensation judge
of the Office of Administrative Hearings on September 15,
1998. At that time, the employer and insurer reiterated
their position that the Wisconsin injury was an intervening,
superseding cause of the employee's disability and
claimed that no temporary partial disability benefits were
payable until the employee had been released to work at her
usual valet parking attendant job without restrictions
associated with her knee injury. The employee claimed
entitlement to continuing temporary partial...
