• Judicial •

Workers’ Compensation
Court of Appeals
January through March 2006
Case summaries published are
those prepared by the WCCA

Lane v. Sifco Custom Machining, 1/4/06

DOI: 1/19/04, 9/19/90, 3/26/87

Contribution and Reimbursement

Substantial evidence supports the compensation judge’s determination that the employee’s work
injury of Jan.19, 2004, had resolved by May 19, 2004, and that benefits paid after that date were the
result of his March 26, 1987, work injury insured by Sentry.

Affirmed.

Swanson v. John C. Weicht and Associates, 1/9/06

DOI: 4/7/89

Vacation of Award – Substantial Change in Condition

The employee has demonstrated a substantial change in medical condition sufficient to establish
good cause to vacate the award on stipulation issued in this matter in 1990.

Petition to vacate granted.

Johnson v. Sico, Inc., 1/20/06

DOI: 9/25/86

Causation – Medical Expenses

Substantial evidence, in the form of a well-founded medical opinion, supports the compensation
judge’s decision that the medical expenses claimed by the employee were not causally related to his
1986 work injury.

Affirmed.
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Booth v. DFW Enterprises, 1/23/06

DOI: 4/17/02

Causation – Temporary Aggravation

Substantial evidence of record, including medical records and expert medical opinion, supports
the compensation judge’s finding that the employee’s work-related injury of April 17, 2002, was a
temporary aggravation that resolved by Nov. 6, 2002.

Causation

Substantial evidence, including medical records and expert medical testimony, supports the
compensation judge’s finding that the employee’s April 17, 2002, work injury was not a substantial
contributing factor to his ongoing disability and need for treatment after Nov. 6, 2002.

Affirmed.

Durkee v. Starkey Laboratories, 1/23/06

DOI: 2/14/01

Causation – Temporary Aggravation

Causation – Pre-Existing Condition

Where they were supported by the record as a whole, including expert medical opinion, the
compensation judge’s conclusions that the employee’s current disability was due virtually entirely to
her pre-existing multiple sclerosis and that her low back work injury had been temporary in nature
and was not a substantial contributing factor in the employee’s current disability were not clearly
erroneous and unsupported by substantial evidence, and there was no need to address any other bases
for or defenses against the employee’s claim for permanent total disability benefits.

Affirmed.

Heuer v. Schmit Towing, Inc., 1/24/06

DOI: 4/20/03

Wages – Multiple Employers

Where the employee was regularly employed by two employers on the date of injury, wages
from both employers were properly included in computing the employee’s weekly wage, despite
uncertainty as to the employee’s future employment with one employer.

Temporary Benefits – Fully Recovered

Where there was no evidence of medical restrictions on employment and no evidence of residual
disability from the work injury, it was error to award temporary partial and temporary total disability
compensation.

Affirmed in part and reversed in part.

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Fraser v. City of St. Louis Park, 1/25/06

DOI: 5/26/01

Rehabilitation – Fees and Expenses

Rehabilitation – Retraining

Supplies or equipment related to an approved retraining plan need not be indispensable to be

compensable. Under the particular facts of this case, where the employee was working full time in a
job closely related to his retraining plan and reasonably required computer access both for that job
and for his retraining classes, the compensation judge erred in concluding that a laptop computer was
not a necessary rehabilitation expense.

Reversed.

Palmer v. Pro Floor, Inc., 1/25/06

DOI: 5/27/04

Causation – Aggravation

Substantial evidence, including expert opinion, supported the compensation judge’s decision that
the employee’s work injury substantially aggravated the employee’s underlying condition and
contributed to his wage loss and need for surgery.

Affirmed.

Schumacher v. Personal Staff Senior Care, et al, 1/27/06

DOI: 12/6/02, 7/4/00

Practice and Procedure – Rehabilitation Request

Practice and Procedure – Intervention

By properly filing a rehabilitation request seeking payment of outstanding rehabilitation bills

pursuant to Minnesota Rules part 5220.0950, subp. 1, and Minnesota Rules part 5220.1900, subp. 9,
the petitioners asserted a claim for payment independent of the employee’s claims, making a motion
for intervention unnecessary.

Vacation of Award – Voidable Award

Where it should have been apparent – based on a letter to the Department of Labor and Industry
objecting to filing of the petitioners’ rehabilitation request – there was a dispute regarding the status
of the petitioners, and where two rehabilitation requests were properly filed by the petitioners, and
where the compensation judge failed to notify the petitioners and provide an opportunity to respond
to the proposed stipulation prior to approval, the compensation judge’s dismissal of “all other
pleadings” in the award on stipulation is voidable. Since there is a dispute regarding exclusion from
participation in the settlement negotiations, the petitioners’ assertion of a right to payment in full
under Parker/Lindberg must be remanded for a hearing.

Award on Stipulation partially vacated.

Remanded.
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Calbillo v. MG Waldbaum, 1/31/06

DOI: 2/12/03

Causation – Temporary Aggravation

Substantial evidence supports the compensation judge’s determination that the employee’s work
injury was a temporary aggravation of a pre-existing condition.

Affirmed.

Lovestrand v. JAK Trees, Inc., et al, 2/1/06

DOI: 4/4/01

Employment Relationship – Joint Employers

Substantial evidence supports the compensation judge’s finding that the employee was employed by
JAK Trees and JAK Transport, Inc., were not joint employers, at the time of the employee’s work-
related injury.

Insurance – Coverage

Where the evidence regarding whether workers’ compensation insurance coverage for JAK Trees,
Inc., was reinstated and whether JAK Trees was insured for workers’ compensation purposes on
the date of the employee’s injury is confusing and incomplete, we vacate the compensation judge’s
finding and remand to the compensation judge to take additional evidence and make factual findings
on this issue.

Affirmed in part and vacated and remanded in part.

Moore v. University of Minnesota, 2/7/06

DOI: 1/31/79

Causation

Substantial evidence, including expert opinion, adequately supported the compensation judge’s
decision that the employee’s erectile dysfunction was causally related to his work-related low back
condition.

Affirmed.

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LaBeau v. St. Paul Public Health and City of St. Paul, 2/8/06
DOI: 8/31/94

Vacation of Award – Mistake

Intervenors

Failure to obtain the signature of an intervenor on the stipulation is not a mutual mistake which
constitutes good cause for vacating the stipulation and the award.

Petition to vacate denied.

Biederman v. SB Foot Tanning Co./Red Wing Shoe, 2/9/06

DOI: 4/6/01

Rehabilitation – Discontinuance
Rehabilitation – Suitable Job

Where the employee’s earnings at his post-injury job with the employer reflected a significant loss
of earning capacity subsequent to the work injury, where that post-injury job was apparently the
only one available to the employee at the employer within his restrictions, and where the employee
was not yet 40 years old, the compensation judge’s approval of the employee’s rehabilitation plan
amendment to pursue with a QRC of his own choosing employment with a different employer was
not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the
QRC had not yet conducted her own labor market survey or vocational tests and the employer’s
vocational expert had opined that no alternative jobs with better wages and benefits existed in the
employee’s labor market.

Affirmed.
Emanuel v. Copper Art of Texas, 2/15/06
DOI: 10/28/03

Employment Relationship – Independent Contractor

Minnesota Statutes §176.042, subd. 2

Where it was reasonable to conclude that the petitioner (employee) did not incur the main expenses
related to his work for the respondent (employer), that he was not responsible for the satisfactory
completion of that work, that he did not receive compensation for that work on a commission,
per-job or competitive bid basis, and that he was not going to realize a profit or suffer a loss based
on his performance of that work, the compensation judge’s conclusion that the petitioner had not
been shown to meet all nine of the requirements whereby an independent contractor is exempted
from employee status under Minnesota Statutes §176.042, subd. 2, was not clearly erroneous and
unsupported by substantial evidence.

Employment Relationship – Independent Contractor

Minnesota Statutes §176.042. subd. 2

The issue of whether a petitioning independent contractor normally satisfies all of the requirements
of Minnesota Statutes §176.042, subd. 2, in his dealings with contractors other than the respondent is
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 Summaries of Decisions

not dispositive, and the compensation judge’s conclusion that the petitioner in this case had not been
shown to meet all of the requirements for exemption from employee status was affirmed.

Affirmed.

Westphall v. Honeywell, Inc., 2/23/06

DOI: 3/18/04, 8/8/03

Vacation of Award

Where the issue at a hearing held to address a petition to discontinue was limited to the employee’s
right shoulder condition, and other claims related to an alleged left shoulder injury were pending,
the employee was assigned restrictions based on both shoulders, the employee’s treating physician
and the independent medical examiner both recognized the significance of evaluating results from a
functional capacities evaluation, and that evaluation was held post-hearing and therefore could not
be considered by the compensation judge, the court vacates the findings and order and remands the
matter for consolidation with all pending claims and issues.

Petition to vacate granted, appeal dismissed, and matter remanded to compensation judge.

Dam v. Hi-Lo Manufacturing, 2/27/06

DOI: 12/11/04

Causation
Evidence – Expert Medical Opinion
Evidence – Credibility

Where the compensation judge’s conclusion finding the employee not credible was not manifestly
contrary to the evidence, and the opinions of the independent medical examiner did not lack
foundation, the compensation judge’s determination that the employee did not sustain an injury to his
spine, has no restrictions and was not disabled as a result of an altercation at work on Dec. 11, 2004,
is supported by substantial evidence.

Affirmed.

Kaufman v. Eveleth Mines, 2/27/06

DOI: 12/21/80

Permanent Total Disability

Substantial evidence, including the well-founded opinion of the employee’s qualified rehabilitation
consultant, supports the compensation judge’s determination that a finding of permanent total
disability was premature pending a job search by the employee with rehabilitation assistance.

Attorney Fees

The compensation judge erred in awarding attorney fees payable by the employer and insurer
pursuant to Gruber v. Independent School District #625, 57 W.C.D. 284 (W.C.C.A. 1997), where
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 Summaries of Decisions

there is a stream of benefits, in dispute at the hearing, from which the employee’s attorney may be
paid.

Affirmed in part and reversed in part.

Kelly v. City of St. Paul, 2/28/06

DOI: 1/27/79

Causation – Medical Expenses

Substantial evidence supports the compensation judge’s determination that the employee’s work
injury was a substantial contributing factor in the need for medical treatment.

Affirmed.

Peterson v. Benedictine Health Center, 3/1/06

DOI: 11/29/00

Permanent Partial Disability – Schedule

Permanent Partial Disability – RSD
Minnesota Rules Part 5223.0410, subp. 7

Where the employee’s diagnosis of RSD was undisputed, and where the judge had denied the
employee’s claim for related permanent partial disability benefits solely on grounds that the
employee did not satisfy at least five of the eight diagnostic factors set out in Minnesota Rules
Part 5223.0410, subp. 7, the matter was, pursuant to Stone v. Harold Chevrolet, 65 W.C.D.
102 (W.C.C.A. 2004), remanded to the compensation judge for a finding on the severity of the
employee’s condition and an appropriate rating under the schedule.

Permanent Total Disability – Permanent Partial Disability Thresholds

Minnesota Statutes §176.101, subd. 5(2)(a)

Where, in his memorandum the judge had clearly indicated that his denial of permanent total
disability benefits was based solely on the employee’s failure to meet the permanent partial disability
threshold established in Minnesota Statutes §176.101, subd. 5(2)(a), and where the case was
being remanded for reconsideration of the employee’s permanent partial disability, the issue of the
employee’s entitlement to permanent total disability was remanded to the compensation judge for
reconsideration and possible findings pursuant to the factors set out in Schultz v. C. H. Peterson
Constr., 278 Minn. 78, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).

Reversed and remanded.

Aho v. Duluth Transit Authority, 3/1/06
DOI: 3/12/01, 12/24/96, 2/23/81

Credits and Offsets – Social Security Offset

The purpose of the offset provision in the Workers’ Compensation Act is to reduce the duplication of
benefits between the Social Security system and the workers’ compensation system, not to reduce the
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 Summaries of Decisions

insurer’s obligation to pay benefits, and where any application by the employee for Social Security
benefits would not alter either the effects of the employee’s injury or the causal relationship between
the injury and disability, there was no basis under the act to reverse the compensation judge’s denial
of the employer and insurer’s request that the employee be compelled for apply for Social Security
benefits as a condition for receipt of permanent total disability benefits, so as to “mitigate damages.”

Affirmed.

Cox v. Special School District #1, 3/2/06

DOI: 12/11/01, 2/11/98

Causation

Substantial evidence in the form of medical records and expert medical opinion supported the
compensation judge’s finding that the employee’s work injuries were not a substantial contributing
cause of his current disability.

Affirmed.

Rusich, deceased by Rusich v. Eveleth Taconite Company, et al, 3/6/06

DOD: 4/14/03

Practice and Procedure – Temporary Order

Where the possibility existed that the party ordered to pay under a temporary order might have no
way to recover benefits paid, the order should not have been issued.

Vacated.

Cozzi v. University of Minnesota, 3/7/06

DOI: 8/21/01

Permanent Total Disability

Job Search

Substantial evidence, including expert opinion, supported the compensation judge’s decision that the
employee was permanently and totally disabled, despite the employee’s failure to look for work.

Affirmed.

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 Summaries of Decisions

Bengston v. Pioneer Packaging and Printing, 3/14/06

DOI: 7/11/03

Causation

Substantial evidence supports the compensation judge’s finding that the employee failed to establish
by a preponderance of the evidence that the work injury was a substantial contributing factor to her
condition.

Affirmed.

Odash v. Pepsi, Inc., 3/14/06

DOI: 1/30/97

Evidence – Res Judicata

Where, in any of several previous hearings regarding the compensability of similar surgery, the
issue of reasonableness and necessity was repeatedly scrutinized but there was no indication that the
causal relationship of the work injury to the employee’s alleged need for low back fusion surgery
had actually been contested and litigated, the compensation judge did not improperly conclude that
the doctrine of res judicata did not preclude the employee’s renewed claim for payment for low back
fusion surgery after deterioration of his symptoms, notwithstanding the fact that the judge in one of
the previous proceedings and used the phrase “causally related, reasonable and necessary” instead of
simply “reasonable and necessary” in his unappealed finding denying compensation.

Causation – Medical Expense

Medical Treatment and Expense – Reasonable and Necessary

Where it was supported by expert medical opinion and not otherwise unreasonable, the
compensation judge’s conclusion that the employee’s spinal fusion surgery was both reasonable
and necessary and causally related to the work injury was not clearly erroneous and unsupported by
substantial evidence.

Affirmed.

Curtis v. Hirshfield’s, Inc., 3/15/06

DOI: 11/13/95

Temporary Partial Disability – Calculation of Benefits

Where the record does not contain sufficient documentation of the employee’s earnings at his second
job at the time of his injury, nor does it contain documentation of his earnings during the period of
time when the employee claims entitlement to temporary partial disability benefits, the compensation
judge did not err by concluding that the employee failed to introduce evidence of his claimed wage
loss and that the employee did not establish entitlement to temporary partial disability benefits
during that period of time.

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Wages – Multiple Employments

Where the record does not contain sufficient documentation of the employee’s earnings at his second
job at the time of his injury, there is insufficient information to support a finding on the employee’s
wage rate, and therefore that finding is vacated.

Affirms in part and vacates in part.

Ledman v. Children’s Hospital, 3/20/06

DOI: 3/21/04

Evidence – Credibility

Given the employee’s inconsistent accounts to physicians as to when the alleged knee injury
occurred, her ability to work long shifts on her feet following the alleged injury, her delay in seeking
treatment and informing her supervisor of the alleged injury, despite the fact that she was allegedly
limping and experiencing increased pain and swelling, and the fact that no acute changes were
disclosed on the MRI scan, the Workers’ Compensation Court of Appeals could not conclude that the
compensation judge erred in rejecting the employee’s account of the alleged work injury.

Affirmed.

Bergin v. Cass Lake-Bena School District #115, 3/28/06

DOI: 11/30/01

Causation – Temporary Aggravation

Substantial evidence, including an adequately founded expert medical opinion, supports the
compensation judge’s determination that the employee’s Nov. 30, 2001, work-related injury was a
temporary aggravation of a pre-existing condition.

Affirmed.

Huver v. Home Medical Equipment/Allina, 3/28/06

DOI: 5/2/97, 8/22/96, 10/17/94

Vacation of Award – Substantial Change in Condition

Based on the record and evidence submitted by the parties, the employee has made a prima facie
showing of cause, on the ground of an unanticipated change of medical condition, sufficient to
justify vacation of the Dec. 29, 2001, Award on Stipulation, and the petition to vacate the award is
granted.

Petition to vacate granted.

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Sloan v. University of Minnesota, 3/28/06

DOI: 10/8/01

Causation – Aggravation

Substantial evidence, including expert medical opinion, supports the compensation judge’s finding
the employee’s Oct. 8, 2001, work injury resulted in a permanent aggravation of his pre-existing low
back condition.

Temporary Partial Disability – Earning Capacity

Wages – Imputed Wage

Substantial evidence supports the compensation judge’s determination that the employee had an
earning capacity of $16 per hour for a 40-hour week in November 2002, and the judge’s award of
temporary partial disability benefits based on an imputed wage of $640 a week.

Affirmed.

Maehling v. Klatt Electric, Inc., et al, 3/29/06

DOI: 11/22/04, 1/18/89

Causation

Substantial evidence supports the compensation judge’s decision that the employee failed to
establish by preponderance of the evidence that he sustained a work injury.

Affirmed.

Smith v. Holy Family Church/Diocese of Winona, 3/30/06

DOI: 5/18/04

Arising Out Of and In the Course Of

Where the record reasonably supported the conclusion that employee’s fall as she stepped on a door
threshold was causally related to her employment, substantial evidence supported the compensation
judge’s conclusion that the employee’s resulting injury arose out of her employment.

Affirmed.

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 Summaries of Decisions
• Judicial •

Minnesota
Supreme Court
January through March 2006
Case summaries published are
those prepared by the WCCA

• Keith Ellingson v. Brady Corporation, Self-Insured, administered by Gallagher Bassett Services, and
Blue Cross/Blue Shield of Minnesota, Unum Life Insurance of American, and Fairview Health Services,
Intervenors, A05-1462, January 10, 2006

Decision of the Workers’ Compensation Court of Appeals filed June 28, 2005, affirmed without
opinion.

• Mary Beth Skic v. Beverage Transportation Corporation, Uninsured, and Special Compensation Fund,
A05-2178, January 30, 2006

Decision of the Workers’ Compensation Court of Appeals filed October 6, 2005, affirmed without
opinion.

• Stephen C. LaPanta v. Myron’s Cards and Gifts, Inc., and CNA Insurance Company, and Myron’s Cards
and Gifts, Inc., and Pharmacists Mutual Insurance Company, administered by Douglas Claims Services,
A05-2183, January 31, 2006

Decision of the Workers’ Compensation Court of Appeals filed October 14, 2005, affirmed without
opinion.

• George R. Boyington v. Hirschbach Motor Lines, Inc., and St. Paul Travelers f/k/a, Aetna Commercial
Insurance Division, A05-2055, February 1, 2006

Decision of the Workers’ Compensation Court of Appeals filed September 28, 2005, affirmed
without opinion.

• David A. Johnson v. Laraway Roofing and Federated Mutual Group, and Wilson Refrigerated Express
and Great West Casualty Company, A05-2057, February 6, 2006

Decision of the Workers’ Compensation Court of Appeals filed September 22, 2005, affirmed
without opinion.

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 Summaries of Decisions

• Louis Wheelock v. Trilite Stone, and USF & G, and Trilite Stone, and MIGA/Fremont Compensation
Group, and Home Depot, and American International Group/AIG Claims Services, and St. Francis
Hospital, Blue Cross/Blue Shield, and Minnesota Department of Human Services, Intervenors, A05-
1697, February 23, 2006

Decision of the Workers’ Compensation Court of Appeals filed August 1, 2005, affirmed without
opinion.

• Jeffrey Ward v. City of St. Louis Park, and Self-Insured/Sedgwick Claims Management Services, and
Anesthesiology, P.A., North Memorial Hospital, and Medica Health Plan, Intervenors, A06-18, March
28, 2006

Decision of the Workers’ Compensation Court of Appeals filed December 7, 2005, affirmed without
opinion.

• Henry L. Wilson v. Scanlan International, Inc., and State Fund Mutual Insurance Company, and
HealthPartners, Fairview Health Services, Allina Hospitals and Clinic/United Hospital, St. Paul
Radiology, Neurological Associates, and University of Minnesota Physicians, Intervenors, A06-23,
March 28, 2006

Decision of the Workers’ Compensation Court of Appeals filed December 9, 2005, affirmed without
opinion.

• Brenda L. Mundy v. American Red Cross, and American International Group/Heritage Claims
Services, and Noran Neurological Clinic, and Minnesota Department of Human Services, Intervenors,
A06-25, March 28, 2006

Decision of the Workers’ Compensation Court of Appeals filed December 13, 2005, affirmed without
opinion.

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