• Judicial •

Court of Appeals
April through June 2007
Case summaries published are those prepared by the WCCA

Workers’ Compensation

Akkanen v. Viratec Thin Films, Inc., 4/5/07

Vacation of Award – Substantial Change in Condition Where the record did not contain adequate information to establish either change in ability to work or causation between the current worsened condition and the employee’s work injuries, and where the claimed increase in permanent partial disability was minimal, the employee had not established good cause to vacate the award. Petition to vacate award denied.
Olds v. Lutheran Social Services of Minnesota, 4/9/07*

Causation – Permanent Aggravation Substantial evidence, including adequately founded medical expert opinion, supports the compensation judge’s decision finding a permanent, work-related aggravation of the employee’s pre-existing low back condition. Permanent Total Disability – Insubstantial Income Although the employee was working only 16 hours per week and was receiving Social Security disability benefits prior to her work injuries, there is evidence the employee’s post-injury restrictions would not allow the employee to perform any regular or consistent employment, resulting in an insubstantial income, and the compensation judge did not err in awarding permanent total disability benefits. Permanent Total Disability A disability is permanent for workers’ compensation purposes if it is likely to exist for an indefinite period of time. There was no evidence that any further treatment would significantly aid the employee in returning to work, and the compensation judge’s finding of permanent total disability was not premature.
*This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions Credit and Offsets – Social Security Offset There is no substantial evidence that the employee’s low back condition was a factor in the 1999 award of Social Security disability benefits to the employee, and it cannot be concluded that the disability benefits were occasioned by the employee’s 2002 and 2003 work injuries to the low back, thus the allowance of a statutory offset for Social Security benefits must be reversed. Affirmed in part and reversed in part.
Lamkin v. JWS Homes and Contracting, Inc., 4/10/07

Practice and Procedure – Dismissal An order of dismissal on procedural grounds should be granted only under exceptional circumstances. The primary factor to be considered is the prejudicial effect of the order upon the parties to the action. In this case, the prejudicial effect of dismissal of the employee’s claim without a hearing on the merits outweighs the expense of appearing at the hearing, at which the employee failed to appear, to the employer. Reversed and remanded.
McLeod v. Magnuson Farms, 4/10/07

Vacation of Award – Substantial Change in Condition Where the employee’s petition to vacate the 1989 award on stipulation is based on a change in medical condition since the time of the award, and while the employee has demonstrated his need for more extensive medical treatment, causally related to his work injury, than was contemplated at the time of the award but has not necessarily shown a change in diagnosis nor entitlement to additional permanent partial disability since the 1989 award on stipulation, and where there is inadequate information to determine whether later-developed medical conditions and a subsequent injury are causally related to his 1985 low back injury, and where the employee has not demonstrated a change in his ability to work, there is an inadequate basis for vacating the award on stipulation and the petition to vacate is denied. Petition to vacate award denied.
Meyers v. Minnesota Electric Supply Company, 4/11/07

Causation Substantial evidence supports the compensation judge’s determination that the employee failed to establish by preponderance of the evidence that her work injury was a substantial contributing factor in her wage loss and need for medical treatment. Affirmed.
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Summaries of Decisions
Whitemore v. Holm Brothers Construction, Inc., 4/11/07

Causation – Medical Treatment Under the circumstances of this case, the record as a whole, including the records of one of the employee’s treating physicians, adequately supported the compensation judge’s award of medical expenses related to cardiac and visual testing and treatment, despite the fact that the employee’s treating physicians had reached no firm conclusions as to the cause of the employee’s ongoing symptoms. Affirmed as modified.
Burgin v. Metro Transit, 4/13/07

Causation – Temporary Aggravation Substantial evidence, including medical records and expert medical opinion, supports the compensation judge’s finding that the employee’s work-related injury of Feb. 22, 2006, was a temporary aggravation that resolved by May 22, 2006. Affirmed.
Erickson v. City of St. Paul, 4/16/07

Rehabilitation – Eligibility Rehabilitation – Retraining The employee’s resignation from a job that paid a wage the same as or more than his pre-injury wage does not terminate his entitlement to rehabilitation services, where, as a result of his work-related injuries, he is permanently precluded from engaging in his usual and customary occupation held at the time of his injury. The employee’s proposed retraining plan is appropriate, when considering the Poole factors. Affirmed.
Dietz v. Vohs Enterprises, 4/20/07

Maximum Medical Improvement Temporary Total Disability Where it was supported by the 2004 formal MMI opinions of a neurosurgeon and a neuropsychologist and also by records of the employee’s extensive treatment by no fewer than 10 other doctors, none of whom had offered an opinion that the employee had not reached MMI, the compensation judge’s conclusion that the employee had reached MMI over 90 days prior to her 2005 termination from employment, and so was not entitled to recommencement of her temporary total disability benefits from the date of her termination, was not clearly erroneous and unsupported by substantial evidence.
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Summaries of Decisions Medical Treatment and Expense – Reasonable and Necessary Where it would have been reasonable for the compensation judge to conclude from the statements of medical experts recommending chronic pain treatment that there was little to be gained by further diagnostic expense, where there was no evidence of record that the employee’s neuropsychological IME upon recommendation of a neurosurgical IME had been intended to be a “neutral” examination or was otherwise prejudicial to the employee, and where at any rate the employee had had ample opportunity to correct any related misunderstanding prior to the original neuropsychological examination, the compensation judge’s denial of the employee’s request for a repeat neuropsychological evaluation was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Davis v. Metro Dental, 4/23/07

Vacation of Award – Substantial Change in Condition Where the records submitted failed to establish a significant change in diagnosis, a substantial deterioration in medical condition or a significant change in the employee’s ability to work, the employee’s petition to vacate an award on stipulation must be denied. Petition to vacate award denied.
Nagle v. Lifeworks Services, 4/27/07

Causation – Medical Treatment Evidence – Expert Medical Opinion Substantial evidence, in the form of a well-founded medical opinion, supports the compensation judge’s determination that the employee’s work injury was not a substantial contributing factor to her need for medical care. Affirmed.
Vick v. Northern Engraving Corporation, 4/30/07

Practice and Procedure – Matters at Issue Appeals – Scope of Review Where the employee did not address in his brief the specific finding from which he had appealed pertaining to one injury date, and where no other injury dates had been identified at hearing as being at issue, there was no basis for concluding that the judge erred in her decision by failing to consider other injury dates. Affirmed.

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Summaries of Decisions
Flaskamp v. Northwest Airlines, 5/1/07

Wages – Calculation Wages – Irregular Where no evidence was submitted or testimony provided establishing vacation pay, holiday pay, sick leave pay or specific personal leave time during the 26 weeks prior to the employee’s work injury, the compensation judge did not err in concluding the employee’s earnings were irregular, or in using an averaging formula to determine the employee’s weekly wage. Causation – Gillette Injury Substantial evidence, including the opinions of the employee’s treating physicians, supports the compensation judge’s determination that the employee sustained a Gillette injury to the cervical spine as a result of his work activities for the employer and that his work injury was a contributing cause of his need for surgery. Affirmed.
Irvin v. Red Wing Shoe Company, 5/1/07

Causation – Consequential Injury Where the employee sought workers’ compensation benefits claiming that her low back condition was caused or substantially contributed to by her earlier injury to her left foot and also developed as a result of her employment during a later period of time, and where the compensation judge found that her low back condition developed as a consequence of the earlier work injury, but made no finding concerning whether the employee later sustained a separate work-related injury, the compensation judge applied an incorrect causation test when arriving at his conclusions. The matter is remanded for reconsideration and a determination of whether the disputed low back condition arose out of and in the course and scope of employment. Medical Treatment and Expense Where the employee’s extensive conservative treatment as well as four surgeries had not relieved her persistent symptoms and foot pain, where one of the employee’s treating physicians recommended an implantation of a neurostimulator in an attempt to alleviate her symptoms, and where the record contains a properly founded medical opinion concerning the potential benefits of the stimulator, we conclude that substantial evidence in the record supports the judge’s approval of the proposed implantation of the spinal cord stimulator. Medical Treatment and Expense – Treatment Parameters Minnesota Rules Part 5221.6020, subp. 2 The permanent medical treatment parameters do not apply to treatment for an injury after an employer and insurer have denied liability for the injury and have denied that the employee’s current condition, for which the employee sought disputed medical treatment, is causally related to
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Summaries of Decisions her work injury. A denial of liability includes both a denial of primary liability and a denial of medical causation for subsequent symptoms or conditions. Rehabilitation – Eligibility Where the employee remains subject to physical work restrictions as a result of her work injury, and those restrictions prevent her from returning to her pre-injury job with the employer, and where the employee has not yet returned to suitable gainful employment, the compensation judge’s conclusion that the employee remains a qualified employee for receipt of rehabilitation assistance and his related award of rehabilitation assistance were supported by substantial evidence of record. Affirmed in part, and vacated and remanded in part.
Jeffrey v. Banana Republic, 5/1/07*

Attorney Fees – Irwin Fees Where the compensation judge properly applied the factors in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999) to the facts in this case, the compensation judge’s award of attorney fees to the employee’s attorney for his representation of the employee was not clearly erroneous and not an abuse of discretion, and therefore must be affirmed. Affirmed.
Murphy v. Northwest Sheetmetal Company, 5/2/07

Vacation of Award – Mistake A compromise settlement of a workers’ compensation claim is contractual in nature. Generally, a contract may be rescinded or voided upon a showing of mutual mistake as to a material fact. A person who signs a contract may not void it on the ground that he or she did not read it or thought its terms to be different. If the terms of a contract are free from ambiguity and there is no fraud or misrepresentation, a mistake of one party alone as to the terms or subject matter of a contract is not a basis for vacation. In this case, where the stipulation for settlement explicitly closed out the disputed prescription expenses, where the employee was represented by counsel and does not claim any infirmity or disability at the time he signed the stipulation, where there was no allegation or evidence of fraud, misrepresentation or intent to deceive, and where counsel for the employer and insurer denied any mutual mistake, the employee failed to establish a mutual mistake of fact sufficient to vacate the award on stipulation. Vacation of award on stipulation denied.

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

Summaries of Decisions
Burkhalter v. Trend Enterprises, Inc., 5/3/07

Causation Substantial evidence, including the employee’s testimony and the opinion of her treating physician, supported the compensation judge’s decision that the employee’s 2002 work injury was a substantial contributing cause of her continuing symptoms and need for treatment. Affirmed in part and vacated in part.
Hanegmon v. Chisholm Health Center, 5/3/07

Where the employee failed to comply with discovery requests on multiple occasions and also failed to comply with two orders compelling discovery; where the matter had remained stricken from the trial calendar for more than 20 months, at least in part because of delays attributable to the employee’s failure to comply with discovery requests and court orders; and where the unnecessary costs incurred by the employer and insurer far exceeded the value of the claims at issue, the compensation judge did not err in dismissing those claims with prejudice. Affirmed.
Zaback v. Cowboy Concrete, 5/15/07

Arising Out Of and In the Course Of – Special Errand Substantial evidence supports the compensation judge’s determination that the employee was injured while on a special errand for the employer and that, as a result, his injuries were covered under the Workers’ Compensation Act. Affirmed.
Hogan v. Super Valu/Cub Foods, 5/18/07

Causation – Medical Treatment Where the independent medical examiner’s earlier opinion was made assuming a false premise, where it was not unreasonable for the judge to rely on the examiner’s later, changed opinion, and where some of the medical bills at issue were not itemized sufficiently to determine whether they applied to the employee’s thoracic condition or to his lumbar condition, the compensation judge’s conclusion that the employee did not prove that his admitted lumbar work injuries were a substantial contributing factor in medical expenses related to his thoracic back was not clearly erroneous and unsupported by substantial evidence. Medical Treatment and Expense – Reasonable and Necessary Where the employee did not brief his appeal from the judge’s finding as to the reasonableness and necessity of medical expenses potentially related to the employee’s admitted lumbar work injury, and
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Summaries of Decisions where the judge’s finding was at any rate supported by expert medical opinion, the compensation judge’s conclusion that all medical treatment after a specified date — whether to the thoracic spine or to the lumbar spine — was not reasonable and necessary was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Williams v. Chisholm Health Center, 5/21/07

Causation – Temporary Aggravation Substantial evidence supports the compensation judge’s finding that the employee’s July 2005 work injury was a temporary aggravation of his pre-existing low back condition. Penalties Minnesota Statutes § 176.225 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 faith defense. Where there is evidence to support the employer and insurer’s denial of primary liability, a penalty under Minnesota Statutes § 176.225 is not appropriate, even though the employer and insurer did not ultimately prevail on their defense to a portion of the claim. Affirmed.
McCoy v. Hennepin Home Health Care, 5/23/07

Medical Treatment and Expense – Change of Physician Where the employee did not return to her treating surgeon following carpal tunnel surgery in 2003 and had no ongoing relationship with a medical provider, she was entitled to select a primary health care provider. The compensation judge’s denial of the employee’s request for a new treating physician must, accordingly, be reversed. Rehabilitation – Eligibility Substantial evidence supports the compensation judge’s finding that the employee does not have work restrictions and is not a qualified employee entitled to rehabilitation benefits. Affirmed in part and reversed in part.
Ludescher v. Univerity of Minnesota, 5/24/07

Attorney Fees – Roraff Remand for hearing and new findings was necessary where no evidentiary hearing was held and where the judge erred in evaluating whether there existed a genuine dispute over payment of medical
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Summaries of Decisions expenses, erred by assuming that the employer did not object to the hours claimed by the employee’s attorney, and erred by failing to rule on the effect of the employee’s failure to request certification of a dispute by the Department of Labor and Industry. Vacated and remanded.
Schmitt v. Innovative Lawn Systems, Inc., 5/24/07*

Jurisdiction – Subject Matter Insurance – Coverage Where, contrary to the insurer’s assertion, the claim before the compensation judge related not to a claim for negligence or breach of contract against the insurer’s agent but to direct claims by the employee for workers’ compensation benefits and by the employer for insurance coverage, the coverage issue before the compensation judge was clearly ancillary to the employee’s claim for benefits and therefore fell within the purview of the compensation judge’s jurisdiction, as had been implied though not explicitly addressed in several precedent cases. Insurance – Coverage Where the employer’s owner was unsophisticated in business matters and relied upon the employer’s insurance agent to provide the employer with all necessary business insurance, where that agent issued certificates of insurance coverage to that owner indicating that workers’ compensation insurance was in place, where it was reasonable for that owner to rely on those representations, and where that owner did rely on those representations to the employer’s detriment, the compensation judge’s conclusion that the insurer was estopped from denying coverage of the employer against the injured employee’s claims was not clearly erroneous and unsupported by substantial evidence. Attorney Fees Where the insurer refused to defend the employer against the employee’s claims on grounds that it was not liable for coverage, where the employer sought reimbursement of attorney fees payable to an attorney independently retained for its defense, and where that claim for reimbursement constituted a claim for damages for breach of contract against the insurer, the compensation judge’s denial of the employer’s claim for attorney fees was affirmed, pursuant to the Minnesota Court of Appeals’ holding in Sazama Excavating v. Wausau Insurance Companies, 521 N.W.2d 379 (Minn. App. 1994), pet. for rev. denied (Minn. Oct. 27, 1994). Affirmed.

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

Summaries of Decisions
Cornell v. ABF Freight Systems, Inc., 5/31/07

Medical Treatment and Expense – Reasonable and Necessary Medical Treatment and Expense – Surgery Substantial evidence, including medical opinion, supports the compensation judge’s award of expenses incurred for treatment of the employee’s low back since June 8, 2005, and approval of the proposed surgery. Affirmed.
Malecha v. ABC Bus Company, 5/31/07

Causation – Medical Treatment Medical Treatment and Expese – Surgery Substantial evidence in the form of a well-founded medical opinion supports the compensation judge’s decision that the requested SI fusion surgery was causally related to the work injury and was reasonable and necessary medical treatment. Affirmed.
Farnsworth v. Northwest Airlines Corporation, 6/6/07

Temporary Partial Disability Substantial evidence supports the compensation judge’s conclusion that the employee is underemployed and his current earnings do not reflect his actual earning capacity, and the judge’s denial of temporary partial disability benefits. Affirmed.
Costello v. Clay County Sheriff’s Department, 6/7/07

Practice and Procedure – Remand Where the compensation judge failed to address the issue of the reasonableness and necessity of a surgical procedure and nonetheless ordered reimbursement of the associated expenses, the order for reimbursement is vacated and the case is remanded for determination of the issue. Vacated and remanded.

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Summaries of Decisions
Ellsworth v. Days Inn/Brutgers Equities, 6/8/07

Causation – Reflex Sympathetic Dystrophy Minnesota Rules Part 5223.0430, subp. 6 Where it was amply supported by expert medical opinion, the compensation judge’s conclusion that the employee’s diagnosis of reflex sympathetic dystrophy was valid and that the condition was causally related to the work injury was not clearly erroneous and unsupported by substantial evidence, notwithstanding marked inconsistency in the employee’s symptoms and weakness in her credibility due in large part to her somatization disorder and other psychiatric disorders, and notwithstanding the fact that the employee’s symptomology did not fully meet the requirements for an award of permanent partial disability benefits under Minnesota Rules Part 5223.0430, subpart 6. Permanent Partial Disability – Reflex Sympathetic Dystrophy Minnesota Rules Part 5223.0430, subp. 6 Where it was based on an established medical diagnosis and otherwise supported by expert medical opinion, the compensation judge’s award of permanent partial disability benefits related to the employee’s reflex sympathetic dystrophy was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee did not manifest a full five of the diagnostic “conditions” listed in Minnesota Rules Part 5223.0430, subp. 6, notwithstanding the fact that the qualifying conditions that the employee did manifest were not shown to appear concurrently in the same moment of time, and notwithstanding the fact that the employee’s diagnosis of RSD was not uncontested. Permanent Total Disability Where the employee was affirmatively found to be subject to work-related reflex sympathetic dystrophy, where there was substantial evidence that syndrome severely disabled the employee, and where the compensation judge’s findings and memorandum clearly indicated that the judge contemplated the “Schulte factors” as codified in Minnesota Statutes § 176.10 1, subd. 5, in making his decision, the compensation judge’s award of permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Hagy v. Morton Buildings, Inc., 6/8/07

Notice of Injury – Gillette Injury Minnesota Statutes § 176.141 Where the employer was informed of a work-related condition resulting in physical work restrictions, the employer had adequate notice of an injury, as required by Minnesota Statutes § 176.141, and the compensation judge’s finding that the employee failed to provide timely notice is not supported by substantial evidence in the record and is reversed. Reversed and remanded.
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Summaries of Decisions
Jotblad v. City of St. Paul, 6/11/07

Causation – Psychological Injury Substantial evidence of record supports the compensation judge’s finding that the employee’s work injury of June 7, 1996, was a substantial contributing factor in causing or significantly aggravating her psychological condition and diagnosis. Permanent Total Disability Substantial evidence supports the compensation judge’s finding that the employee is permanently and totally disabled as a result of her work-related psychological condition. Causation – Gillette Injury Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee sustained a Gillette injury to her right wrist in the nature of carpal tunnel syndrome. Affirmed.
Crocker v. HMS Host Corporation, 6/14/07

Notice of Injury Evidence – Credibility Where the judge was clearly aware of the conflicts between the employee’s testimony and documentary evidence referenced by the employer and insurer, and where the employee’s testimony, that he did not more actively pursue a workers’ compensation claim initially because he “didn’t want to make waves,” did not compel a conclusion that the employee was not credible in his testimony that he advised his supervisors of his injury on the date of its occurrence, the compensation judge’s conclusion that the employee gave statutorily proper notice of his work injury was not clearly erroneous and unsupported by substantial evidence. Causation Where the judge acknowledged that the employee had pre-existing degenerative disc disease in his lumbar spine but concluded, nevertheless, that the employee had experienced a work-related physical insult to his pre-existing condition that effectively removed him from continuing in his job with the employer, and where that conclusion was supported by the employee’s testimony and medical records, the compensation judge’s conclusion that the employee’s work was a substantial contributing factor in his disability was not clearly erroneous and unsupported by substantial evidence. Temporary Total Disability Job Search Where the judge reasonably concluded that, prior to his termination, the 60-year-old, 17-year employee was medically restricted by his work injury from returning to his job with the employer
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Summaries of Decisions and there was no evidence that lighter duty work was available, where the judge reasonably concluded that, subsequent to his termination, the employee was unable to receive necessary medical treatment because his health insurance had been canceled, and where the judge reasonably concluded that, while limited, the employee’s efforts to find work since his termination had been reasonable in light of the effects of his work injury, his limited employment history, and his lack of vocational/rehabilitation assistance, the compensation judge’s award of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence. Affirmed.
London v. United Parcel Service, 6/14/07

Causation – Temporary Aggravation Substantial evidence supports the compensation judge’s determination that the employee’s work injury of Aug. 1, 2006, was a temporary aggravation of his pre-existing neck and back condition, from which the employee had fully recovered by Aug. 21, 2006. Affirmed.
Maricle v. Farmstead Foods, 6/14/07*

Causation Evidence – Expert Medical Opinion Substantial evidence, including the employee’s testimony, medical records and expert medical opinion, supported the finding that the employee’s claimed disability and medical care were not causally related to the employee’s work activities for the employer, Farmstead Foods, or to her Sept. 29, 1989, work injury with the employer. Affirmed.
Fenstermaker v. Thermoform Plastic, Inc., 6/19/07

Vacation of Award – Substantial Change in Condition Where there is conflicting evidence on whether the employee has experienced a change in her ability to work and whether the employee has sustained additional permanent partial disability that is causally related to her 2001 work injury, we refer this matter to the Office of Administrative Hearings for an evidentiary hearing. Referred to OAH for evidentiary hearing.

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

Summaries of Decisions
Lang v. Harvey Vogel Manufacturing Company, 6/19/07

Causation – Psychological Condition Evidence – Expert Medical Opinion Substantial evidence, including the well-founded opinion of the employee’s treating psychologist, support the compensation judge’s finding that the employee’s July 15, 2005, personal injury was a substantial contributing factor to the employee’s psychological condition. Temporary Total Disability Evidence – Expert Medical Opinion Substantial evidence, including the well-founded opinion of the independent medical examiner, a psychiatrist, supports the compensation judge’s determination that the employee’s psychological condition was not of such a degree as to totally disable the employee. Discontinuance – Matters at Issue Where counsel for the employee agreed at the start of the hearing on discontinuance that job search would be an issue, the compensation judge did not impermissibly expand the issues to include the defense of failure to diligently search for work. Job Search Rehabilitation – Cooperation Temporary Total Disability An injured employee proves total disability by showing, by a diligent job search to no avail, that work the employee is capable of doing in his injured condition is unavailable. Where the employee failed to cooperate with the vocational rehabilitation plan in effect, the compensation judge’s denial of temporary total disability benefits from and after June 21, 2006, must be affirmed. Job Offer – Refusal Minnesota Statutes § 176.101, subd. 1(i) On the facts of this case, the employer and insurer failed to meet their burden of proving the May 24, 2006, job offer was consistent with the plan of rehabilitation as required by Minnesota Statutes § 176.101, subd. 1(i), and the compensation judge’s refusal to discontinue temporary total disability benefits on the basis of refusal of a job offer is affirmed. Affirmed.
Rechtfertig v. Michael Spiering, 6/19/07*

Exclusion from Coverage – Casual Employment Minnesota Statutes § 176.041, subd. 1(k) Where the employee was hired by a homeowner to help close-in a garage apartment being built by the homeowners, which was intended for their own use, the work was temporary and of relatively
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• COMPACT • August 2007 *This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions short duration, the days of work were uncertain and dependent on whether there was work to do on a particular day and whether a family member would be present at the property, the employment was “casual” and the compensation judge erred in finding to the contrary. Reversed.
Stordahl v. Advanced Communications, Inc., 6/21/07

Causation – Intervening Cause Medical Treatment and Expense – Surgery Where the employee followed the recommendation of his treating doctor and where there was no determination by a compensation judge as of the date of surgery that surgery was unreasonable and unnecessary, it was error for the compensation judge to determine that the employee’s decision to proceed with surgery was so unreasonable, negligent, dangerous or abnormal as to constitute a superseding, intervening cause that relieves the employer and insurer from further liability. Reversed.
Gunderson v. A E Conrad Company, 6/22/07

Vacation of Award – Substantial Change in Condition Where there is conflicting evidence on the issues of whether the employee’s ability to work had changed and whether the employee’s current medical condition was causally related to his work injury, we refer the matter to the Office of Administrative Hearings for an evidentiary hearing and findings on those issues. Referred to OAH for evidentiary hearing.
Schutz v. Brookdale Chrysler Plymouth, 6/25/07

Vacation of Award – Substantial Change in Condition Where the evidence submitted showed a significant change in diagnosis, including a failed fusion and a four-level fusion repair, and a substantial change in the employee’s ability to work, from fulltime at the time of the settlement to a three-and-a-half-year period of inability to work since the first fusion surgery, the employee established good cause to vacate the July 1998 Award on Stipulation. Vacation of award on stipulation granted.
Graves v. Virginia Regional Medical Center, 6/26/07

Rehabilitation – Retraining Where the employee was permanently precluded from performing her pre-injury job, had an admitted loss of earning capacity causally related to her work injury, and had a significant continuing
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Summaries of Decisions wage-loss four years after her injury, and where the employer introduced no evidence indicating that the employee could reasonably expect to earn her pre-injury wage any time in the near future, the record supported the compensation judge’s decision to grant the employee’s request to modify her rehabilitation plan to include exploration of retraining, despite the lack of expert vocational opinion expressly supporting the request. Affirmed.

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Summaries of Decisions • Judicial •

Minnesota Supreme Court
April through June 2007
Case summaries published are those prepared by the WCCA

• Victor Victor v. Smithway Motor Xpress, and Liberty Mutual Insurance Company, and Grand Itasca Hospital, Minnesota Department of Labor and Industry/Vocational Rehabilitation unit, Grand Itasca Clinic, and CIGNA Healthcare/Primax Recoveries Incorporated, Intervenors, A06-2413, March 28, 2007

Decision of the Workers’ Compensation Court of Appeals filed Nov. 21, 2006, affirmed without opinion.
• Ilham M. Yusuf v. Hilton Hotel, and ACE/Gallagher Bassett Services, Inc., and Park Nicollet Health Services, and HealthPartners, Inc., Intervenors, A06-2474, March 29, 2007

Decision of the Workers’ Compensation Court of Appeals filed Dec. 4, 2006, affirmed without opinion.
• Bruce Gjerde v. The Pillsbury Co./General Mills, Inc., and Self-Insured, administered by Liberty Mutual Insurance Cos., and Fairview Health Services, Twin Cities Orthopedics, P.A., and HealthPartners, Inc., Intervenors, A07-370, May 30, 2007

Decision of the Workers’ Compensation Court of Appeals filed Jan. 18, 2007, affirmed without opinion.
• Tamara Joan Haeg v. SEKO Worldwide d/b/a Vast Logistics, and Minnesota Assigned Risk Plan, administered by Berkley Risk Administrators, and Regions Hospital, St. Paul Radiology, North Memorial Ambulance Service, and Twin City Anesthesia Associates, Intervenors, A07-258, May 30, 2007

Decision of the Workers’ Compensation Court of Appeals filed Jan. 4, 2007, affirmed without opinion.
• Linda Timmer v. Independent School District #482, and Self-Insured/Berkley Risk Administrators, A07-361 and A07-367, June 4, 2007

Decision of the Workers’ Compensation Court of Appeals filed Jan. 23, 2007, affirmed without opinion.
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Summaries of Decisions
• Shirley Bartz v. Meadow Lane Healthcare and Constitution State Services, A07-583, June 25, 2007

Decision of the Workers’ Compensation Court of Appeals filed Feb. 26, 2007, affirmed without opinion.

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• Judicial •

Court of Appeals
April through June 2007
Case summaries published are those prepared by the WCCA

Workers’ Compensation

Akkanen v. Viratec Thin Films, Inc., 4/5/07

Vacation of Award – Substantial Change in Condition Where the record did not contain adequate information to establish either change in ability to work or causation between the current worsened condition and the employee’s work injuries, and where the claimed increase in permanent partial disability was minimal, the employee had not established good cause to vacate the award. Petition to vacate award denied.
Olds v. Lutheran Social Services of Minnesota, 4/9/07*

Causation – Permanent Aggravation Substantial evidence, including adequately founded medical expert opinion, supports the compensation judge’s decision finding a permanent, work-related aggravation of the employee’s pre-existing low back condition. Permanent Total Disability – Insubstantial Income Although the employee was working only 16 hours per week and was receiving Social Security disability benefits prior to her work injuries, there is evidence the employee’s post-injury restrictions would not allow the employee to perform any regular or consistent employment, resulting in an insubstantial income, and the compensation judge did not err in awarding permanent total disability benefits. Permanent Total Disability A disability is permanent for workers’ compensation purposes if it is likely to exist for an indefinite period of time. There was no evidence that any further treatment would significantly aid the employee in returning to work, and the compensation judge’s finding of permanent total disability was not premature.
*This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions Credit and Offsets – Social Security Offset There is no substantial evidence that the employee’s low back condition was a factor in the 1999 award of Social Security disability benefits to the employee, and it cannot be concluded that the disability benefits were occasioned by the employee’s 2002 and 2003 work injuries to the low back, thus the allowance of a statutory offset for Social Security benefits must be reversed. Affirmed in part and reversed in part.
Lamkin v. JWS Homes and Contracting, Inc., 4/10/07

Practice and Procedure – Dismissal An order of dismissal on procedural grounds should be granted only under exceptional circumstances. The primary factor to be considered is the prejudicial effect of the order upon the parties to the action. In this case, the prejudicial effect of dismissal of the employee’s claim without a hearing on the merits outweighs the expense of appearing at the hearing, at which the employee failed to appear, to the employer. Reversed and remanded.
McLeod v. Magnuson Farms, 4/10/07

Vacation of Award – Substantial Change in Condition Where the employee’s petition to vacate the 1989 award on stipulation is based on a change in medical condition since the time of the award, and while the employee has demonstrated his need for more extensive medical treatment, causally related to his work injury, than was contemplated at the time of the award but has not necessarily shown a change in diagnosis nor entitlement to additional permanent partial disability since the 1989 award on stipulation, and where there is inadequate information to determine whether later-developed medical conditions and a subsequent injury are causally related to his 1985 low back injury, and where the employee has not demonstrated a change in his ability to work, there is an inadequate basis for vacating the award on stipulation and the petition to vacate is denied. Petition to vacate award denied.
Meyers v. Minnesota Electric Supply Company, 4/11/07

Causation Substantial evidence supports the compensation judge’s determination that the employee failed to establish by preponderance of the evidence that her work injury was a substantial contributing factor in her wage loss and need for medical treatment. Affirmed.
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• COMPACT • August 2007

Summaries of Decisions
Whitemore v. Holm Brothers Construction, Inc., 4/11/07

Causation – Medical Treatment Under the circumstances of this case, the record as a whole, including the records of one of the employee’s treating physicians, adequately supported the compensation judge’s award of medical expenses related to cardiac and visual testing and treatment, despite the fact that the employee’s treating physicians had reached no firm conclusions as to the cause of the employee’s ongoing symptoms. Affirmed as modified.
Burgin v. Metro Transit, 4/13/07

Causation – Temporary Aggravation Substantial evidence, including medical records and expert medical opinion, supports the compensation judge’s finding that the employee’s work-related injury of Feb. 22, 2006, was a temporary aggravation that resolved by May 22, 2006. Affirmed.
Erickson v. City of St. Paul, 4/16/07

Rehabilitation – Eligibility Rehabilitation – Retraining The employee’s resignation from a job that paid a wage the same as or more than his pre-injury wage does not terminate his entitlement to rehabilitation services, where, as a result of his work-related injuries, he is permanently precluded from engaging in his usual and customary occupation held at the time of his injury. The employee’s proposed retraining plan is appropriate, when considering the Poole factors. Affirmed.
Dietz v. Vohs Enterprises, 4/20/07

Maximum Medical Improvement Temporary Total Disability Where it was supported by the 2004 formal MMI opinions of a neurosurgeon and a neuropsychologist and also by records of the employee’s extensive treatment by no fewer than 10 other doctors, none of whom had offered an opinion that the employee had not reached MMI, the compensation judge’s conclusion that the employee had reached MMI over 90 days prior to her 2005 termination from employment, and so was not entitled to recommencement of her temporary total disability benefits from the date of her termination, was not clearly erroneous and unsupported by substantial evidence.
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• COMPACT • August 2007

Summaries of Decisions Medical Treatment and Expense – Reasonable and Necessary Where it would have been reasonable for the compensation judge to conclude from the statements of medical experts recommending chronic pain treatment that there was little to be gained by further diagnostic expense, where there was no evidence of record that the employee’s neuropsychological IME upon recommendation of a neurosurgical IME had been intended to be a “neutral” examination or was otherwise prejudicial to the employee, and where at any rate the employee had had ample opportunity to correct any related misunderstanding prior to the original neuropsychological examination, the compensation judge’s denial of the employee’s request for a repeat neuropsychological evaluation was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Davis v. Metro Dental, 4/23/07

Vacation of Award – Substantial Change in Condition Where the records submitted failed to establish a significant change in diagnosis, a substantial deterioration in medical condition or a significant change in the employee’s ability to work, the employee’s petition to vacate an award on stipulation must be denied. Petition to vacate award denied.
Nagle v. Lifeworks Services, 4/27/07

Causation – Medical Treatment Evidence – Expert Medical Opinion Substantial evidence, in the form of a well-founded medical opinion, supports the compensation judge’s determination that the employee’s work injury was not a substantial contributing factor to her need for medical care. Affirmed.
Vick v. Northern Engraving Corporation, 4/30/07

Practice and Procedure – Matters at Issue Appeals – Scope of Review Where the employee did not address in his brief the specific finding from which he had appealed pertaining to one injury date, and where no other injury dates had been identified at hearing as being at issue, there was no basis for concluding that the judge erred in her decision by failing to consider other injury dates. Affirmed.

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Summaries of Decisions
Flaskamp v. Northwest Airlines, 5/1/07

Wages – Calculation Wages – Irregular Where no evidence was submitted or testimony provided establishing vacation pay, holiday pay, sick leave pay or specific personal leave time during the 26 weeks prior to the employee’s work injury, the compensation judge did not err in concluding the employee’s earnings were irregular, or in using an averaging formula to determine the employee’s weekly wage. Causation – Gillette Injury Substantial evidence, including the opinions of the employee’s treating physicians, supports the compensation judge’s determination that the employee sustained a Gillette injury to the cervical spine as a result of his work activities for the employer and that his work injury was a contributing cause of his need for surgery. Affirmed.
Irvin v. Red Wing Shoe Company, 5/1/07

Causation – Consequential Injury Where the employee sought workers’ compensation benefits claiming that her low back condition was caused or substantially contributed to by her earlier injury to her left foot and also developed as a result of her employment during a later period of time, and where the compensation judge found that her low back condition developed as a consequence of the earlier work injury, but made no finding concerning whether the employee later sustained a separate work-related injury, the compensation judge applied an incorrect causation test when arriving at his conclusions. The matter is remanded for reconsideration and a determination of whether the disputed low back condition arose out of and in the course and scope of employment. Medical Treatment and Expense Where the employee’s extensive conservative treatment as well as four surgeries had not relieved her persistent symptoms and foot pain, where one of the employee’s treating physicians recommended an implantation of a neurostimulator in an attempt to alleviate her symptoms, and where the record contains a properly founded medical opinion concerning the potential benefits of the stimulator, we conclude that substantial evidence in the record supports the judge’s approval of the proposed implantation of the spinal cord stimulator. Medical Treatment and Expense – Treatment Parameters Minnesota Rules Part 5221.6020, subp. 2 The permanent medical treatment parameters do not apply to treatment for an injury after an employer and insurer have denied liability for the injury and have denied that the employee’s current condition, for which the employee sought disputed medical treatment, is causally related to
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• COMPACT • August 2007

Summaries of Decisions her work injury. A denial of liability includes both a denial of primary liability and a denial of medical causation for subsequent symptoms or conditions. Rehabilitation – Eligibility Where the employee remains subject to physical work restrictions as a result of her work injury, and those restrictions prevent her from returning to her pre-injury job with the employer, and where the employee has not yet returned to suitable gainful employment, the compensation judge’s conclusion that the employee remains a qualified employee for receipt of rehabilitation assistance and his related award of rehabilitation assistance were supported by substantial evidence of record. Affirmed in part, and vacated and remanded in part.
Jeffrey v. Banana Republic, 5/1/07*

Attorney Fees – Irwin Fees Where the compensation judge properly applied the factors in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999) to the facts in this case, the compensation judge’s award of attorney fees to the employee’s attorney for his representation of the employee was not clearly erroneous and not an abuse of discretion, and therefore must be affirmed. Affirmed.
Murphy v. Northwest Sheetmetal Company, 5/2/07

Vacation of Award – Mistake A compromise settlement of a workers’ compensation claim is contractual in nature. Generally, a contract may be rescinded or voided upon a showing of mutual mistake as to a material fact. A person who signs a contract may not void it on the ground that he or she did not read it or thought its terms to be different. If the terms of a contract are free from ambiguity and there is no fraud or misrepresentation, a mistake of one party alone as to the terms or subject matter of a contract is not a basis for vacation. In this case, where the stipulation for settlement explicitly closed out the disputed prescription expenses, where the employee was represented by counsel and does not claim any infirmity or disability at the time he signed the stipulation, where there was no allegation or evidence of fraud, misrepresentation or intent to deceive, and where counsel for the employer and insurer denied any mutual mistake, the employee failed to establish a mutual mistake of fact sufficient to vacate the award on stipulation. Vacation of award on stipulation denied.

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

Summaries of Decisions
Burkhalter v. Trend Enterprises, Inc., 5/3/07

Causation Substantial evidence, including the employee’s testimony and the opinion of her treating physician, supported the compensation judge’s decision that the employee’s 2002 work injury was a substantial contributing cause of her continuing symptoms and need for treatment. Affirmed in part and vacated in part.
Hanegmon v. Chisholm Health Center, 5/3/07

Where the employee failed to comply with discovery requests on multiple occasions and also failed to comply with two orders compelling discovery; where the matter had remained stricken from the trial calendar for more than 20 months, at least in part because of delays attributable to the employee’s failure to comply with discovery requests and court orders; and where the unnecessary costs incurred by the employer and insurer far exceeded the value of the claims at issue, the compensation judge did not err in dismissing those claims with prejudice. Affirmed.
Zaback v. Cowboy Concrete, 5/15/07

Arising Out Of and In the Course Of – Special Errand Substantial evidence supports the compensation judge’s determination that the employee was injured while on a special errand for the employer and that, as a result, his injuries were covered under the Workers’ Compensation Act. Affirmed.
Hogan v. Super Valu/Cub Foods, 5/18/07

Causation – Medical Treatment Where the independent medical examiner’s earlier opinion was made assuming a false premise, where it was not unreasonable for the judge to rely on the examiner’s later, changed opinion, and where some of the medical bills at issue were not itemized sufficiently to determine whether they applied to the employee’s thoracic condition or to his lumbar condition, the compensation judge’s conclusion that the employee did not prove that his admitted lumbar work injuries were a substantial contributing factor in medical expenses related to his thoracic back was not clearly erroneous and unsupported by substantial evidence. Medical Treatment and Expense – Reasonable and Necessary Where the employee did not brief his appeal from the judge’s finding as to the reasonableness and necessity of medical expenses potentially related to the employee’s admitted lumbar work injury, and
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• COMPACT • August 2007

Summaries of Decisions where the judge’s finding was at any rate supported by expert medical opinion, the compensation judge’s conclusion that all medical treatment after a specified date — whether to the thoracic spine or to the lumbar spine — was not reasonable and necessary was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Williams v. Chisholm Health Center, 5/21/07

Causation – Temporary Aggravation Substantial evidence supports the compensation judge’s finding that the employee’s July 2005 work injury was a temporary aggravation of his pre-existing low back condition. Penalties Minnesota Statutes § 176.225 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 faith defense. Where there is evidence to support the employer and insurer’s denial of primary liability, a penalty under Minnesota Statutes § 176.225 is not appropriate, even though the employer and insurer did not ultimately prevail on their defense to a portion of the claim. Affirmed.
McCoy v. Hennepin Home Health Care, 5/23/07

Medical Treatment and Expense – Change of Physician Where the employee did not return to her treating surgeon following carpal tunnel surgery in 2003 and had no ongoing relationship with a medical provider, she was entitled to select a primary health care provider. The compensation judge’s denial of the employee’s request for a new treating physician must, accordingly, be reversed. Rehabilitation – Eligibility Substantial evidence supports the compensation judge’s finding that the employee does not have work restrictions and is not a qualified employee entitled to rehabilitation benefits. Affirmed in part and reversed in part.
Ludescher v. Univerity of Minnesota, 5/24/07

Attorney Fees – Roraff Remand for hearing and new findings was necessary where no evidentiary hearing was held and where the judge erred in evaluating whether there existed a genuine dispute over payment of medical
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Summaries of Decisions expenses, erred by assuming that the employer did not object to the hours claimed by the employee’s attorney, and erred by failing to rule on the effect of the employee’s failure to request certification of a dispute by the Department of Labor and Industry. Vacated and remanded.
Schmitt v. Innovative Lawn Systems, Inc., 5/24/07*

Jurisdiction – Subject Matter Insurance – Coverage Where, contrary to the insurer’s assertion, the claim before the compensation judge related not to a claim for negligence or breach of contract against the insurer’s agent but to direct claims by the employee for workers’ compensation benefits and by the employer for insurance coverage, the coverage issue before the compensation judge was clearly ancillary to the employee’s claim for benefits and therefore fell within the purview of the compensation judge’s jurisdiction, as had been implied though not explicitly addressed in several precedent cases. Insurance – Coverage Where the employer’s owner was unsophisticated in business matters and relied upon the employer’s insurance agent to provide the employer with all necessary business insurance, where that agent issued certificates of insurance coverage to that owner indicating that workers’ compensation insurance was in place, where it was reasonable for that owner to rely on those representations, and where that owner did rely on those representations to the employer’s detriment, the compensation judge’s conclusion that the insurer was estopped from denying coverage of the employer against the injured employee’s claims was not clearly erroneous and unsupported by substantial evidence. Attorney Fees Where the insurer refused to defend the employer against the employee’s claims on grounds that it was not liable for coverage, where the employer sought reimbursement of attorney fees payable to an attorney independently retained for its defense, and where that claim for reimbursement constituted a claim for damages for breach of contract against the insurer, the compensation judge’s denial of the employer’s claim for attorney fees was affirmed, pursuant to the Minnesota Court of Appeals’ holding in Sazama Excavating v. Wausau Insurance Companies, 521 N.W.2d 379 (Minn. App. 1994), pet. for rev. denied (Minn. Oct. 27, 1994). Affirmed.

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• COMPACT • August 2007

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

Summaries of Decisions
Cornell v. ABF Freight Systems, Inc., 5/31/07

Medical Treatment and Expense – Reasonable and Necessary Medical Treatment and Expense – Surgery Substantial evidence, including medical opinion, supports the compensation judge’s award of expenses incurred for treatment of the employee’s low back since June 8, 2005, and approval of the proposed surgery. Affirmed.
Malecha v. ABC Bus Company, 5/31/07

Causation – Medical Treatment Medical Treatment and Expese – Surgery Substantial evidence in the form of a well-founded medical opinion supports the compensation judge’s decision that the requested SI fusion surgery was causally related to the work injury and was reasonable and necessary medical treatment. Affirmed.
Farnsworth v. Northwest Airlines Corporation, 6/6/07

Temporary Partial Disability Substantial evidence supports the compensation judge’s conclusion that the employee is underemployed and his current earnings do not reflect his actual earning capacity, and the judge’s denial of temporary partial disability benefits. Affirmed.
Costello v. Clay County Sheriff’s Department, 6/7/07

Practice and Procedure – Remand Where the compensation judge failed to address the issue of the reasonableness and necessity of a surgical procedure and nonetheless ordered reimbursement of the associated expenses, the order for reimbursement is vacated and the case is remanded for determination of the issue. Vacated and remanded.

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• COMPACT • August 2007

Summaries of Decisions
Ellsworth v. Days Inn/Brutgers Equities, 6/8/07

Causation – Reflex Sympathetic Dystrophy Minnesota Rules Part 5223.0430, subp. 6 Where it was amply supported by expert medical opinion, the compensation judge’s conclusion that the employee’s diagnosis of reflex sympathetic dystrophy was valid and that the condition was causally related to the work injury was not clearly erroneous and unsupported by substantial evidence, notwithstanding marked inconsistency in the employee’s symptoms and weakness in her credibility due in large part to her somatization disorder and other psychiatric disorders, and notwithstanding the fact that the employee’s symptomology did not fully meet the requirements for an award of permanent partial disability benefits under Minnesota Rules Part 5223.0430, subpart 6. Permanent Partial Disability – Reflex Sympathetic Dystrophy Minnesota Rules Part 5223.0430, subp. 6 Where it was based on an established medical diagnosis and otherwise supported by expert medical opinion, the compensation judge’s award of permanent partial disability benefits related to the employee’s reflex sympathetic dystrophy was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee did not manifest a full five of the diagnostic “conditions” listed in Minnesota Rules Part 5223.0430, subp. 6, notwithstanding the fact that the qualifying conditions that the employee did manifest were not shown to appear concurrently in the same moment of time, and notwithstanding the fact that the employee’s diagnosis of RSD was not uncontested. Permanent Total Disability Where the employee was affirmatively found to be subject to work-related reflex sympathetic dystrophy, where there was substantial evidence that syndrome severely disabled the employee, and where the compensation judge’s findings and memorandum clearly indicated that the judge contemplated the “Schulte factors” as codified in Minnesota Statutes § 176.10 1, subd. 5, in making his decision, the compensation judge’s award of permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Hagy v. Morton Buildings, Inc., 6/8/07

Notice of Injury – Gillette Injury Minnesota Statutes § 176.141 Where the employer was informed of a work-related condition resulting in physical work restrictions, the employer had adequate notice of an injury, as required by Minnesota Statutes § 176.141, and the compensation judge’s finding that the employee failed to provide timely notice is not supported by substantial evidence in the record and is reversed. Reversed and remanded.
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Summaries of Decisions
Jotblad v. City of St. Paul, 6/11/07

Causation – Psychological Injury Substantial evidence of record supports the compensation judge’s finding that the employee’s work injury of June 7, 1996, was a substantial contributing factor in causing or significantly aggravating her psychological condition and diagnosis. Permanent Total Disability Substantial evidence supports the compensation judge’s finding that the employee is permanently and totally disabled as a result of her work-related psychological condition. Causation – Gillette Injury Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee sustained a Gillette injury to her right wrist in the nature of carpal tunnel syndrome. Affirmed.
Crocker v. HMS Host Corporation, 6/14/07

Notice of Injury Evidence – Credibility Where the judge was clearly aware of the conflicts between the employee’s testimony and documentary evidence referenced by the employer and insurer, and where the employee’s testimony, that he did not more actively pursue a workers’ compensation claim initially because he “didn’t want to make waves,” did not compel a conclusion that the employee was not credible in his testimony that he advised his supervisors of his injury on the date of its occurrence, the compensation judge’s conclusion that the employee gave statutorily proper notice of his work injury was not clearly erroneous and unsupported by substantial evidence. Causation Where the judge acknowledged that the employee had pre-existing degenerative disc disease in his lumbar spine but concluded, nevertheless, that the employee had experienced a work-related physical insult to his pre-existing condition that effectively removed him from continuing in his job with the employer, and where that conclusion was supported by the employee’s testimony and medical records, the compensation judge’s conclusion that the employee’s work was a substantial contributing factor in his disability was not clearly erroneous and unsupported by substantial evidence. Temporary Total Disability Job Search Where the judge reasonably concluded that, prior to his termination, the 60-year-old, 17-year employee was medically restricted by his work injury from returning to his job with the employer
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• COMPACT • August 2007

Summaries of Decisions and there was no evidence that lighter duty work was available, where the judge reasonably concluded that, subsequent to his termination, the employee was unable to receive necessary medical treatment because his health insurance had been canceled, and where the judge reasonably concluded that, while limited, the employee’s efforts to find work since his termination had been reasonable in light of the effects of his work injury, his limited employment history, and his lack of vocational/rehabilitation assistance, the compensation judge’s award of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence. Affirmed.
London v. United Parcel Service, 6/14/07

Causation – Temporary Aggravation Substantial evidence supports the compensation judge’s determination that the employee’s work injury of Aug. 1, 2006, was a temporary aggravation of his pre-existing neck and back condition, from which the employee had fully recovered by Aug. 21, 2006. Affirmed.
Maricle v. Farmstead Foods, 6/14/07*

Causation Evidence – Expert Medical Opinion Substantial evidence, including the employee’s testimony, medical records and expert medical opinion, supported the finding that the employee’s claimed disability and medical care were not causally related to the employee’s work activities for the employer, Farmstead Foods, or to her Sept. 29, 1989, work injury with the employer. Affirmed.
Fenstermaker v. Thermoform Plastic, Inc., 6/19/07

Vacation of Award – Substantial Change in Condition Where there is conflicting evidence on whether the employee has experienced a change in her ability to work and whether the employee has sustained additional permanent partial disability that is causally related to her 2001 work injury, we refer this matter to the Office of Administrative Hearings for an evidentiary hearing. Referred to OAH for evidentiary hearing.

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• COMPACT • August 2007

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

Summaries of Decisions
Lang v. Harvey Vogel Manufacturing Company, 6/19/07

Causation – Psychological Condition Evidence – Expert Medical Opinion Substantial evidence, including the well-founded opinion of the employee’s treating psychologist, support the compensation judge’s finding that the employee’s July 15, 2005, personal injury was a substantial contributing factor to the employee’s psychological condition. Temporary Total Disability Evidence – Expert Medical Opinion Substantial evidence, including the well-founded opinion of the independent medical examiner, a psychiatrist, supports the compensation judge’s determination that the employee’s psychological condition was not of such a degree as to totally disable the employee. Discontinuance – Matters at Issue Where counsel for the employee agreed at the start of the hearing on discontinuance that job search would be an issue, the compensation judge did not impermissibly expand the issues to include the defense of failure to diligently search for work. Job Search Rehabilitation – Cooperation Temporary Total Disability An injured employee proves total disability by showing, by a diligent job search to no avail, that work the employee is capable of doing in his injured condition is unavailable. Where the employee failed to cooperate with the vocational rehabilitation plan in effect, the compensation judge’s denial of temporary total disability benefits from and after June 21, 2006, must be affirmed. Job Offer – Refusal Minnesota Statutes § 176.101, subd. 1(i) On the facts of this case, the employer and insurer failed to meet their burden of proving the May 24, 2006, job offer was consistent with the plan of rehabilitation as required by Minnesota Statutes § 176.101, subd. 1(i), and the compensation judge’s refusal to discontinue temporary total disability benefits on the basis of refusal of a job offer is affirmed. Affirmed.
Rechtfertig v. Michael Spiering, 6/19/07*

Exclusion from Coverage – Casual Employment Minnesota Statutes § 176.041, subd. 1(k) Where the employee was hired by a homeowner to help close-in a garage apartment being built by the homeowners, which was intended for their own use, the work was temporary and of relatively
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• COMPACT • August 2007 *This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions short duration, the days of work were uncertain and dependent on whether there was work to do on a particular day and whether a family member would be present at the property, the employment was “casual” and the compensation judge erred in finding to the contrary. Reversed.
Stordahl v. Advanced Communications, Inc., 6/21/07

Causation – Intervening Cause Medical Treatment and Expense – Surgery Where the employee followed the recommendation of his treating doctor and where there was no determination by a compensation judge as of the date of surgery that surgery was unreasonable and unnecessary, it was error for the compensation judge to determine that the employee’s decision to proceed with surgery was so unreasonable, negligent, dangerous or abnormal as to constitute a superseding, intervening cause that relieves the employer and insurer from further liability. Reversed.
Gunderson v. A E Conrad Company, 6/22/07

Vacation of Award – Substantial Change in Condition Where there is conflicting evidence on the issues of whether the employee’s ability to work had changed and whether the employee’s current medical condition was causally related to his work injury, we refer the matter to the Office of Administrative Hearings for an evidentiary hearing and findings on those issues. Referred to OAH for evidentiary hearing.
Schutz v. Brookdale Chrysler Plymouth, 6/25/07

Vacation of Award – Substantial Change in Condition Where the evidence submitted showed a significant change in diagnosis, including a failed fusion and a four-level fusion repair, and a substantial change in the employee’s ability to work, from fulltime at the time of the settlement to a three-and-a-half-year period of inability to work since the first fusion surgery, the employee established good cause to vacate the July 1998 Award on Stipulation. Vacation of award on stipulation granted.
Graves v. Virginia Regional Medical Center, 6/26/07

Rehabilitation – Retraining Where the employee was permanently precluded from performing her pre-injury job, had an admitted loss of earning capacity causally related to her work injury, and had a significant continuing
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• COMPACT • August 2007

Summaries of Decisions wage-loss four years after her injury, and where the employer introduced no evidence indicating that the employee could reasonably expect to earn her pre-injury wage any time in the near future, the record supported the compensation judge’s decision to grant the employee’s request to modify her rehabilitation plan to include exploration of retraining, despite the lack of expert vocational opinion expressly supporting the request. Affirmed.

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Summaries of Decisions • Judicial •

Minnesota Supreme Court
April through June 2007
Case summaries published are those prepared by the WCCA

• Victor Victor v. Smithway Motor Xpress, and Liberty Mutual Insurance Company, and Grand Itasca Hospital, Minnesota Department of Labor and Industry/Vocational Rehabilitation unit, Grand Itasca Clinic, and CIGNA Healthcare/Primax Recoveries Incorporated, Intervenors, A06-2413, March 28, 2007

Decision of the Workers’ Compensation Court of Appeals filed Nov. 21, 2006, affirmed without opinion.
• Ilham M. Yusuf v. Hilton Hotel, and ACE/Gallagher Bassett Services, Inc., and Park Nicollet Health Services, and HealthPartners, Inc., Intervenors, A06-2474, March 29, 2007

Decision of the Workers’ Compensation Court of Appeals filed Dec. 4, 2006, affirmed without opinion.
• Bruce Gjerde v. The Pillsbury Co./General Mills, Inc., and Self-Insured, administered by Liberty Mutual Insurance Cos., and Fairview Health Services, Twin Cities Orthopedics, P.A., and HealthPartners, Inc., Intervenors, A07-370, May 30, 2007

Decision of the Workers’ Compensation Court of Appeals filed Jan. 18, 2007, affirmed without opinion.
• Tamara Joan Haeg v. SEKO Worldwide d/b/a Vast Logistics, and Minnesota Assigned Risk Plan, administered by Berkley Risk Administrators, and Regions Hospital, St. Paul Radiology, North Memorial Ambulance Service, and Twin City Anesthesia Associates, Intervenors, A07-258, May 30, 2007

Decision of the Workers’ Compensation Court of Appeals filed Jan. 4, 2007, affirmed without opinion.
• Linda Timmer v. Independent School District #482, and Self-Insured/Berkley Risk Administrators, A07-361 and A07-367, June 4, 2007

Decision of the Workers’ Compensation Court of Appeals filed Jan. 23, 2007, affirmed without opinion.
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• COMPACT • August 2007

Summaries of Decisions
• Shirley Bartz v. Meadow Lane Healthcare and Constitution State Services, A07-583, June 25, 2007

Decision of the Workers’ Compensation Court of Appeals filed Feb. 26, 2007, affirmed without opinion.

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