• Judicial •

Workers’ Compensation

Court of Appeals
January through March 2003
Case summaries published are those prepared by the WCCA

Blum v. Madison Lutheran Home, 1/6/03 DOI: 9/21/01 Jurisdiction – Subject Matter Minnesota Statutes §176.239 The Workers’ Compensation Court of Appeals does not have subject matter jurisdiction to consider an appeal from an administrative conference decision issued pursuant to Minnesota Statutes §176.239. Dismissed. Hofbauer v. Made Wright Custom Cabinets, 1/6/03 DOI: 7/23/01 Evidence This court will not evaluate the credibility and probative value of witness testimony in order to choose different inferences from the evidence than the compensation judge. The compensation judge did not err by finding the testimony of two witnesses to be highly credible where their testimony had minor inconsistencies but were generally compatible. Termination from Employment – Misconduct Minnesota Statutes §176.101, subd. 1(e)(1) The compensation judge could reasonably conclude that the employee’s conduct involving tardiness and absenteeism which resulted in his termination from employment was not misconduct within the meaning of Minnesota Statutes §176.101, subd. 1(e)(1), and that the employee was not barred from recommencement of his temporary total disability benefits. Medical Treatment and Expense – Chiropractic Treatment Where the compensation judge did not specify the dollar amount of expenses awarded, and although his findings and order imply that the amounts awarded were either identical or very close to the specific amounts

Summaries of Decisions the employer and insurer agreed to litigate, the findings and order could be interpreted to refer to treatment expenses for dates beyond those claimed at the hearing, and therefore are modified to indicate the exact amount of expenses at issue and awarded. Affirmed in part and modified in part. Klinefelter v. Quicksilver Express Courier, 1/6/03 DOI: 1/20/00 Medical Treatment and Expense – Surgery Substantial evidence, including expert opinion, supported the compensation judge’s decision that fusion surgery was not reasonably required to treat the effects of the employee’s work-related injury. Affirmed. Lockbeam v. Acoustics Associates, Inc., 1/6/03 DOI: 1/29/00 Causation – Substantial Contributing Cause Where it was not unreasonable for the judge to conclude that the employee’s fall at work was not serious, that there were many unexplained inconsistencies in the employee’s actions of record, and that the medical experts who had supported the employee’s claim had relied on a faulty symptom history, and where the judge’s decision was supported by other expert medical opinion, the compensation judge’s conclusion that the evidence did not establish that the employee’s fall at work was a substantial contributing cause of his disability and medical expenses beginning two months later was not clearly erroneous and unsupported by substantial evidence. Affirmed. Lowell v. Lee Stamping, 1/6/03* DOI: 7/28/86 Causation Substantial evidence supports the determination of the compensation judge that the employee did not sustain Gillette injuries to his low back or hands/fingers where the decision was based upon adequately founded medical opinion. Permanent Partial Disability Minnesota Statutes §176.101, subd. 2a Substantial evidence supports the decision of the compensation judge as to the extent of permanent partial disability due to the shoulder where the rating was based upon medical examination.

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

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Summaries of Decisions Permanent partial disability for different body parts from different personal injuries are not combined in determining the amount to be paid under Minnesota Statutes §176.101, subd. 2a. Affirmed. Nystrom v. Kanabec Hospital, 1/6/03 DOI: 12/13/00 Causation Substantial evidence supports the compensation judge’s decision that proposed medical treatment was causally related to the employee’s work injury. Affirmed. Norman v. Chisholm Housing Authority, et al, 1/7/03 DOI: 5/23/97, 12/16/94 Causation Substantial evidence, including expert opinions, supported the compensation judge’s decision that the employee’s work injury was merely temporary. Evidence – Expert Opinion The fact that the independent medical examiners had not examined the employee at the point at which the employee’s work injury had allegedly resolved is a factor for the compensation judge to weigh and provides inadequate justification for reversal. Affirmed. Bahr v. Northwood Panelboard, 1/8/03 DOI: 1/31/84 Temporary Partial Disability – Earning Capacity Where during a period of time the employee earned a wage less than his pre-injury wage, but where the record contained insufficient evidence to rebut the presumption of earning capacity created by the employee’s actual earnings, substantial evidence supports the compensation judge’s findings that the employer and insurer failed to rebut the presumption of earning capacity created by the employee’s actual earnings, that the employee’s earnings from May 30 through Dec. 5, 2001, represented his decreased earning capacity, and that the employee was entitled to temporary partial disability benefits for that period of time.

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Summaries of Decisions Medical Treatment and Expense – Surgery – Reasonable and Necessary Substantial evidence, including expert opinion, supports the compensation judge’s determination that the fusion surgery performed Dec. 6, 2001, was reasonable and necessary. Affirmed. Carlson v. City of Minneapolis, 1/8/03 DOI: 11/13/97 Causation Substantial evidence, including the adequately founded opinion of the employee’s treating physician, supports the compensation judge’s finding that the employee’s Nov. 13, 1997, personal injury caused or accelerated an onset of low back symptoms. Affirmed. Monson v. White Bear Mitsubishi, 1/9/03* DOI: 3/28/91 Vacation of Award – Substantial Change in Condition Where the employee’s diagnosis at the time of his award on settlement did not expressly address whether or not his spinal fusion was solid, where his diagnosis at the time of his petition to vacate, subsequent to a repair of that fusion, was little different from his diagnosis at the time of his settlement, and, especially, where it was not evident that the necessity of a repeat fusion could not reasonably have been anticipated at the time of the award on settlement, the employee did not show good cause to vacate his award on settlement on grounds that there had been a substantial change in his medical condition, notwithstanding the fact that he had been working full time at the time of the award and was not working at the time of his petition. Vacation of Award – Mistake Where the employer and insurer did not concede that they were unaware of the possibility that the employee’s spinal fusion might not have been solid at the time of the settlement, and where it was evident to both parties at the time of that settlement that the employee had not had a successful result from his previous spinal fusion, the employee did not show good cause to vacate his award on settlement on grounds that there had been a mutual mistake of fact. Vacation of Award – Newly Discovered Evidence Where neither the doctor’s report on which the employee based his petition nor the X-rays upon which that report was based were in existence at the time of the award on stipulation, the employee did not show good cause to vacate his award on stipulation on grounds that there was newly discovered evidence bearing on the

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

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Summaries of Decisions dispute, notwithstanding the fact that the failure of the spinal fusion identified in the doctor’s report may have existed already at the time of the award on settlement. Petition to vacate award denied. Roberts v. Supervalu, Inc., 1/9/03 DOI: 4/21/00 Medical Treatment and Expense Minnesota Rules Part 5221.6500, subp. 2C(1)(d)i Where the compensation judge did not determine whether the treatment parameter criteria were met, or whether circumstances warranted a departure from the treatment parameter rules, the compensation judge’s finding that the proposed surgery was not reasonable and necessary does not address the determinative issue as presented by the parties, and the matter is remanded for consideration of whether the treatment parameter criteria were met, and if so, whether circumstances warranted a departure from the treatment parameter rules. Vacated and remanded. Bushong v. Georgia Pacific Corporation, 1/14/03* DOI: 11/11/98 Causation – Cervical Injury Substantial evidence, including expert medical opinion and medical and other records, supports the compensation judge’s finding that the employee did not sustain an injury to her cervical spine in addition to an admitted right shoulder injury. Permanent Partial Disability Substantial evidence, including expert medical opinion and medical records, supports the compensation judge’s finding that the employee did not sustain any permanent partial disability as a result of her Nov. 11, 1998, work injury. Temporary Partial Disability Retraining Substantial evidence supported the compensation judge’s finding that the employee had fully recovered from her work injury without permanent partial disability or restrictions by May 1, 1999. As such, the employee was ineligible for further wage loss or retraining benefits pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987). Affirmed.

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

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Summaries of Decisions Lamppa v. Utility System of America, et al, 1/15/03 DOI: 1/23/95 Practice and Procedure – Remand Where the compensation judge failed to address a disputed factual issue in his decision on remand, remand was again required for resolution of that issue. It is not the Workers’ Compensation Court of Appeals’ function to make factual determinations in the first instance. Reversed and remanded. Ruter v. Minnesota Department of Corrections, 1/17/03* DOI: 6/21/90 Credits and Offsets Minnesota Statutes §176.021, subd. 7 Where the employee received disability benefits from the Minnesota State Retirement System as a covered correctional worker, the compensation judge correctly ordered that the amount of such benefits be offset against workers’ compensation benefits payable to the employee. Permanent Total Disability Benefits – Calculation of Benefits – Supplementary Benefits Minnesota Statutes §176.021, subd. 7 Where the employee receives disability benefits from the Minnesota State Retirement System (MSRS) as a covered correctional worker, and where his permanent total disability benefits are being offset by those benefits, the employee is not presently entitled to receive supplementary benefits because his reduction in permanent total disability benefits results from an offset of MSRS disability benefits, and the compensation judge correctly denied his claim for supplementary benefits. Practice and Procedure – Dismissal Where the compensation judge found, and this court affirmed, that the employee is not yet entitled to supplementary benefits, the employee’s claim for penalties based on a vexatious delay in payment of supplementary benefits is denied. Affirmed in part and reversed in part. Smith v. Receivable Management Solutions, Inc., 1/21/03 DOI: 7/23/00 Practice and Procedure – Dismissal Minnesota Statutes §176.82, subd. 1 Where the parties entered into a full, final and complete settlement, the compensation judge properly dismissed the employee’s post-settlement claim petition for a finding on primary liability on grounds that it did not set forth
* This case is on appeal to the Minnesota Supreme Court.

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Summaries of Decisions an actionable claim for benefits, notwithstanding the employee’s objective of asserting a civil action for damages in district court under Minnesota Statutes §176.82, subd. 1, for obstruction of his efforts to obtain workers’ compensation benefits. Affirmed. Whitlock v. Minneapolis College of Art and Design, 1/22/03 DOI: 10/5/93 Practice and Procedure – Remand Where the compensation judge chose a Gillette injury date not proposed by either party, remand was necessary to allow the parties to submit evidence as to a statute of limitations defense raised by the judge’s choice of injury date. Affirmed and remanded. Kittleson v. Miramar, 1/23/03 DOI: 6/7/96, 9/21/95 Apportionment – Equitable Liability for the employee’s pre-existing condition is not apportioned between insurers but is the responsibility of the first insurer whose injury contributes to the ongoing disability. Affirmed. Johnson v. Wells Concrete Products, et al, 1/24/03 DOI: 11/30/99, 3/3/78 Causation – Medical Expenses – Substantial Contributing Cause Substantial evidence, including expert opinion, supports the compensation judge’s determination that neither his 1978 nor 1999 right knee injury substantially contributed to the employee’s need for surgery in 2001. Affirmed. Gora v. Winona Heating and Ventilation, 1/27/03 DOI: 1/11/01 Causation – Consequential Injury Causation – Intervening Cause Causation – Medical Expenses Causation – Pre-Existing Condition Causation – Substantial Contributing Cause 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 knee condition and related medical treatment and proposed
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Summaries of Decisions surgery were not entirely due either to a pre-existing condition or to a superseding, intervening cause, but rather to a consequential injury, was not clearly erroneous and unsupported by substantial evidence. Affirmed. Rowbottom v. LTV Steel Mining, 1/27/03 DOI: 9/14/95 Retraining Where the compensation judge’s memorandum specifically discusses the alternative retraining suggestions proposed by the employer and insurer and explains the judge’s reasoning in approving the proposed four-year plan, the compensation judge did not err by failing to consider the retraining alternatives. Substantial evidence supports the finding that the requested four-year retraining program was reasonably necessary to restore the employee’s lost earning capacity. Permanent Partial Disability Causation Substantial evidence, including expert medical opinion, supported the compensation judge’s finding that the employee’s altered gait following two knee surgeries was a substantial contributing cause in the emergence of his low back symptoms, so as to support the judge’s award of permanent partial disability compensation for the low back condition. Affirmed. LaTour v. Cooper Tools/Diamond Plant, 1/28/03* DOI: 6/24/94, 3/14/85 Temporary Partial Disability Minnesota Statutes §176.101, subd. 2(b) The 225-week limit set out in Minnesota Statutes §176.101, subd. 2(b), does not apply to the obligation of an insurer to pay benefits for a 1985 injury despite the occurrence of a 1994 injury where the 1994 injury was not a substantial contributing factor in the loss of earning capacity caused by the 1985 injury. Affirmed.

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

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Summaries of Decisions Rasmussen v. Wal-Mart Stores, Inc., 1/30/03 DOI: 11/28/98 Causation – Aggravation Substantial evidence, including medical records and expert medical opinion, supports the compensation judge’s finding that the employee’s 1998 work injury represented a temporary aggravation of his pre-existing condition, and that the work injury no longer contributed to his disability and need for medical treatment or rehabilitation assistance. Affirmed. Bettie v. Homeward Bound, Inc., 1/31/03 DOI: 1/2/02 Evidence – Credibility On the facts of this case, substantial evidence, including the opinions of the employee’s treating chiropractor and neurologist, adequately supports the compensation judge’s determination that the employee was a credible witness. Causation Substantial evidence, including the employee’s testimony and the reports and opinions of his treating medical providers, supports the compensation judge’s finding that the employee sustained a permanent injury to the lumbar back that caused, aggravated or accelerated a small left-sided disc herniation at L4-5, together with consequential and compensatory cervico-thoracic and right shoulder symptoms. Medical Treatment and Expense – Reasonable and Necessary Substantial evidence supports the compensation judge’s award ordering payment of the employee’s medical expenses for treatment as a result of his low back injury. Affirmed. Nefzger v. Sharon’s Place, 2/3/03 DOI: 9/27/00 Temporary Total Disability Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee was totally disabled from working through the date of the hearing. Affirmed.

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Summaries of Decisions Walker, Sr., deceased by Walker v. Boise Cascade Corporation, 2/10/03* DOI: 12/30/99; DOD: 9/30/00 Permanent Partial Disability Permanent partial disability vests and is payable to the estate of a deceased employee where permanent partial disability is ascertainable before the date of death, the employee lives for more than 30 days from the date of injury and but for a denial of primary liability, later withdrawn, the employee was entitled to payment of permanent partial disability. Affirmed. Hughes v. Case Corporation, 2/13/03 DOI: 3/22/01 Temporary Total Disability Withdrawal from Labor Market Based on the fact that the employee was self-employed in farming and the fact that the employee made no significant efforts to find other work for more than a year after his seasonal job ended March 30, 2001, the compensation judge could reasonably conclude that the employee was not eligible for temporary total benefits because he had essentially withdrawn from the competitive labor market during the spring, summer and early fall of 2001, and thereafter failed to conduct a diligent job search. Temporary Total Disability Rehabilitation – Cooperation The compensation judge erred in denying temporary total disability benefits where the employee was cooperating with his QRC in efforts to return to work. Temporary Partial Disability The compensation judge erred in denying temporary partial disability compensation based on the employee’s prior withdrawal from the labor market and lack of job search where the employee had returned to the labor market and sought and found appropriate full-time work at a wage loss. That a post-injury job is paid by commission rather than by hourly wages does not defeat an employee’s claim for temporary benefits. Affirmed in part and reversed in part.

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

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Summaries of Decisions Infante v. Cemstone Products, 2/14/03 DOI: 12/3/01; 8/8/96; 10/13/94 Causation – Substantial Contributing Cause Substantial evidence, including expert medical opinion, supported the compensation judge’s decision that the employee’s disability and need for treatment were substantially caused by the employee’s 2001 work injury but not by earlier work injuries, which the compensation judge reasonably found to be temporary. Affirmed. Lichtenberg, II v. Allied Systems, Ltd., 2/14/03 DOI: 7/12/00 Arising Out Of and In the Course Of – Assault Where the employee was injured as a result of response by a coworker to being poked in the ribs by the employee during work hours and on work premises, and where the judge expressly concluded that the assailant did not intend to injure the employee for personal reasons, the compensation judge erred in concluding that the employee was precluded from obtaining benefits by virtue of the personal assault exception to entitlement to compensation for personal injuries arising out of and in the course of employment. Evidence – Expert Medical Opinion Evidence – Credibility Remand Mental Injury Where there was adequate foundation and support in the record for the medical opinions upon which the judge relied, and where the compensation judge expressly questioned the credibility of the employee’s job search logs, the compensation judge’s conclusion that the employee was not entitled to disability benefits was not clearly erroneous and unsupported by substantial evidence, but remand was necessary for the judge’s determination of the employee’s entitlement to payment of certain medical expenses, apparently including expenses of consequential psychological treatment, pursuant to the adopted medical opinions. Affirmed in part, reversed in part and remanded. Minier v. Ernest Forest Products, 2/14/03 DOI: 9/30/99 Causation – Substantial Evidence Causation – Intervening, Superseding Cause Substantial evidence, including the well-founded opinion of the independent medical examiner, supports the compensation judge’s finding that the employee’s work-related injury of Sept. 30, 1999, in the nature of a medial collateral ligament (MCL) strain, had resolved by December 1999, and was not a cause of the employee’s need for right knee surgery in July 2001. The compensation judge’s characterization of the March 2001 incident at home as a superseding, intervening cause, although incorrect, was harmless error where it was
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Summaries of Decisions clear that the judge, in fact, concluded that the Sept. 30, 1999, work injury had resolved, and that the injury in March 2001 was a new and wholly separate cause of the employee’s subsequent need for surgery. Affirmed. Christenson v. Metro Refuse, 2/18/03 DOI: 3/17/89 Temporary Partial Disability Earning Capacity Substantial evidence, including expert medical opinion, supported the compensation judge’s conclusion that the employee was only capable of working four hours a day as of the date of hearing. Affirmed. Peterson v. Camilia Rose Convalescent Center, 2/18/03 DOI: 9/4/90 Causation Where the compensation judge’s findings are inconsistent with a prior findings and order finding compensable treatment for neck and shoulder symptoms as a result of a Sept. 4, 1990, Gillette injury, and where the compensation judge failed to explain her apparent reliance on the conflicting medical opinions of both the employee’s treating physician and the independent medical examiner, the findings and order are vacated and remanded for redetermination. Rehabilitation – Eligibility Where the employee was permanently precluded from returning to her pre-injury job as a certified nursing assistant (CNA), and had permanent work restrictions, the denial of the employee’s request for rehabilitation services/medical management is vacated and remanded for a determination of whether the employee could benefit from medical management or other rehabilitation services during the period in dispute. Vacated and remanded. Sweep v. Kraus Anderson Construction, 2/25/03 DOI: 2/4/00 Arising Out Of and In the Course Of – Going To and From Work Where, at the time of injury, the employee was commuting in his personal vehicle to the employer’s job site where he would perform his services for the employer, the employee’s injuries did not arise out of and in the course of employment. Transporting his personal tools for use on the job as a convenience did not transform his personal commute into a business use of his vehicle. Affirmed.
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Summaries of Decisions Taylor v. University of Minnesota, 2/26/03 DOI: 2/1/99 Temporary Partial Disability Earning Capacity Where the employee was working and earning wages, but had not received those wages because of the employer’s financial difficulties, the employee’s claim for temporary partial disability benefits is premature and the compensation judge’s findings and order regarding this issue are vacated. Temporary Partial Disability Substantial evidence, including testimony of the employee, the QRC, and the job vendor, supports the compensation judge’s finding that the employee had conducted a reasonable and diligent job search. Causation Substantial evidence, including adequately founded medical opinion, supports the compensation judge’s finding that the employee’s bilateral trigger thumb condition was causally related to the employee’s work injury. Wages – Irregular Hours Minnesota Statutes §176.011, subd. 18 Substantial evidence supports the compensation judge’s finding that the employee’s hours were irregular and that her weekly wage should be calculated under Minnesota Statutes §176.011, subd. 18. Affirmed. Boney v. NEI Bottling Company, 2/27/03 DOI: 6/28/99; 1/11/99 Permanent Partial Disability Minnesota Rules Part 5223.0600, subp. 7.A.(1) The compensation judge’s award of five percent permanent partial disability benefits under Minnesota Rules Part 5223.0600, subp. 7.A.(1), based on the employee’s groin pain following two hernia operations, is not supported by substantial evidence, and is reversed. Permanent Partial Disability The compensation judge’s award of a 3.5 percent whole body disability of the low back, is supported by minimally adequate evidence including the disability evaluation opinion of Dr. Wilson, the employee’s testimony and medical treatment records. Affirmed in part and reversed in part.

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Summaries of Decisions Santer v. Electric Machinery Company, Inc., 2/27/03 DOI: 8/16/00 Permanent Partial Disability – Combined Ratings Permanent Partial Disability – Schedule Minnesota Rules Part 5223.0390, subps. 1 and 3 Where subpart 3 of Minnesota Rules Part 5223.0390, which was generally titled “Lumbar pain syndrome,” provided for permanency ratings for spondylolisthesis at paragraph D and for spinal “abnormalities” in general at paragraph C, and where subpart 1 of the same rule expressly precluded combining ratings within subpart 3, the compensation judge’s combination of ratings at subparts 3C and 3D to arrive at a total disability rating for the employee was clearly erroneous under the facts of the case. Reversed. Holcomb and Holcomb v. Keller Fence Company, 3/3/03 DOI: 8/12/99 Arising Out Of and In the Course Of Where two employees were injured while traveling from a job site to the employer’s shop, substantial evidence supports the compensation judge’s finding that the injuries sustained arose out of and in the course of employment. Affirmed. Schlemmer v. Lehmann Woodworks, 3/3/03 DOI: 3/4/00; 1/25/96; 12/00/93 Apportionment – Equitable Apportionment Substantial evidence, including medical records and expert medical opinion, supported the compensation judge’s denial of equitable apportionment against prior work injuries in 1993 and 1996. The compensation judge did not clearly err in affording less weight to the employee’s testimony of the extent and seriousness of his ongoing symptoms prior to his third injury in March 2000, than she gave to the contemporary medical records and other factors, including the employee’s ability to work without restrictions without lost time from work prior to March 2000. Affirmed as modified. Seppo v. Kolar Buick, 3/4/03 DOI: 3/8/94; 5/19/93; 9/5/90 Attorney Fees Practice and Procedure Where the record was unclear as to the amount of the contingent fees that had been charged against the employee and had been paid or were due to be paid to the employee’s attorney, and where the amount of those fees was a threshold issue in determining and reviewing the amount of any Gruber fees to which the
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Summaries of Decisions employee’s attorney might be entitled, remand was required for a determination of the total contingent fee payable to the employee’s attorney. Attorney Fees – Kopish Attorney Fees – Roraff Where there is no evidence that a dispute over medical benefits was even a part of the litigation, the compensation judge’s award of “Gruber/Roraff/Kopish fees” was reversed to the extent that it might have been based on any recoupment of medical expenses. Attorney Fees – Gruber Where the employee’s attorney had requested both “Gruber fees” and “Roraff/Kopish/Irwin fees” and the compensation judge had ultimately combined those requests in issuing a single award of “Gruber/Roraff/Kopish fees,” where the court had already reversed any award of fees based on medical benefits and the employee’s attorney had not even requested Gruber fees for some of the hours for which fees were awarded, and where some of the hours for which Gruber fees had apparently been awarded were evidently not spent on the bad faith issue, the case was reversed and remanded for reconsideration and possible issuance of an award of strictly Gruber fees, after recalculation and consideration also of the total contingent fee payable to the employee’s attorney. Attorney Fees – Subd. 7 Fees Attorney Fees – Gruber Minnesota Statutes §176.081, subd. 7 Minnesota Statutes §176.179 Where neither the statute itself nor the supreme court’s analysis of the statute in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), extended the applicability of Minnesota Statutes §176.081, subd. 7, to attorney fees payable under Gruber v. Independent Sch. Dist. #625, 57 W.C.D. 284 (W.C.C.A. 1997), for an attorney’s work in defending against an allegation of bad faith brought pursuant to Minnesota Statutes §176.179, and where the judge had already issued a subdivision 7 award on contingent fees in a previous Findings and Order, the compensation judge’s award to the employee under Minnesota Statutes §176.081, subd. 7, was erroneous to the extent that it was based on a Gruber fees award and was redundant and so also erroneous to the extent that it was based on an award of contingent fees. Reversed in part and remanded in part. Wright v. Minnesota Vikings Football Club, Inc., et al, 4/7/03 DOI: 2/22/02; 11/21/94 Vacation of Award Where the employee had a pending claim for injuries not covered by the settlement agreement, it was premature to vacate the settlement agreement. Petition to vacate is dismissed.
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Summaries of Decisions Valstad, deceased by Valstad v. Transport Designs, 3/11/03 DOD: 7/7/89 Dependency Benefits Credits and Offsets – Credit for Overpayment Minnesota Statutes §176.179 Substantial evidence supported the compensation judge’s conclusion that the petitioner did not receive mistaken payment of dependency benefits in good faith within the meaning of Minnesota Statutes §176.179, and the judge did not err in determining the dates of the employee’s “incapacitation from earning,” due to hospitalization, for purposes of determining dependency benefit eligibility. The judge did err, however, in attributing to the petitioner overpayments made to or on behalf of petitioner’s brother, and the judge’s overpayment figure is therefore modified accordingly. Affirmed in part and modified in part. Alink v. Hormel Foods, 3/14/03 DOI: 12/3/96 Penalties Minnesota Statutes §176.221, subd. 3 Minnesota Statutes §176.225, subd. 1(b) The compensation judge’s denial of penalties pursuant to Minnesota Statutes §§176.221, subd. 3, and 176.225, subd. 1(b), is affirmed where the employer’s reliance on its medical expert’s permanent partial disability ratings was neither unreasonable or ill-founded. Affirmed. Holliday v. REM-Minnesota, Inc./Northstar Homes, 3/14/03 DOI: 8/28/99 Rehabilitation – Eligibility Where the judge had reasonably found that the employee had returned to employment that was both physically suitable and economically gainful, the compensation judge’s conclusion that the employee was not a “qualified employee” for purposes of rehabilitation benefits was not clearly erroneous and unsupported by substantial evidence. Affirmed.

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Summaries of Decisions Tourville v. City of St. Paul, 3/14/03 DOI: 7/7/99; 10/27/86 Medical Treatment and Expense – Change of Physicians Minnesota Rules Part 5221.0430, subp. 4 Minnesota Statutes §176.138(c) Where there was evidence that the employee’s long-time treating physician had been repeatedly untimely in furnishing records and reports to the employer but the employer had never availed itself of its penalty remedy under Minnesota Statutes §176.138(c), and where there was evidence in the physician’s detailed treatment records and in the testimony of the employee that the physician had been responsive to the needs of the employee’s medical care and condition and had been helpful in keeping the employee working, the compensation judge’s denial of the employer’s request for a change of physician was not clearly erroneous and unsupported by substantial evidence. Affirmed. Vlasaty v. Hormel Foods, 3/14/03 DOI: 3/7/93 Penalties Minnesota Statutes §176.221, subd. 3 Minnesota Statutes §176.225, subd. 1(b) The compensation judge’s denial of penalties pursuant to Minnesota Statutes §§176.221, subd. 3, and 176.225, subd. 1(b), is affirmed where the employer’s reliance on its medical expert’s permanent partial disability ratings was neither unreasonable or ill-founded. Affirmed. Voigt v. City of Little Falls Police Department, 3/17/03 DOI: 8/11/98 Causation Where the employee, a police officer, sustained a heart attack that the compensation judge found to be causally related to his employment, and where the compensation judge found that the employee’s later disability and condition were caused solely by smoking and obesity and not by his cardiac condition, we conclude that the medical evidence of record supports that finding and accordingly affirm the denial of claimed temporary total and temporary partial disability benefits.

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Summaries of Decisions Permanent Partial Disability Minnesota Rules Part 5223.0570, subp. 3 C Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee had not met the criteria for a 25 percent permanent partial disability rating under Minnesota Rules Part 5223.0570, subp. 3.C. Affirmed. Sattler v. Pipestone County Medical Center, 3/18/03 DOI: 9/28/01 Causation There is ample evidence to support the compensation judge’s finding that the employee sustained a work injury to her left shoulder Sept. 28, 2001. Notice of Injury Substantial evidence supports the compensation judge’s finding that the employee gave actual notice of the Sept. 28, 2001, personal injury no later than Oct. 16, 2001, well within the 30-day statutory limit for giving notice. Weekly Wage Minnesota Statutes §176.011, subd. 3 Substantial evidence supports the compensation judge’s determination that the employee’s earning history during the one week in which she performed work duties was sufficient to determine the employee’s weekly wage. The judge properly excluded from consideration the following two weeks during which the employee performed no work duties and had no earnings. The compensation judge, however, used an improper method to compute the daily wage, and the amount of the employee’s weekly wage is accordingly modified using the statutory method of calculation pursuant to Minnesota Statutes §176.011, subd. 3. Temporary Total Disability – Misconduct Minnesota Statutes §176.101, subd. 1(e)(1) As the employer paid no workers’ compensation benefits to the employee, temporary total disability benefits could not be “recommenced” and Minnesota Statutes §176.101, subd. 1(e)(1), does not apply. Substantial evidence supports the award of temporary total disability where the employee’s absences were due to illness or other events not rising to the level of “wilful and wanton disregard of the employer’s interests” so as to constitute misconduct under workers’ compensation law. Temporary Total Disability – Withdrawal from Labor Market A voluntary move to a different labor market, even one with fewer employment opportunities, does not automatically constitute a withdrawal from the labor market. Under the circumstances in this case, we cannot conclude the employee’s move from Pipestone, Minn., to Madras, Ore., constituted a withdrawal from the labor market.
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Summaries of Decisions Job Search While evidence of an ongoing job search was somewhat minimal, we cannot conclude, on these particular facts, that the employee’s job search was unreasonable “under the circumstances,” or that the award of temporary total disability was so manifestly contrary to the evidence as to require reversal. Penalties Minnesota Statutes §176.225, subd. 1 The compensation judge did not abuse his discretion in awarding penalties under Minnesota Statutes §176.225, subd. 1, where the denial of timely notice was clearly contrary to the facts and law, and where there was substantial evidence from which the compensation judge could reasonably infer that the employer failed to make a good faith investigation of the facts prior to denying the claim. Affirmed as modified. Burns v. East Range Builders, 3/19/03 DOI: 9/29/92 Vacation of Award – Substantial Change in Condition The record reasonably establishes that the employee’s development of severe arthritis, and resulting need for a hip replacement, was not anticipated or reasonably capable of anticipation by the employee at the time of the settlement agreement. Petition to vacate granted. Smith v. Quebecor Printing, Inc., 3/19/03 DOI: 1/3/98 Causation Substantial evidence supports the decision of the compensation judge that the employee did not sustain an injury to his hip as a part of his admitted knee injury. Affirmed. Riegel v. Hurd Maintenance, 3/20/03 DOI: 9/17/98 Temporary Total Disability – Medically Unable to Continue Minnesota Statutes §176.101, subd. 1(e)(2) Substantial evidence, including treatment notes from the employee’s physician and the opinion of the employer and insurer’s independent medical examiner, supported the compensation judge’s decision that the employee

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Summaries of Decisions had not been medically unable to continue working so as to qualify for resumption of temporary total disability benefits under Minnesota Statutes §176.101, subd. 1(e)(2). Affirmed. McDonel v. Andersen Windows, 3/21/03 DOI: 9/1/00; 5/19/98 Medical Treatment and Expense – Reasonable and Necessary Substantial evidence, including expert opinion, supported the compensation judge’s decision approving fusion surgery to treat the employee’s work-related low back condition. Practice and Procedure – Motions Where the employer and insurer raised the issue of the need for a psychological evaluation in its medical response, where the employer and insurer did not learn that the employee had undergone an MMPI until the hearing, where the employer and insurer filed a motion post-hearing, requesting an independent review of the employee’s MMPI test results and psychological and medical records, and where the compensation judge denied that motion on the grounds that arrangements should have been made prior to the hearing for a written report by a psychologist chosen by the employer and insurer, that evidentiary ruling was within the compensation judge’s discretion and does not represent an abuse of the compensation judge’s discretion, nor does it evidence a lack of due process afforded to the employer and insurer. Affirmed. Publicover v. Voltelcon, 3/21/03 DOI: 7/7/00 Practice and Procedure – Admission of Evidence Practice and Procedure – Remand Where the judge’s denial of benefits was based importantly on his conclusion that the employee was not a credible witness, where the compensation judge had received into evidence without objection the employee’s offer of a transcript of his pre-trial deposition testimony in support of his own credibility, and where that transcript had not been among exhibits ultimately reviewed by the judge in his reaching of his decision, the compensation judge’s decision was vacated and remanded to the judge for redetermination after review of the complete record. Vacated and remanded Tomlin v. Rocco Altobelli, 3/24/03 DOI: 6/13/00 Causation – Gillette Injury Substantial evidence, including the employee’s testimony, medical records and expert medical opinion, supported the finding that the employee’s cervical injury was causally related to her work activities for the employer.
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• COMPACT • May 2003

Summaries of Decisions Job Search Substantial evidence supported the finding that the employee’s job search was less than diligent. Under the facts of the case, the compensation judge did not err in requiring a reasonably diligent job search despite the absence of rehabilitation services and the lack of a job offer by the employer. Temporary Total Disability The compensation judge’s finding that the employee had failed to prove that all of her wage loss between June 13 and Sept. 21, 2000, was causally related to her disability was supported by substantial evidence and was not clearly erroneous. In light of this finding, the compensation judge did not err in failing to apply a presumption that all of the employee’s post-injury wage loss was related to her work injury. Affirmed. Cici v. Methodist Hospital, 3/27/03 DOI: 6/18/90 Evidence Where the compensation judge had informed the employee’s attorney that a computer disk would not be accepted into evidence at a pre-trial conference, the compensation judge did not abuse her discretion by not allowing the computer disk into evidence at the hearing. Temporary Total Disability Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee was not totally disabled for the entire three-month period after July 2, 2001. Job Search Substantial evidence, including expert vocational opinion and lack of documentation in the record of the employee’s job search, supports the compensation judge’s finding that the employee did not conduct a diligent job search during the period of time she claimed temporary total disability benefits. Affirmed. Vigoren v. Joseph Catering, 3/27/03 DOI: 7/30/99 Causation – Substantial Contributing Cause Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s coccyx pain was not causally related to the employee’s work injury or resulting surgery.

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Summaries of Decisions Cost and Disbursements The compensation judge erred in awarding reasonable costs and disbursements where the employee did not prevail. Affirmed in part and reversed in part. Carlson v. Hunt Electric, 3/28/03 DOI: 10/1/98 Earning Capacity Temporary Partial Disability Where it was not unreasonable for the compensation judge to conclude that the testimony of the employee’s QRC and the employer and insurer’s vocational expert was not, in light of the employee’s own testimony and other expert opinion, sufficient to rebut the actual-wage presumption, and where there was no evidence that the employee’s second post-injury/employer job was known to and available to the employee during the period of her first and lower-paying post-injury/employer job, the compensation judge’s conclusion that the employee’s actual wages at the first post-injury/employer job reasonably reflected her post-injury earning capacity at that time for purposes of temporary partial disability compensation was not clearly erroneous and unsupported by substantial evidence. Affirmed. Kline v. Berg Drywall, Inc., 3/31/03 DOI: 5/8/01 Arbitration Jurisdiction – Constitutional Issues Minnesota Statutes §176.1812 This court does not have jurisdiction to determine whether the prohibition against counsel during a facilitation pursuant to the Union Construction Crafts Workers’ Compensation Fund (Minnesota Statutes §176.1812) is violative of the employee’s rights under the state or federal Constitution. Arbitration Minnesota Statutes §176.1812, subd. 4 Where the rules of the fund provide only that legal counsel may not be present during facilitation, but do not prohibit the employee from retaining legal counsel at any point during the fund’s dispute resolution process, and where the employee is entitled to a hearing before an arbitrator during which the employee is entitled to the representation of counsel, the rules do not, on their face, directly or automatically diminish an employee’s entitlement to benefits and do not violate Minnesota Statutes §176.1812, subd. 4.

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• COMPACT • May 2003

Summaries of Decisions Conflict of Interest There was no evidence the employer’s manager/owner, who was also a trustee of the fund, had any involvement in the selection of the arbitrator, or in compensating the arbitrator, and we fail to see any inherent unfairness or conflict of interest in the process for selection of mediators and arbitrators under the fund’s rules. Arbitration Evidence – Expert Medical Opinion It is the function of the arbitrator to determine the weight to be given any medical evidence. Although, under Rule 9, the parties are bound by the findings, opinions and recommendations resulting from a peer review, chart review, second opinion examination or dispute resolution examination conducted by a “neutral physician,” the rule further provides an opportunity to dispute such findings, opinions or recommendations. In the event of such a dispute, an examination under Rule 9 of the fund is entitled to no greater weight than any other medical expert testimony. Affirmed in part, and vacated and remanded in part.

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• Judicial •

Minnesota Supreme Court
January through March 2003
Case summaries published are those prepared by the WCCA

• Timothy L. Roberts v. University of Minnesota Hospital and Clinic, Self-Insured/ Crawford & Company and Hartford Insurance Company, Medica/Healthcare Recoveries, Inc., Intervenors, C6-02-1694, Jan. 23, 2003 Decision of the Workers’ Compensation Court of Appeals filed Aug. 28, 2002, affirmed without opinion. Jayne Tourville v. HealthEast Corporate Services, Self-Insured, and BRAC, f/k/a Berkley Risk Administrators Company, and St. Paul Radiology, Minnesota Open MRI, Intervenors, C1-02-1800, Jan. 23, 2003 Decision of the Workers’ Compensation Court of Appeals filed Sept. 30, 2002, affirmed without opinion. David T Rauen v. Park Nicollet Medical Center, Self-Insured, Administered by Berkley . Risk Administrators, C3-02-1779, Jan. 24, 2003 Decision of the Workers’ Compensation Court of Appeals filed Sept. 16, 2002, affirmed without opinion. Marcy A. Benner v. Essential Nursing Services, Inc., Uninsured, Ezra Nyankira, Uninsured, Amos Samoita, Uninsured, Thomas Nyagaka, Uninsured, Crestview Nursing Home, and American Compensation Insurance/RTW, and Blue Cross/Blue Shield/Blue Plus of Minnesota, Unity Hospital, Intervenors, and Special Compensation Fund, C4-02-1774, Jan. 27, 2003 Decision of the Workers’ Compensation Court of Appeals filed Sept. 12, 2002, affirmed without opinion. Carolyn Holcomb v. Itasca Medical Center, and ACE USA, and Lakewalk Surgery Center, Intervenor, C7-02-1980, Jan. 29, 2003 Decision of the Workers’ Compensation Court of Appeals filed Oct. 16, 2002, affirmed without opinion. Craig S. Reeves v. Southside Distributors, Inc., and Crawford & Company, and Suburban Radiologic, Fairview Health Services, Intervenors, C4-02-2133, March 5, 2003 Decision of the Workers’ Compensation Court of Appeals filed Nov. 5, 2002, affirmed without opinion.

Summaries of Decisions Steven R. Foster v. Metro Produce Distributing, and Chubb & Son Group, and Metro Produce Distributing, and Indiana Insurance Companies, and Blue Cross/Blue Shield of MN, Allergy & Asthma Specialists, PA, Jacobs Consulting Service, Intervenors, C4-0319, March 20, 2003 Decision of the Workers’ Compensation Court of Appeals filed Dec. 13, 2002, affirmed without opinion.

May 2003 • COMPACT •

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