• Judicial •

Court of Appeals
July through September 2003
Case summaries published are those prepared by the WCCA

Workers’ Compensation

Christensen v. Weis Builders, 7/2/03 DOI: 1/27/99, 10/5/97 Contribution and Reimbursement Where it was supported by expert medical opinion and not contrary to factors for consideration identified in Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975), the compensation judge’s denial of contribution/reimbursement and apportionment was not clearly erroneous and unsupported by substantial evidence. Affirmed. Beckwith v. Sun Country Airlines, 7/3/03 DOI: 5/23/00 Attorney Fees Practice and Procedure Attorneys in contested attorney fee cases may not expect a compensation judge to consider any documentation or other evidence that is not submitted to the judge in paper form. Attorney Fees – Roraff Under the circumstances of this case, the compensation judge did not err in concluding that the employee’s attorney was adequately compensated for his work by the contingent fee. Affirmed.

Summaries of Decisions St. John v. Menards, 7/8/03 DOI: 12/31/00, 11/26/96, 9/11/95 Gillette Injury Substantial evidence supports the determination of the compensation judge that the employee sustained a Gillette injury to both hips. Temporary Total Disability Substantial evidence supports the determination of the compensation judge that the employee was temporarily totally disabled for a period of eight weeks between hip replacement surgeries where the employee was experiencing buckling of her hips which caused her to fall on at least one occasion. Calculation of Benefits The employee was entitled to payment of benefits pursuant to Kirchner where she was entitled to temporary partial disability compensation from her 1995 injury at the time she sustained her 2000 injury which resulted in total disability. Affirmed. Brown v. Omni Remanufacturing, 7/10/03 DOI: 12/5/98 Attorney Fees – Roraff Attorney Fees – Irwin Where the statutory maximum attorney fee has been paid for work on a post-Oct. 1, 1995, injury, all additional fees for legal services related to that same injury are excess fees and must be computed in light of the seven factors articulated in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999). Reversed and remanded. Westad v. Y R Sharp Concrete Construction, 7/10/03 DOI: 6/27/01 Gillette Injury Causation The compensation judge could reasonably conclude that the employee’s expert’s opinion was based upon an erroneous understanding of the employee’s job activities and therefore was not persuasive to support the employee’s claim that his left knee condition was work-related. The compensation judge reasonably found, based on substantial evidence, that the employee failed to prove that he sustained a Gillette left knee injury on June 27, 2001, as a result of his work activities. Affirmed.
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• COMPACT • November 2003

Summaries of Decisions Anderson, deceased by Anderson v. Boise Cascade Corporation, 7/11/03 DOI: 6/23/98; DOD: 12/10/99 Permanent Partial Disability Where the employer stipulated that the employee’s work-related asbestos exposure substantially contributed to the employee’s lung disease and permanent partial disability, but argued that no permanent partial disability benefits were payable since no claim was made or filed before the employee’s death, the employee’s heirs are entitled to payment of permanent partial disability benefits because permanent partial disability vests and is payable to the estate of a deceased employee where permanent partial disability is ascertainable before the date of death. Affirmed. Schmidt v. Nortel Networks, Inc., 7/11/03 DOI: 11/21/00 Attorney Fees The compensation judge did not abuse his discretion in determining that the service of the employee’s previous attorney were reasonable and the fee claimed was appropriate. Affirmed. Miller v. R225 ENT Limited, 7/14/03 DOI: 6/29/99 Attorney Fees – Subdivision 7 Fees Minnesota Statutes §176.081, subd. 7 Under the unique facts of the case, including the fact that the employer and insurer did not file an objection to counsel’s statement of attorney fees, the compensation judge could reasonably infer that a dispute existed over benefit payment so as to warrant an award pursuant to Minnesota Statutes §176.081, subd. 7. Affirmed. Banken v. Lac Qui Parle Coop Oil, et al, 7/16/03* DOI: 1/25/01, 7/25/97, 1/24/97, 11/19/96 Attorney Fees – Subd. 7 Fees Attorney Fees – .191 Fees Minnesota Statutes §176.081, subd. 7 Minnesota Statutes §176.191 When the employee’s attorney is paid fees pursuant to Minnesota Statutes §176.191, no award to the employee under Minnesota Statutes §176.081, subd. 7, may be made. Reverses.
* This case is on appeal to the Minnesota Supreme Court. November 2003 • COMPACT •

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Summaries of Decisions Warrington v. Pearl Baths, et al, 7/16/03 DOI: 1/30/02, 5/9/89 Vacation of Award – Mutual Mistake Based on undisputed affidavit and documentary evidence of a mutual mistake, that is, inadvertent insertion of a page from an earlier draft version that did not included certain negotiated language into the final, executed Stipulation for Settlement, the parties’ Joint Petition to Vacate the stipulation is granted. Petition to vacate award granted. Kloes v. Advance United Expressway, 7/17/03* DOI: 11/25/81 Calculation of Benefits – Adjustment of Benefits Minnesota Statutes §176.645 Minnesota Statutes §176.101, subd. 1(a) Where language in Minnesota Statutes §176.645 cited by the employee was most reasonably construed as intended to preclude limiting adjusted benefits to the date-of-injury SAWW, not to preclude application of an already limited compensation rate to the adjustment provisions of the statute, where the compensation judge had aptly concluded that the suggestion in the 1981 version of Minnesota Statutes §176.101, subd. 1(a), that compensation was to be calculated based on a daily wage rather than a weekly wage was “a distinction without a difference,” and in that an employee’s permanently applicable initial compensation rate has always been understood to be ultimately a weekly rate rather than a daily rate, the compensation judge did not err in concluding that the employee had not sustained an underpayment of benefits as a result of any miscalculation of his annual adjustments consequent to any misreading of Minnesota Statutes §176.101, subd. 1(a). Affirmed. Neururer v. Jamar Company, 7/17/03 DOI: 11/8/98 Practice and Procedure – Remand Where it had been undisputed after the earlier proceeding that the employee provided notice of injury to his employer on Nov. 2, 1999, over 30 days after but within 180 days after his May 26, 1999, recognition of his injury’s potential compensability; where the issue on remand was therefore whether the employee had proven a mistake or ignorance of fact or law sufficient to permit notice of injury to be given between 30 and 180 days following recognition of the injury; where, in proposed findings submitted to the judge on remand, both parties acknowledged that the notice period began to run on May 26, 1999, and neither party suggested a change in that date; and where the judge on remand changed that recognition date from May 26, 1999, to March 31, 1999, thereby effectively barring the employee’s claim and eliminating the court’s whole reason for remanding, the judge exceeded the scope of the remand and erred when he changed his previously uncontested finding establishing May 26, 1999, as the commencement date for the statutory notice period.

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• COMPACT • November 2003

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

Summaries of Decisions Notice of Injury – Gillette Injury Minnesota Statutes §176.141 Where there was no indication in his decision on remand that the judge rejected the employee’s testimony that the employee was unaware that an injured employee is normally required to furnish notice of injury within 30 days of recognizing a work injury, and where there was no evidence that any prejudice to the employer and insurer had resulted from the employee’s failure to give notice prior to expiration of the statutory 180-day notice period, the compensation judge’s conclusion that the employee had failed to reasonably satisfy the “mistake, inadvertence, ignorance of fact or law” provisions of the notice statute was clearly erroneous and unsupported by substantial evidence, and the matter was reversed and remanded again for further findings on the issue of causation and other non-notice issues of the employee’s entitlement to benefits. Reversed and remanded. Bye v. Federal Reserve Bank of Minneapolis, 7/21/03 DOI: 1/20/98 Costs and Disbursements Where the employee has not yet filed a statement of costs and disbursements and no order has been issued resolving any such claim, the employee’s appeal regarding costs and disbursements is not ripe for determination. Attorney Fees – Roraff Where the employee established primary liability for her trigger digits and right lateral epicondylitis conditions, but did not recover medical expenses to treat those conditions, the employee is not entitled to Roraff fees. Attorney Fees – Practice and Procedure Where neither the employee’s letter amending the claim petition or the employee’s pre-trial statement were offered into evidence or brought to the attention of the compensation judge at the hearing, the employee failed to establish a genuine dispute and failed to establish entitlement to Roraff attorney fees with respect to her medical mileage claim. Affirmed. Schelonka v. Waite Park Manufacturing, 7/21/03 DOI: 2/9/00 Causation – Substantial Contributing Cause Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s work injury was merely temporary. Affirmed.

November 2003 • COMPACT •

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Summaries of Decisions Kaisershot v. Earthworks Excavating, 7/23/03* DOI: 9/30/00 Arising Out Of and In the Course Of Where, at the time of his Saturday injury, the employee was evidently performing a task beneficial to the employer, agreed to by the employer, and on the employer’s premises, the compensation judge’s conclusion that the employee’s injury was one arising out of and in the course of employment was not clearly erroneous and unsupported by substantial evidence, notwithstanding the facts that the employee normally worked only Monday through Friday and on the day of his injury was being compensated for his work only by permission to use company machinery for personal reasons. Practice and Procedure – Admission of Evidence Evidence – Credibility Where the employer and insurer had disclosed the employer’s owner as a probable witness but had elected at hearing not to offer his testimony, where the employee had then, having already rested his case, requested and been allowed to call that witness as part of his case in chief, where the employer and insurer, after the employee’s direct examination of that witness, were given ample opportunity to cross-examine the witness, and where that witness’s testimony was in the end not material to the issues on appeal, notwithstanding the employer and insurer’s contention that the judge’s express crediting of the employee’s testimony over that of the witness distracted the judge from more critical legal analysis, the compensation judge did not err in permitting the employee to call the employer’s owner as a witness even after the employee had initially rested his case. Evidence – Expert Medical Opinion Where the employee’s doctor had treated the employee for severe joint problems related to his hemophilia for several years and was sufficiently familiar with the mechanics of the employee’s work injury to form an adequate basis for his opinions, where those opinions were based on adequate factual history from the employee, from a review of medical records, and from physical examinations, the compensation judge’s decision to rely on the opinions of the employee’s doctor was upheld. Practice and Procedure – Notice of Issues Where the compensation judge made a finding as to the reason for the employee’s termination, where that issue was neither before the judge for determination nor in any way relevant to issues before the judge, except to the extent that the termination was either voluntary or involuntary, and where the employee did not dispute the employer and insurer’s request that the finding be modified, the compensation judge’s finding as to the reason for the employee’s termination was modified as requested, to reflect only that the termination was involuntary. Affirmed as modified.

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• COMPACT • November 2003

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

Summaries of Decisions Korach v. Central Container Corporation, 7/23/03 DOI: 7/24/00 Arising Out Of and In the Course Of – Prohibited Act The compensation judge properly concluded that the employee was barred from receiving workers’ compensation benefits for his July 24, 2002, injury by the employer’s safety rules and specific instructions against operating a particular type of forklift without specific training and licensure as a driver on that type of forklift. Affirmed. Kuisle v. Sunrise Assisted Living a/k/a Karrington Assisted Living, 7/23/03* DOI: 11/8/99 Causation Substantial evidence, including expert medical opinion, supports the compensation judge’s denial of the employee’s claims based on his finding that the employee’s work-related injury resulted in a temporary aggravation of her pre-existing low back condition and resulted in no injury to her right foot or leg. Affirmed. Helget v. Pies, Inc., 7/30/03 DOI: 3/27/91, 10/1/90, 8/30/90, 6/8/89 Causation – Intervening Cause Causation – Medical Expenses Causation – Substantial Contributing Cause Where the facts in one case relied on by the appealing employer and insurer were distinguishable because the employee in that case was no longer being treated for the work injury, and where the other two cases relied on by the employer and insurer were merely affirmances of reasonable factual conclusions, the compensation judge’s implicit conclusion that the employee’s nonwork-related motor vehicle accident was not a superseding/ intervening cause of the employee’s need for neck surgery was not clearly erroneous and unsupported by substantial evidence. Evidence – Expert Medical Opinion Where the information relied on by the doctors whose opinions were relied on by the compensation judge was reasonably complete, where those doctors had had ample opportunity to discuss with the employee her history of symptoms and care, and where the judge had indicated in his memorandum that he had carefully considered all documentary evidence submitted, the medical opinions on which the judge relied were not insufficiently founded, and the compensation judge’s choice of medical opinions on which to rely was not clearly erroneous and unsupported by substantial evidence, notwithstanding the judge’s failure to address expressly the adverse opinion in his findings and order. Affirmed.
* This case is on appeal to the Minnesota Supreme Court. November 2003 • COMPACT •

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Summaries of Decisions Brew, Jr. v. College of St. Scholastica, 8/5/03 DOI: 4/18/94 Rehabilitation – Eligibility Substantial evidence supports the compensation judge’s determination that the employee is not entitled to a rehabilitation consultation because the employee has no residual disability or restrictions relating to his work related injury, and therefore has no underlying entitlement to rehabilitation benefits. Affirmed. Doesken v. Hinding Heating, et al, 8/5/03 DOI: 11/8/00, 5/19/98, 1/10/89 Apportionment – Equitable Apportionment Substantial evidence, including expert medical opinion, supports the compensation judge’s apportionment of liability between the employee’s injuries and her award for reimbursement of benefits to the employer and insurer at the time of the employee’s second and third injuries. Affirmed. Rice v. United Parcel Service, 8/5/03 DOI: 11/13/01, 5/6/85, 11/26/84 Causation – Gillette Injury Substantial evidence, including the opinion of the independent medical examiner, supports the compensation judge’s determination that the employee did not sustain a Gillette injury to his knees as a result of his work activities for the employer. Affirmed. Sherwin v. Allina Health System/Mercy Hospital, 8/5/03 DOI: 8/24/00 Rehabilitation – Retraining Substantial evidence, including multiple labor market surveys, supports the compensation judge’s findings that employment as a nurse practitioner would be reasonably attainable upon completion of retraining, and that the requested retraining would produce an economic status as close as possible to that which the employee would have enjoyed without the disability, and the judge’s approval of the employee’s request for 156 weeks of retraining as a nurse practitioner. Affirmed.

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• COMPACT • November 2003

Summaries of Decisions Langlois v. University of Minnesota, 8/6/03* DOI: 10/1/95 Attorney Fees – Irwin Applying the factors set forth in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), to the facts peculiar to these medical expense cases, the compensation judge’s award of $21,000 in attorneys is reversed, and an award of $7,500 is substituted. Reversed. Ryan v. University of Minnesota, 8/6/03* DOI: 10/10/94 Attorney Fees – Irwin Applying the factors set forth in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), to the facts peculiar to these medical expense cases, the compensation judge’s award of $21,000 in attorneys is reversed, and an award of $7,500 is substituted. Reversed. Shelton v. Independent School District #625, 8/6/03* DOI: 10/21/94 Rehabilitation – Cooperation Temporary Total Disability The compensation judge erred in denying temporary total disability benefits on job search grounds where the employee was cooperating with rehabilitation assistance during the period at issue. Penalties Minnesota Statutes §176.225, subd. 1 Minnesota Statutes §176.225, subd. 5 Under the circumstances of this case, the compensation judge did not err in awarding a 10 percent penalty under Minnesota Statutes §176.225, subd. 1, rather than a 25 percent penalty under Minnesota Statutes §176.225, subd. 5. Affirmed in part and reversed in part.

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

November 2003 • COMPACT •

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Summaries of Decisions Boeder v. Minnesota Department of Natural Resources, 8/7/03* DOI: 6/9/99 Wages – Seasonal Work Under the circumstances of this case, the compensation judge did not err in concluding that the employee’s weekly wage should be determined with reference only to the job he was working on the date of injury and not to another job for the employer that he had held just prior to the injury and expected to go back to. Rehabilitation – Cooperation Job Search Given his unappealed finding that the employee had cooperated with rehabilitation assistance, the compensation judge erred in denying temporary total disability benefits based on the employee’s failure to look for alternate employment. Affirmed in part and reversed in part. Bennett v. TTC Illinois, Inc., 8/11/03 DOI: 1/15/01 Attorney Fees – Roraff Where the employer and insurer paid medical expenses and later withdrew their admission of primary liability at a hearing for wage loss benefits, the employee’s attorney was not entitled to Roraff fees for succeeding in reestablishing primary liability at that hearing for the medical expenses already paid and the employee’s right to claim future medical expenses when there was no current medical claims at issue at that hearing. Affirmed. Ross v. NewMech Companies, Inc., 8/12/03 DOI: 10/31/00 Temporary or Permanent Aggravation Substantial evidence including medical opinion and records and the employee’s testimony supported the compensation judge’s finding of a permanent injury. Restrictions Substantial evidence including medical opinion and records and the employee’s testimony supported the compensation judge’s finding that the employee was subject to medical restrictions. Job Search – Reasonably Diligent Substantial evidence supports the compensation judge’s finding that the employee had conducted a reasonable diligent job search for the period during which the employee, consistent with his 25 years of prior practice, relied exclusively on his union hiring hall in seeking employment within his restrictions.
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• COMPACT • November 2003 * This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions Temporary Partial Disability The compensation judge did not clearly err in awarding temporary partial disability compensation where there was no evidence that jobs within the employee’s restrictions actually existed in Minnesota and where there was evidence indicating that driving for long distances to work was medically inappropriate for the employee as a result of the work injury. Affirmed. Leonard v. Yellow Freight System, Inc., 8/18/03 DOI: 1/10/01 Maximum Medical Improvement Substantial evidence, including the employee’s testimony, medical records, and expert medical opinion, supported the finding that the employee had reached maximum medical improvement from his Jan. 10, 2001, work injury as of Aug. 21, 2002. Affirmed. Eide v. Timberland Lumber Company, 8/19/03* DOI: 2/4/02 Notice of Discontinuance Practice and Procedure – Expedited Hearing Where the employer and insurer did not assert a claim that the employee’s injury was temporary in either of two NOIDs or the petition for discontinuance, the claim was not included in the issues enumerated by the compensation judge at the beginning of the hearing, and the employee did not clearly and unambiguously agree to further expansion of the issues, the compensation judge’s finding that the employee’s personal injury was a temporary aggravation of a pre-existing condition and his order permitting the employer and insurer to discontinue wage loss benefits is reversed. Reversed in part. LaFore v. WCI/Frigidaire Freezer Products, 8/20/03 DOI: 7/1/94 Attorney Fees Minnesota Statutes §176.081, subd. 1 The compensation judge did not abuse his discretion in finding that the employee’s former attorney was entitled to a fee of $13,000 under Minnesota Statutes §176.081, subd. 1. Affirmed.

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

November 2003 • COMPACT •

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Summaries of Decisions Johnson v. Waseca Independent School District #829, 8/21/03 DOI: 5/19/02, 6/1/00 Causation – Intervening Cause The compensation judge reasonably concluded that the employee’s activity in moving a couch that weighed more than her 15 pound lifting restriction, re-injuring her work-related arm fracture, was not an intervening and superseding cause of the employee’s need for further medical treatment and ongoing disability. Affirmed. Melin v. Lakehead Constructors, 8/25/03 DOI: 3/26/97 Temporary Total Disability – Medically Unable to Continue Temporary Benefits – Fully Recovered Minnesota Statutes §176.101, subds. 1(2)(1) and 1(e)(2) Where, on the date of the commencement of the 2000-2001 benefits period at issue, the employee had apparently been repeatedly back to work since his 1997 work injury, was currently on layoff from work, was not medically unable to perform any work, and was clearly over 90 days post his 1998 MMI, the compensation judge’s award of temporary total disability benefits was clearly erroneous under Minnesota Statutes §176.101, subds. 1(e)(1) and 1(e)(2), notwithstanding the fact that the employee may have been anticipating surgery related to his work injury. Temporary Partial Disability Earning Capacity Where the employee found light duty work for a month while he awaited surgery and for a month following his convalescence from that surgery, and where the employer did not during that time offer the employee alternative higher paying work, substantial evidence supported the compensation judge’s conclusion that the employee’s imminent surgery and his continuing recovery from that surgery sufficiently restricted the employee to overcome the employer and insurer’s argument that the employee could have been working at higher-paying backhoe tasks such as he was able to perform prior to his work injury. Temporary Total Disability Rehabilitation – Cooperation Minnesota Statutes §176.101, subds. 1(e)(1) and 1(e)(2) Where the compensation judge found expressly that the employee did not conduct a reasonably diligent job search and where the judge nevertheless awarded the benefits at issue based solely on an express but erroneous conclusion that the employee was under and cooperated with a statutory rehabilitation plan during the period at issue, substantial evidence did not support the compensation judge’s award for that portion of the period during which the employee was not subject to a rehabilitation plan, but substantial evidence did support the

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• COMPACT • November 2003

Summaries of Decisions award for the remainder of the period, and Minnesota Statutes §176.101, subds. 1(e)(1) and 1(e)(2), did not apply to preclude that award, given that the employee remained restricted by his work injury and had not yet reached a second MMI consequent to injury-related surgery. Affirmed in part and reversed in part. Michel v. University of Minnesota, 8/28/03 DOI: 3/27/02 Minnesota Statutes §176.011, subd. 18 Substantial evidence supports the determination of the compensation judge that the employee’s second job constituted regular employment. Temporary Total Disability – Temporary Partial Disability Substantial evidence supports the determination of the compensation judge that the employee was entitled to wage loss benefits since she had physical limitations affecting her earning capacity and she cooperated with rehabilitation services. Affirmed. Hoy v. Employment Plus, 9/3/03 DOI: 11/5/01 Temporary Total Disability Substantial evidence supports the decision of the compensation judge that the employee was not able to work without restrictions. Causation Substantial evidence supports the decision of the compensation judge that the employee’s right thumb condition was not causally related to his work injury. Affirmed. Drouillard v. St. Mary’s Medical Center/Duluth Clinic, 9/4/03* DOI: 6/14/00, 6/00/90 Rehabilitation – Retraining The compensation judge properly applied the areas of concern set forth in Poole v. Farmstead Foods, Inc., 42 W.C.D. 970 (W.C.C.A. 1989), in evaluating the proposed retraining to obtain a Bachelor of Nursing degree, and substantial evidence supports the compensation judge’s findings and award of retraining benefits as outlined in the plan. Affirmed.
* This case is on appeal to the Minnesota Supreme Court. November 2003 • COMPACT •

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Summaries of Decisions Hieserich v. Breitbach Construction, 9/4/03 DOI: 8/2/00, 9/6/90 Penalties Minnesota Statutes §176.225, subd. 1 The compensation judge’s award of a 15 percent penalty under Minnesota Statutes §176.225, subd. 1, on the basis of interposing a frivolous defense or unreasonably delaying payment, is not supported by the evidence, nor is CNA liable for a penalty for failure to pay benefits under a temporary order when no such order was issued. Apportionment – Equitable Where the employee’s current permanency rating results in part from a single surgical procedure to which both the 1990 and the 2000 injuries contributed, the compensation judge’s application of equitable apportionment was not clearly erroneous. Where the judge apportioned liability for the employee’s 20 percent permanency equally between the insurers, and CNA had previously paid 7 percent permanent partial disability benefits, we modify the award so that CNA pays an additional 3 percent, and State Farm Mutual is liable for the remaining half, or a 10 percent whole body disability. Affirmed in part, as modified, and reversed in part. Ronzino v. Action Mailing Service, Inc., 9/4/03 DOI: 12/13/00 Intervenors Settlements Under the circumstances of this case, the compensation judge did not err in concluding that the intervenor was not effectively excluded from settlement negotiations so as to warrant full reimbursement of its claim. Affirmed. Schultz v. Wholesale Produce Supply Company, Inc., 9/4/03 DOI: 4/27/00 Practice and Procedure Where this court lacked subject matter jurisdiction to review an Order on Agreement issued after an administrative conference prior to a decision on the merits, there is no record of the proceedings at the administrative conference, and the appellants did not allege prejudice or insufficient time to prepare to litigate, the compensation judge’s decision concluding the Order was not binding in a hearing on the employee’s claim petition was not an abuse of discretion or legally erroneous. Affirmed.

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• COMPACT • November 2003

Summaries of Decisions Hallaway v. Mora Plumbing and Heating, Inc., 9/5/03* DOI: 10/28/98 Vacation of Award – Substantial Change in Condition Where there is no change in diagnosis, no substantial change in the employee’s ability to work, no substantial change in permanent partial disability and no need for extensive medical care not contemplated at the time of the award, good cause has not been established to set aside the award on stipulation. Petition to vacate award denied. Kramarenko v. Miracle Cleaning Company, 9/5/03 DOI: 10/2/97 Evidence – Res Judicata Minnesota Statutes §176.011, subd. 16 Where the same ultimate issue presented to the compensation judge, whether the employees were in the course of their employment at the time of the accident, was addressed by the district court and court of appeals, and where the same parties, the employer and the employees, were involved in the district court action, collateral estoppel bars the employees from now proceeding with a claim based on the premise that their injuries are compensable under the exception found in Minnesota Statutes §176.011, subd. 16. Affirmed. Kubat v. St. Louis County, 9/5/03 DOI: 3/25/85 Practice and Procedure The compensation judge erred in issuing amended findings reflecting the parties’ purported stipulation as to permanent total disability, where the employer objected to the request for amended findings and where there was no evidence in the record definitively establishing that the parties had in fact agreed to permanent total disability. Reversed and remanded. Loyevskiy v. Miracle Cleaning Company, 9/5/03 DOI: 10/2/97 Evidence – Res Judicata Minnesota Statutes §176.011, subd. 16 Where the same ultimate issue presented to the compensation judge, whether the employees were in the course of their employment at the time of the accident, was addressed by the district court and court of appeals, and where the same parties, the employer and the employees, were involved in the district court
* This case is on appeal to the Minnesota Supreme Court. November 2003 • COMPACT •

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Summaries of Decisions action, collateral estoppel bars the employees from now proceeding with a claim based on the premise that their injuries are compensable under the exception found in Minnesota Statutes §176.011, subd. 16. Affirmed. Stotts v. Polaris Industries, 9/5/03 DOI: 10/15/90 Rehabilitation – Retraining Where there was evidence that the employee already possessed several innate qualities beneficial to one seeking entry into the sales and marketing area in which the employee sought retraining, where advancement in that area appeared dependant just as much and maybe more on on-the-job training than on formal schooling, where neither the employee nor her QRC had conducted a reasonable aggressive job search either within the 50-mile radius or outside of it, where there was evidence that a graduate of the proposed retraining program could not expect a wage much more than that earned by the employee at the time of her work injury over 12 years earlier, where there was expert vocational opinion that the employee had not diligently sought work either within or without a 50-mile radius of her home and could not expect to improve her employability by means of the proposed retraining program, and where the employee had expressed willingness to move outside of a 50-mile radius from her home in northwestern Minnesota in order to work, if not simply to look for work, the compensation judge’s denial of retraining was not clearly erroneous and unsupported by substantial evidence. Affirmed. Medalen v. WASP, Inc., 9/10/03 DOI: 11/21/01, 4/3/97 Causation – Substantial Contributing Cause Substantial evidence, including expert medical and scientific opinions, supports the compensation judge’s finding that the employee’s exposure to paint was not a substantial contributing factor in the development of her basal cell carcinoma. Affirmed. Reeder v. Metro Transit, 9/11/03 DOI: 6/6/01 Causation – Substantial Contributing Cause The compensation judge did not err in denying the employee’s claim for benefits related to a seizure condition allegedly resulting from work-related blunt head trauma where the only medical opinion evidence supportive of the employee’s claim indicated merely that the employee “possibly” or “probably” had a seizure condition that “might” or “could” be the result of a work incident, especially where there was no objective evidence that the employee in fact had a seizure condition and where at least two other physicians found no causation.

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• COMPACT • November 2003

Summaries of Decisions Earning Capacity The compensation judge properly denied, as premature, the employee’s claim for wage loss benefits for a period in which the employee was working but was allegedly not paid. Affirmed. Devitt v. Barrett Moving and Storage, 9/15/03 DOI: 11/6/98 Attorney Fees – Heaton When retraining benefits were the subject of the dispute for which attorney services were provided, Heaton fees are paid only if the contingency fees from benefits received by the employee are not adequate to reasonably compensate the employee’s attorney. Reversed. Drevecky by Drevecky v. Wolkerstorfer Company, 9/16/03 DOD: 2/11/01; DOI: 5/19/92, 5/9/91 Causation Substantial evidence, including expert medical testimony and the employee’s uncle’s testimony, supports the compensation judge’s finding that the employee’s suicide was causally related to his work injury. Attorney Fees Minnesota Statutes §176.081, subd. 7 Minnesota Statutes §176.111, subd. 22 Where a claim is asserted on behalf of the employee’s estate pursuant to Minnesota Statutes §176.111, subd. 22, and benefits are awarded, partial reimbursement of attorney fees under Minnesota Statutes §176.081, subd. 7 is appropriate. Affirmed. Parker v. University of Minnesota, 9/16/03* DOI: 8/2/00, 7/21/99, 6/11/98 Rehabilitation – Fees and Costs Substantial evidence supports the determination of the compensation judge that the services of the QRC were reasonable and necessary where the employer’s offer of employment was physically unsuitable. The QRC was not barred from payment for services where the services were provided after the initiation of litigation over entitlement to rehabilitation. Affirmed.
* This case is on appeal to the Minnesota Supreme Court. November 2003 • COMPACT •

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Summaries of Decisions Welch v. AB Weiss Systems, et al, 9/17/03 DOI: 5/11/93, 5/30/91 Appeals – Procedure Minnesota Statutes §176.421, subd. 1 An order denying joinder is not a final or appealable order under Minnesota Statutes §176.421, subd. 1. Dismissed. Richardson v. Hennepin County Medical Center, 9/18/03 DOI: 4/17/95 Causation – Substantial Contributing Cause Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s 1995 work injury was not a substantial contributing cause of the employee’s condition, need for surgery, or disability after February 1997. Affirmed. Midtling v. Schwan’s Sales Enterprises, 9/22/03 DOI: 9/23/98 Evidence Minnesota Statutes §176.238, subd. 6 The compensation judge did not err or abuse her discretion by leaving the record open beyond 30 days and admitting into evidence the post-hearing report of the employee’s medical expert. Evidence – Expert Medical Opinion The employee’s medical witness had sufficient knowledge about the matter at issue to render an expert opinion. Any failure to comment upon or explain the mechanism of the injury may go to the persuasiveness or weight of the opinion, but does not render the opinion without foundation. A compensation judge is not required to refer to or comment upon every piece of evidence introduced at the hearing. The judge clearly stated which medical opinion she found persuasive, and there was no lack of foundation for that opinion. Affirmed. Moreno v. Northwest Surfacing Company, 9/29/03 DOI: 9/11/98 Evidence – Credibility Where there was no evidence in the employee’s initial medical records, in his contemporaneous employment records, or in the testimony of his coworker to corroborate the employee’s claim of a specific work injury on
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Summaries of Decisions or about the date alleged, and where there was definite evidence in the employee’s time cards that he was not working at the location of the alleged injury on or about the date originally alleged, the compensation judge’s conclusion that the employee’s claim of a specific work injury was not credible was not clearly erroneous and unsupported by substantial evidence. Notice of Injury – Trivial Injury Rule The purpose of the trivial injury rule is to toll the statutory period during which notice of injury must be issued. Where the court had affirmed the compensation judge’s conclusion that the employee’s claim of a specific work injury was not credible, any issue as to statutory notice of such an injury was moot, rendering also moot any issue as to the propriety of the judge’s application of the trivial injury rule. Practice and Procedure Reversal or remand for a new trial was unnecessary where none of various alleged procedural irregularities in the hearing before the compensation judge was so prejudicial, either individually or collectively, as to have altered the outcome of the hearing. Affirmed. Polz v. Jackson County Sheriff’s Department, 9/29/03 DOI: 6/22/00 Arising Out Of and In the Course Of Causation – Substantial Contributing Cause Where the employee experienced a right hip dislocation while at work as he started to lean against a retaining wall, and where the employee had a pre-existing history of medical treatment related to his right hip, substantial evidence of record supported the compensation judge’s determination that the employee’s injury did not arise out of employment with the employer and that there was no causal connection between the employee’s injury and his employment. Affirmed. Stange v. State of Minnesota, Department of Transportation, 9/29/03 DOI: 11/24/00, 12/00/97, 11/00/89 Causation Substantial evidence supports the compensation judge’s finding that the employee sustained a temporary aggravation of his pre-existing low back condition on Oct. 24, 2000, and that the aggravation had resolved within two days of the incident. Affirmed.

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Summaries of Decisions Lehman v. Dakota Growers Pasta Company, 9/30/03 DOI: 9/18/00 Earning Capacity Rehabilitation – Cooperation Temporary Partial Disability Where the employee conceded that her job search was minimal, and where a diligent job search was a critical component of the employee’s rehabilitation plan and JPPA, the compensation judge’s conclusion that the employee failed to prove that her wage loss during the period at issue was substantially related to her work injuries was not clearly erroneous and unsupported by substantial evidence, notwithstanding the rebuttable presumption that actual post-injury earnings normally constitute a fair representation of an employee’s postinjury earning capacity. Where the judge determined that the employee was generally cooperative with rehabilitation efforts during the period at issue, and where job logs and the testimony of the employee supported the judge’s decision, the compensation judge’s conclusion that the employee had demonstrated a loss of earning capacity attributable to her work injury and so was entitled to benefits based on her actual earnings was not clearly erroneous and unsupported by substantial evidence. Permanent Partial Disability Where it was sufficiently supported by the employee’s medical records as well as her testimony, the compensation judge’s award of permanent partial disability benefits for the employee’s bilateral carpal tunnel syndrome was not clearly erroneous and unsupported by substantial evidence. Affirmed.

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• Judicial •

Summaries of Decisions

Minnesota Supreme Court
July through September 2003
Case summaries published are those prepared by the WCCA

• Fernando Correa v. Waymouth Farms, Inc., and St. Paul Mercury Insurance Company, C9-02-1172, July 3, 2003 Temporary Total Disability – Job Search The employee came to the United States in 1987 with a passport and visa but never became a citizen nor obtained legal authorization to work in the United States. In November 1999, he was hired by Waymouth Farms and on March 3, 2000, he injured his back at work. The employer accepted the injury as compensable, but did not pay any benefits because Correa continued to work. On July 20, 2000, he underwent surgery. Waymouth Farms paid Correa wage loss and medical benefits, and provided rehabilitation services. After the surgery, he returned to work on a restricted basis. In February 2001, the Immigration and Naturalization Service notified the employer that the alien registration number Correa provided did not exist and that the Social Security number provided by Correa did not match his name. The employer suspended Correa and gave him 48 hours to provide valid documentation. He notified Waymouth Farms that he could not provide the documentation. Waymouth Farms then terminated his employment effective Feb. 7, 2001. After his termination, Correa commenced a job search without the assistance of a QRC. On Feb. 21, 2001, Waymouth Farms filed a notice of intention to discontinue Correa’s temporary total disability benefits on the ground that he was medically released to work but could not, as an unauthorized alien, legally work in the United States. He objected and requested an administrative conference. Waymouth Farms’ request to discontinue benefits was denied. In May 2001, Waymouth Farms filed a petition to discontinue compensation. The compensation judge found that Correa’s job search was both reasonable and diligent under the circumstances and denied the petition. On appeal to the WCCA, the sole issue was whether Correa was entitled to temporary total disability benefits for the period from Feb. 7 to March 6, 2001. Waymouth Farms argued that Correa was not entitled to receive benefits for that period because he was not legally able to work in the United States and, as a matter of law, was unable to perform a reasonable and diligent job search as required by Minnesota Statutes §176.101, subd. 1(g) (2002). The WCCA concluded that his unauthorized status did not, as a matter of law, prevent him from conducting a reasonable and diligent job search and affirmed the compensation judge. Waymouth Farms appealed, arguing to the Supreme Court that the Immigration Reform Control Act (IRCA) prevents unauthorized aliens from conducting a diligent job search because they cannot legally be employed. The IRCA makes it illegal to knowingly employ unauthorized aliens and requires employers to check for
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Summaries of Decisions documentation of citizenship or immigration status for all employees. Employers who knowingly employ unauthorized aliens are subject to civil and criminal sanctions. The IRCA also makes it unlawful for any person to tender fraudulent documentation. The court noted that the IRCA does not prohibit unauthorized aliens from receiving state workers’ compensation benefits generally, or temporary total disability benefits conditioned on a diligent job search specifically. Additionally, all employees, including unauthorized aliens, are protected by the provisions of the National Labor Relations Act (NLRA) and Fair Labor Standards Act (FLSA). The court examined the definition of employee in M.S. §176.011, subd. 9. It provides “any person who performs services for another for hire including *** an alien ...” and noted that the clear language of the act does not distinguish between authorized and unauthorized aliens. The court stated: “Had the Legislature intended to exclude unauthorized aliens from coverage under the act, it could easily have done so ...” Additionally, M.S. §176.101, subd. 1(g) does not specifically exclude unauthorized aliens from receiving temporary total disability benefits conditioned on a diligent job search. Therefore, the court concluded that plain meaning of the act permits unauthorized aliens to receive temporary total disability benefits conditioned on a diligent job search. • Sandra M. Vigoren v. Joseph Catering and Fremont and Compensation Insurance Group, A03-377, August 7, 2003 Decision of the Workers’ Compensation Court of Appeals filed March 27, 2003, affirmed without opinion. • Mike Smith v. Quebecor Printing, Inc., and Kemper National Insurance Companies, and Minneapolis Orthopedic and Arthritis Institute, Blue Cross/Blue Shield, Midas Recovery (Standard Insurance), Minnesota Department of Labor and Industry/Vocational Rehabilitation, Minnesota Department of Human Services, and Abbott-Northwestern Hospital, Intervenors, A03-291, August 15, 2003 Decision of the Workers’ Compensation Court of Appeals filed March 19, 2003, affirmed without opinion.

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