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Zwieg v. Pope Douglas Solid Waste10/13/2005
This workers' compensation matter comes before us by certiorari upon the relation of Pope Douglas Solid Waste and Minnesota Counties Insurance Trust to review a decision of the Workers' Compensation Court of Appeals (WCCA) reversing, by 3-2 decision, a denial of additional compensation as a penalty for delayed payment of wage loss benefits. We affirm.
Darold Zwieg worked for Pope Douglas Solid Waste as a household hazardous waste technician. His work involved receiving and sorting household hazardous waste, maintaining storage drums and containers and general maintenance work at the collection facility. On February 11, 2002, Zwieg sustained a compensable right inguinal hernia injury for which he underwent surgery on February 20, 2002. He returned to work on April 2, 2002. The employer and its workers' compensation liability insurer, Minnesota Counties Insurance Trust, accepted liability and paid temporary total disability benefits and medical expenses.
On July 12, 2002, the employee was hospitalized for abdominal pain, eventually identified as an incarcerated right inguinal hernia with a segmental small bowel obstruction which was surgically repaired on July 15, 2002. The employee lived alone and had no one to care for him on a daily basis. Consequently, he recuperated in a nursing home. He was discharged to his own home on September 18, 2002. Because the medical bills "were stacking up," the employee's nephew, Gary Zwieg, acting on behalf of his uncle, inquired about workers' compensation benefits. The employer and insurer told Gary Zwieg that they did not believe the second surgery was related to the work injury and first surgery.
The employee filed a claim petition on May 20, 2003, seeking temporary total disability benefits, medical expenses related to the second surgery and penalties for delayed benefits. The employer and insurer denied the claim and, after obtaining an extension, scheduled an independent medical examination (IME) for November 5, 2003. The examination was postponed due to the employee's illness. On November 23, 2003, the employee passed away from causes unrelated to his employment. Gary Zwieg was appointed personal representative of the employee's estate.
The employer and insurer forwarded copies of the employee's medical records related to his hernia surgeries to Dr. Nolan Segal. By report issued on May 20, 2004, Dr. Segal stated that the second hernia was causally related to the first hernia and repair. The doctor said that had the employee "not sustained the first hernia and subsequent repair, which failed, he would not have developed the second hernia."
The employee's claim came on for hearing before Compensation Judge Catherine A. Dallner on June 11, 2004. At the hearing, the employer and insurer stipulated that the employee was entitled to temporary total disability benefits from February 12, 2002, through September 26, 2002, and related medical expenses. The claim for wage loss benefits from September 27, 2002, through November 23, 2003, and penalties for delayed benefits was still in dispute. Any benefits awarded were to go to the employee's estate.
The compensation judge denied the claim for wage loss benefits after September 26, 2002; awarded a portion of the claimed medical expenses; and awarded partial reimbursement of attorney fees. The compensation judge denied the claim for penalties for delayed payment of temporary total disability benefits from July 12, 2002, through September 26, 2002, where the employer and insurer did not have expert medical opinion on causation until the IME report from Dr. Segal was issued on May 20, 2004.
On appeal, the WCCA reversed the denial of penalti
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