• Judicial •

Court of Appeals
October through December 2003
Case summaries published are those prepared by the WCCA

Workers’ Compensation

Rosch v. Long Prairie Memorial Hospital, 10/1/03 DOI: 3/20/77 Causation – Substantial Contributing Cause Medical Treatment and Expense – Reasonable and Necessary Substantial evidence, including expert medical opinion, supported the compensation judge’s decision that certain claimed treatment was not reasonable and necessary to cure or relieve the employee from the effects of her work injury. Affirmed. Giesbrecht v. Interplastic Corporation, 10/6/03 DOI: 10/13/00 Gillette Injury – Date of Injury Substantial evidence, including the employee’s testimony and expert medical opinion, supports the compensation judge’s determination of the culmination date for the employee’s Gillette injury. Causation – Gillette Injury Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s work activities from Oct. 1, 2000, through Oct. 13, 2000, represented a substantial contributing cause of the employee’s Gillette injury. Attorney Fees Minnesota Statutes §176.191 Where there is a pending claim for .191 fees, the primary dispute in the matter was apparently which insurer was liable for the employee’s work injury, and it is not clear whether there was a dispute over entitlement to

Summaries of Decisions benefits, the award of contingency fees is vacated and the matter referred for further proceedings on the employee’s attorney’s petition for fees pursuant to Minnesota Statutes §176.191. Affirmed in part and vacated in part. Dimon v. Metz Baking, 10/7/03* DOI: 4/7/99 Attorney Fees – Irwin Although the total amount of medical expenses recovered on behalf of the employee was relatively small, the compensation judge did not abuse her discretion in awarding the full amount of attorney fees claimed by the employee’s attorney on the facts peculiar to this case. Affirmed. Evans v. Asphalt Driveway, et al, 10/7/03 DOI: 6/9/00, 12/31/97, 00/00/89, 12/27/82 Apportionment – Equitable Causation – Substantial Contributing Cause Substantial evidence, including medical evidence, supported the compensation judge’s equitable apportionment of liability for the employee’s need for surgery and permanent total disability. Affirmed. Johnson v. Apple Valley Health Care Center, 10/7/03 DOI: 1/5/90 Permanent Total Disability – Petition to Discontinue Where the Stipulation for Settlement does not contain language clearly stating that permanent total disability benefits would continue only so long as the employee remained permanently and totally disabled, the request to discontinue permanent total disability benefits must be denied. Vacation of Award Information indicating the employee worked part-time for approximately three years, together with medical and vocational opinions submitted by the employer and insurer, raises the question of whether the employee’s condition has changed such that she is no longer permanently and totally disabled. The case is referred to the Office of Administrative Hearings for an evidentiary hearing to determine whether the employee is or is not permanently and totally disabled under the standard set forth in Schulte v. C.H. Peterson Constr. Co., 153 N.W.2d 130, 24 W.C.D. 290 (Minn. 1967). Petition to vacate award referred to OAH.
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• COMPACT • February 2004 * This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions Wermerskirchen v. United Parcel Services, 10/7/03 DOI: 9/14/01 Causation Substantial evidence supports the determination of the compensation judge that the work activity of the employee in descending stairs was a substantial contributing factor in the employee’s knee condition. Arising Out Of The employee’s work activity placed him at increased risk of a knee injury and his injury was one “arising out of” employment. Affirmed. Stewart v. Chicago Bridge and Iron Services, 10/8/03 DOI: 12/14/93 Calculation of Benefits Substantial evidence does not support the judge’s decision that the employee was underpaid benefits; rather, the record establishes an overpayment. Reversed. Korhonen v. University of Minnesota — Duluth, 10/16/03 DOI: 7/6/01 Arising Out Of and In the Course Of Where the employee had rolled his ankle in the process of stepping off a curb in the employer’s parking lot en route to retrieving an apple from his car while on paid break from his work, the compensation judge’s conclusion that the employee’s injury arose out of and in the course of his employment was not clearly erroneous and unsupported by substantial evidence. Causation – Substantial Contributing Cause Where the employee testified to having experienced knee pain at the time that he sustained a work-related injury to his ankle and calf, and where at least six medical or rehabilitation experts had, to varying degrees, related the employee’s subsequently developing knee problems to that injury, the compensation judge’s conclusion that the employee’s work injury was a substantial contributing factor also in the employee’s knee disability and consequent need for knee surgery was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that there was little evidence in the medical records of any knee injury for over three weeks after the date of the more immediately documented ankle and calf injury. Affirmed.
February 2004 • COMPACT •

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Summaries of Decisions Sherman v. Clem’s Construction, 10/16/03 DOI: 2/11/02 Temporary Total Disability Where it was supported by the records and opinions of medical experts, the compensation judge’s conclusion as to the employee’s thumb and back restrictions and the date on which the employee was released to return to work was not clearly erroneous and unsupported by substantial evidence. Temporary Total Disability Job Search Where rehabilitation assistance was being provided essentially throughout the disability period at issue, where the rehabilitation plan did not call for a job search until the month of the hearing, and where the judge reasonably concluded that the employee was cooperative with rehabilitation efforts, the compensation judge’s award of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence. Affirmed. Benson, deceased by Benson v. Independent School District #51 Foley, 10/20/03 DOD: 3/18/98 Arising Out Of and In the Course Of – Special Errand Rule Under the particular facts of this case, where it was not unreasonable for the judge to conclude that longscheduled evening parent-teacher conferences were a regular and recurring task of the employee’s normal employment routine, the compensation judge’s refusal to apply the special errand criteria in Youngberg v. The Donlin Co., 264 Minn. 421, 119 N.W.2d 746, 22 W.C.D. 378 (1963), to compensate the petitioner for the employee’s death in a motor-vehicle accident on his way home from the conferences was not clearly erroneous and unsupported by substantial evidence. Arising Out Of and In the Course Of – Special Errand Rule Under the particular facts of this case, where the court had affirmed the compensation judge’s finding that the evening hours worked by the employee at parent-teacher conferences were included in his regular hours of employment, the supreme court’s decisions in Hed v. Brockway Glass Co., 309 Minn. 73, 244 N.W.2d 28, 28 W.C.D. 448 (1976), and Swanson v. Fairway Foods, 439 N.W.2d 722, 724, 41 W.C.D. 1010, 1013 (Minn. 1989), were not applicable to provide compensation under the special errand rule for the employee’s death on his way home from parent-teacher conferences. Affirmed.

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• COMPACT • February 2004

Summaries of Decisions Roth v. USX Corporation a/k/a U.S. Steel Corporation, 10/21/03 DOI: 9/6/95 Practice and Procedure Under the circumstances of this case, the compensation judge committed reversible error by adopting the employer and insurer’s proposed findings and order verbatim, without any explanatory memorandum. Because it also appears that the judge may have failed to consider post-hearing evidence that the parties intended to have considered, and because the compensation judge is no longer available to reconsider the case, rehearing was required. Reversed and remanded. Gluba v. Bitzan-Ohren Masonry, 10/24/03 DOI: 11/26/96 Permanent Partial Disability Where the employee failed to establish all of the elements of the claimed rating of permanent partial disability, the compensation judge’s award of a lesser rating of permanent partial disability is supported by substantial evidence. Permanent Total Disability Where an employee has been determined to be permanently totally disabled, there is no obligation on the part of the employee to continue to search for employment. Medical Treatment and Expense – Chiropractic Treatment Lack of a treatment plan, treatment of parts of the body not affected by the work injury and the short-term nature of symptom relief support the compensation judge’s conclusion that the chiropractic treatment was not reasonable and necessary. Affirmed in part and reversed in part. LaValley v. Erie Mining, 10/24/03 DOI: 8/6/79 Causation – Substantial Contributing Cause Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s 1979 work injury did not substantially contribute to the employee’s claimed wage loss, permanent partial disability, or need for rehabilitation assistance. Affirmed.

February 2004 • COMPACT •

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Summaries of Decisions Anderson v. State of Minnesota, Department of Natural Resources, 10/27/03 DOI: 7/7/00, 4/3/00 Evidence – Res Judicata Where the first hearing involved a claim that a specific injury occurred on April 3, 2000, and the second hearing involved a claim of a Gillette injury that was neither tried nor decided at the prior hearing, the doctrine of collateral estoppel or res judicata was not applicable and did not bar the employee’s claim. Evidence – Exclusion Minnesota Rule Part 1415.1900, subp. 7 In this case, the compensation judge properly disallowed the direct testimony of the employer’s witness under Minnesota Rule Part 1415.1900, subp. 7, for failure to disclose the witness prior to trial. The offer of proof is insufficient to examine the compensation judge’s ruling excluding rebuttal testimony or to determine whether the ruling prejudiced the employer, and the decision is, therefore, affirmed. Causation The employee’s testimony, in combination with the adequately founded opinion of Dr. Wengler, provides substantial support for the compensation judge’s determination that the employee sustained a Gillette injury as a result of her work activities for the employer. Affirmed Chopp v. United States Steel Corporation, 10/29/03 DOI: 7/1/01 Practice and Procedure – Dismissal The compensation judge erred in dismissing the Notice of Intention to Discontinue compensation benefits filed by the employer based on the holding in Manderfeld v. J.C. Penny, 526 N.W.2d 52, 52 W.C.D. 152 (Minn. 1995). Vacated and remanded. Leffelaar v. Bosswitz Construction and Roofing, 10/29/03 DOI: ___ Attorney Fees Under the circumstances of this case, the employee’s attorney’s claim for Roraff and Heaton fees was not barred by the doctrine of res judicata, despite a prior order for contingent fees in response to a petition for Roraff and Heaton fees. Affirmed as modified.
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• COMPACT • February 2004

Summaries of Decisions Smothers v. Nelson and Sons Masonry, 10/30/03 DOI: 9/9/00 Rehabilitation – Retraining Substantial evidence supports the compensation judge’s findings that the factors cited in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989), were met and supports the compensation judge’s award of a retraining program. Affirmed. Weiland v. Tiedmann Farms, 11/3/03 DOI: 12/31/95 Causation Where the employee sustained an admitted work-related injury to his low back on Dec. 31, 1995, but sought no medical treatment for his low back until January 1997, and where the evidence included conflicting medical opinions on the causation of the employee’s current disability, substantial evidence of record supports the compensation judge’s findings that the employee’s work injury was not a substantial contributing factor to the disability for which he earlier was paid benefits, his need for surgery in 1999 and 2000, any additional permanent partial disability and his permanent total disability. Affirmed. Stewart v. 3M Company, 11/4/03 DOI: 5/15/00 Attorney Fees The compensation judge properly determined that fees for the employee’s attorney should be paid from weekly benefits received by the employee as a result of a successful claim for approval of a retraining program. Affirmed. Calkins v. United Parcel Service, 11/5/03 DOI: 12/18/00 Evidence – Credibility Where the employee had testified that he both experienced and reported to several doctors at least intermittent ongoing pain since the date of his work injury, where medical records in evidence indicated that he had asserted to at least two care providers that his pain had remained unabated and severe since that date, and given the timing of the employee’s complaints to those two providers – immediately prior to expiration of his wrist-based restrictions from working, after there had been virtually no medical record of any even intermittently ongoing low back problems for fully five months prior to those complaints — the compensation judge’s finding that the employee had testified less than credibly that he had had low back pain since the date of his work injury was not clearly erroneous and unsupported by substantial evidence.
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Summaries of Decisions Temporary Benefits – Fully Recovered Where, prior to his wrist-related work-hardening program, the employee had been released by his treating doctor to return to work upon completion of the work-hardening, where the work-hardening therapist had recorded improvement in the employee’s wrist condition and had consulted the treating doctor’s office upon the employee’s completion of the program, and where the independent medical examiner had subsequently opined that the employee was no longer in need of any treatment or restrictions, the compensation judge’s denial of continuing benefits for the employee’s wrist injury was not clearly erroneous and unsupported by substantial evidence. Evidence – Expert Medical Opinion Where it was clear from the judge’s findings and order that the judge had considered the treating doctor’s opinion, and where the independent medical expert’s opinion contained a multipage medical history essentially correspondent to the employee’s medical records, an itemized list of which the doctor had certified having reviewed, neither doctor’s opinion was or should have been dismissed for lack of foundation, and the compensation judge’s decision to rely in part on the independent medical expert’s opinion was warranting of the court’s deference under Nord v. City of Cook. Causation Temporary Benefits Practice and Procedure – Remand An injury sustained as a consequence of treatment of a work injury is compensable, even if the later injury is not otherwise related to the earlier injury. Where the compensation judge clearly found a compensable workrelated low back injury in the form of an aggravation of the employee’s pre-existing degenerative lumbar disc disease sustained in the course of the employee’s wrist-related work hardening activities, and where there was no reasonably substantial evidence to support the judge’s conclusion that that aggravation was resolved by the date on which the work hardening ended, the compensation judge’s denial of the employee’s claim for benefits subsequent to the date on which work hardening ended was clearly erroneous and unsupported by substantial evidence, absent any assertion by the judge of any other basis for her denial of benefits, and the matter, including the stipulated testimony of the employee’s work-hardening therapist, was remanded to the compensation judge for reconsideration of the employee’s claim. Affirmed in part, reversed in part, and remanded. Moldenhauer v. Grey Star Electronics, Inc., 11/10/03 DOI: 9/24/99 Intervenors The petition of Dr. Lukovsky to intervene in the proceeding before this court is granted where his interests were clearly at stake and there appeared to be no material prejudice to any party by permitting intervention. The medical expense claim was fully litigated below, thus there is no need to reopen the record or remand for further proceedings.

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• COMPACT • February 2004

Summaries of Decisions Evidence The compensation judge did not abuse his discretion in refusing to admit employee’s exhibit 1, a photocopied medical journal article on whiplash injuries, in the circumstances of this case. Medical Treatment and Expense Substantial evidence, including multiple medical reports and opinions, supports the compensation judge’s determination that chiropractic care provided to the employee following a work-related automobile accident was excessive and unreasonable, and the judge’s denial of payment of additional medical expenses. Affirmed Rude v. Swingen Construction Company, 11/10/03 DOI: 6/8/82 Vacation of Award – Substantial Change in Condition Where there is no change in diagnosis, no substantial change in the employee’s ability to work, no substantial change in permanent partial disability and where the employee’s claim for medical expenses remained open under the terms of the stipulation for settlement, good cause has not been established to set aside the award on stipulation. Petition to vacate award denied. Treazise v. United Hospital, 11/10/03* DOI: 7/11/01 Causation – Substantial Contributing Cause – Aggravation Where the employee’s exposure to roses at work triggered an aggravation of the employee’s pre-existing asthma condition and necessitated more extensive steroid treatment than she had received in the past, which in turn led to an elevation of the employee’s blood sugar level and a related diagnosis of diabetes mellitus Type II, and where the employee’s condition and need for treatment for both conditions continued at the time of the hearing, the compensation judge’s findings that the employee had sustained only a temporary aggravation of an underlying asthmatic condition and a diabetic condition that ended as of Sept. 12, 2001, were not supported by substantial evidence of record and we accordingly reverse both findings. We remand this matter in part for reconsideration of the duration of the temporary aggravation of the employee’s asthmatic condition. We reverse the finding that the steroid medication did not cause or accelerate the employee’s diabetes, and hold that the employer and insurer remain liable for treatment of the employee’s diabetic condition. Reversed and remanded in part.

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

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Summaries of Decisions Veatch v. City of Duluth/Spirit Mountain Recreation Area Authority, 11/10/03 DOI: 8/28/01 Exclusions from Coverage – Intoxication Minnesota Statutes §176.021, subd. 1 Arising Out Of and In the Course Of Where the employer essentially argued only that, given the employee’s positive post-injury drug test, the employee could have been engaging in the use marijuana on the job and may have been experiencing its physical effects, the compensation judge’s conclusion that the employer did not prove that the employee was intoxicated at the time of his work injury and that his intoxication was the proximate cause of his injury was not clearly erroneous and unsupported by substantial evidence. Arising Out Of and In the Course Of Where the employer failed to introduce any evidence that the employee was prohibited from seeking materials for his work on a different part of the employer’s premises, and where the employer failed to introduce its drug and alcohol policy into evidence, the compensation judge’s refusal to find that the employee, who tested positive for marijuana following his work injury, was engaged in a prohibited act at the time of his work injury was not clearly erroneous and unsupported by substantial evidence. Penalties Minnesota Statutes §176.225, subd. 1 Where the employer presented no credible evidence to support either of its defenses – that the employee was intoxicated at the time of his work injury and that the employee was engaged in a prohibited act at the time of that injury – the compensation judge’s awarding of a penalty against the employer under Minnesota Statutes §176..225, subd. 1, on grounds that its denial of primary liability was frivolous, was not clearly erroneous and unsupported by substantial evidence. Affirmed. Brovitch v. Park Landscaping, 11/13/03 DOI: 9/6/88 Vacation of Award – Substantial Change in Condition Where there was conflicting evidence as to whether the employee’s work-related condition had substantially worsened since the issuance of the award on stipulation, and where there was no medical opinion specifically addressing the employee’s current ability to work or permanent partial disability, the court deemed it appropriate to refer the matter to the Office of Administrative Hearings for an evidentiary hearing and findings, prior to final determination of the employee’s petition to vacate. Referred to OAH for evidentiary hearing.

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• COMPACT • February 2004

Summaries of Decisions Radke v. Green View, Inc., 11/14/03 DOI: 1/1/02, 9/13/01 Causation – Substantial Contributing Cause Substantial evidence supported the compensation judge’s determination that the employee’s work injury resolved prior to the period for which benefits were sought, despite arguably unopposed medical evidence supporting the employee’s claim, where the medical opinions were premised on the employee’s account of the incident and his symptoms, which the compensation judge reasonably rejected. Affirmed in part and reversed in part. Sumerfelt v. Traverse County, 11/18/03* DOI: 1/18/00 Causation – Aggravation Substantial evidence, including the well-founded opinion of the employee’s treating physician, support the compensation judge’s finding that the employee’s work injury resulted in permanent disability and restrictions. Maximum Medical Improvement Minnesota Statutes §176.011, subd. 25 Minnesota Rules Part 5221.0410, subp. 3.B Substantial evidence, including the employee’s ongoing participation in a chronic pain aftercare program, supports compensation judge’s determination that the employee has not yet reached maximum medical improvement (MMI). The compensation judge properly applied Minnesota Statutes §176.011, subd. 25, in determining MMI, where strict application of Minnesota Rules Part 5221.0410, subp. 3.B., would conflict with the statute. Affirmed. Varney v. Old Dutch Foods, Inc., 11/18/03 DOI: 3/27/02, 7/19/01, 1/4/89 Settlements The focus in workers’ compensation matters is not on the body part injured but on the injury itself; where the employee’s 1997 stipulation for settlement of certain claims for payment of medical expenses related to a 1989 work injury was not a final settlement closing out future claims against the insurer on that injury, the compensation judge erred in dismissing, under Johnson v. Tech Group, a petition for contribution filed by the insurer on a 2002 shoulder injury against the 1989 insurer and another insurer, notwithstanding the fact that the 1997 stipulation provided expressly that the employee did not injure his right shoulder in the 1989 injury. Reversed.

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

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Summaries of Decisions Wagner v. City of St. Paul, 11/21/03* DOI: 9/30/97, 5/24/93, 11/26/85, 8/28/79 Credits and Offsets – Credit for Overpayment Credits and Offsets – Social Security Offset Minnesota Statutes §176.179 Where benefits have been mistakenly paid to an employee, Minnesota Statutes §176.179 provides the only statutory method for recovery of the overpayment, including in situations where previously paid temporary total disability benefits are “reclassified” as permanent total disability benefits pursuant to a judge’s order, and an employer in the latter circumstances is obligated to pay weekly permanent total disability benefits subject to the statutory 20 percent offset and may not simply cease paying benefits until the overpayment is exhausted. Penalties Minnesota Statutes §176.179 Minnesota Statutes §176.225, subd. 1 Where reclassification of the employee’s temporary total disability benefits as permanent total disability benefits resulted in an overpayment to the employee, and where, contrary to this court’s and the supreme court’s affirmances of a compensation judge’s order, the employer failed to pay permanent total disability benefits subject to the 20 percent offset provided for in Minnesota Statutes §176.179, choosing instead to cease payments entirely until the credit for the overpayment is exhausted, it was not unreasonable for the compensation judge to award a penalty pursuant to Minnesota Statutes §176.225, subd. 1, on grounds that the employer had interposed a frivolous defense and vexatiously delayed payment. Affirmed. Hubbard v. Northeast Metro Independent School District #916, 11/24/03 DOI: 4/29/00 Attorney Fees – Contingent Fees Minnesota Statutes §176.081, subd. 1(a) Where the only compensation awarded was $788.64 in temporary total disability benefits paid to the employee, the compensation judge properly awarded contingent attorney fees of $197.16 pursuant to Minnesota Statutes §176.081, subd. 1(a). There is no statutory basis or any basis in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999) or other case law for awarding hourly fees payable by the insurer in cases involving a monetary award payable to the employee. Affirmed.

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• COMPACT • February 2004

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

Summaries of Decisions Maus v. REM Minnesota, 11/24/03 DOI: 2/4/02 Temporary Total Disability – Withdrawal from the Labor Market Where the employee left her job with the pre-injury employer because of assaults she sustained on the job, where the employee was not able to work at a subsequent employer because of the effects of her work injury and where the employee’s attempt at self-employment was approved by the QRC, substantial evidence supports the decision of the compensation judge that the employee had not withdrawn from the labor market. Temporary Total Disability – Rehabilitation Cooperation Minnesota Statutes §176.101, subd. 1(g) Where the employee cooperated with the QRC and rehabilitation efforts, it was not error for the compensation judge to award temporary total disability compensation. Maximum Medical Improvement Where there was no opinion that the employee had reached maximum medical improvement (MMI) from her work related post-traumatic stress disorder, substantial evidence supports the decision of the compensation judge that the employee had not reached MMI. Affirmed. Schjenken v. Bermo, Inc., 11/24/03 DOI: 2/8/00 Vacation of Award – Mistake Vacation of Award – Newly Discovered Evidence Where the “newly discovered evidence” cited by the employer was available and discoverable through the exercise of due diligence prior to the parties’ settlement, and where there was no showing that both parties misapprehended a fact material to the proposed settlement, the employer did not establish good cause to vacate the award on stipulation covering the employee’s weekly wage. Petition to vacate denied. Westrum v. Northern Auto/John Reynolds, 11/24/03 DOI: 3/26/90 Petition to Vacate – Substantial Change in Medical Condition Where there is minimal evidence either way as to whether the employee’s low back condition and need for medical treatment are causally related to his 1990 work injury, and where there is insufficient information in the record for this court to determine whether there are adequate grounds to vacate the mediation award, we refer the matter to the Office of Administrative Hearings for an evidentiary hearing and factual findings as to whether
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Summaries of Decisions the employee’s low back condition is causally related to his 1990 injury. After the hearing, the matter will be returned to the Workers’ Compensation Court of Appeals for a final determination of the employee’s petition to vacate. Referred to Office of Administrative Hearings. Dostal v. Dostal Electric, 11/26/03 DOI: 7/1/75 Attorney Fees Jurisdiction – Application for Review Minnesota Statutes §176.081, subd. 3 Minnesota Statutes §176.511, subd. 3 This court has jurisdiction pursuant to Minnesota Statutes §176.081, subd. 3, and Minnesota Statutes §176.511, subd. 3, to review and reconsider a prior order awarding attorney fees included in a decision not appealed by the petitioners. Application for review of attorney fees denied. Patnode v. Stock Building Supply, 12/1/03 DOI: 5/7/02 Evidence – Credibility Where the judge clearly understood that there was a credibility issue regarding the employee’s current complaints, and where there was no indication that the employee was suffering from any physical limitations at the time of his work injury, the compensation judge would not have been required to find the employee’s testimony as to his current symptoms not credible even if he had found the employee deceitful as to his past medical history, and the judge’s implicit acceptance of the employee’s testimony as to the course of his present symptoms was not unreasonable, notwithstanding the fact that the employee’s testimony as to his pre-existing low back problems was inaccurate. Evidence – Expert Medical Opinion The fact that an employee’s MRI study is essentially negative does not compel a finding that the employee is unrestricted, and there is no requirement that work restrictions be based solely upon objective medical evidence; where it was based on the testimony of the employee and the opinions of two medical experts, the conclusion of the compensation judge that the employee continued to suffer from the effects of his work injury and that there were no reasonable grounds to discontinue the employee’s temporary partial disability benefits was not clearly erroneous and unsupported by substantial evidence. Affirmed.

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• COMPACT • February 2004

Summaries of Decisions Sanders v. Aero Design and Manufacturing Company, 12/2/03 DOI: 1/16/97 Practice and Procedure – Expedited Hearing Practice and Procedure – Matters at Issue Where there was no indication in the record that the parties agreed to expand the issues beyond the employee’s medical request for surgical treatment to include a determination of primary liability or of the employee’s entitlement to temporary total disability benefits, and where the Findings and Order of the compensation judge were premised on a primary liability determination, the Findings and Order of the compensation judge were vacated and the matter was remanded to the Office of Administrative Hearings for further proceedings. Vacated and remanded. McQuillen v. Jelan Products, et al, 12/15/03 DOI: 11/00/01, 4/28/99 Rehabilitation – Rehabilitation Consultation Where an employee is seeking a new period of rehabilitation benefits, after previous rehabilitation services have been completed and the file closed, a rehabilitation consultation is appropriate. Rehabilitation – Choice of QRC Minnesota Statutes §176.102, subd. 4(a) The employee has the right to change QRCs even before a rehabilitation consultation has been conducted under Minnesota Statutes §176.102, subd. 4(a). Affirmed. Brown v. Midwest Special Services, 12/16/03 DOI: 3/6/02, 2/7/00 Job Offer – Physical Suitability Where the employee’s post-injury work duties required work beyond the employee’s work restrictions, substantial evidence supported the compensation judge’s determinations that the employee’s post-injury work was not physically suitable, that no light-duty work was offered to the employee by the employer, and that the employee’s reduction in earning capacity after Aug. 24, 2001, was causally related to her work injury. Temporary Partial Disability – Calculation of Benefits Where the employee was temporarily partially disabled as a substantial result of her first work injury, and therefore was entitled to payment of temporary partial disability benefits at the time of her second injury, and where the employee was temporarily totally disabled as a result of her second work injury, the employee was entitled to payment of ongoing temporary partial disability benefits from her first employer pursuant to Kirchner
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Summaries of Decisions v. Iowa Natl. Mutual Ins. Co., 399 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983) (Kirchner I), and Kirchner v. Iowa Natl. Mutual Ins. Co., 410 N.W.2d 825, 40 W.C.D. 197 (Minn. 1987) (Kirchner II). Affirmed in part, reversed and remanded in part. Darvell v. Wherley Motors, 12/16/03 DOI: 6/5/80 Evidence – Res Judicata Where the claim for benefits and the issues presented were not identical and it was not clear that the employee’s reflex sympathetic disorder (RSD) and the previously litigated thoracic outlet syndrome were identical, the compensation judge erred in applying the principles of res judicata to bar the employee’s claim. Practice and Procedure – Remand The case must be remanded where the compensation judge failed to make any finding of fact as to whether the claimed medical treatment was caused by the employee’s work-related injury. Vacated and remanded. Kelley v. Inter Faith Health Care Center, 12/16/03 DOI: 3/23/02 Attorney Fees – Heaton The existence of a pending claim petition for wage loss benefits, and the resulting potential for future contingent attorney fees, is irrelevant to the issue of whether an employee’s attorney is entitled to Heaton fees for services already performed solely in connection with rehabilitation issues. Affirmed. Hilbrands v. Bor-Son Construction Company, et al, 12/17/03 DOI: 6/4/85, 10/11/76 Apportionment – Equitable Apportionment – Special Compensation Fund Special Compensation Fund – Registration The compensation judge correctly held that Koski v. Erie Mining Co., 223 N.W.2d 470, 27 W.C.D. 121 (Minn. 1973), rather than Kirchner v. County of Anoka, 339 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983), applied so as to preclude apportionment of liability for permanent total disability benefits back to the preregistration employer and insurer, where the pre-registration employer and insurer’s liability for temporary partial disability benefits had ended, by operation of law, years prior to the employee’s eventual permanent total disability.

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• COMPACT • February 2004

Summaries of Decisions Settlements – Interpretation The compensation judge properly concluded that a settlement agreement did not establish any ongoing liability for wage loss benefits by the pre-registration employer and insurer. Affirmed. Trettel v. Cambridge Regional Center, 12/17/03 DOI: 4/4/80 Causation – Intervening Cause The compensation judge erred in concluding that the employee’s need for medical care was necessitated by a superseding intervening cause where there was no evidence that the employee’s conduct was unreasonable, negligent, dangerous or abnormal. Appeals – Record Where the findings prepared by the compensation judge consisted of summaries of evidence presented in the case and where the compensation judge failed to provide a basis in her findings for the conclusions reached in this matter, the Findings and Order is vacated and remanded for further findings on the record. Vacated and remanded. Wenderski v. John A. Dalsin & Son, Inc., 12/18/03 DOI: 3/27/01 Jurisdiction – Subject Matter Intervenors Where the employer had paid the employee his full salary instead of workers’ compensation benefits during the period of temporary work-related disability at issue, and where the employee had also received weekly disability benefits from his union during the same period, the compensation judge’s order that the self-insured employer reimburse the intervening union for the benefits that it had paid was vacated for lack of statutory authority, and the WCCA had no jurisdiction to order the employee to reimburse the fund directly. Vacated. Correa v. Waymouth Farms, Inc., 12/19/03 DOI: 3/3/00 Permanent Total Disability Substantial evidence of record supports the compensation judge’s conclusion that the employee is permanently totally disabled from substantial gainful employment as a result of his significant physical restrictions associated with his low back condition in combination with his educational and employment background, limited English language skills and level of permanent partial disability of the body as a whole.
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Summaries of Decisions Permanent Total Disability – Applicable Law The Minnesota Workers’ Compensation Act does not, as a matter of law, preclude an undocumented employee who is unauthorized to work in the United States from receiving permanent total disability benefits. Affirmed. Hegg v. Bemidji Cooperative Association, 12/19/03 DOI: 2/11/99, 8/00/96, 11/3/95 Causation Temporary Benefits Earning Capacity Where it was not improperly based on the employee’s own testimony, where the employee’s temporary postinjury employment did not disqualify him from subsequently proving a work-injury-related wage loss, and where the judge did not improperly rely on expert chiropractic and other expert opinion, the compensation judge’s conclusion that the employee was disabled from full-time commercial truck driving was not clearly erroneous and unsupported by substantial evidence. Intervenors Minnesota Statutes §176.361, subd. 2(b) Where Minnesota Statutes §176.361, subd. 2(b), required an itemization of rendered “disability” payments only “if applicable,” and where the Department of Economic Security’s payments to the employee were clearly not for disability and therefore were not subject to itemization on the intervenor’s application, the intervening Department of Economic Security was entitled to reimbursement of unemployment benefits paid to the employee for the period during which the employee was found entitled to wage replacement benefits. Affirmed. Roberts v. Supervalu, Inc., 12/19/03 DOI: 10/28/00, 4/21/00 Minnesota Rules Part 5221.6500, Subp. 2C(1)(d)I Where the compensation judge found that the employee did not have a valid discogram showing positive results at one or two levels, which is one of the conditions in the applicable permanent medical treatment parameter that must be satisfied to indicate that surgery is reasonably required, and where that finding is supported by substantial evidence of record, we must affirm the compensation judge’s denial of the employee’s claim for a two-level fusion surgery. Medical Treatment and Expense – Substantial Evidence of Record Minnesota Rules Part 5221.6500, subp. 2C(1)(d) Where the compensation judge found that the employee did not have a valid discogram showing positive results at one or two levels, which is one of the conditions in the applicable permanent medical treatment
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• COMPACT • February 2004

Summaries of Decisions parameter, Minnesota Rules Part 5221.6500, subp. 2C(1)(d), that must be satisfied to indicate that surgery is reasonably required, and where that finding is supported by substantial evidence of record, we must affirm the compensation judge’s denial of the employee’s claim for a two-level fusion surgery. Affirmed. Hoffmeyer v. Ralph Davey Construction, 12/22/03 DOI: 5/26/69 Vacation of Award Because the evidence regarding the employee’s current medical condition and disability status was conflicting, the matter was referred to the Office of Administrative Hearings for creation of a record and factual findings on the issues of causation and whether the employee has misrepresented his ability to work. Following issuance of the compensation judge’s decision, the matter is to be returned to the WCCA for consideration of the employer and insurer’s petition. Petition to vacate referred to OAH. Sorcan, deceased by Sorcan v. USX Corporation, 12/22/03 DOD: 8/4/00; DOI: 4/14/76 Practice and Procedure Under the circumstances of this case, the compensation judge committed reversible error by adopting the employer and insurer’s proposed findings and order verbatim, without any explanatory memorandum. Vacated and remanded. Dotterweich v. CPAK, Inc., 12/23/03 DOI: 8/13/01 Practice and Procedure – Admission of Evidence Where surveillance videos were disclosed at a medical deposition prior to hearing, the videos were properly admitted evidence even though they had not been disclosed in the Petition to Discontinue or at pre-trial. Evidence Acceptance of the opinion of the independent medical examiner as expressed in his second report was not precluded by the doctrine of res judicata and provides substantial evidence supporting the decision of the compensation judge. Affirmed.

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Summaries of Decisions Friel v. Gibson’s Construction Enterprises, Inc., 12/23/03 DOI: 5/00/00 Medical Treatment and Expense – Medications Minnesota Statutes §176.136 Minnesota Rules Part 5221.4070, subp. 3 In light of the increased specificity of this rule in the wake of the 1996 amendment to Minnesota Statutes §176.136 that grants the commissioner authority to establish the reasonable value of medications, Minnesota Rules Part 5221.4070, subp. 3.C., is to be construed to limit an employer’s liability at 85 percent of the usual and customary charge for the prescription medication only when the medication is provided by a large hospital for inpatient use. Minnesota Rules Part 5221.4070, subp. 3.A., contains no such limitation. The clear and unambiguous language of the rule provides that the average wholesale price (AWP), plus a dispensing fee, is to be the basis for charges for outpatient prescription medication. Affirmed. Land v. Washington County Sheriff’s Department, 12/23/03 DOI: 11/00/92, 12/18/90, 2/00/90 Permanent Partial Disability Where there was expert medical opinion and other medical evidence of record to support the judge’s decision, the compensation judge’s conclusion that the employee had been only temporarily injured by paint fumes at work was not clearly erroneous and unsupported by substantial evidence. Permanent Partial Disability Minnesota Rules Part 5223.0070, subp. 1.A.(3)(b) Where the employee’s MRI scan was not “specifically positive” for a herniated disc, and where the judge’s conclusion was not otherwise unreasonable, the compensation judge’s conclusion that the employee was subject to only a 10.5 percent permanent partial disability related to his low back, pursuant to Minnesota Rules Part 5223.0070, subp. 1.A.(3)(b), was not clearly erroneous and unsupported by substantial evidence. Causation – Substantial Contributing Cause Where there was evidence that the employee’s condition pre-dated all of his work injuries, and where the judge’s decision was supported by expert medical opinion, the compensation judge’s conclusion that the employee’s sexual dysfunction was unrelated to his exposure to mercury at work was not clearly erroneous and unsupported by substantial evidence. Causation – Substantial Contributing Cause Where it was supported by expert medical opinion, the compensation judge’s conclusion that the employee’s incontinence was unrelated to his low back work injury was not clearly erroneous and unsupported by substantial evidence.
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• COMPACT • February 2004

Summaries of Decisions Causation – Occupational Disease Where it was supported by expert medical opinion, the compensation judge’s conclusion that the employee’s asthmatic condition was unrelated to the employee’s workplace exposure to dust and fiberglass was not clearly erroneous and unsupported by substantial evidence. Gillette Injury Where the employee’s claim to a Gillette-type injury was unsupported by either the employee’s own testimony or the medical record, the compensation judge’s conclusion that the employee did not sustain a Gillette-type injury on the date alleged was not clearly erroneous and unsupported by substantial evidence. Permanent Total Disability Where the employee had not conducted a reasonably diligent search for work, and where the judge reasonably concluded that such a search would not be futile, the compensation judge’s conclusion that the employee was not permanently and totally disabled was not clearly erroneous and unsupported by substantial evidence. Affirmed. Tarver v. American Building Maintenance, 12/24/03 DOI: 7/24/01 Causation Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s proposed surgery was not causally related to the employee’s 2001 work injury. Medical Treatment – Reasonable and Necessary Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s proposed surgery was not reasonable and necessary medical treatment. Affirmed. Gieseke v. Kraft Foods, 12/30/03 DOI: 6/4/90 Causation – Primary Liability Where the judge’s decision was supported by expert medical opinion, where the employee’s job was essentially light work that did not involve repetitive activities, where the employee had been unable to testify to the existence of any particular activity at work that was particularly painful or contributory to her right arm problems, and where there was nothing in the judge’s findings or his memorandum to support the argument that the judge’s finding as to depression in the employee’s life was inaccurate or improperly pervaded the judge’s

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Summaries of Decisions decision, the compensation judge’s conclusion that the employee did not prove that her right arm symptoms were the result of a work-related injury was not clearly erroneous and unsupported by substantial evidence. Affirmed. Koecher v. Great Frame Up of Edina, 12/30/03 DOI: ____ Causation – Substantial Contributing Cause Where it was supported by properly founded expert medical opinion, the compensation judge’s conclusion that the employee’s low back condition was not proven to be causally related to her work activities was not clearly erroneous and unsupported by substantial evidence. Affirmed. Wersal, deceased by Wersal v. Schwickert Roofing, Inc., 12/30/03 DOD: 7/12/98; DOI: 7/10/98 Causation – Heart Condition Substantial evidence supports the determination of the compensation judge that the employee’s physical activity at work was a substantial contributing factor in causing and/or precipitating the employee’s heart attack and death. Affirmed. Mickelson v. PGI Mailers, 12/31/03 DOI: 2/3/94 Vacation of Award – Substantial Change in Condition Where the employee’s diagnosis, restrictions and ability to work remained essentially what they had been at the time of her settlement, where no doctor had opined that the employee was permanently and totally disabled or that there had been a change in her permanent partial disability since the time of that settlement, and where the employer and insurer apparently continued to pay the employee’s medical expenses, the employee did not established good cause to vacate her Award on Stipulation on grounds that she had experienced a substantial change in her medical condition since the date of her Award on Stipulation. Petition to vacate award denied.

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• COMPACT • February 2004

Summaries of Decisions Moe v. Dr. Matthew A. Gahn, 12/31/03 DOI: ____ Causation – Substantial Contributing Cause Causation – Occupational Disease Where the judge did not disregard the opinions of the employee’s treating doctors, and where the judge’s decision was affirmatively based on other expert medical opinion, the compensation judge’s conclusion that the employee’s allergic condition was not causally related to his employment was not clearly erroneous and unsupported by substantial evidence. Affirmed.

February 2004 • COMPACT •

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Summaries of Decisions • Judicial •

Minnesota Supreme Court
October through December 2003
Case summaries published are those prepared by the WCCA

• John Duder v. McGlynn Bakeries, Inc. and General Insurance Company/Safeco, A03850, September 24, 2003 Decision of the Workers’ Compensation Court of Appeals filed June 11, 2003, affirmed without opinion. • Christopher D. German v. Iowa Beef Producers, Self-Insured/IBP, Inc., Spomer Motors, Inc., and Virginia Surety Company, administered by Cambridge Integrated Services Group, Inc., and Blue Cross/Blue Shield of Minnesota, Intervenor, A03-770, September 24, 2003 Decision of the Workers’ Compensation Court of Appeals filed May 28, 2003, affirmed without opinion. • Sharon Anderson v. The Salvation Army, and Zurich American Insurance Group/ Chesterfield Services, Inc., A03-971, October 21, 2003 Decision of the Workers’ Compensation Court of Appeals filed June 27, 2003, affirmed without opinion. • John H. Kloes v. Advance United Expressway, and Excalibur/MIGA, A03-1122, November 18, 2003 Decision of the Workers’ Compensation Court of Appeals filed July 17, 2003, affirmed without opinion. • David A. Kaisershot v. Earthworks Excavating and Heritage Mutual Group, and Minnesota Department of Employment and Economic Development, Minnesota Comprehensive Health Association, Intervenors, A03-1167, November 19, 2003 Decision of the Workers’ Compensation Court of Appeals filed July 23, 2003, affirmed without opinion. • Carl A. Boeder v. Minnesota Department of Natural Resources, Self-Insured, and Minnesota Department of Employment and Economic Development, Intervenor, A031259, November 26, 2003 Decision of the Workers’ Compensation Court of Appeals filed August 7, 2003, affirmed without opinion.
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• COMPACT • February 2004

Summaries of Decisions • Joan Langlois v. University of Minnesota, Self-Insured, and Ruth Ryan v. University of Minnesota, Self-Insured, A03-1268, December 1, 2003 Decision of the Workers’ Compensation Court of Appeals filed August 6, 2003, affirmed without opinion. • Warren F. Shelton v. Independent School District #625, Self-Insured/Preferred Works, and Twin Cities Spine Center, Fairview Health Services, Intervenors, A03-1276, December 1, 2003 Decision of the Workers’ Compensation Court of Appeals filed August 6, 2003, affirmed without opinion. • Dale R. Banken v. Lac Qui Parle Coop Oil and Farmland Mutual Insurance Company, and Chandler Industries, and State Fund Mutual Insurance Company, and Great Western Life Insurance Company, Abbott Northwestern Hospital, Blue Cross & Blue Shield of Minnesota, The Montevideo Clinic, P.A., Intervenors, A03-1119, December 4, 2003 Syllabus (By the Court) An assessment of attorney fees against the party held liable in a dispute primarily between employers or insurers pursuant to Minnesota Statutes §176.191 (2002) does not preclude an additional award of fees pursuant to Minnesota Statutes §176.081, subd. 7 (2002). Reversed and compensation judge’s award reinstated. • Karen Drouillard v. St. Mary’s Medical Center/Duluth Clinic, Self-Insured, administered by Gallagher Basset, A03-1470, December 16, 2003 Decision of the Workers’ Compensation Court of Appeals filed September 4, 2003, affirmed without opinion.

February 2004 • COMPACT •

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