• Judicial •

Workers’ Compensation

Court of Appeals
October through December 2002
Case summaries published are those prepared by the WCCA

Fox v. Yellow Freight Systems, 10/1/02 DOI: 8/15/01 Medical Treatment and Expense — Reasonable and Necessary The record as a whole did not support the judge’s award of chiropractic expenses after the initial 12 weeks of treatment, either under case law standards or the applicable treatment parameters. Causation — Substantial Contributing Cause Substantial evidence failed to support the judge’s findings regarding the existence of a pre-existing condition but did support his findings that the employee’s lumbar condition was causally related to the employee’s work injury. Modified in part and reversed in part. Morris v. Methodist Hospital, 10/1/02 DOI: 3/31/87 Permanent Partial Disability Where the treating doctor provided alternative ratings of permanent partial disability to the thoracic spine and where the IME’s opinion was that the employee’s bladder condition was not related to her work injury, substantial evidence supports the decision of the compensation judge as to the extent of permanent partial disability. Medical Treatment and Expense — Reasonable and Necessary Where the issue of reasonableness and necessity of medical care arose solely as an element of a defense to the permanent partial disability claim and where the compensation judge did not accept the defense, the finding on reasonableness and necessity is vacated.
* This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions Medical Treatment and Expense — Housekeeping Services Where it was not shown that housekeeping services were necessary to cure and relieve from the effect of the injury, substantial evidence supports the denial of requested services by the compensation judge. Vacated in part and affirmed as modified. Smasal v. Aerotek, Inc., 10/1/02 DOI: 3/17/95 Vacation of Award — Substantial Change in Condition Where there was no evidence that the change in the employee’s right upper extremity condition was unanticipated, and where an alleged low back injury had not been adjudicated to be work-related, the employee failed to establish good cause to vacate based on substantial change in his medical condition. Petition to vacate award denied. Davis v. Berg Construction, 10/2/02 DOI: 9/24/97 Causation — Substantial Contributing Cause Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee did not sustain a thoracic injury in a work-related incident as claimed. Affirmed. Kuisle v. Sunrise Assisted Living, a/k/a Karrington Assisted Living, 10/2/02 DOI: 11/8/99 Causation — Evidence — Expert Medical Opinion The compensation judge’s rejection of all the opinions of the employee’s treating and evaluating physicians other than Dr. Park, based on lack of foundation, was clearly erroneous. Evidence — Credibility Where it appears that the sole basis of the compensation judge’s denial of claims for the employee’s alleged right leg and foot injury is the compensation judge’s belief that the employee could not have and did not observe her right foot turning inward at the precise moment of the incident on Nov. 8, 1999, that finding and determination are clearly erroneous. Wages Where the compensation judge provides no explanation as to why, in determining the employee’s earning capacity, he considered the employee’s previous part-time employment for the employer, when in fact she
D-2
• COMPACT • February 2003

Summaries of Decisions worked full-time at the time of the injury when calculating a weekly wage rate, the matter is remanded to the compensation judge for reconsideration of the wage rate and for specific findings outlining the basis for his determination of the wage rate. Affirmed in part, vacated and remanded in part. Titera v. Clearwater-Polk Electric Co-op, Inc., 10/2/02 DOI: _______ Interest Minnesota Statutes §176.191, subd. 3 Interest paid to a health insurer on medical expenses reimbursed pursuant to Minnesota Statutes §176.191, subd. 3, accrues from the date the expenses were paid by the health insurer. Reversed. Boone v. Hauenstein and Burmeister, Inc., 10/3/02 DOI: 9/21/94, 5/17/90 Temporary Partial Disability Minnesota Statutes §176.101, subd. 2(b) (1992) The compensation judge properly concluded the employee, who sustained admitted work injuries on May 17, 1990, and Sept. 21, 1994, was not entitled to ongoing temporary partial disability benefits after 225 weeks of benefits had been paid following the second injury under Minnesota Statutes §176.101, subd. 2(b) (1992), and Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987). Permanent Total Disability Substantial evidence, including the employee’s significant work restrictions, multiple job searches and his vocational history and earnings following the second work injury, supports the compensation judge’s determination that the employee has been permanently and totally disabled since Sept. 21, 1994. The fact that the employee received temporary partial disability benefits during part of the time during which the compensation judge found he had been permanently and totally disabled is not a relevant or determining factor in assessing whether the employee has been able to obtain something more than sporadic employment resulting in insubstantial earnings. Affirmed.

February 2003 • COMPACT •

D-3

Summaries of Decisions Kaniewski v. Wal-Mart Stores, Inc., 10/7/02 DOI: 12/27/99 Causation — Primary Liability Causation — Substantial Evidence Where the compensation judge acknowledged that the claimed incident on or about Dec. 27, 1999, was unwitnessed and that there was confusion over the actual date of injury, but where the judge credited the employee’s testimony as to an injury at work about that date and found that testimony corroborated by the medical records, the judge’s finding that the employee sustained a work-related injury to his low back on or about Dec. 27, 1999, was not clearly erroneous and unsupported by substantial evidence, notwithstanding the employer and insurer’s contention that the employee did not even work on Dec. 27, 1999. Causation — Aggravation Causation — Pre-Existing Condition Where the judge had clearly acknowledged the employee’s pre-existing medical history and the opinions of the independent medical examiner, and where the conclusion of the judge was amply supported by the employee’s testimony and the medical records of the employee’s physician, the compensation judge’s conclusion that the employee’s work injuries with the employer constituted permanent aggravations of the employee’s pre-existing condition was not clearly erroneous and unsupported by substantial evidence. Practice and Procedure — Admission of Evidence Minnesota Rules Part 1415.1900, subp. 7 Where the proposed evidence was not disclosed either in the employer and insurer’s pre-trial statement or at the pre-trial conference held before the judge, and where the employer and insurer had not otherwise established an excuse under Minnesota Rules Part 1415.1900, subp. 7, the compensation judge did not abuse his discretion in excluding from evidence certain exhibits not disclosed until the date of the hearing, notwithstanding the employer and insurer’s arguments that they had made a good faith effort to disclose all relevant evidence prior to that time. Wages — Multiple Employments Where the employer and insurer contended that the employee was no longer working at a second job on the date of his second aggravation injury, where the record did not contain any evidence at all of the employee’s weekly wage on the date of that injury, but where both the employee’s first aggravation injury and his second aggravation injury together had resulted in additional permanent partial disability, the compensation judge’s finding of a weekly wage inclusive of the second job on the date of the second injury was vacated, but the employer and insurer’s appeal from calculation of benefits after the second injury based on a wage equal to the employee’s wage at the time of the first injury was essentially moot, in that the first injury was inferrably a substantial contributing factor in the employee’s condition on the date of the second, and his wage on the date of the first therefore remained applicable in calculating the employee’s compensation on the date of the second. Affirmed in part and vacated in part.

D-4

• COMPACT • February 2003

Summaries of Decisions Fletcher v. Todd County, 10/10/02 DOI: 1/29/01 Causation — Substantial Contributing Cause Temporary Benefits Rehabilitation — Eligibility Substantial evidence supported the compensation judge’s denial of the employer and insurer’s request to discontinue temporary total disability benefits and rehabilitation services, where expert opinion supported the compensation judge’s conclusion as to the employee’s work-related restrictions, which precluded the employee from returning to his pre-injury job, where there was no evidence that the employee had earned income during the period at issue, and where the record indicated that the employee would benefit from rehabilitation services. Affirmed. Janssen v. Vasko Rubbish Removal, Inc., et al, 10/10/02 DOI: 5/23/00, 2/18/00, 5/23/99, 11/30/94 Causation — Arising Out Of and In the Course Of Substantial evidence supports the compensation judge’s determination that although the employee’s injuries in 1999 and 2000 arose out of and in the course of his employment with Superior Services, those injuries do not represent a substantial contributing cause of the employee’s reduction in earnings since the last injury, nor his physical restrictions and permanent partial disability. Permanent Partial Disability — Practice and Procedure — Remand As the compensation judge made no finding on the issue of whether the employee has sustained 9 percent whole body impairment relative to a herniation at the L4-5 level, or whether the employee’s diagnosed herniation relates to the employee’s 1994 injury, this matter is remanded to the compensation judge for specific findings on whether the employee has sustained a 9 percent whole body impairment, and whether the employee’s injury of Nov. 30, 1994, represents a substantial contributing cause of that permanency. Affirmed in part and remanded in part. Brown v. Prospect Foundry, Inc., 10/15/02 DOI: 3/17/9 8 Evidence — Burden of Proof Where the employee filed a claim petition and the employer and insurer denied liability for the cervical injury, alleging in their answer that the employee’s claimed disability and any need for medical treatment was the result of a disease process or another incident and stated that any medical payments made that were related to a cervical injury were paid by mistake of fact, the compensation judge did not err by placing the burden of proof regarding causation on the employee.

February 2003 • COMPACT •

D-5

Summaries of Decisions Causation Substantial evidence supports the compensation judge’s finding that the employee’s cervical condition and fusion surgery were not causally related to his March 17, 1998 work injury. Affirmed. Cersine v. LTV Steel Mining Company, 10/16/02 DOI: 7/1/92 Causation Substantial evidence, including the employee’s testimony and the opinions of his treating doctors, supports the compensation judge’s finding that the employee’s July 1, 1992 personal injury to both knees was a substantial contributing cause of his need for bilateral knee replacement surgery. Affirmed. Holcomb v. Itasca Medical Center, 10/16/02* DOI: 5/2/98 Evidence — Expert Medical Opinion Where the employee’s doctor’s failure to note the absence of evidence as to causation of the employee’s preinjury non-ACL-related knee problems was immaterial as to causation of the employee’s post-injury ACL tear, where most of the “discrepancies” in the doctor’s opinions were resolved in the medical record, where the doctor’s mistake as to the date of one of the employee’s MRI scans did not demonstrate unfamiliarity with the scan or with the condition of the employee’s knee, and where the doctor’s opinion was apparently, though not expressly, rendered within a reasonable degree of medical certainty, the employee’s doctor’s opinion was not of insufficient foundation to be relied upon. Causation Where the expert medical opinions upon which the judge relied were not purely speculative, where the judge did not apply an inappropriate legal standard, and where there was sufficient evidence that the ACL tear at issue was present from and after the date of the work injury, the compensation judge’s conclusion that the employee’s work injury was a substantial contributing cause of the employee’s anterior cruciate ligament tear and the employee’s need for its repair was not clearly erroneous and unsupported by substantial evidence. Affirmed.

* This case is on appeal to the Minnesota Supreme Court.

D-6

• COMPACT • February 2003

Summaries of Decisions Kruczek v. Hoerner Waldorf, 10/16/02 DOI: 6/2/78, 2/22/74 Vacation of Award — Mistake Where there is insufficient basis for concluding that the employee was incompetent to enter in a settlement, good cause did not exist to vacate the employee’s award on stipulation on grounds of mistake. Petition to vacate award denied. Sobczak v. Wal-Mart Stores, Inc., et al, 10/23/02 DOI: 3/28/97, 4/23/85 Apportionment Equitable Substantial evidence supported the compensation judge’s decision denying apportionment of any part of the employee’s medical expenses for her low back condition following the employee’s March 28, 1997 work injury against prior work injuries sustained during the 1980s. Affirmed. Winters v. Douglas County Hospital, 10/23/02 DOI: 6/18/99 Medical Treatment and Expense — Refusal of Treatment Substantial evidence supported the compensation judge’s decision that it was not unreasonable for the employee to refuse total hip replacement surgery, given the major nature of the procedure, the seriousness of the potential complications, the pain and significant scarring related to the operation, and the employee’s prior experience of nausea after other surgeries. Permanent Total Disability Substantial evidence, including the testimony of the employee’s QRC, supported the compensation judge’s decision that the employee is permanently and totally disabled as a result of her work-related hip condition. Causation — Substantial Contributing Cause Substantial evidence, including the employee’s testimony and some expert opinion, supported the compensation judge’s decision that the employee’s right shoulder and right knee conditions were work-related.

February 2003 • COMPACT •

D-7

Summaries of Decisions Permanent Partial Disability Where the employee’s physician admittedly failed to do passive range of motion testing, the compensation judge erred in awarding permanent partial disability benefits under schedules specifically directed at restricted passive range of motion, and, under the unusual circumstances of this case, remand was necessary to allow the parties to submit additional evidence. Affirmed in part, reversed in part, and remanded. Darnick v. Swett and Crawford, 10/29/02 DOI: 7/18/00 Causation Evidence — Expert Medical Opinion Substantial evidence, including the adequately founded opinion of the employee’s treating physician and the testimony of the employee, supports the compensation judge’s determination that the employee’s admitted July 18, 2000 personal injury was a substantial contributing cause of the need for medical treatment for scaphotrapeziotrapezoid (STT) joint arthritis in the employee’s right hand. Affirmed. Earley v. Harris Companies, 10/29/02 DOI: 7/21/00 Job Offer — Refusal Substantial evidence supported the compensation judge’s decision that the employee unreasonably refused work that the employee was physically capable of performing. Affirmed in part and modified in part. Patrick v. Christensen Family Farms, 10/29/02 DOI: 1/9/01 Wages — Irregular Minnesota Statutes §176.011, subd. 3 Minnesota Statutes §176.011, subd. 18 When an employee’s hours and days of work are irregular, the employee’s employment on the date of injury may, be included in computing the employee’s daily wage under Minnesota Statutes §176.011, subd. 3. Under Minnesota Statutes §176.011, subd. 3 (2000), if the employee earned less than a full day’s worth of wages and vacation or holiday pay, the total amount earned shall be divided by the corresponding proportion of the work day. It is not apparent whether the compensation judge considered this portion of the statute, and the case is remanded to recompute the employee’s daily wage.

D-8

• COMPACT • February 2003

Summaries of Decisions Where the employee performed duties of his employment during the week in which he was injured, the compensation judge properly included that week in calculating the employee’s weekly wage under Minnesota Statutes §176.011, subd. 18. A consistent application of Minnesota Statutes §176.011, subds. 3 and 18, requires that an employee’s holiday and vacation pay be included in the weekly, as well as the daily, wage calculation. Penalties Substantial evidence supports the compensation judge’s denial of the employee’s claim for a penalty on the basis that the insurer’s July 3, 2001 letter provided the employee and his attorney with an adequate explanation of the reasons for the benefit reduction and contained as much information as would have been contained in a Notice of Intention to Discontinue, which the employer and insurer failed to serve and file. Attorney Fees Minnesota Statutes §176.081, subd. 7 Minnesota Statutes §176.081, subd. 1(c) The compensation judge properly ordered payment of Minnesota Statutes §176.081, subd. 7, attorney fees on future attorney fees ordered paid by the compensation judge arising from this particular dispute. Attorney fees may not be awarded on undisputed portions of compensation awards, Minnesota Statutes §176.081, subd. 1(c), and benefits paid the employee based on the portion of a compensation rate that was undisputed may not be the subject of an award of attorney fees. Affirmed in part, modified in part, and remanded. Tomaszewski v. World Aerospace Corporation, 10/30/02 DOI: 3/5/90 Vacation of Award The employee’s petition to vacate an award on stipulation on the ground of the alleged fraudulent conduct of his former attorney must be denied where there is no evidence of fraud on the part of the employer or the insurer. Petition to vacate award denied. Dahl v. Marsden Building Maintenance, 10/31/02 DOI: 2/25/81 Vacation of Award — Substantial Change in Condition While causation was established by stipulation, there was insufficient evidence of a substantial change in condition, under the factors listed in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), to justify vacating the award on stipulation. Petition to vacate award denied.
February 2003 • COMPACT •

D-9

Summaries of Decisions Clark, III v. Dr. Pepper Seven-Up Bottling Company, 11/1/02 DOI: 7/6/00 Evidence — Expert Medical Opinion Medical Treatment and Expense — Surgery Where opposing medical opinion did not constitute a definitive position regarding the compensability of the surgery at issue, and where the physician upon whose opinion the judge relied was clearly “aware of” the employee’s psychiatric difficulties and of the complexities of the condition with which he had been diagnosed, the compensation judge’s award of recommended spinal fusion surgery was not clearly erroneous and unsupported by substantial evidence. Causation — Consequential Injury Causation — Substantial Contributing Cause Causation — Primary Liability Where it was evident that the employee’s foot drop condition was being treated as consequence of the employee’s work-related low back injury, and where there was evidence that the employee’s shoulder condition had resulted from a trip and fall consequent to his foot drop condition, the issue of the causation of the employee’s shoulder condition was not one of medical causation such as would require reliance on expert medical evidence, and the compensation judge’s finding of a shoulder injury as alleged was not clearly erroneous and unsupported by substantial evidence, even absent clear supporting expert medical evidence. Medical Treatment and Expense — Reasonable and Necessary Where the cost of recommended pool therapy was not unreasonable given the therapy’s finite recommended duration and specific goals and the additional apparent parameter imposed on the therapy by affirmance of the judge’s grant of spinal fusion surgery, the compensation judge’s award of pool therapy in treatment of the employee’s work-related low back condition was not clearly erroneous and unsupported by substantial evidence. Affirmed. Jensrud v. Earthly Creations, 11/1/02 DOI: 1/8/99 Permanent Partial Disability Minnesota Rules Part 5223.0450, subp. 4A 1(b) Minnesota Rules Part 5223.0450, subp. 4B 1(b) Substantial evidence, including expert medical opinions of the employee’s treating physicians, supports the compensation judge’s finding that the employee had sustained 6 percent permanent partial disability of the whole body, pursuant to Minnesota Rules Part 5223.0450, subp. 4A 1(b) and 4B 1(b). Affirmed.

D-10

• COMPACT • February 2003

Summaries of Decisions Mettner v. Brush Masters, Inc., et al, 11/1/02 DOI: 2/21/01 Practice and Procedure — Dismissal In cases where the judge’s order affects the merits of the case, it is incumbent upon the compensation judge to establish a record sufficient for appellate review. Where the appellate court had been provided with no indication of the basis for the compensation judge’s order and so could not appropriately review the judge’s decision, the court vacated the compensation judge’s order dismissing one of the alleged employers and its insurer and remanded the matter to the compensation judge for reconsideration or for an evidentiary hearing on the merits of the employee’s claim. Vacated and remanded. Reeves v. Southside Distributors, Inc., 11/5/02* DOI: 12/29/94 Causation Substantial evidence supports the finding of the compensation judge that the employee did not sustain a brain injury or psychological condition as the result of the work injury where there were medical opinions with adequate foundation which attributed those conditions to non-work-related factors. Affirmed. Porter v. Douglas County Hospital, 11/6/02 DOI: 6/4/99 Causation — Gillette Injury — Aggravation Substantial evidence of record, including expert medical opinion, supports the compensation judge’s finding that the employee sustained an ultimate breakdown of her shoulder condition on June 4, 1999, as a result of her work activities performed for the employer, and that her injury represented an aggravation of her preexisting shoulder condition. Permanent Partial Disability — Shoulder Substantial evidence of record, including expert medical opinion, supports the compensation judge’s finding that the employee sustained a permanent partial disability to the extent of 3 percent whole body impairment, as a substantial result of her Gillette injury of June 4, 1999. Affirmed.

* This case is on appeal to the Minnesota Supreme Court. February 2003 • COMPACT •

D-11

Summaries of Decisions Schultz v. Twin City Die Castings Company, 11/7/02 DOI: 9/7/99 Gillette Injury Evidence — Expert Medical Opinion Substantial evidence, including expert medical opinion, supported the compensation judge’s decision that the employee’s September 1999 bilateral hand and wrist injury was permanent in nature, and the expert opinion in question was not so speculative as to require reversal of the compensation judge’s decision to rely on it. Medical Treatment and Expense — Reasonable and Necessary Pursuant to Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999), the compensation judge correctly concluded that the medical treatment parameters were inapplicable to the employee’s medical expense claim where the employer and insurer were contending that the work injury was merely temporary and had ended well before the treatment at issue. Affirmed. Dodgen v. Casey’s General Stores, Inc., 11/8/02 DOI: 1997 Temporary Aggravation Substantial evidence supported the compensation judge’s determination that the employee’s 1997 work injury resulted in only a temporary, rather than permanent, aggravation of the employee’s pre-existing low back condition. Affirmed. Quitevis v. M.W. Ettinger Transfer, et al, 11/12/02 DOI: 4/29/95 Causation — Gillette Injury Substantial evidence supports the determination of the compensation judge that the employee sustained a Gillette injury as of the date of his layoff from the employer. Permanent Partial Disability Reference by the compensation judge to other injuries as causative factors did not preclude an award of permanent partial disability against a subsequent Gillette injury which was also a substantial contributing factor. Substantial evidence, including the opinion of the IME, supports the denial by the compensation judge of claimed permanent partial disability to the lumbar spine.

D-12

• COMPACT • February 2003

Summaries of Decisions Temporary Benefits Substantial evidence supports the denial of temporary total and temporary partial disability where the employer was under no restrictions which would prevent him from performing his usual employment. Temporary Partial Disability — Calculation Where averaging the employee’s post-injury earnings includes weeks in which the employee did not work and weekly earnings are available, temporary partial disability benefits should be calculated on a week by week basis. Affirmed in part, modified in part, and reversed in part. Sorvick v. City of Crystal, 11/13/02 DOI: 1/3/96 Permanent Total Disability Where the employee had actively demonstrated that he was capable of steady, regular post-injury employment, where he had obtained his post-injury job through a competitive application and interview process, where his hours were not sporadic, and where the judge’s conclusion was supported by the testimony of a vocational expert, the compensation judge’s conclusion that the employee’s post-injury earnings were not “insubstantial” for purposes of entitlement to permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee’s post-injury wages were less than half his preinjury wages and were not supplemented by any benefits package as had been his pre-injury wages. The comparison-based analysis in Jerde v. Adolfson & Peterson, 484 N.W.2d 793, 46 W.C.D. 620 (Minn. 1992), applicable to determining the suitability of post-injury employment with regard to a claim for economic recovery compensation, is not applicable to determining whether or not an employee’s post-injury earnings are insubstantial with regard to a claim for permanent total disability compensation. Affirmed. Nguyen v. Compass Group USA, 11/15/02 DOI: 5/21/01 Vacation of Award Where the parties have submitted opposing affidavits on the question of fraud, the matter is referred to the Office of Administrative Hearings for an evidentiary hearing. Petition to Vacate referred to OAH. Appeal stayed.

February 2003 • COMPACT •

D-13

Summaries of Decisions Beckwith v. Sun Country Airlines, 11/18/02 DOI: ________ Attorney Fees — Roraff Where the compensation judge made inadequate factual findings on the Irwin factors and improperly relied almost exclusively on time spent by counsel, remand was required for reconsideration and new findings as to counsel’s entitlement to Roraff fees. Reversed and remanded. Cartwright v. United International, Inc. d/b/a United Payphone Network, 11/19/02 DOI: 2/26/97 Vacation of Award — Substantial Change in Condition The petition to vacate and set aside the Award on Stipulation of May 6, 1998, is denied where the employee’s medical records show no change in the underlying diagnosis and a failure to consolidate and pseudoarthrosis following the C5-6 and C6-7 fusion of March 1997 was clearly a possibility that could be anticipated based on the employee’s medical records prior to the stipulation for settlement. Petition to vacate denied. Nation v. V.G.B. Greeting Cards, 11/19/02 DOI: 12/8/90 Vacation of Award — Substantial Change in Condition Where there was no medical basis on which to compare the employee’s condition on the date of the petition with his condition on the date of the mediation award and so no basis for the court’s application of the factors outlined in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), and where there remained a significant dispute regarding causation of the employee’s current worsened condition, no doctor having opined that the employee’s alleged work injury was a substantial contributing cause of that condition and its consequences, the court denied the employee’s petition to set aside the mediation award at issue. Petition to vacate award denied. Sweep v. Donnelly Stucco, 11/19/02 DOI: 12/6/84 Medical Treatment and Expense — Reasonable and Necessary Medical Treatment and Expense — Surgery Where it was evident that the annular tear in the employee’s lumbar disc, evident on the employee’s 2000 discogram, was the condition necessitating the recommended intradiscal electrothermal [IDET] procedure at issue, and where there was no evidence of that tear or of any disc condition forecasting it on CT scans in 1985 and 1988 or on MRI scans in 1992 and 2002, the compensation judge’s conclusion that the condition to be
D-14
• COMPACT • February 2003

Summaries of Decisions treated by the recommended IDET procedure was not causally related to the employee’s 1984 work injury was not clearly erroneous and unsupported by substantial evidence. Affirmed. Krukow v. Cracker Barrel Old Country Store, 11/21/02 DOI: 7/30/01 Rehabilitation — Eligibility Substantial evidence, including medical records and the employee’s testimony, support the compensation judge’s conclusion that the employee is subject to restrictions that affect her employability and would benefit from ongoing rehabilitation services. Affirmed. Costello v. Clay County, 11/22/02 DOI: 3/26/98 Attorney Fees — Roraff Minnesota Statutes §176.081, subd. 7 Where, in her Findings and Order on the employee’s request for Roraff/Irwin attorney fees and for an award under Minnesota Statutes §176.081, subd. 7, the compensation judge had awarded the requested Roraff/ Irwin fees but had failed even to address the additional claim for benefits under subdivision 7, and in that Minnesota Statutes §176.081, subd. 7, requires that a judge “shall” award subdivision 7 fees to the employee in circumstances uncontestedly like those in this case, the compensation judge’s decision was affirmed with modification to include an award to the employee as required under subdivision 7 in addition to the judge’s award of Roraff/Irwin attorney fees. Affirmed as modified. Hallila v. Lund International Holding, Inc., 11/25/02 DOI: _______ Temporary Benefits Substantial evidence supports the compensation judge’s awards of temporary total and temporary partial disability compensation where the employee’s testimony, pattern of medical restrictions, and other evidence support the finding that he was medically unable to work for certain periods and sustained a wage loss as a result of the work injury for other periods. Affirmed.

February 2003 • COMPACT •

D-15

Summaries of Decisions Farnham v. Meehan Tool and Engineering, Inc., 11/27/02 DOI: 3/28/01 Notice of Discontinuance — Maximum Medical Improvement Substantial evidence of record supports the compensation judge’s findings that the employee has not yet reached maximum medical improvement, that he continues to be restricted as a result of his March 28, 2001, injury, and that no grounds exist on which to base a discontinuance of the employee’s temporary total disability benefits. Affirmed in part and modified in part. Hernandez v. Bergerson Caswell, Inc., 12/02/02 DOI: 7/26/00 Medical Treatment and Expense — Treatment Parameters Medical Treatment and Expense — Second Opinion Medical Treatment and Expense — Independent Medical Examination Minnesota Statutes §176.135, subd. 1a Minnesota Rules Part 5221.6050, subp. 9.C.(5) Minnesota Rules Part 5221.6050, subp. 9.C.(6) Although Minnesota Rules Part 5221.6050, subp. 9.C.(5), provides an insurer may require a second opinion from a physician of the employee’s choice, prior to non-emergency surgery, and that the health care provider may not perform the surgery until the employee provides a second opinion to the insurer, Minnesota Statutes §176.135, subd. 1a, explicitly states that failure to obtain a second surgical opinion shall not be reason for nonpayment of charges for the surgery. The compensation judge properly held that the employer and insurer were not relieved from their obligation to pay for the surgery where the employee proceeded with the surgery before a second opinion, requested by the employer and insurer, was obtained. If prior notification of surgery is required, Minnesota Rules Part 5221.6050, subp. 9.C.(6), provides the employer and insurer may elect to obtain an independent medical examination (IME). The proposed surgery may not be provided pending the IME if the insurer notifies the employee within seven working days of the prior notification. Moreover, the employee may elect to proceed with the surgery after 45 days following a timely request for an IME. Minnesota Rules Part 5221.6050, subp. 9.C.(6), restricting the provider from performing surgery while an IME is pending is not applicable in this case as the employer and insurer did not notify the employee of the IME within seven working days of the employee’s Dec. 3, 2001 medical request, and the surgery was not performed until Feb. 6, 2002, more than 45 days after the employer and insurer’s response to the employee’s medical request. Affirmed.

D-16

• COMPACT • February 2003

Summaries of Decisions Klarkowski v. Honeywell, Inc., 12/2/02 DOI: 4/26/78 Withdrawal from Labor Market — Retirement Temporary Total Disability Where it was not unreasonable for the compensation judge to conclude that the employee’s earnings at the time of his 2000 surgery were not so insignificant as to constitute a retirement from the labor force, and where there was no dispute that the employee was totally disabled from working during the post-surgical period for which temporary total disability benefits were sought, the compensation judge’s award of temporary total disability benefits based on the employee’s 1978 work injury during the 2000-2001 period of his post-surgical convalescence was not clearly erroneous and unsupported by substantial evidence, notwithstanding the facts that the employee had ostensibly “retired” from employment with the date-of-injury employer in 1997, and that the parties had stipulated that the employee had self-limited his earnings during the post-“retirement” period preceding his 2000 surgery and so was not entitled to temporary partial disability benefits during that period. Affirmed. Cloud v. Leech Lake Housing Authority, 12/11/02* DOI: 6/5/01 Temporary Total Disability Substantial evidence supports the award of temporary total disability where the compensation judge found the employee to be credible and the employee’s testimony was substantiated by medical records and reports. Job Search The employee had no obligation to job search where the employer had indicated its desire to bring the employee back to work and the rehabilitation plan called for a return to work with the pre-injury employer. Affirmed. Hendricks v. Roof Depot, 12/11/02 DOI: 5/12/99 Permanent Partial Disability — Causation Expert Medical Opinion Where the facts material to an expert medical opinion were consistent with those found by the compensation judge, the possibility that the expert may not have been fully informed about facts he did not consider material to his opinion does not constitute a foundational defect warranting reversal. In addition, the issue of causation for the employee’s permanency was one of fact entrusted to the compensation judge, and the employee’s testimony, the medical records including an MRI scan report, and other evidence in the case also provided substantial evidence for the judge’s findings. Affirmed.
* This case is on appeal to the Minnesota Supreme Court. February 2003 • COMPACT •

D-17

Summaries of Decisions Micklos v. Monson and Sons Trucking, 12/11/02 DOI: 4/12/99 Causation — Substantial Contributing Cause Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s work activities did not substantially contribute to his respiratory condition. Affirmed. Powell v. Peerless Industries Group, 12/11/02 DOI: 8/26/98 Permanent Partial Disability Minnesota Rules Part 5223.0490, subp. 2 Minnesota Rules Part 5223.0590, subp. 2A Minnesota Rules Part 5223.0490, subp. 2, does not prohibit the assignment of separate ratings for separate pelvic fracture lines, and substantial evidence, including expert opinion, supported the judge’s decision assigning three separate 5 percent ratings for the employee’s three pelvic fractures under this rule. The record as a whole, including expert opinion, supported the compensation judge’s decision that the employee’s sacroiliac joint disruption was not specifically covered by the applicable permanent partial disability schedules and that a 14 percent rating was appropriate, by analogy to the schedules concerning lumbar fracture, pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990). Anatomic loss or alteration alone is not sufficient to merit a 2 percent rating pursuant to Minnesota Rules Part 5223.0590, subp. 2A, and where the employee had absolutely no “signs or symptoms of organic upper digestive tract disorder,” as required by the rule, the compensation judge erred in awarding the employee benefits for a 2 percent whole body impairment. Affirmed in part and reversed in part. Gudmundson v. Independent School District #857, 12/12/02 DOI: 12/6/84 Medical Treatment and Expense — Nursing Services Minnesota Statutes §176.135, subd. 1 Substantial evidence supports the compensation judge’s determination that nursing services provided to the permanently and totally disabled employee by her daughter from December 1998 to the date of hearing, were compensable within the meaning of Minnesota Statutes §176.135, subd. 1, and were reasonable and necessary. Affirmed.

D-18

• COMPACT • February 2003

Summaries of Decisions Shamp v. Daybreak Foods, 12/12/02 DOI: _______ Attorney Fees — Roraff Practice and Procedure Where the compensation judge made no findings as to whether a dispute existed for purposes of the employee’s attorney’s entitlement to Roraff fees, and where no record was made of the telephone hearing on the fee claim, remand was required for rehearing and new findings. Reversed and remanded. Foster v. Metro Produce Distributing, 12/13/02* DOI: _______ Causation — Aggravation Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s work-related exposure to ethylene gas caused a significant aggravation of his pre-existing asthma condition. Substantial evidence supports the compensation judge’s finding that the employee’s continued exposure to the chemical irritant at work from Jan. 3, 2000, the date a doctor first indicated that the employee should avoid the exposure, through Aug. 11, 2000, when the employee stopped being exposed to the chemical at work, was not a substantial contributing cause of the aggravation of the employee’s condition. Affirmed. Kingbird v. Anderson Fabrics, 12/13/02* DOI: 6/3/99 Practice and Procedure — Estoppel On the facts of this case, where the employer and insurer voluntarily accepted liability and the employee showed no loss as a result of the employer and insurer’s voluntary payment of workers’ compensation benefits, there is no basis for application of the doctrine of equitable estoppel. Work Restrictions Substantial evidence, including the opinions of the employer and insurer’s medical expert, support the compensation judge’s determination that the employee was released to return to work with no restrictions due to her work injuries, and the judge’s discontinuance of temporary total disability and rehabilitation benefits. Affirmed.

* This case is on appeal to the Minnesota Supreme Court. February 2003 • COMPACT •

D-19

Summaries of Decisions Murphy v. Anoka Drug and Gifts, 12/13/02* DOI: 12/7/00 Arising Out Of Where the employee credibly testified that she slipped on ice or snow in a parking lot designated for employees, and the compensation judge reasonably found that the employer and insurer failed to show that the employee’s fall resulted from her pre-existing ataxia, substantial evidence supports the compensation judge’s determination that the employee’s injury arose out of her employment. Affirmed. Olson v. ADM Grain Company, 12/13/02 DOI: 10/20/89 Temporary Total Disability — Medically Unable to Continue Maximum Medical Improvement — Service of MMI Report Minnesota Statutes §176.101, subd. 3j Where maximum medical improvement had never been served on the employee subsequent to the 1998 temporary exacerbation of his 1989 work injury that had rendered him medically unable to continue working, where the employee had evidently conducted a reasonably diligent search for work during the subsequent benefits periods at issue, and where the employee remained during those periods subject to restrictions and residual disability causally related to the underlying 1989 work injury, the employee was entitled under Minnesota Statutes §176.101, subd. 3j, to the temporary total disability and rehabilitation benefits awarded by the compensation judge, notwithstanding the facts that the employee had fully recovered from the temporary exacerbation and that, but for his subsequent lay-off from the employer for reasons unrelated to his work injury, he might still be employed at full wage at his pre-injury job, modified to accommodate his restrictions. Affirmed. Deel v. Minnesota Ear, Head and Neck Clinic, 12/19/02 DOI: 6/00/00 Practice and Procedure — Gillette Injury Gillette Injury — Date of Injury Where it was clear that the employee’s claim of a work-related injury had long been based on the specific additionally strenuous activities of her employment in the seven weeks prior to her vacation, where no moment of specific injury was ever asserted or described in any of the pleadings or evidence submitted at hearing, and where the date of injury found by the compensation judge differed by only a day from the date alleged by the employee and at issue at hearing, the compensation judge did not err in finding a cumulative trauma work injury on a date different from the injury date at issue, although the Gillette case was not referenced by name in the employee’s pleadings.

* This case is on appeal to the Minnesota Supreme Court.

D-20

• COMPACT • February 2003

Summaries of Decisions Practice and Procedure — Admission of Evidence Where the employer and insurer had ample opportunity to cross examine the employee about her answer to a “leading” question permitted over objection at hearing, and where the information in that question was far from dispositive of the issue being litigated and so could not have resulted in any prejudice under the facts of the case, the compensation judge did not exceed either her obligation for fairness or her judicial discretion under the statute in overruling the objection at issue. Gillette Injury Evidence — Credibility Where the independent medical examiner had concluded that the employee strained her low back in June of 2000 presuming that the employee had given an accurate report of her work activities over the past seven weeks, where the employee’s testimony to those same work activities had been uncontroverted at hearing and credited by the compensation judge, where, even absent any formal medical opinion as to causation, there was clear evidence in the medical record to support the employee’s claim of a June 2000 Gillette type work injury, and where the employee’s own testimony as to her work activities and ultimate breakdown was expressly credited by the judge, the compensation judge’s award of payment of medical benefits based on a Gillette-type work injury at the end of June 2000 was not clearly erroneous and unsupported by substantial evidence in light of Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994), and other case law. Affirmed. Woldmoe v. Knight Ridder, 12/20/02 DOI: 12/29/88 Maximum Medical Improvement — Multiple Conditions Maximum Medical Improvement — Service of MMI Report Before a compensation judge may reach the factual issue of whether an employee has reached maximum medical improvement (MMI), the judge must find the employee was served with a written medical MMI report or reports indicating that no further significant recovery or lasting improvement is anticipated for all conditions suffered by the employee as the result of a personal injury. In this case, the compensation judge erred in permitting a discontinuance of temporary total disability benefits based on attainment of MMI, where the only medical report submitted addressed only one of the multiple conditions suffered by the employee as the result of her Dec. 29, 1988 personal injury. Reversed. Wojchik v. Winona County, 12/23/02 DOI: 3/12/00 Arising Out Of and In the Course Of Substantial evidence supports the decision of the compensation judge that the employee sustained an injury to her left knee arising out of and in the course of her employment. Affirmed.
February 2003 • COMPACT •

D-21

Summaries of Decisions Hahn v. Perham Memorial Hospital and Home, 12/31/02 DOI: 7/21/00 Causation Substantial evidence, including the adequately founded opinion of the independent medical examiner, supports the compensation judge’s determination that the employee failed to prove she suffered a new, or an aggravation of a pre-existing, psychological injury as a consequence of her admitted July 21, 2000 work injury. Affirmed.

D-22

• COMPACT • February 2003

• Judicial •

Minnesota Supreme Court
October through December 2002
Case summaries published are those prepared by the WCCA

• Mary Douville, MN Dept. of Labor & Industry, Workers’ Compensation Division v. JoAnn Stores, Inc., and Kemper Insurance Company, C9-02-1186, Oct. 21, 2002 Decision of the Workers’ Compensation Court of Appeals filed June 20, 2002, affirmed without opinion. • James Sparks, Deceased Employee by Carolyn Sparks, petitioner, v. Warmka Transport, Inc., and General Credit Insurance Company/MIGA, C3-02-1331, Oct. 21, 2002 Decision of the Workers’ Compensation Court of Appeals filed July 12, 2002, affirmed without opinion. • Norman F. Turek v. Northfield Freezings, f/k/a Northfield Equipment, and Acceptance Indemnity Insurance Co., c/o Preferred Works, and National Union Fire Insurance Company, c/o GAB Robins, Inc., C2-02-1045, Oct. 24, 2002 The compensation judge’s finding of temporary total disability was supported by evidence that a reasonable mind would accept as adequate. The judge on remand referred to, but did not bind himself to, the prior judge’s findings, and was mindful of the interests of all parties. The compensation judge did not abuse his discretion in deferring the claim for permanent partial disability benefits where the employee had not yet reached maximum medical improvement. Affirmed in part and reversed in part. Considered and decided by the court en banc without oral argument. • Kathy Klein v. Wal-Mart Stores, Inc., and Insurance Company of State of Pennsylvania/ AIG; Administered by Claims Management, Inc., C8-02-1440, Oct. 29, 2002 Decision of the Workers’ Compensation Court of Appeals filed July 31, 2002, affirmed without opinion. • Patricia A. Lamb v. Allina Health System, d/b/a United Hospital, Self-Insured, administered by Gallagher Bassett Services, Inc., and Minnesota Department of Labor & Industry, VRU, Intervenor, C6-02-1324, Nov. 1, 2002 Decision of the Workers’ Compensation Court of Appeals filed July 5, 2002, affirmed without opinion.

Summaries of Decisions • Dean S. Otterson v. St. Cloud Housing & Redevelopment Authority, and Minn. Workers’ Compensation Assigned Risk Plan/Admin. by Berkley Administrators, and Special Compensation Fund, C7-02-1350, Nov. 4, 2002 Decision of the Workers’ Compensation Court of Appeals filed July 10, 2002, affirmed without opinion. • Michael T Heidtke v. Zimmerman Seed, Uninsured, and Special Compensation Fund, . and MN Department of Labor & Industry/VRU, Dr. Howard Abens, MN Department of Human Services, Intervenors, C5-02-1380, Nov. 19, 2002 Decision of the Workers’ Compensation Court of Appeals filed July 15, 2002, affirmed without opinion. • Mark Craig v. Americold Logistics LLC and Liberty Mutual Insurance Co., CX-02-1536, Nov. 19, 2002 Decision of the Workers’ Compensation Court of Appeals filed Aug. 7, 2002, affirmed without opinion. • Tamara C. Case-Belich v. St. Mary’s Medical Center, Self-Insured/Berkley Risk Administrators, C3-02-1653, Dec. 17, 2002 Decision of the Workers’ Compensation Court of Appeals filed Aug. 22, 2002, affirmed without opinion. • Roger L. Long v. Carol A. Schlussler, and Credit General/MIGA/GAB Robins, C8-021650, Dec. 18, 2002 Decision of the Workers’ Compensation Court of Appeals filed Aug. 29, 2002, affirmed without opinion. • Johnny W. Hale v. Viking Trucking Company and Crum and Forster Insurance Group, and Primary Behavioral Health Clinics, and Pinnacol Assurance, C8-02-367, Dec. 19, 2002 S Y L LA B U S 1. A Minnesota workers’ compensation judge lacks jurisdiction to determine whether a workers’ compensation insurer who has paid benefits under another state’s law is entitled to receive reimbursement for benefits mistakenly paid. 2. Disavowing jurisdiction over matters outside the Minnesota workers’ compensation system is not a denial of due process. 3. Disavowing jurisdiction over matters outside the Minnesota workers’ compensation system is not a denial of equal protection. Affirmed. Heard, considered, and decided by the court en banc.

D-24

• COMPACT • February 2003