• Judicial •

Court of Appeals
October through December 2005
Case summaries published are those prepared by the WCCA

Workers’ Compensation

Fallon v. AT&T Minnesota, 10/3/05 DOI: 4/4/00

Attorney Fees Vacation of Award – Mistake Where the employee’s attorney filed a statement of attorney fees requesting a release of previously withheld fees, and where the employer and its insurance administrator subsequently determined that a lesser amount of fees was being withheld and paid that amount to the employee’s attorney, thereby resolving the claim for payment of attorney fees, the order granting attorney fees is vacated. Vacated.
Alvord v. DeZurik d/b/a SPX Valves & Controls, 10/5/05 DOI: 12/6/00

Maximum Medical Improvement Where it was reasonable for the judge to conclude from the treating doctor’s office notes that the employee’s medical condition had not yet stabilized, where the judge’s decision was supported by other expert medical opinion, and where there was a very real prospect that additional surgery would bring further significant improvement in the employee’s condition, the compensation judge’s conclusion that the employee had not yet reached maximum medical improvement was not clearly erroneous and unsupported by substantial evidence. Temporary Total Disability Where the employee’s medical condition was unstable, where there was a likelihood of imminent surgery, where the employee’s QRC recommended pursuing a job search only after the employee’s condition had stabilized, and where the employer had no light duty work available for the employee, the compensation judge’s award of temporary total disability benefits was not clearly erroneous and

Summaries of Decisions unsupported by substantial evidence, notwithstanding the fact that the employee had been released by his doctor to perform light duty work but had not looked for a job. Appeals – Scope of Review Where the finding from which the employee had cross-appealed pertained to benefits that were not at issue before the compensation judge and that had no relevance to any claim for benefits at issue on appeal, and where there was no merit in the employee’s further contention that the judge erred in referring to an adverse medical exam as an independent medical exam, the WCCA declined to address any possible error of fact in the finding appealed from or in the judge’s choice of words. Affirmed.
Newberg v. Walgreens, 10/5/05 DOI: 12/16/99

Practice and Procedure – Independent Medical Examination Causation The compensation judge did not abuse his discretion in admitting the IME report and there is substantial evidence, even in the absence of the report, to support the denial of the employee’s claim. Affirmed.
St. John v. LeFebvre Transportation, Inc., 10/5/05 DOI: 2/27/02

Causation Substantial evidence, including the expert opinion of the employee’s treating orthopedic surgeon, supports the compensation judge’s finding that the employee’s Feb. 27, 2002, work-related injury represented a substantial contributing cause of the employee’s right lower extremity condition and related disability. Affirmed as modified.
Skic v. Beverage Transportation Corporation, 10/6/05* DOI: 1/10/86

Vacation of Award The employee failed to establish good cause for vacating a compensation judge’s decision that denied the employee’s claims. Petition to vacate denied.

D-2

• COMPACT • February 2006

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

Summaries of Decisions
Anderson v. Suburban Chrysler Plymouth, 10/13/05 DOI: 11/23/93

Causation – Aggravation Evidence – Expert Medical Opinion Substantial evidence, including expert opinion, supported the compensation judge’s finding that the employee sustained a work-related aggravation of his elbow condition, notwithstanding the fact that the expert relied on by the compensation judge performed only a “paper review,” rather than examining the employee. Apportionment Settlements Where, in a stipulation for settlement, the employee and the employer and insurer released the insurer on the risk for a second work injury from all future liability, where the employer and insurer agreed to continue to pay for all medical expenses causally related to the employee’s first work injury, where the employer and insurer did not expressly reserve the right to pay only an apportioned share of those expenses, and where the first work injury continued to be a substantial contributing cause of the employee’s need for prescription medication, the compensation judge properly ordered the employer and insurer on the risk for the employee’s first work injury to pay the claimed expenses in full. Affirmed.
Crowley v. Plehal Blacktopping, Inc., 10/13/05 DOI: 7/13/99

Attorney Fees – Roraff Minnesota Statutes §176.081, subd. 1(a)(1) In cases involving medical or rehabilitation benefits only, Minnesota Statutes §176.081, subd. 1(a)(1), provides for contingent attorney fees of 25/20 percent of the dollar value of the medical or rehabilitation benefits awarded. The dollar value is the fee schedule amount for the medical expenses awarded. The fee schedule amount for a fusion surgery, for which approval is obtained, is clearly ascertainable whether the expense was incurred prior to the hearing or will be incurred after the hearing. An award of contingent attorney fees on the as yet prospective costs of the employee’s surgery is premature and the award of attorney fees is vacated. Attorney Fees – Roraff Where the employer and insurer voluntarily paid permanency and temporary partial disability benefits subsequent to the hearing on the employee’s claim for medical and rehabilitation benefits, the fact the employee’s attorney established primary liability in the prior hearing is irrelevant to entitlement to attorney fees for future benefits not in dispute at the time of the hearing. Since there was no dispute over these benefits, there is no attorney fee due, and the benefits may not be considered in assessing whether contingent fees on wage loss benefits are inadequate to reasonably compensate counsel for the medical/rehabilitation dispute.
D-3
• COMPACT • February 2006

Summaries of Decisions Appeals – Law of the Case Where, at the time of the Jan. 6, 2005 hearing, no fee petition had been submitted, entitlement to Roraff fees was not at issue, and no determination as to the amount of attorney fees or the adequacy of any contingent fees was possible, the compensation judge’s “award” of Roraff and Heaton fees, although unappealed, is not the law of the case nor does it have any collateral estoppel effect. Attorney Fees – Roraff Minnesota Statutes §176.081, subd. 1(a) Where the sole dispute is ascertainable medical or rehabilitation expenses, the employee’s attorney is entitled to contingent fees under the 25/20 formula in Minnesota Statutes §176.081, subd. 1(a). The only “election” available under the statute is the option of seeking additional Irwin fees if the attorney believes that the contingent fee on the dollar value of the medical or rehabilitation benefits awarded is inadequate to reasonably compensate the attorney for his or her services. Vacated.
Jaynes v. Golden Crest Nursing Home, 10/13/05 DOI: 12/20/03

Evidence – Credibility Evidence – Expert Medical Opinion Where the judge’s finding as to the employee’s credibility was not irrelevant to the issues that had been before her at the hearing, and where the employee’s treating surgeon had stayed oriented to and in practical communication with the employee’s other providers over the course of four years, the compensation judge’s finding that the employee was a credible witness and her choice of medical expert were not improper for being either irrelevant or in reliance on unfounded opinion, notwithstanding the fact that the credibility finding was not important to issues still on appeal and that there was some reasonable ambiguity as to the doctor’s presumptions. Medical Treatment and Expense – Reasonable and Necessary Minnesota Rules Part 5221.6100, subp. 1D Medical Treatment and Expense – Treatment Parameters Where the employee’s pre-surgery imaging included both an MRI scan and an arthrogram, where, subsequent to the employee’s surgery, the employee’s surgeon sought a repeat MRI and arthrogram but only an arthrogram was conducted, where there was no evidence that the employee’s surgeon, when he later requested a repeat MRI scan and arthrogram, was unaware of the postsurgery arthrogram or any definitive evidence that he was unaware that it was unaccompanied by an MRI scan, and where Minnesota Rules Part 5221.6100, subp. 1D, expressly prohibits only repeat imaging that is conducted “with the same imaging modality,” the compensation judge’s conclusion that a repeat MRI scan and arthrogram was reasonable and necessary and not contrary to the treatment parameters was not clearly erroneous and unsupported by substantial evidence.

D-4

• COMPACT • February 2006

Summaries of Decisions Medical Treatment and Expense – Surgery Practice and Procedure – Prospective Orders Evidence – Objective Evidence Because it was based on evidence not yet in existence, the judge’s award of payment for surgery contingent on the recommending surgeon’s assessment of future radiological evidence was improper and was vacated. Affirmed in part and vacated in part.
LaPanta v. Myron’s Cards & Gifts, Inc., 10/14/05* DOI: 11/13/01, 6/26/90

Causation Substantial evidence supports the compensation judge’s finding that the employee’s work-related injuries did not substantially contribute to his current condition, claimed disability and need for right knee surgery, but that his condition, claimed disability and need for surgery were causally related to his significant pre-existing degenerative arthritis of the right knee. Affirmed.
McLaughlin v. St. Phillips Church, 10/14/05 DOI: 9/24/00

Interest – Attorney Fees Minnesota Statutes §549.09, subd. 1 Minnesota Statutes §176.225, subd. 5 The compensation judge properly awarded interest on late payment of attorney fees pursuant to Minnesota Statutes §549.09, subd. 1, as the award of interest contained in Minnesota Statutes §176.225, subd. 5, pertains only to benefits ordered paid by the Department of Labor and Industry. Penalties – Medical Treatment and Expense The liability of the employer for surgery is limited to the maximum fee in the medical fee schedule or the provider’s actual fee, whichever is lower. The compensation judge properly awarded penalties to the employee based upon the fee schedule amount due for the surgery, rather than the larger amount prepaid by the employee. Interest The compensation judge erred in awarding interest on the amount prepaid by the employee in excess of the medical fee schedule amount for the surgery.

D-5

• COMPACT • February 2006

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

Summaries of Decisions Penalties – Attorney Fees Where the compensation judge issued an order requiring the self-insured employer to pay attorney fees based upon the medical benefits paid for the employee’s surgery, payment of attorney fees was due contemporaneously with each payment of medical benefits. Since the payment of attorney fees should have commenced in October 2003 when the first medical bills were paid, and no attorney fees were paid until March 5, 2004, we modify the decision to increase the penalty awarded from 10 percent to 20 percent. Affirmed in part, reversed in part and modified in part.
Schaaf (deceased) by Schaaf v. Biffs, 10/18/05 DOD: 11/27/02 DOI: 7/21/98

Causation Substantial evidence, including expert medical opinion and medical records, supports the compensation judge’s finding that the employee’s work-related injury in 1998 did not represent a substantial contributing factor in the employee’s fatal myocardial infarction in 2002. Affirmed.
Johnson v. Yellow Transportation, 10/21/05 DOI: 3/7/03, 1/18/00, 2/16/95, 6/00/93

Causation – Medical Expenses Evidence – Expert Medical Opinion Evidence – Credibility Medical Treatment and Expense – Reasonable and Necessary Where it was supported by expert medical opinion and the expressly credited testimony of the employee, the compensation judge’s conclusion that the employee’s pre-existing psychiatric condition had substantially deteriorated as a result of his work-related physical injuries was not clearly erroneous and unsupported by substantial evidence, and the judge’s consequent award of related medical benefits, including electroconvulsive therapy, was affirmed. Affirmed.
Geary v. McNeilus Truck and Manufacturing, 10/27/05 DOI: 9/9/02, 12/11/89, 5/11/84

Practice and Procedure Under the particular circumstances of this case, where the employer and insurer had reason to know that the date of the employee’s alleged work injury was uncertain, the compensation judge did not err by selecting a date of injury somewhat different than the date designated on the employee’s claim petition.
D-6
• COMPACT • February 2006

Summaries of Decisions Causation – Substantial Contributing Cause Substantial evidence, including expert opinion, reasonably supported the compensation judge’s decision that the employee sustained a permanent injury in an incident at work that caused or substantially contributed to the employee’s L1-2 disc herniation and subsequent disability and need for medical treatment. Apportionment – Permanent Partial Disability The compensation judge did not err in denying the employer and insurer’s request for apportionment for pre-existing permanent partial disability, where the record reasonably established that the preexisting condition was either not ratable or else that it constituted an impairment separate and distinct from the impairment caused by the work injury for which the employer and insurer were liable. Affirmed as modified.
Hart v. EVTAC Mining Company, 10/31/05 DOI: 5/16/02

Vacation of Award Where the compensation judge’s findings provide no facts essential to the ultimate decision on the issue of whether the employee’s work injury represented a substantial contributing cause of the employee’s loss of earnings, and therefore those findings provide no information for the reviewing court to determine from the record whether the facts support the compensation judge’s decision, remand for reconsideration and further findings is necessary. Vacated and remanded.
Stange v. State of Minnesota, Department of Transportation, 10/31/05 DOI: 10/24/00, 12/21/97, 5/1/97, 11/20/89

Appeals – Notice of Appeal The employee’s narrative notice of appeal was sufficient to confer jurisdiction on this court and the employee’s appellate brief adequately explains the issues appealed. Causation – Psychological Injury A condition resulting from an indirect causal relationship as here – where the employee argued that as a result of his low back injuries, a contentious relationship developed with the employer and the stress of his relationship with the employer aggravated his psychological condition – is generally not compensable as a workers’ compensation injury. The compensation judge did not err in accepting the independent medical examiner’s opinion that the employee’s depression was substantially caused by his struggles with the employer rather than a direct result of his back injuries.

D-7

• COMPACT • February 2006

Summaries of Decisions Temporary Total Disability Substantial evidence supports the compensation judge’s determination that the employee’s leave of absence from work from November 2000 through February 2001 was a substantial result of his noncompensable psychological condition, and his denial of temporary total disability benefits for this period of time. Rehabilitation – Cooperation Substantial evidence supports the compensation judge’s finding approving discontinuance of wage loss benefits for failure to comply with the terms of the Job Placement Plan and Agreement (JPPA). Permanent Total Disability Where the employee was working at the time of the hearing and the employer was paying temporary partial disability based on his wages, the compensation judge properly found the employee was not permanently and totally disabled as of the date of the hearing. Job Offer – Physical Suitability Substantial evidence supports the compensation judge’s findings that the March 20, 2003, functional capacities evaluation provided an accurate representation of the employee’s physical capabilities from that date through the date of hearing, and that Dr. Matson found the highway technician job suitable for the employee and that survey work was included in the job duties of a highway technician. Permanent Partial Disability Substantial evidence supports the compensation judge’s finding of a 28 percent permanent partial disability and his determination that there was no underpayment of permanency benefits. Medical Treatment and Expense – Treatment Parameters Substantial evidence supports the compensation judge’s finding the employee failed to establish grounds for departure from the treatment parameters that provide a hot tub is not indicated for home use for low back conditions. Rehabilitation – Retraining Where the employee agreed he was unlikely to be able to sit through classes or concentrate to read due to his chronic pain, the compensation judge reasonably concluded that exploration of retraining was not appropriate at this time.

D-8

• COMPACT • February 2006

Summaries of Decisions Attorney Fees – Withholding Where the compensation judge awarded benefits from which contingent fees could be paid and no hearing has been held on a pending attorney’s lien claim, the compensation judge did not err in ordering withholding from the benefits awarded pending resolution of the claim. Affirmed.
Wright v. Ecolab, Inc., 10/31/05 DOI: 11/21/94

Vacation of Award – Substantial Change in Condition Where the employee established a substantial change in condition under the factors set forth in Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989), vacation of the award was appropriate. Petition to vacate granted.
Amundson v. Mac’s Rental & Sales, Inc., d/b/a Mac’s Landscaping Center, 11/1/05 DOI: 6/30/03

Penalties Minnesota Statutes §176.225, subd. 1 Where the employer and insurer’s denial of primary liability was made following a good faith investigation of the facts, as referred to in Minnesota Statutes §176.225, subd. 1, and although the employer and insurer did not ultimately prevail on their defense to the claim, that defense was not frivolous nor made in bad faith, and therefore the award of penalties for maintaining a frivolous defense, or for a frivolous denial of payment, is reversed. Reversed.
Haugland v. Midwest Hardwood Corporation, 11/1/05* DOI: 12/22/01

Permanent Partial Disability – Cosmetic Disfigurement Minnesota Rules Part 5223.0650 Minnesota Rules Part 5223.0330, subp. 3.D Minnesota Rules Part 5223.0560, subp. 2.C.(3)(c) “Disfigurement” means anything that disfigures or defaces; a blemish, defect or deformity. The employee is, accordingly, entitled to compensation for a visible scar on his right eyelid as a consequence of his work injury. Where the employee’s ratable condition is a cosmetic disfigurement rather than a visual impairment, the compensation judge erred in awarding a two percent permanency for lagophthalmos under Minnesota Rules Part 5223.0330, subp. 3.D., and we modify the judge’s finding to award a 15 percent permanency under Minnesota Rules Part 5223.0560, subp. 2.C.(3)(c), for ectropion with the cornea unprotected by sleeping. Reversed and modified.
D-9
• COMPACT • February 2006 * This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions
Poderzay v. University of Minnesota, 11/1/05 DOI: 1/10/03, 7/18/02

Maximum Medical Improvement – Multiple Conditions Where the issue was whether the employer was entitled to discontinue temporary total disability benefits based on the employee’s attainment of maximum medical improvement [MMI], and it was undisputed, on appeal, that the employee had not reached MMI with regard to his lumbar injury, the judge’s failure to make a finding as to MMI with regard to the employee’s cervical condition had no practical effect, and the court therefore declined to remand the matter or otherwise modify the judge’s decision, even though MMI as to the employee’s cervical condition had been at issue at hearing. Affirmed.
Helwick v. Cherne Contracting Corporation, 11/2/05 DOI: 6/19/87

Discontinuance of Benefits Earning Capacity While the employee made misrepresentations about the scope and extent of his post-injury employment, the facts misrepresented were collateral rather than directly material to the issue of his earning capacity. Accordingly, the compensation judge was not required to find that the employee had misrepresented his earning capacity or that discontinuance of temporary benefits was warranted. Affirmed.
Lundeen v. Independent School District #191, 11/2/05 DOI: 9/1/00, 2/23/00

Wages – Self-employment Where it was supported by expert accounting opinion, where much of the employee’s position was based on speculative projection of income that he might receive upon future sale of his land, where essentially all evidence submitted by the employee pertained to work in which his wife also played an important part, and where it was reasonable to conclude that any arguable cash flow advantage that might be attributable to the employee’s various tax deductions was negated by the costs of new equipment purchased during the years reviewed, the compensation judge’s conclusion that the employee’s self-employment in a second-job dairy operation in which he had reported no profit for tax purposes for the past six years was not a basis for an increased date of injury weekly wage was not clearly erroneous and unsupported by substantial evidence. Affirmed.

D-10

• COMPACT • February 2006

Summaries of Decisions
Davies v. Menards, 11/4/05 DOI: 5/24/03, 12/31/02, 6/5/00

Causation – Temporary Aggravation Substantial evidence, including the employee’s medical records and adequately founded medical opinion, supports the compensation judge’s finding that the employee’s work injury on June 5, 2000, was temporary. Practice and Procedure – Alternative Findings The compensation judge did not lack authority to make alternative findings on issues presented as alternative arguments. Affirmed.
Kinney v. U.S. Steel, 11/15/05 DOI: 1/22/96, 1/2/90

Vacation of Award – Void Award Vacation of Award – Substantial Change in Condition Vacation of Award – Mistake Where there was no medical support for a claim of substantial change in condition, and the employee did not establish either incompetence or mistake with regard to the terms of the settlement agreement, good cause to vacate the award was not established. Petition to vacate denied.
Astren v. Ad Art Advertising, Inc., 11/17/05 DOI: 6/6/80

Causation Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s need for Plavix and Lipitor was related to the employee’s non-work-related coronary artery disease, rather than the employee’s work-related heart attack. Affirmed.

D-11

• COMPACT • February 2006

Summaries of Decisions
Moser v. Dairy Farmers of America f/k/a Mid-America Dairymen, Inc., 11/17/05 DOI: 8/26/82

Permanent Partial Disability Minnesota Statutes §176.101, subd. 3(40) (1980) In keeping with the court’s holding in Hart v. United Buckingham Freight Lines, 30 W.C.D. 342 (W.C.C.A. 1978), an award of permanent partial disability benefits for injury to internal organs under Minnesota Statutes §176.101, subd. 3(40) (1980), cannot exceed a total of 500 weeks. Permanent Partial Disability – Internal Organs Total destruction of an internal organ as a result of a work injury is entitled to a permanent partial disability rating under Minnesota Statutes §176.101, subd. 3(40) (1980), and the compensation judge’s assignment of a zero percent rating to the employee’s lung condition after a successful bilateral lung transplant is clearly erroneous and unsupported by substantial evidence. Permanent Partial Disability Minnesota Statutes §176.101, subd. 3(49) (1980) Where there was no dispute over the employee’s entitlement to permanent partial disability benefits for her skin disorder as a “not enumerated” disability under Minnesota Statutes §176.101, subd. 3(49) (1980), where awards under that subdivision are to be made for a period “not to exceed 350 weeks” based on an employee’s proof of a reduction in earning capacity rather than on the employee’s level of impairment, and where the employee was permanently and totally disabled, the compensation judge erred in awarding only a portion of 350 weeks based on a conclusion that the employee was subject to a 50 percent impairment of the skin, instead of the full 350 weeks provided for in the statute. Permanent Partial Disability – Simultaneous Injury Minnesota Statutes §176.101, subd. 3(46) (1980) As held in Tracy v. Streater/Litton Industries, 283 N.W.2d 909, 32 W.C.D. 142 (Minn. 1979), the provision in Minnesota Statutes §176.101, subd. 3(46) (1980), for a 15 percent bonus to be added to the employee’s permanent partial disability benefits in cases of simultaneous injury does not apply to internal organs, and the compensation judge’s conclusion to that effect was affirmed. Jurisdiction – Subject Matter Minnesota Statutes §60C Minnesota Statutes §176.021, subd. 1 Minnesota Statutes §176.185, subd. 7 Although the judge incorrectly indicated that the employee had a claim against the employer by operation of Minnesota Statutes §60C, the statute pertaining to Minnesota Insurance Guaranty Association (MIGA), the compensation judge properly assumed jurisdiction to determine the employee’s claim, in that Minnesota Statutes §176.021, subd. 1, clearly indicates that it is an employer’s obligation to pay compensation to an injured worker for a work injury, and Minnesota
D-12
• COMPACT • February 2006

Summaries of Decisions Statutes §176.185, subd. 7, does not, as argued by the employer, absolve an employer of that responsibility when its insurer becomes insolvent. Jurisdiction – Subject Matter Jurisdiction – Constitutional Issues The Workers’ Compensation Court of Appeals (WCCA) has no subject matter jurisdiction over an employer’s claim against MIGA or over an employer’s contention that the MIGA statute, Minnesota Statutes §60C, is unconstitutional for violating an employer’s right to due process and equal protection under the law when applied to the employer’s rights retroactively and without regard for the employee’s date of injury. Affirmed in part and reversed in part.
Clemmer v. National Steel Pellet Company, 11/28/05 DOI: 3/8/02

Medical Treatment and Expense – Chiropractic Treatment Substantial evidence supports the compensation judge’s decision that the chiropractic services provided to the employee were reasonable and necessary. Causation – Psychological Condition Substantial evidence supports the compensation judge’s determination that the employee’s work injury was a substantial contributing factor in the employee’s need for psychological care. Affirmed.
Paterson v. Hauenstein & Burmeister, 11/28/05 DOI: 9/29/00

Rehabilitation – Retraining Substantial evidence supports the compensation judge’s findings with respect to the four factors set forth in Poole v. Farmstead Foods, 43 W.C.D. 970 (W.C.C.A. 1989), and his award of a four-year retraining plan with the goal of obtaining a bachelor’s degree in health information management. Affirmed.

D-13

• COMPACT • February 2006

Summaries of Decisions
Shamp v. Daybreak Foods, 11/28/05 DOI: 5/22/99

Costs and Disbursements Settlements – Interpretation Where the stipulation for full, final and complete settlement was unambiguous and made no provision for payment of taxable costs, the compensation judge erred in concluding that the agreement did not close out such claims. Reversed.
Gledhill v. Dupont Villa Apartments, 12/5/05 DOI: 1/20/04

Temporary Total Disability Minnesota Statutes §176.101, subd. 1(e)(1) The statute precludes recommencement of temporary total disability benefits after an employee has returned to work and then is discharged for misconduct, and does not apply to terminate an employee’s ongoing entitlement to temporary total disability benefits. Because the employee was discharged for conduct that occurred while he was off work due to his injury and while he was receiving temporary total disability benefits, the statutory provisions concerning cessation and recommencement of benefits do not apply. Temporary Total Disability Termination of Employment – Misconduct Substantial evidence of record supports the compensation judge’s finding the employer and insurer should not have been allowed to discontinue the employee’s temporary total disability benefits as of June 18, 2004, on the basis of alleged misconduct, because the employee’s actions which provided the basis for the termination of his employment did not constitute misconduct. Evidence – Burden of Proof At a hearing on the employee’s objection to discontinuance of benefits based on misconduct, the employer and insurer have the initial burden of proof to establish the evidentiary basis for the discontinuance. Evidence – Hearsay The admission of hearsay evidence did not constitute error on the part of the compensation judge. Affirmed.

D-14

• COMPACT • February 2006

Summaries of Decisions
Zufall v. State of Minnesota, Cambridge Regional Center, 12/5/05 DOI: 12/2/91

Vacation of Award – Substantial Change in Condition Where there has been a change in the employee’s diagnosis, more extensive medical treatment than anticipated, entitlement to additional permanent partial disability, a change in her ability to work, and a causal relationship between the employee’s work injury and her worsened condition, the employee has experienced a substantial change in condition since a mediation resolution/award in 1993 and the employee’s petition to vacate the mediation resolution/award is granted. Petition to vacate granted.
Phan v. Radisson Hotel, 12/6/05 DOI: 5/7/97

Evidence – Res Judicata Where the employee’s medical expenses were not at issue at a prior hearing in 1999, and the previous claim covered temporary total disability and rehabilitation benefits from Aug. 14, 1997, through June 14, 1999, and did not encompass the employee’s current claims for permanent total disability and rehabilitation benefits subsequent to the 1999 hearing, the compensation judge’s dismissal of the employee’s current claims on the basis of the doctrine of res judicata is vacated and the case is remanded for a hearing. Vacated and remanded.
Ward v. City of St. Louis Park, 12/7/05 DOI: 9/16/02, 3/24/02, 3/1/01, 8/24/00, 5/20/98, 9/7/96, 4/14/96, 8/21/95, 3/9/95, 2/22/95, 10/13/94, 7/14/94

Evidence – Expert Medical Opinion Where the employer’s independent medical examiner did not improperly rely on the operative reports of the employee’s treating surgeon and the MRI reports of the attending radiologists rather than on arthroscopic photographs and the MRI films themselves, and where the IME’s unawareness of the treating surgeon’s diagnosis of chondromalacia at the time of an earlier surgery was essentially moot under the facts of the case, the court would not conclude that the IME’s otherwise well developed opinions were without adequate foundation to be relied upon by the compensation judge. Causation Causation – Superseding Intervening Cause Evidence – Burden of Proof A compensation judge is free to accept a portion of an expert’s opinion while rejecting other portions. Where the employee did not complain of left knee pain to a doctor for 10 years after his 1994 work injury, and where neither of the parties in their opening statements nor the judge in her decision ever invoked the legal theory of a “superseding intervening cause,” the judge’s conclusion
D-15
• COMPACT • February 2006

Summaries of Decisions that the employee’s surgery after a knee injury at home in 2004 was unrelated to the 1994 work injury was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the judge, without shifting the burden of proof to the employer, relied on the opinion of an independent medical examiner who voluntarily referred to the 2004 injury as a “superseding intervening injury.” Affirmed.
Wilson v. Scanlan International, Inc., 12/9/05 DOI: 4/29/02

Evidence – Res Judicata Where the decision of the worker’s compensation judge involved a claim for temporary total disability benefits extending from April 20, 2002, through the date of hearing on Oct. 31, 2003, and where the employee now claims entitlement to temporary total disability or permanent total disability benefits from Nov. 1, 2003, the doctrine of res judicata is not applicable when considering the effect of the previous findings and order, and does not preclude the claims presented by the employee’s claim petition. Reversed and remanded. Petition to vacate dismissed without prejudice.
Mundy v. American Red Cross, 12/13/05 DOI: 3/20/98

Permanent Partial Disability – Reflex Sympathetic Dystrophy Where the compensation judge accepted the opinions of the IME doctors that the employee did not have persistent objective findings of functional impairment, it was not error to deny the employee’s claim for permanent partial disability. Permanent Total Disability – Threshold Minnesota Statutes §176.101, subd. 5 Substantial evidence supports the compensation judge’s finding that the employee did not have sufficient disability from pre-existing conditions to meet the requisite threshold for permanent total disability. Medical Treatment and Expense – Reasonable and Necessary Substantial evidence supports the compensation judge’s determination that the claimed prescription expenses were not reasonable or necessary. Affirmed.

D-16

• COMPACT • February 2006

Summaries of Decisions
Nelson v. Parker Hannifin Corporation, et al, 12/15/05 DOI: 9/00/75, 5/00/74, 11/00/72

Gillette Injury Substantial evidence, including expert medical opinion, supported the compensation judge’s decision that the employee did not sustain Gillette injuries to his neck and low back as claimed. Affirmed.
Beckman v. Northside Construction, 12/16/05 DOI: 4/22/87

Vacation of Award – Substantial Change in Condition The employee did not establish good cause to vacate the award on stipulation under the factors specified in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). Petition to vacate denied.
Burg v. MIK Coop Trucking Association, 12/22/05 DOI: 5/6/01

Medical Treatment and Expense – Change of Physicians Where the employee’s treatment had been varied and complex prior to his current doctor’s involvement, where the latter was obviously aware of that treatment when he continued to recommend conservative treatment, where the judge reasonably concluded that the employee’s doctors had documented a treatment plan as required under the treatment parameters, and where the employer and insurer had not offered any evidence that any form of treatment not already tried by the employee would be proposed by another doctor, the compensation judge’s denial of the employer and insurer’s request for a change of physicians was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee had not demonstrated a substantial change in his symptomology since the date of his work injury. Affirmed.
Mankowski v. St. Paul Companies, Inc., 12/22/05 DOI: 9/27/03, 12/12/92

Causation – Gillette Injury Gillette Injury – Date of Injury Practice and Procedure – Matters at Issue Where the only work injury alleged by the employee was a Gillette-type injury on Sept. 27, 2003, where there was expert opinion that the employee was subject to an overuse injury in her right upper extremity and that that condition was work-related, and where in her memorandum the judge had identified as an “overuse syndrome” the more general work-related condition referenced in her
D-17
• COMPACT • February 2006

Summaries of Decisions findings, the compensation judge’s finding that the employee had sustained a work-related “right upper extremity condition” was not clearly erroneous and unsupported by substantial evidence and did not warrant remand for additional findings as to the specific date and nature of the injury. Notice of Injury – Gillette Injury Minnesota Statutes §176.141 Where the judge concluded generally that the employee had given timely notice of her injury but specified no date of that notice and offered no factual support or reasoning for her conclusion, where the judge did not make any specific finding as to whether the timely notice that she found was actual notice or inquiry notice, and where, in the event that the timely notice that she found was within 180 rather than 30 days of the injury, the judge did not address the factors specified in Minnesota Statutes §176.141 that permit such delayed notice, the matter of notice of injury was reversed and remanded for reconsideration and more specific findings. Intervenors Where issues at hearing had expressly included the employer’s own intervention interest for shortterm disability benefits paid to the employee during the period for which she had claimed temporary total disability benefits, and where the judge’s findings and order neither listed the employer/ intervenor among intervenors on the caption page nor contained any specific findings relating specifically to that party’s intervention interest, the matter was remanded to the compensation judge for findings clarifying the employer/intervenor’s particular intervention interest, notwithstanding the fact that the judge’s award of benefits to the employee had been made “subject to attorney fees and the intervenors’ claim for reimbursement.” Affirmed in part, reversed in part, and remanded.
Tourville v. Site Works Design, Inc., 12/23/05 DOI: 10/17/02

Temporary Total Disability Job Search Substantial evidence supports the compensation judge’s finding that due to his restrictions, the employee was incapable of substantial gainful employment from Feb. 17, 2003, through Jan. 28, 2004, and therefore was not disqualified from receiving temporary total disability benefits on the grounds that he failed to make a reasonable and diligent job search. Penalties Where the employee’s surgery was performed on Jan. 28, 2004, and temporary total disability benefits were not paid until April 9, 2004, substantial evidence supports the compensation judge’s finding that the employer and insurer neglected to timely pay compensation and the corresponding penalty award. Affirmed.
D-18
• COMPACT • February 2006

Summaries of Decisions
Kruger v. Smith Trucking, Inc., 12/27/05 DOI: 12/29/04

Causation The record as a whole supported the judge’s denial of the employee’s claim for wage loss benefits related to a 2004 work injury, where it was not unreasonable for the judge to find the employee’s testimony not credible or for the judge to reject expert causation opinion as unpersuasive. Affirmed.

D-19

• COMPACT • February 2006

Summaries of Decisions • Judicial •

Minnesota Supreme Court
October through December 2005
Case summaries published are those prepared by the WCCA

• Jon Deines v. Custom Log Buildings/Uninsured, and Black Bear Homes, Inc./Acuity Mutual Insurance Company, and SMDC Health System, Intervenor, and Special Compensation Fund, A05-1316, Sept. 29, 2005

Decision of the Workers’ Compensation Court of Appeals filed June 6, 2005, affirmed without opinion.
• Darold Zwieg (deceased) v. Pope Douglas Solid Waste and Minnesota Counties Insurance Trust, and Medicare/Noridian, Blue Cross/Blue Shield of Minnesota, St. William’s Living Center, Center for Diagnostic Imaging, Alexandria Clinic, and Regional Diagnostic Radiology, Intervenors, A05-799, Oct. 13, 2005

S Y L LAB U S Penalties assessed against the employer and insurer and payable to the employee are part of the employee’s underlying claim and are therefore vested and payable to the employee’s heirs. The Workers’ Compensation Court of Appeals did not exceed its authority in reversing the denial of penalties and remanding for further proceedings. Affirmed.
• Laree E. Huff v. Northwest Airlines Corporation and Liberty Mutual Insurance Company, A05-604, Oct. 18, 2005

Decision of the Workers’ Compensation Court of Appeals filed Feb. 24, 2005, affirmed without opinion.
• Gary R. Meyer v. George F. Cook Construction Company, and State Fund Mutual Insurance Company, and Gresser Concrete, and Liberty Mutual Insurance Company, and Stellar Concrete & Masonry, and Lumbermen’s Underwriting Alliance, A05-1475, Oct. 31, 2005

Decision of the Workers’ Compensation Court of Appeals filed June 27, 2005, affirmed without opinion.
D-20

• COMPACT • February 2006

Summaries of Decisions
• Adam Werneke (minor) by Matthew Werneke v. Lakeside Lawn and Landscape, Inc., and Integrity Mutual Insurance/CompCost, Inc., and Trustmark Life Insurance Co., Intervenor, A05-1665, Nov. 22, 2005

Decision of the Workers’ Compensation Court of Appeals filed July 21, 2005, affirmed without opinion.
• Cindy Leidenfrost v. Wal-Mart Stores, Inc., and Pennsylvania/AIG, claims administered by Claims Management, Inc., and Institute for Low Back & Neck Care, and Abbott Northwestern Hospital, Intervenors, A05-1666, Nov. 28, 2005

Decision of the Workers’ Compensation Court of Appeals filed July 25, 2005, affirmed without opinion.

D-21

• COMPACT • February 2006