Svenningsen v. FEINBERG DISTRIBUTING COMPANY

432 N.W.2d 758 (1988)

Elsa K. SVENNINGSEN, Respondent, v. FEINBERG DISTRIBUTING COMPANY and Liberty Mutual Insurance Company, Relators.

No. C9-88-1889.

Supreme Court of Minnesota.

December 28, 1988.

Adams, Cesario & Atkinson, P.A., Richard L. Cesario, Jeffrey W. Jacobs, Bloomington, for respondent.

Gilmore, Aafedt, Forde, Anderson & Gray, P.A., Miriam P. Rykken, Minneapolis, for relators.

Considered and decided by the court en banc without oral argument.

IT IS HEREBY ORDERED that the decision of the Workers' Compensation Court of Appeals is reversed and the case is remanded to the compensation judge for further proceedings in accordance with the memorandum attached hereto.

In this case, a compensation judge denied the employer/insurer's request to discontinue temporary partial benefits; and on appeal the Workers' Compensation Court of Appeals affirmed, holding that the employee was entitled to receive such benefits at a rate reflecting the difference between pre- and post-injury wages when the employee became unemployed subsequent to the expiration of the 90-day period after maximum medical improvement. By writ of certiorari, the employer/insurer have sought review claiming that under Parson v. Holman Erection Company, Inc., 428 N.W.2d 72 (Minn.1988), they should be allowed to discontinue payment of temporary partial benefits; and they also argue that they should be allowed a credit for those benefits paid to the employee beyond her last date of employment. The employee apparently does not dispute that under Parson, temporary partial benefits are not available to those claimants who are unemployed; but she disputes the employer/insurer's credit claim. The latter issue, as well as other issues raised by the parties, were not fully litigated below. Accordingly, we reverse the decision of the Workers' Compensation Court of Appeals to the extent that it is inconsistent with Parson, and remand the matter to the compensation judge for further proceedings, if necessary, in light of Parson and Morrissey v. Country Club Markets, Inc., 430 N.W.2d 169 (Minn.1988).