• Judicial •

Court of Appeals
April through June 2006
Case summaries published are those prepared by the WCCA

Workers’ Compensation

Jesberg v. Waldoch Crafts, Inc., 4/3/06

Causation Substantial evidence, including expert opinion, supported the judge’s decision that the employee’s work-related injury was a substantial contributing cause of the employee’s ankle condition and resulting need for surgery. Affirmed.
Cruz, Jr. v. City of St. Paul, 4/11/06

Causation – Medical Expenses Medical Treatment and Expense – Reasonable and Necessary Where it was not unreasonable in light of the whole medical and other evidentiary record, the compensation judge’s conclusion that the employee’s lumbosacral work injury eight years earlier was a substantial contributing factor in the employee’s need for intermittent treatment by four intervening medical providers was not clearly erroneous and unsupported by substantial evidence, notwithstanding the express expert opinion of the employer’s independent medical examiner, nor was the judge’s award of reimbursement legally inconsistent with her conclusion that the employee had not proved entitlement to permanent partial disability compensation for a concurrently evident compression fracture that was attributable to a pre-existing bone condition. Affirmed.
Maker v. Kelly Law Registry, 4/11/06

Arising Out Of and In the Course Of – Going To and From Work Where at the time of her injury, the employee had neither entered the building in which she normally worked nor signed in for her shift, where there was no evidence to support her assertion that she was conducting business in a sanctioned area at the time of the injury or was otherwise engaged in

Summaries of Decisions activities incidental to her employment, and where the hazards to which she was exposed as a pedestrian on the public sidewalk were no different from those to which the general public was exposed, the compensation judge’s conclusion that the employee’s freak injury on the public sidewalk near the entrance to her workplace, when she was hit by a tire that had flown off a passing truck as she approached her workplace, did not arise out of and in the course of her employment was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Martinson v. Potlatch Corporation, 4/11/06

Causation – Gillette Injury Substantial evidence in the form of a well-founded medical opinion supports the compensation judge’s determination that the employee did not sustain an injury to his lumbar spine. Affirmed.
McCue v. Balzer Manufacturing, 4/11/06

Causation – Aggravation Substantial evidence supports the compensation judge’s decision that the employee’s Aug. 20, 2002, injury did not represent a substantial contributing factor in the cause of, aggravation of or acceleration of the employee’s current condition, but that, instead, the employee’s current symptoms and need for medical treatment are causally related to his pre-existing low back condition. Affirmed.
Port v. Potlatch Corporation, 4/11/06

Medical Treatment and Expense Substantial evidence, including the testimony of the employee and the medical records and opinions of his treating physician, support the compensation judge’s finding that the medical treatment provided to the employee, including a morphine pump and narcotic medications, was reasonable and necessary. Medical Treatment and Expense – Treatment Parameters Challenges to the reasonableness and necessity of medical treatment under the treatment parameters will not be considered by this court where the issue was not raised at the hearing before a compensation judge. Affirmed.

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Summaries of Decisions
Anstett v. United Rentals, 4/18/06

Permanent Total Disability Substantial evidence, including lay testimony, medical and vocational records, and expert opinion, supported the finding that the employee was permanently totally disabled. Affirmed.
McQuiston v. Independent School District #77, 4/18/06

Earning Capacity Temporary Partial Disability Whether an employee’s reduction in earnings during a period of post-injury employment is due to the employee’s injury or to some non-work-related cause is a question of fact for the compensation judge, and, where there was specific supporting testimony at hearing, the compensation judge’s conclusion that the employee’s post-hearing reduction in wages resulted from cost-saving measures implemented by the employer rather than from the employee’s disability was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Lilienthal v. William Mueller & Sons, 4/19/06

Earning Capacity Substantial evidence, including the testimony of the employee and of the employee’s supervisor, supported the compensation judge’s decision that the employee’s reduction in earnings is causally related to the employee’s work injury. Affirmed.
Kosnopfal v. Connexus Energy, 4/25/06*

Temporary Partial Disability – Physical Restrictions Based upon the records of the employee’s treating physician and the testimony of the employee, the compensation judge could reasonably conclude the employee had restrictions on his physical activities and award temporary partial disability benefits. Evidence – Medical Opinion There is a difference between disregarding unopposed medical opinion and rejecting an opinion on the basis of other evidence. Where the employee testified that he continued to have limitations on his physical activities, and his doctor’s records and opinions regarding work restrictions were not unequivocal or unambiguous, the compensation judge did not err in rejecting the doctor’s Sept. 2, 2004, release to return to work without restrictions.
• COMPACT • August 2006 *This case is on appeal to the Minnesota Supreme Court.

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Summaries of Decisions Evidence – Estoppel Where the employee was not successful in applying for and did not receive unemployment benefits, and there was no evidence regarding why a form completed by the employee’s doctor was submitted to the Department of Economic Security, the positions and assertions of the parties, or any other information about the unemployment proceeding, we decline to apply the doctrine of judicial estoppel. Affirmed.
Kurtz, deceased by Gillman v. Lakes Medi Van, Inc., 4/25/06*

Arising Out Of and In the Course Of – Dual Purpose Trip Where the employer had agreed with the employee’s request to drive home from Brainerd to Little Falls on Friday evening in a company van that the employee would need early Monday morning for a client pick-up in Little Falls, and where the employee was fatally injured Friday night on his drive home in the van, the compensation judge’s conclusion that the business purpose of the trip was at least a concurrent reason for the employee’s activities at the time of his injury and that the employee’s dependent was therefore entitled to benefits was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Bresnahan v. Vicorp/Bakers Square, 4/27/06

Vacation of Award – Substantial Change in Condition Where there was no change in the employee’s ability to work or permanent partial disability, the change in the employee’s diagnosis was not necessarily significant, and the employer and insurer were paying for ongoing medical expenses related to the employee’s injury, and where the employee did not clearly establish that any change in his condition was not anticipated and could not reasonably be anticipated at the time of the settlement, good cause to vacate the award on stipulation was not established. Petition to vacate denied.
Crowley v. Plehal Blacktopping, Inc., 4/27/06

Penalties Attorney Fees – Heaton Attorney Fees – Contingent Fees Minnesota Statutes §176.225, subd. 1 The fact that contingent fees were voluntarily paid by the insurer, and there was no order or award directing payment of the fees, does not provide a basis for avoidance of a penalty under Minnesota Statutes §176.225, subd. 1, for prohibited conduct. A penalty is not appropriate where benefits are the subject of a real controversy and the employer and insurer interpose a colorable claim or good
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• COMPACT • August 2006 *This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions faith defense. The employer and insurer asserted a colorable defense, even though they lost, that attorney fees were properly withheld from benefits voluntarily paid following a hearing that included a dispute over primary liability, and the award of a penalty was not appropriate. Attorney Fees – Contingent Fees An employer and insurer may not withhold contingent attorney fees on compensation benefits when specifically requested not to do so by the employee’s attorney. Reversed.
Falls v. Coca Cola Enterprises, Inc., 4/27/06*

Minnesota Statutes §176.101, Subd. 1(i) Where there was no evidence of a job offer after the initiation of temporary total disability, and no evidence of a refusal by the employee, Minnesota Statutes §176.101, subd. 1(i) does not apply. Reversed.
Prochnow v. Robert Gibb and Sons, Inc., 4/27/06*

Wages The compensation judge did not err by excluding amounts paid into a national pension fund, a local pension fund, a health and welfare fund, an apprenticeship fund, an international training fund and the piping industry fund from the employee’s weekly wage calculation where the payments were not discretionary and the employee had no independent control over the amount contributed to each fund. Affirmed.
Leschefske v. Lakeview Methodist HHC, 4/28/06

Causation – Substantial Contributing Evidence – Expert Medical Opinion Where the critical issue was whether the employee’s alleged need for surgery was causally related to the employee’s admitted work injuries, the compensation judge did not err by basing her decision on expert medical opinion as to causation. Affirmed.

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

Summaries of Decisions
Winkler v. Greenview Landscaping, Inc., 5/1/06

Temporary Total Disability Substantial evidence, including medical records and witness testimony, supports the compensation judge’s finding that the employee remained entitled to temporary total disability benefits through Aug. 13, 2005, the date of the expiration of the statutory 90-day period following service of maximum medical improvement. Permanent Partial Disability Substantial evidence, including medical records, supports the compensation judge’s finding that the employee sustained a 10 percent permanent partial disability of the whole body as a substantial result of his Oct. 4, 2004, work-related injury. Affirmed.
Custer v. Independent School District #2154, 5/2/06

Temporary Partial Disability Under Morehouse v. Geo. A. Hormel & Company, 313 N.W.2d 8, 34 W.C.D. 314 (Minn. 1981), an employee need not show that his or her injury was temporary rather than permanent in nature in order for the employee to be entitled to temporary partial disability benefits. Temporary Partial Disability – Earning Capacity Where the issue before the compensation judge was whether the employee was entitled to temporary partial disability benefits for a certain period of time, and at the hearing the employer argued that the employee was not restricted from working for a second employer at that time, the compensation judge did not err by correctly noting that the employer presented no evidence to the contrary regarding the availability of a position at the second employer in order to rebut the presumption that the employee’s post-injury wage represented her reduced earning capacity. Temporary Partial Disability Substantial evidence, including adequately founded medical opinion, supports the compensation judge’s finding that the employee was permanently restricted from working for a second employer and was entitled to temporary partial disability benefits. Affirmed.
Ebert v. Yellow Freight Systems, 5/15/06

Arising Out Of and In the Course Of Where the medical evidence established that the employee, who was a traveling employee, contracted a staph or strep infection while on a work trip, and where it was reasonable for the
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• COMPACT • August 2006 *This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions compensation judge to conclude that the employee contracted the infection from a dirty motel room, the judge properly determined that the cellulitis and toxic shock syndrome resulting from the infection were compensable. Affirmed.
Howard v. Olympic Temporary, Inc., 5/15/06

Permanent Partial Disability Substantial evidence supports the compensation judge’s determination that the employee’s permanency was ascertainable and her finding regarding the extent of permanent partial disability at the time of the employee’s death. Affirmed.
Dehn v. Honeywell, Inc., 5/25/06

Causation Substantial evidence, including expert opinion, adequately supported the compensation judge’s determination that the employee’s work-related neck injury substantially contributed to the employee’s subsequent neck condition, need for surgery and resulting disability. Affirmed as modified.
Turner v. EVTAC Mining, 5/25/06*

Permanent Total Disability Where the employee had worked for more than 12 years following his work injury with essentially the same permanent restrictions, where the employee’s own QRC clearly suggested that the employee’s job search during the period at issue had been insufficiently diligent and expressly agreed that her labor market survey was very cursory, where there was no medical evidence that the employee could not work full time, where there was expert vocational opinion supportive of the conclusion that “more than sporadic employment resulting in an insubstantial income” was available to someone of the employee’s physical condition, age, training and experience, and where the employee’s own attorney conceded that the job that the employee quit when he was awarded Social Security benefits could perhaps have been modified to better comport with the employee’s restrictions, analysis of the case pursuant to the standard articulated in Schulte v. C.H. Peterson Construction, 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967), resulted in a conclusion that the compensation judge’s award of permanent total disability benefits was clearly erroneous and unsupported by substantial evidence. Reversed.

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

Summaries of Decisions
Bond v. Instant Web Companies, 5/31/06

Medical Treatment and Expense – Chiropractic Treatment Substantial evidence supports the compensation judge’s finding that chiropractic treatment from July 10, 2004, through Aug. 3, 2005, was not reasonable or necessary for the cure and relief of the employee’s March 8, 2004, work injury. Affirmed.
Birkholz v. Wagner Spray Tech, 6/5/06

Causation Substantial evidence, including the employee’s testimony and the medical opinions of her treating doctors, support the compensation judge’s finding that the employee’s June 16, 1999, work injury was a substantial contributing cause of her carpal tunnel syndrome. Medical Treatment and Expense – Surgery Substantial evidence, including the opinion of the employee’s treating orthopedic surgeon, supports the compensation judge’s finding that proposed carpal tunnel release surgery is reasonable and necessary. Practice and Procedure – Continuance The compensation judge did not abuse her discretion by denying a continuance for the purpose of joining an additional insurer where the employer and insurer may assert a contribution claim at a later date and were not prejudiced by the judge’s ruling. Affirmed.
Groth v. Ryan Contracting Company, 6/5/06

Causation – Medical Expenses Where the employee’s psychological diagnoses include the existence of a general medical condition, that both the employee’s physician and the independent medical examiner agree is the employee’s work-related right hand and arm condition with ongoing pain, the compensation judge erred in denying payment of the employee’s claimed medical expenses based on a finding that the employee did not sustain a consequential psychological condition, and the judge’s denial of the claimed medical expenses is vacated and the matter remanded for further findings. Temporary Total Disability – Job Search Substantial evidence supports the compensation judge’s determination that the employee failed to conduct a diligent job search prior to July 23, 2004, and the judge’s denial of temporary total
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Summaries of Decisions disability benefits up to that date. Based on the testimony of the employee and the records and testimony of the employee’s QRC, there is substantial evidence to support the compensation judge’s finding of a reasonably diligent job search and the award of wage-loss benefits from and after July 23, 2004. Maximum Medical Improvement Substantial evidence, including treatment records and a report from the employee’s treating physician, supports the compensation judge’s finding that the employee has not reached maximum medical improvement. Affirmed in part, and vacated and remanded in part.
Wacek v. Hy-Vee Food Stores, Inc., 6/5/06

Evidence – Expert Medical Opinion The medical experts for both parties had adequate foundation to provide an expert opinion. While it can be argued that there are inaccuracies and inconsistencies with respect to the facts relied upon by the medical experts on both sides, and that the experts for both sides lacked complete knowledge about every aspect of the employee’s medical history, treatment and work activities, such concerns go to the persuasiveness or weight to be afforded the opinions offered, but are insufficient to establish lack of foundation. Causation – Gillette Injury The compensation judge did not err in applying the standard of proof for a Gillette injury under Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994) by considering the employee’s treating physicians’ failure to identify the specific work activities they believed caused the employee’s claimed cervical injury in weighing the medical expert opinions before her. Causation Substantial evidence supports the compensation judge’s findings that the employee failed to prove a work-related neck and upper extremity injury as a result of her admitted carpal tunnel injury or her work activities, and that the employee failed to prove causally-related reflex sympathetic dystrophy (RSD). Affirmed.
Williams v. Twin Cities Stores, Inc., 6/7/06

Causation Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee did not sustain a physical injury as a result of the Dec. 11, 2004, incident, where a vehicle crashed into the employer’s store but the employee was not struck by the vehicle, debris or glass.
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Summaries of Decisions Causation – Psychological Injury Substantial evidence supports the compensation judge’s finding that the employee’s psychological injury was not compensable under the Minnesota Workers’ Compensation Act under Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981), in which the Supreme Court barred claims where mental stress has produced mental injury. Affirmed.
Parker v. University of Minnesota, 6/8/06

Practice and Procedure – Estoppel The voluntary payment of benefits by the self-insured employer to the injured employee does not bar the employer from later changing its position and asserting defenses to continuing liability. Causation Substantial evidence, including the opinion of the independent medical examiner, supports the compensation judge’s determination that the employee failed to establish that his current disability is causally related to his July 30, 1998, personal injury. Affirmed.
Erickson f/k/a Siverton v. University of Minnesota Hospitals, 6/12/02

Permanent Total Disability Substantial evidence, including expert opinion, supported the compensation judge’s denial of the employee’s permanent total disability claim. Causation – Substantial Contributing Cause Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that the employee’s psychological condition did not substantially contribute to the employee’s disability. Maximum Medical Improvement – Multiple Conditions Economic Recovery Compensation Minnesota Statutes §176.101, subd. 3p (repealed 1995) Where a work-related condition is not a substantial contributing factor in the employee’s disability and need for restrictions, and produces no permanent partial disability, attainment of MMI from that condition has no relevance in determining whether an employee is entitled to economic recovery compensation or impairment compensation for another work-related condition. Affirmed.
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Summaries of Decisions
D’Costa v. Edelweiss Home Health, 6/15/06

Attorney Fees – Continent Fees The compensation judge properly concluded that the employee’s former attorney was entitled to a $13,000 contingent fee, in view of the attorney’s experience, the complexity of the issues, the time and expense necessary to prepare the case, and the result obtained. Affirmed.
Yvonne v. Super One Foods, 6/20/06

Rehabilitation – Retraining Where the employee initially returned to work with the employer and later was precluded from performing positions available with the employer due to her physical work restrictions, where the employee had conducted an adequate job search with no success in obtaining replacement employment, and where the record contains a labor market survey, vocational reports and testimony that reflect that a job in the field of social work eventually could provide the employee with an economic status as close as possible to her pre-injury status, substantial evidence supports the compensation judge’s findings that the Poole factors had been met and the related award of a retraining program. Affirmed.
Lewin v. Aspen Medical Group, 6/21/06

Arising Out Of and In the Course Of Where the employee presented no evidence as to the connection between her work activity and the personal injury, the employee failed to establish that her injury arose out of her employment. Reversed.
Magarin v. Highland Manufacturing Company, 6/21/06

Practice and Procedure – Admission of Evidence Minnesota Statutes §176.411 Where it was not unreasonable for the judge to sustain a hearsay objection on grounds that better evidence in the form of in-person testimony was scheduled, and where the Minnesota Statutes §268.105 express prohibition of use of unemployment compensation testimony in nonunemployment compensation cases was more specific than the Minnesota Statutes §176.411 provision that workers’ compensation judges are not bound by statutory “rules of evidence” and “rules of pleading or procedure,” the compensation judge did not err in denying admission of two unemployment compensation decisions together with statements and materials related to those litigations.
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Summaries of Decisions Temporary Total Disability Termination of Employment – Misconduct Minnesota Statutes §176.101, subd. 1.(e)(1) (2002) Where the judge’s decision evidently credited both the employee’s testimony, that he understood himself to have been fired and would have returned to his job had the employer’s operations manager called him to return the next day, and the employee’s supervisor’s testimony, that the employee was expressly not terminated for his OSHA safety violation on the day he was sent home from work, but only later for a history of lesser offenses, the compensation judge’s conclusion that the employee neither voluntarily quit his job nor was terminated for misconduct was not clearly erroneous and unsupported by substantial evidence, and the judge’s award of temporary total disability benefits was therefore not improper under the provision in Minnesota Statutes §176.101, subd. 1.(e)(1) (2002), that benefits may not be recommenced after a termination for misconduct. Temporary Partial Disability – Calculation of Benefits The choice between calculating temporary partial disability benefits on a week-by-week basis and calculating those benefits on an averaging basis is not a legal issue but a fact issue for the compensation judge, and, where the particular mode of calculation was not clearly at issue before the judge and there was a relatively minimal disparity between the two alternative results and the judge’s choice was not unreasonable, the judge’s decision to calculate benefits on a week-by-week basis was not clearly erroneous and unsupported by substantial evidence, notwithstanding the judge’s failure to explain the rationale for his choice. Causation – Surgery Maximum Medical Improvement Where evidence supporting the judge’s decision included recent diagnostic opinion, evidence of continuity of the employee’s thumb pain since the date of his work injury, the absence of thumb problems prior to that work injury, current medical recommendations of surgery, a QRC’s supportive testimony, and the employee’s own testimony of continuing pain and hope in the proposed surgical option, the compensation judge’s conclusion that the employee’s work injury was a substantial contributing factor in his need for the proposed fusion and tendon realignment surgery was not clearly erroneous and unsupported by substantial evidence, notwithstanding an earlier medical opinion by the employee’s own doctor that the employee had already reached MMI, and notwithstanding evidence of a re-injury of the employee’s thumb at his post-injury job. Affirmed.
Reider v. Anoka-Hennepin School District #11, 6/21/06

Causation – Gillette Injury Substantial evidence, including the testimony of the employee and the records and opinions of her treating doctors, supports the compensation judge’s determination that the employee sustained a Gillette injury to her neck, shoulders and upper back as a result of her job duties as an American Sign Language (ASL) interpreter, even though the employee continued to work without restrictions.
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Summaries of Decisions Permanent Partial Disability Permanent partial disability benefits are intended to compensate for permanent loss or impairment of bodily function and are in no way dependent upon work restrictions or inability to work. Where there was substantial evidence to support the conclusion that the employee met the criteria in the permanent partial disability schedules for the assigned permanency ratings, the compensation judge did not err in awarding benefits based on those ratings. Practice and Procedure – Neutral Physician Minnesota Statutes §176.155, subd. 2 (2005) The compensation judge did not err in denying the employer’s request for examination of the employee by a neutral physician, pursuant to Minnesota Statutes §176.155, subd. 2 (2005), given the issues in dispute in this case. Affirmed.
Skelley v. Lucent Technologies, 6/27/06

Temporary Partial Disability – Earning Capacity Job Offer – Relocation The employer and insurer failed to rebut the presumption of earning capacity based on actual wages where the employee’s post-injury job with the employer was terminated for reasons not related to the work injury and was no longer available to him, the employee had permanent work restrictions, and the employer and insurer conceded the employee made a diligent job search post-termination resulting in a suitable job at a wage loss. An employee is not required to relocate outside his home community, and the compensation judge did not err in concluding the employee reasonably declined the employer’s offer of a similar job in Ohio. Affirmed.
Adams v. DSR Sales, Inc., 6/28/06

Third Party Liability – Credit Third Party Liability – Notice to Employer The compensation judge properly determined that the employee had failed to give the workers’ compensation insurer notice of settlement negotiations in the employee’s civil action against the third-party tortfeasor, that the presumption of prejudice had not been rebutted, and that, pursuant to Womack v. Fikes of Minn., 61 W.C.D. 574 (W.C.C.A. 2001), the entire net proceeds of the thirdparty settlement were available for purposes of a credit against workers’ compensation liability, subject to the insurer’s ongoing responsibility for the costs of collection. Affirmed as modified.

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Summaries of Decisions
Doering v. Casey’s General Store, 6/28/06

Medical Treatment and Expense – Treatment Parameters Medical Treatment and Expense – Chronic Management The compensation judge properly concluded that the employee’s treatment for chronic pain and depression was governed by the treatment parameters covering “chronic management,” where the treatment at issue was rendered after the employee had received all appropriate nonsurgical and surgical care. Affirmed.

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Summaries of Decisions • Judicial •

Minnesota Supreme Court
April through June 2006
Case summaries published are those prepared by the WCCA

• Mihn-Phuong T. Phan v. Radisson Hotel, and American Compensation Insurance/RTW, A06-22, April 26, 2006

Decision of the Workers’ Compensation Court of Appeals filed December 6, 2005, affirmed without opinion.
• Carrie L. Busch v. Wal Mart, and Claims Management, Inc., and Mayo Foundation, Mankato Clinic, Ltd., Mankato Chiropractic Center, Mankato Anesthesia Associates, Ltd., Wal Mart Claims Administration, and Orthopaedic & Fracture Clinic, P.A., Intervenors, A06-161, April 28, 2006

Decision of the Workers’ Compensation Court of Appeals filed December 22, 2005, affirmed without opinion.
• Donald A. Meyers v. K Byte-Hibbing Manufacturing, and TIG Insurance Company, A06-154, May 1, 2006

Decision of the Workers’ Compensation Court of Appeals filed December 22, 2005, affirmed without opinion.
• Alvin V. Aho v. Duluth Transit Authority, and State Fund Mutual Insurance Company, A06-490, May 24, 2006

Decision of the Workers’ Compensation Court of Appeals filed March 1, 2006, affirmed without opinion.

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