• Judicial •

Court of Appeals
October through December 2006
Case summaries published are those prepared by the WCCA

Workers’ Compensation

Price v. City of Minneapolis, 10/2/06

Permanent Partial Disability – Knee Minnesota Rules Part 5223.0510 Where Minnesota Rules Part 5223.0510 provided for an 8 percent whole-body impairment rating for a total knee arthroplasty, where that procedure reasonably entailed removal of all cartilage in the knee at issue, where the employee’s arthroplasty had been preceded two years earlier by a partial medial and partial lateral meniscectomy to remove part of the cartilage in the same knee, for which the employee had already been compensated for a 4 percent whole-body impairment, and where there was no expert testimony that a meniscectomy was not a lesser included category in an arthroplasty, the compensation judge’s award of compensation for an additional 4 percent rather than a full new 8 percent impairment, contrary to the claim of the employee, was not clearly erroneous and unsupported by substantial evidence. Permanent Partial Disability – Combined Ratings Minnesota Rules Part 5223.0510, subp. 3 The heading “[c]ombinable categories” in subpart 3 of Minnesota Rules 5223.0510 refers to the combinability of categories therein with any appropriate category in subpart 4 of that rule; it has no reference to the combinability of categories within subpart 3, though such combination may or may not be permissible under other provisions in the rules. Affirmed.
Ekeberg v. Stanley M. Taube, 10/5/06

Causation Substantial evidence, including well-founded medical opinion and the employee’s testimony, supports the compensation judge’s findings that the employee’s current low back condition is the result of his Sept. 1, 2002, personal injury and that his June 4, 2003, injury was a temporary aggravation of his pre-existing condition.

Summaries of Decisions Notice of Injury – Trivial Injury Substantial evidence supports the compensation judge’s finding that the employee gave timely notice of his Sept. 1, 2002, personal injury on or about June 10, 2003, concluding it was then that the employee understood the probable compensable nature of his September 2002 work injury. Affirmed.
Enstad v. Granite Falls Municipal Hospital, 10/5/06

Vacation of Award Practice and Procedure – Dismissal As the employee currently has a claim pending before the Office of Administrative Hearings based upon an alleged new injury in November 2004 while working for a different employer, the employee’s petition to vacate the April 19, 2002, Award on Stipulation is premature and is dismissed without prejudice. Petition to vacate dismissed.
Strehler v. NAPCO Industries, 10/9/06

Medical Treatment and Expense – Reasonable and Necessary Substantial evidence, including the well-founded opinion of the independent medical examiner, supports the compensation judge’s finding that the treatment provided by Medical Advanced Pain Specialists to the employee was not reasonable or necessary, and the compensation judge’s denial of a trial of a spinal cord stimulator and/or pain pump recommended by the employee’s treating physician. Affirmed.
Watson v. Minnesota Services a/k/a Signature Dining, 10/9/06

Evidence – Res Judicata Under the circumstances of this case, the compensation judge erred as a matter of law in concluding that a previous decision denying specific medical expenses, on causation grounds, was res judicata on the issue of whether the employee had any permanent partial disability, loss of earning capacity, or need for rehabilitation assistance as a result of her admitted work injury. Reversed and remanded.

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Summaries of Decisions
Sanchez v. McLane Minnesota Company, et al, 10/11/06

Appeals – Scope of Review Practice and Procedure – Service Where the employer’s insurer at the time of the employee’s injury was never properly served with a claim petition, petition for contribution and/or reimbursement, nor with other pleadings related to ongoing litigation, and did not appear at hearing, the compensation judge’s findings and order are vacated. Vacated.
Haldeman v. Next Innovations, Ltd., 10/12/06

Causation Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that the employee’s work injury was a substantial contributing cause of the employee’s continuing low back condition. Job Offer – Refusal Under the circumstances of this case, where the employee had worked the graveyard shift for the employer prior to his injury in order to have his days free to complete a restaurant remodeling project, the compensation judge did not err in concluding that it was reasonable for the employee to reject the employer’s offer of a day shift job after the injury. Affirmed.
Adams v. Hyman Freightways, 10/16/06

Notice of Discontinuance Practice and Procedure – Remand Minnesota Statutes §176.101, subd. 2(b) Under the specific circumstances of this case, where the insurer was determined to have liability for ongoing temporary partial disability compensation and was ordered to be the paying agent for those benefits and where the insurer determined after the hearing that it had no obligation to pay temporary partial disability compensation under Minnesota Statutes §176.101, subd. 2(b), the compensation judge did not err in denying the insurer’s Notice of Intention to Discontinue (NOID), and the matter is remanded for further consideration. Affirmed and remanded.

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Summaries of Decisions
Penn v. NewMech Companies, 10/16/06

Causation – Medical Expenses Causation – Psychological Injury Causation – Intervening Cause Where the judge’s conclusion was supported by expert medical opinion that there was no medical connection between the employee’s original shoulder injuries and his subsequent psychological condition, and where accepting the employee’s legal contention would have required granting substantial import to several intervening non-medical and non-physical causative factors, all separating the personal injury from the claimed psychological consequence, the compensation judge’s denial of compensation for the employee’s severe depression and adjustment disorder consequent to stress at his post-injury job was neither unsupported by substantial evidence nor clearly erroneous. Affirmed.
Miller v. Wal-Mart, 10/26/06

Practice and Procedure – Independent Medical Examination The compensation judge did not abuse her discretion in admitting the IME report. Causation Substantial evidence, in the form of a well-founded medical opinion, supports the compensation judge’s determination that the work injury was a temporary aggravation of an underlying degenerative disc condition. Affirmed.
Meyers v. Hearth Technologies, f/k/a Heat-N-Glo Fireplace Products, 10/27/06

Medical Treatment and Expense Substantial evidence, including the medical records and opinions of the employee’s treating and consulting physicians and the testimony of the employee, supports the compensation judge’s finding that the medical treatment provided to the employee for both his right shoulder condition and migraine headaches, was reasonable, necessary and causally related to his injury. Affirmed.

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• COMPACT • February 2007

Summaries of Decisions
Duran v. Railworks Track Systems, Inc., 10/30/06

Causation Substantial evidence, including expert medical opinion, medical records and lay testimony, supported the compensation judge’s finding that the employee’s admitted work injury was temporary in nature and was not a substantial contributing cause of his need for medical treatment after Feb. 12, 2004. Affirmed.
Hernandez v. Fantom Wire*

Employment Relationship Although the employee falsified his identity, and the temporary employment agency would not have hired him had his true identify been known, the compensation judge properly imposed workers’ compensation liability on the temporary agency, rather than on the special employer, pursuant to agreement between the temporary agency and the special employer, where there was no material mutual mistake or material misrepresentation by the special employer that would justify allowing the temporary agency to avoid the contract. Affirmed.
Rabideaux v. ALLETE, Inc., f/k/a Minnesota Power & Light Company, 10/31/06

Causation Substantial evidence, including the testimony of the employee and the opinion of the employee’s treating surgeon, supports the compensation judge’s determination that a fall at work on April 4, 2003, substantially and permanently aggravated the employee’s pre-existing low back condition. Affirmed.
Reece v. City of Minneapolis, 10/31/06

Medical Treatment and Expense – Surgery Substantial evidence, including the adequately founded opinion of the employee’s treating physician, supports the compensation judge’s approval of the requested hip surgery. Affirmed.

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• COMPACT • February 2007

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

Summaries of Decisions
Harris v. Jimmy Jingle, 11/1/06

Wages – Irregular Hours Where the employee was under contract to be paid a base salary each week plus sales commissions and to have use of a company vehicle, where the employee had received extra pay for an extra project for the employer that he had been working on for 10 months prior to his 1999 work injury and where the employer’s managing partner had acknowledged in testimony that the employee’s earnings were irregular, the compensation judge’s conclusion that the employee’s wages were irregular was not clearly erroneous and unsupported by substantial evidence, and, in calculating the employee’s average weekly wage over the 26 weeks prior to his injury, the judge properly divided the employee’s total earnings by only the 24 weeks that he was not on vacation, pursuant to Fougner v. Boise Cascade Corp., 460 N.W.2d 1, 43 W.C.D. 281 (Minn. 1990). Wages – Overtime Wages – Bonuses Where the employee had asked for and begun receiving in December 1998, extra pay for an extra project for the employer that he had commenced in September 1998, and where he had testified that he had regularly and frequently worked as many extra hours for the employer on that project during the 26-week period preceding his July 1999 work injury as he had worked on that project for several months prior to that 26-week period, the compensation judge’s imputation of the employee’s average weekly wage at the time of injury from the amount paid to the employee during the 26week pre-injury period, including the extra pay for the extra project, was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee’s extra pay during that period was arguably for work commenced prior thereto, and notwithstanding the fact that the employee was a salary/commission-based employee and therefore not normally subject to overtime wages. Affirmed
Mathistad v. Caldwell Packing/PM Windom, 11/1/06

Permanent Partial Disability – Back Where it was supported by sufficiently founded and reasoned expert medical opinion and was not otherwise unreasonable in light of the evidence, the compensation judge’s award of permanent partial disability compensation for the employee’s lumbar and cervical injuries was not clearly erroneous and unsupported by substantial evidence, notwithstanding the judge’s failure either to indicate expressly that his opinion was stated within a reasonable degree of medical certainty or to expressly relate causally the employee’s condition to his work injury. Medical Treatment and Expense – Reasonable and Necessary Where the judge’s award of permanent partial disability compensation for injury to the employee’s neck, in reliance on expert medical opinion, had been affirmed, the compensation judge’s conclusion that a recommended cervical discogram was reasonable and necessary in further diagnosis of
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Summaries of Decisions the condition for which permanency benefits had been awarded was not clearly erroneous and unsupported by substantial evidence. Temporary Total Disability Job Search Where the employee had continued to work for 10 months without any related time off after his work-related neck injury, where, as of the date he quit his job, no treating or other doctor had ever restricted him entirely from working, and where the decision was supported by expert medical opinion, the compensation judge’s conclusion that the employee was physically capable of working and was not entitled to temporary total disability benefits subsequent to quitting his job without a reasonably diligent job search was not clearly erroneous and unsupported by substantial evidence, particularly in light of the absence of any expert vocational testimony regarding the job market and the employee’s acknowledgment that he was offered a lighter duty job by the employer but did not even attempt to perform it. Wages – Irregular Hours Where the employee’s earnings during each of two of the 26 weeks preceding his work injury were more than $150 less than the $437.64 average for the full 26 weeks, but where it was also true that his earnings during each of four of the other 24 weeks at issue were more than $100 more than that straight average, the compensation judge’s decision to base the employee’s average weekly wage on the full 26-week period was not clearly erroneous and unsupported by substantial evidence. Affirmed.
McQuay v. Ames Construction, 11/8/06

Permanent Total Disability – Statutory Permanent Partial Disability Threshold Minnesota Statutes §176.101, subd. 5(2) Where the 54-year-old pro se employee had not proven that he was subject to any permanent partial disability, the compensation judge properly concluded that he had no alternative other than to deny the employee’s claim for permanent total disability benefits pursuant to Minnesota Statutes §176.101, subdivision 5(2), and the judge’s additional finding that the employee was also able to work as a factual matter was moot. Affirmed.

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• COMPACT • February 2007

Summaries of Decisions
Wald v. Walgreens Corporation, 11/8/06

Notice of Injury Where the employee’s symptoms after commencing work were similar to symptoms she had experienced following a previous automobile accident, it was not unreasonable for the compensation judge to conclude that the notice period did not begin to run until the employee received a doctor’s report connecting her condition to her work activities. Affirmed in part and reversed in part.
Mann v. Offset Plate Service, Inc., 11/15/06

Temporary Partial Disability Substantial evidence in the records supports the compensation judge’s findings that the employee has no residual disability related to his Dec. 12, 2001, work injury and that he is not entitled to payment of temporary partial disability benefits. Affirmed.
Abdelrazig v. American Bottling Company, 11/16/2006

Practice and Procedure – Independent Medical Examination The compensation judge did not abuse her discretion in extending the deadline for an examination at the employer and insurer’s request past 120 days and the compensation judge at hearing did not err by admitting the report from that examination into evidence. Causation Temporary Benefits Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s injury was temporary. The compensation judge erred by awarding temporary total disability benefits and medical expenses after the date the temporary injury ended. Medical Expenses – Reasonable and Necessary The employee’s treatment for his left shoulder injury included necessary diagnostic testing and examinations, which is compensable, even though the diagnosis is later determined to be of a nonwork-related condition. Affirmed in part and reversed in part.

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Summaries of Decisions
Dille v. Health East/St. Joseph’s Hospital, 11/21/06

Vacation of Award The employee has not established a substantial change in medical condition that would support vacating the award on stipulation. Petition to vacate denied.
Nelson v. D&D Picket d/b/a Skipper’s Car Wash, 11/21/06

Causation Substantial evidence supports the compensation judge’s determination that the employee’s work injury was not a substantial contributing factor in any wage-loss sustained by the employee and did not result in any ratable permanent partial disability. Affirmed.
Pratley v. Moniterm Corporation, 11/21/06

Permanent Partial Disability – Cosmetic Disfigurement Permanent Partial Disability – Weber Rating Minnesota Rules Part 5223.0030 Where the employee sustained both vision loss, for which she was paid a 24-percent permanent partial disability under Minnesota Rules Part 5223.0030, and cosmetic disfigurement of her right eye, the compensation judge did not err in awarding an additional 10-percent permanency under Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990). Affirmed.
Victor v. Smithway Motor Xpress, 11/21/06*

Evidence Upon appeal, this court is limited by its standard of review to solely consider the evidence submitted into the hearing record and therefore will not consider sworn statements submitted post-hearing. Notice of Injury Substantial evidence in the record supports the compensation judge’s finding that the employee provided the employer with timely notice of his injury, even though contrary evidence in the record could support conclusions opposite from those reached by the compensation judge.

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• COMPACT • February 2007

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

Summaries of Decisions Arising Out Of and In the Course Of The employee’s testimony, in combination with the correspondence and discussions the employee had with employer representatives following the injury, comprises substantial evidence supportive of the compensation judge’s finding that the employee’s injury arose out of and in the course of his employment. Affirmed.
McMahon v. Super Valu/Cub Foods, 11/29/06

Temporary Benefits – Fully Recovered Where the employee’s entire appeal from various findings of the judge was based solely on the contention that the medical opinion on which the judge relied lacked sufficient foundation, where the medical opinion relied on had been based on a physical examination of the employee and substantial review of the employee’s medical records, and where the compensation judge had expressly found the employee’s own testimony to be inconsistent and lacking in candor, the compensation judge’s denial of the employee’s claim for wage-replacement, medical and rehabilitation benefits, based on a finding that the employee’s work injury had resolved, was not clearly erroneous and unsupported by substantial evidence. Affirmed
Allen v. Fastenal, 12/1/06

Arising Out Of and In the Course Of – Prohibited Act Substantial evidence supports the compensation judge’s findings that the employee’s operation of a mechanized lift without a safety harness was not inherently dangerous and that his failure to use a safety harness was reasonably foreseeable, and the judge’s determination that the employee did not perform a prohibited act barring receipt of workers’ compensation benefits. Affirmed.
Simons v. Ridgeview Medical Center, 12/1/06

Causation – Permanent Aggravation Evidence – Expert Medical Opinion Where the initial chart note and a letter report of the employee’s treating physician misstated the specific manner in which the employee testified that her injury took place, but the doctor’s records further revealed that the employee had corrected his misunderstanding of the events prior to his issuance of his causation opinion, the compensation judge could treat the mistake as a question of weight rather than foundation, and was not precluded from accepting the causation opinion as a matter of law. The compensation judge’s finding that the work injury was a substantial contributing cause of the aggravation of the employee’s pre-existing knee condition had substantial support in the
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• COMPACT • February 2007

Summaries of Decisions evidence not only in the form of this expert medical opinion, but also in the fact that the employee had been asymptomatic prior to the injury and began having symptoms immediately thereafter. Affirmed.
Tomford v. Mark’s Welding, Inc., 12/4/06

Temporary Benefits Where the primary basis for the judge’s denial of benefits was that the employee did not timely communicate with the employer about the reasons for his absence from work, and where the evidence showed that the employee provided adequate information to the employer concerning his disability from work, the record does not support the judge’s denial of temporary disability during June 2005. Temporary Total Disability – Job Search Substantial evidence in the record supports the compensation judge’s conclusion that the employee did not conduct a reasonable and diligent job search after Aug. 1, 2005, and therefore the denial of temporary total disability benefits between Aug. 1, 2005, and the date of the hearing is affirmed. Maximum Medical Improvement Based on the record, the compensation judge’s finding that the employee had reached maximum medical improvement appeared to contradict his findings concerning the employee’s low back injury and continuing effects therefrom, and so the issue of whether the employee has reached maximum medical improvement from his low back injury is vacated and remanded to the compensation judge for further consideration. Wages – Irregular Minnesota Statutes §176.011, subd. 18 Where the employee’s wages during the 26 weeks preceding his injury were irregular, the compensation judge appropriately used the statutory calculation provided in Minnesota Statutes §176.011, subd. 18, to determine the employee’s weekly wage. Affirmed in part, reversed in part, vacated and remanded in part.
Yusuf v. Hilton Hotel, 12/4/06*

Arising Out Of and In the Course Of – Recreational Activities Minnesota Statutes §176.021, subd. 9 An employee’s injury is not barred by Minnesota Statutes §176.021, subd. 9, where there is no evidence that the alleged voluntary nature of the activity was ever communicated to the employee. Reversed and remanded.
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• COMPACT • February 2007 *This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions
Furey v. Grant Itasca Clinic and Hospital, 12/5/2006

Gillette Injury – Date of Injury Substantial evidence supported the judge’s finding as to the culmination date of the employee’s Gillette injury, where the date chosen by the judge was the first date on which a physician connected the employee’s condition to her work and the first date on which a physician recommended restrictions that precluded the employee from performing her usual job. Affirmed.
Schilling-Hysjulien v. Metro Dental Care, 12/6/06

Causation – Medical Treatment Substantial evidence, including medical evidence and the employee’s testimony, supports the compensation judge’s findings that the employee sustained a work-related soft tissue injury to her right shoulder on April 13, 2004, and that the work injury is a substantial contributing factor to the employee’s need for the disputed medical treatment. Affirmed.
Paulsen v. Solar Plastics, Inc., et al, 12/8/06

Causation Substantial evidence, including expert medical opinion, supported the compensation judge’s decision that the employee’s disability and need for treatment were not causally related to any of his claimed work injuries. Affirmed.
Corradi v. Minnesota Conway Fire & Safety, et al, 12/13/06

Causation Substantial evidence supports the compensation judge’s findings that the employee’s condition, need for medical and chiropractic treatment, and permanent partial disability are not causally related to the employee’s claimed injuries in May and September 2000. Affirmed.

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• COMPACT • February 2007

Summaries of Decisions
Jaynes v. Golden Crest Nursing Home, 12/13/06

Medical Treatment and Expense – Treatment Parameters Minnesota Rules Part 5221.6300, subp. 6.B Where subpart 11.B. of Minnesota Rules Part 5221.6300, as incorporated under subpart 6.B. of that rule, was inapplicable to the employee’s shoulder surgery because subpart 11.B. pertains specifically to epicondylitis, and where there was no basis for concluding that the treating doctors’ examination finding of impingement did not qualify as an “objective physical finding” for purposes of subpart 15.B. of the rule, also incorporated under subpart 6.B., the compensation judge’s conclusion that the employee’s surgery was in compliance with Minnesota Rules Part 5221.6300 of the treatment parameters was not clearly erroneous and unsupported by substantial evidence. Medical Treatment and Expense – Treatment Parameters Minnesota Rules Part 5221.6500, subp. 3.B Where the repeated pre-surgery examination finding of impingement was sufficient to satisfy the required diagnosis of “acromial impingement syndrome” in Minnesota Rules Part 5221.6500, subp. 3.B., where the shoulder surgery eventually performed did involve a paring of the acromion, and where the judge reasonably found that the employee satisfied the other physical requirements at issue under the rule, the compensation judge’s conclusion that the employee’s surgery was in compliance with the requirements of Minnesota Rules Part 5221.6500, subp. 3.B., was not clearly erroneous and unsupported by substantial evidence. Medical Treatment and Expense – Surgery Where the employer and insurer had conceded at hearing that the surgery was causally related to the work injury, and where that surgery was in compliance with the medical treatment parameters, the shoulder surgery at issue was presumptively reasonable and necessary absent a showing that the employee’s circumstances constituted the sort of “rare case” referenced in Pelowski v. K-Mart Corporation, 627 N.W.2d 89, 93, 61 W.C.D. 276, 281 (Minn. 2001), and the employer and insurer’s argument as to its reasonableness and necessity was not addressed. Affirmed.
Rushmeyer v. Lyngblomsten Care Center, 12/20/06

Medical Treatment and Expense – Reasonable and Necessary Where there was medical evidence that the medications at issue were reasonable and necessary, where the judge expressly found credible the employee’s testimony that the medications had been helpful in managing her low back and leg pain, and where there was expert medical opinion that the employee was not abusing the medication, the compensation judge’s conclusion that the medications at issue were reasonable and necessary in treatment of the employee’s work injury was not clearly erroneous and unsupported by substantial evidence.

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• COMPACT • February 2007

Summaries of Decisions Medical Treatment and Expense – Treatment Parameters Where the employee’s medication regimen, including her use of Vicodin, was reasonable and necessary, where the employee was credibly experiencing intractable pain, where the medication treatment at issue was not invasive, was carefully monitored, was not being abused and allowed the employee to function somewhat normally, and where the Vicodin use at issue represented a minimal portion of the total medication charges in the case, the compensation judge did not improperly conclude that the employee’s Vicodin use qualified as a “rare case” exception so as to relieve the employee from strict adherence to the medical treatment parameters with regard to her use of medication, notwithstanding the fact that the judge appeared not to follow the progressive analysis set forth in Martin v. Xerox Corp., 59 W.C.D. 509, 515 (W.C.C.A. 1999). Evidence – Burden of Proof Medical Treatment and Expense – Treatment Parameters Where, as a factor in deliberating whether to apply the rare case exception, the judge was entitled to consider whether other treatment was more appropriate or available to the employee, and where the court viewed the judge’s comment as a rejection of the employer’s position that withdrawing all pain medication was reasonable, the WCCA declined to reverse the compensation judge’s finding of a rare case exception under the treatment parameters on grounds that the judge improperly shifted the burden of proof to the employer when she noted in a finding that there was no alternate treatment for the employee’s intractable pain being proposed that the employer and insurer were willing to pay for. Affirmed.
Bryant v. University of Minnesota, 12/21/06

Attorney Fees – Irwin Fees Where there was no evidence as to the benefit recovered for the employee, there was no basis for the compensation judge to conclude that a contingent fee was not adequate to reasonably compensate the employee’s attorney. Vacated.
Freedlund v. Hillcrest Healtcare Center, 12/21/06

Causation Substantial evidence supports the compensation judge’s determination that the employee’s cervical condition was not causally related to her August 2004 work injury. Affirmed.

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• COMPACT • February 2007

Summaries of Decisions • Judicial •

Minnesota Supreme Court
October through December 2006
Case summaries published are those prepared by the WCCA

• Troy Parker v. University of Minnesota, and Self-Insured/Sedgwick Claims Management Services,
A06-1253, Oct. 2, 2006

Decision of the Workers’ Compensation Court of Appeals filed June 8, 2006, affirmed without opinion. • Thomas Skelley v. Lucent Technologies, and Reliance National Insurance Company/Heritage Claim
Service, A06-1358, Oct. 25, 2006

Decision of the Workers’ Compensation Court of Appeals filed June 27, 2006, affirmed without opinion.
• Geraldine Lewin v. Aspen Medical Group and State Fund Mutual Group, A06-1337, Nov. 1, 2006

Decision of the Workers’ Compensation Court of Appeals filed June 21, 2006, affirmed without opinion. • Steven R. Turner v. EVTAC Mining and CNA ClaimsPlus and Iron Range Rehab Center, and
Orthopaedic Associates of Duluth, P.A., Intervenors, A06-1195, Nov. 22, 2006

Decision of the Workers’ Compensation Court of Appeals filed May 25, 2006, affirmed without opinion.

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• COMPACT • February 2007