• Judicial •

Court of Appeals
July through September 2004
Case summaries published are those prepared by the WCCA

Workers’ Compensation

Borgan v. Bob Hegland, Inc., 7/8/04 DOI: 6/10/00 Temporary Partial Disability Benefits Substantial evidence supports the compensation judge’s findings that the employee did not substantiate his claims from self-employment with reliable corroborating evidence in order to support a claim for temporary partial disability benefits. Penalties Attorney Fees The compensation judge erred by denying the employee’s claim for a penalty for late payment of attorney fees where the employer and insurer did not pay fees as ordered by a findings and order and did not appeal the findings and order. Affirmed in part and reversed in part. Kowalik v. Martinson Construction, et al, 7/8/04* DOI: 3/25/02 Causation – Intoxication Minnesota Statutes §176.021, subd. 1 An employer is not liable for compensation benefits if (1) the employee was intoxicated at the time of the injury, and (2) the intoxication was the proximate cause of the injury. Substantial evidence supports the compensation judge’s finding the employee was intoxicated at the time of his fall. However, the employee’s high blood alcohol level, alone, without any direct or circumstantial evidence the intoxication caused the employee’s fall, is insufficient to meet the respondents’ burden of proving the employee’s intoxication was a proximate cause of the injury, and the compensation judge’s decision is reversed.
* This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions Evidence – Expert Opinion The employer’s roofing safety standards expert lacked the training and experience to qualify him as an expert on the effects of alcohol on the human body, and the compensation judge improperly admitted his testimony on the probable effects of the employee’s intoxication. Reversed and remanded. Richards v. Umi-Spantek Division, 7/8/04 DOI: 3/10/84 Causation – Medical Expenses Causation – Substantial Contributing Cause Medical Treatment and Expense – Surgery Where the expert medical opinion relied on by the compensation judge was not based on premises unsupported by substantial evidence, and where the judge’s decision was not otherwise unreasonable, the compensation judge’s denial of payment for the surgery at issue on grounds that the need for it was not causally related to the work-related injury was not clearly erroneous and unsupported by substantial evidence. Affirmed. Dell v. Parker Hannifin, 7/12/04 DOI: 6/15/92, 5/1/92, 3/2/87 Job Offer Minnesota Statutes §176.101, subd. 1(i) Minnesota Statutes §176.101, subd. 1(i) does not apply when the employee was not receiving temporary total disability compensation when the job offer was made. Substantial evidence supports the award of temporary total disability compensation when the employee engaged in a diligent job search. Affirmed. Russ v. SAS Institute, Inc., 7/13/04 DOI: 2/4/02 Causation – Substantial Contributing Cause Substantial evidence, including medical opinion and the employee’s testimony, supported the compensation judge’s decision that the employee injured his knee at work as claimed.

D-2

• COMPACT • November 2004

Summaries of Decisions Notice of Injury – Trivial Injury Rule Where the employee did not seek treatment or miss work for more than three months after the injury and testified that he had assumed that the intermittent knee pain would resolve, the compensation judge did not err in applying the trivial injury rule in considering the issue of notice of injury. Medical Treatment and Expense – Reasonable and Necessary Substantial evidence, including expert opinion, supported the compensation judge’s decision that the disputed treatment expenses were reasonable, necessary and causally related to the employee’s work injury. Affirmed Johnson v. Regions Hospital, 7/14/04 DOI: 5/1/00 Medical Treatment and Expense – Surgery Medical Treatment and Expense – Reasonable and Necessary Given the employee’s history of psychological treatment, evidence indicating past concern by physicians that the employee’s depression had impeded her recovery, and the recommendation of the employer’s independent examiner, substantial evidence supported the compensation judge’s denial of the employee’s request for approval of a three-level fusion procedure pending psychological assessment to evaluate whether the employee would be likely to benefit from the procedure. Affirmed. Wensman v. Order of St. Benedict/St. John’s University, 7/14/04* DOI: 2/26/01 Permanent Partial Disability Permanent Total Disability Minnesota Statutes §176.101, subd. 5(2) In determining whether an employee has met the statutory threshold of permanent partial disability necessary to qualify for permanent total disability, all ratable permanent impairment included in the total rating need not be related to the work injury and it need not be a factor affecting the employee’s wage loss or ability to work. Permanent Total Disability Job Search A diligent job search is not a necessary prerequisite to a finding of permanent total disability, and a search is not required where medical and vocational evidence in the record sufficiently demonstrates that a job search would be futile, although an employee’s job search may go to the evidentiary weight of her claim that she is totally disabled. Further, the employee’s restrictions on her work
D-3
• COMPACT • November 2004 * This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions search, primarily to accommodate her volunteer work schedule, were not unreasonable, as an employee is not required to dramatically alter a “reasonable and responsible pattern of living” to remain eligible for workers’ compensation benefits. Permanent Total Disability Minnesota Statutes §176.101, subd. 4 The language of Minnesota Statutes §176.101, subd. 4, setting the permanent total disability rate as a minimum weekly compensation equal to 65 percent of the statewide average weekly wage, is unambiguous; and there is no provision in the statute for a different minimum rate to be applied to a part-time worker or to a low-wage earner. Affirmed. Young v. Fairview-University Medical Center, 7/28/04 DOI: 6/29/00 Maximum Medical Improvement Evidence – Expert Medical Opinion The opinion of Dr. Hebert, a resident, and Dr. Freehill, a shoulder specialist, at the University of Minnesota clinics does not lack foundation, and the compensation judge did not err in concluding, based on their report, that the employee would likely benefit from a chronic pain assessment and treatment program and has not reached maximum medical improvement (MMI) for her admitted left shoulder injury. Permanent Total Disability On the facts of this case, the compensation judge could conclude it would be premature to find the employee permanently and totally disabled until the employee’s chronic pain syndrome is addressed and specialized job placement efforts are undertaken. Permanent Partial Disability Minnesota Rules Part 5223.0450, subp. 4A Minnesota Rules Part 5223.0450, subp. 4B Where the employee was given a permanency rating based on Minnesota Rules Part 5223.0450, subp. 4.A and 4.B., based on limitation of passive range of motion in the shoulder, all of the doctors indicated the employee’s range of motion is significantly limited due to pain, and further treatment is contemplated to address the employee’s chronic pain syndrome, it was not unreasonable to conclude that the employee’s permanent partial disability is not presently ascertainable and an award of permanency benefits is premature. Affirmed.

D-4

• COMPACT • November 2004

Summaries of Decisions Buczak v. Lee’s Construction, 7/29/04 DOI: 5/1/01 Maximum Medical Improvement Where, at the time that he asserted his MMI opinion, the employee’s former treating doctor had not examined the employee for nearly six months, where he was apparently not aware of the employee’s current treating doctor’s most recent radiographic findings regarding the work-injured level of the employee’s spine or of that doctor’s diagnosis and recommendation of a discogram pursuant thereto, and where the former treating doctor, while venturing an opinion as to the date of the employee’s MMI, had expressly deferred to the employee’s current treating doctor with regard to that issue, the compensation judge’s finding as to the date of the employee’s MMI in reliance on the former treating doctor’s opinion as to that issue was clearly erroneous and unsupported by substantial evidence. Reversed. Carmine v. Rotelcom/Global Crossing, 7/29/04 DOI: 2/15/00, 3/8/93 Practice and Procedure – Matters at Issue Where the second insurer, on the risk at the time of the alleged 2000 injury, had denied primary liability on the date of the hearing, where the parties were not prepared to – and did not – litigate the primary liability of that second insurer, where the first insurer had admitted liability for a 1993 injury, and where the judge had properly refrained from making a determination as to the second insurer’s primary liability, it was neither improper nor unreasonable for the compensation judge to conclude that the current medical expenses that were solely at issue at the hearing were not causally related to the employee’s 1993 injury. Affirmed. Hanson v. Independent School District #280 DOI: 7/11/91 Causation Substantial evidence, including the expert opinion of Dr. Dowdle, supports the compensation judge’s determination that the employee’s long-term use of Prednisone to treat work-related asthma did not cause or aggravate the employee’s degenerative disc disease. Permanent Partial Disability Substantial evidence, including the expert opinion of Dr. Dowdle, supports the compensation judge’s denial of permanent partial disability benefits for the employee’s Prednisone-related osteopenia and/or osteoporosis, pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D.

D-5

• COMPACT • November 2004

Summaries of Decisions 471 (Minn. 1990), on the basis the employee’s degenerative disc disease, and not the osteopenia/ osteoporosis, was the cause of any functional impairment. Affirmed Wiggin v. Marigold Foods, 7/29/04 DOI: 11/12/02 Temporary Benefits – Fully Recovered A medical opinion with adequate foundation is substantial evidence which supports the compensation judge’s determination that the employee had no restrictions from her work injury and the compensation judge’s decision to discontinue weekly compensation benefits and to terminate rehabilitation services. Affirmed. Wenner v. Donlin Company, 8/2/04 DOI: 5/30/91, 1/7/87 Permanent Total Disability Job Search Rehabilitation Substantial evidence supports the compensation judge’s finding that the employee performed an adequate job search and cooperated with rehabilitation under the circumstances of this case. Permanent Total Disability Substantial Contributing Cause Where the employee had permanent restrictions related to a 1987 cervical injury, substantial evidence supported the compensation judge’s finding that the employee’s 1987 cervical injury was a substantial contributing factor to the employee’s permanent total disability even though the employee had a 1991 low back injury which resulted in more significant restrictions. Settlements – Interpretation Substantial evidence supports the compensation judge’s interpretation of the 1993 stipulation for settlement concerning the level of benefits closed out by the stipulation. Affirmed.

D-6

• COMPACT • November 2004

Summaries of Decisions Steblay v. Erie Mining, et al, 8/4/04 DOI: 6/23/83, 12/1/71 Causation Substantial evidence, including the employee’s testimony, medical records and expert medical opinion, supported the finding that the employee sustained injury to his right knee and back as a result of a his June 23, 1983 work injury. Causation Substantial evidence supported the finding that the employee’s wage loss during the periods in question were causally attributable to his 1983 work injury Affirmed. Hockman v. Metal-Matic, et al, 8/5/04 DOI: 8/9/96, 5/31/92, 5/24/73, 9/29/71 Apportionment – Permanent Partial Disability Where the employee’s single, post-1984 permanency rating arose from the cumulative effect of multiple injuries and surgeries to the low back between 1971 and 1996, and the rating applied only to new, not previously rated disc levels in the lumbar spine, the compensation judge did not err in applying principles of equitable apportionment to determine liability for payment between multiple employers and insurers. Apportionment – Compensation Rate Apportionment – Special Compensation Fund The liability of an employer and insurer for permanent partial disability must be computed based upon the compensation rate in effect at the time of injury. Where the Special Compensation Fund accepted second fund liability for the 1973 injury, no apportionment may be made against the employer and insurer for that injury pursuant to Koski v. Erie Mining Co., 223 N.W.2d 470, 27 W.C.D. 121 (Minn. 1973). The case is, accordingly, remanded for redetermination of the amount of contribution owed by the appellant and the Special Compensation Fund. Causation Substantial evidence, including the expert opinions of Dr. Cederberg and Dr. Gedan, supports the compensation judge’s determination that the employee did not sustain a work-related injury Oct. 8, 2001.

D-7

• COMPACT • November 2004

Summaries of Decisions Causation – Temporary Aggravation Substantial evidence supports the compensation judge’s finding the employee’s May 31, 1992 personal injury was a temporary aggravation of a pre-existing condition that did not contribute to the employee’s disability or need for medical treatment after Aug. 9, 1996. Affirmed in part, reversed in part and remanded. Trettel v. Cambridge Regional Center, 8/5/04 DOI: 4/4/80 Causation Substantial evidence supports the compensation judge’s conclusion that the employee failed to establish her work injury was a substantial contributing factor in her need for treatment. Affirmed. Ahles v. John A. Dalsin & Sons, et al, 8/9/04* DOI: 6/18/01 Causation The compensation judge reasonably relied upon the opinions of Dr. McPherson and Dworak in determining no causal relationship between the employee’s ulnar neuropathy and his work-related activities. Causation Evidence Where the compensation judge misinterpreted the opinion of one of the employee’s treating doctors regarding a causal relationship between the employee’s carpal tunnel syndrome, or median neuropathy, and his work activities, the case is remanded to the compensation judge for reconsideration. Affirmed in part and remanded in part. McCollor v. Rantala Trucking, 8/9/04 DOI: 1/31/01 Causation – Substantial Contributing Cause Substantial evidence, including medical opinion, supports the compensation judge’s determination that the employee’s work injury was not a substantial contributing cause of the employee’s right carpal tunnel syndrome.

D-8

• COMPACT • November 2004

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

Summaries of Decisions Permanent Partial Disability Substantial evidence, including medical opinion, supports the compensation judge’s determination of the level of permanent partial disability sustained as a result of the employee’s work injury. Temporary Partial Disability – Earning Capacity Substantial evidence supports the compensation judge’s finding that the employee’s loss of earnings following his work injury accurately represented his retained earning capacity and served as a basis for calculation of temporary partial disability benefits. Rehabilitation – Retraining Substantial evidence, including the employee’s rehabilitation records and the testimony of the employee’s QRC, the employer and insurer’s vocational expert, and the employee, supports the compensation judge’s approval of the proposed two-year retraining program in the field of computer networking services technology. Wages – Evidence The compensation judge did not err by excluding approximated sick leave pay from the calculation of the employee’s weekly wage where the employee’s wage was not irregular and difficult to determine, and where no evidence was presented to show the amount of payment for unused sick leave the employee claimed was paid to him prior to his injury, or whether any such payment was made, and the compensation judge did not err by excluding a one-time payment, received during the 26 weeks prior to the injury, where the evidence did not clearly show the basis or nature of the payment. Affirmed. Williams v. Special School District #1, 8/9/04 DOI: 11/19/01, 4/1/83, 12/17/82 Causation Substantial evidence, including the expert opinion of Dr. Wicklund and a lengthy pre-existing history of injuries and treatment for lumbar degenerative disc disease, supports the compensation judge’s determination that an incident at work Nov. 19, 2001, was not a substantial contributing cause of the employee’s current disability or need for medical or rehabilitation services. Affirmed.

D-9

• COMPACT • November 2004

Summaries of Decisions Berg v. Trailer Transfer, Inc., 8/11/04 DOI: 1/31/02 Causation – Substantial Contributing Cause Substantial evidence, including expert medical opinion, supported the compensation judge’s conclusion that the employee was hypoglycemic at the time of his motor vehicle accident and that the hypoglycemia was a substantial contributing cause of the accident. Exclusions from Coverage – Job Application Where the employee intentionally failed to inform examining physicians of his diabetes condition in connection with his application with the U.S. Department of Transportation for a commercial driver’s license, and then indicated on his application for employment with the employer that he had a valid commercial license, the compensation judge was justified in concluding that the employee had made a material misrepresentation concerning his physical condition in his application for employment, within the meaning of Jewison v. Frerichs Constr., 434 N.W.2d 259, 41 W.C.D. 541 (Minn. 1989). Affirmed. Varda v. Northwest Airlines Corporation, 8/11/04* DOI: 8/1/00 Rehabilitation – Retraining While substantial evidence supported the judge’s decision that the employee has restrictions and is in need of retraining, the record did not support the conclusion that a four-year nursing degree from the College of St. Scholastica was reasonably required to restore the employee’s lost earning capacity. The judge’s approval of the four-year program is therefore reversed and approval of a two-year program at Hibbing Community College is substituted. Affirmed in part and reversed in part. Webb v. Hercules, Inc./Burns Philip Inc., 8/16/04* DOI: 1/30/02 Causation Substantial evidence, including adequately founded expert medical opinions, supports the compensation judge’s determination that the employee’s work-related injury of Jan. 30, 2002, substantially contributed to the employee’s cervical condition and headaches, and related temporary total disability and need for rehabilitation assistance. Practice and Procedure Where the compensation judge advised at the evidentiary hearing that the issue of the reasonableness and necessity of the employee’s surgery would not be addressed at the hearing, the compensation
• COMPACT • November 2004 * This case is on appeal to the Minnesota Supreme Court.

D-10

Summaries of Decisions judge erred by ordering payment of medical and surgical expenses to the intervenor, and the related order must be vacated. Affirmed in part and vacated in part. Indihar v. State of Minnesota, Department of Commerce, 8/25/04 DOI: 11/15/96, 11/16/93 Permanent Partial Disability Substantial evidence, including expert medical opinion, supports the compensation judge’s findings that the employee has sustained no permanent partial disability relative to his psychological condition that developed as a result of his physical work injuries. Permanent Partial Disability Substantial evidence, including expert medical opinion, supports the compensation judge’s findings that the employee has not sustained a 10.2 percent permanent partial disability as a result of his bilateral thumb injuries. Permanent Total Disability Substantial evidence of record, including expert vocational opinion, supports the compensation judge’s finding that the employee is not permanently totally disabled as a substantial result of his work-related injuries. Permanent Partial Disability Permanent Total Disability Minnesota Statutes §176.101, subd. 5(2) In determining whether an employee has met the statutory threshold of permanent partial disability necessary to qualify for permanent total disability, all ratable permanent impairment included in the total rating need not be related to the work injury and it need not be a factor affecting the employee’s wage loss or ability to work. Affirmed in part, vacated in part and reversed in part. Toman v. Hallett Wire Products Company, et al, 8/26/04 DOI: 2/13/87, 8/1/81 Vacation of Award – Change in Condition Where the employee had recurrences of his disk herniations requiring two additional surgeries, developed worsened radicular symptoms and foot drop, his permanent partial disability rating increased from 16 or 20 percent of the whole body to 38 percent, and his work restrictions became

D-11

• COMPACT • November 2004

Summaries of Decisions significantly more stringent affecting his ability to perform sedentary work he was still able to perform at the time of the stipulations, good cause was present for vacation of prior awards on stipulation. Petition to vacate awards on stipulation granted. Lydon v. D.A.F. Transit, 8/27/04 DOI: 4/12/91 Vacation of Award – Void Award Where there was insufficient evidence that the chemically dependent employee was intoxicated at the time of his mediation or that he otherwise lacked competence to understand the settlement to which he agreed, and in light of clear evidence to the contrary, the court could not conclude that the mediation agreement at issue was voidable on grounds of the employee’s incompetence; and without evidence that the agreement was voidable on that basis, and without any alternative showing of good cause based on a substantial change in condition, newly discovered evidence, a mutual mistake of fact, or fraud, the court declined to vacate the Mediation Resolution/Award at issue. Petition to vacate denied. Pohlkamp v. Western Steel Erection, Inc., et al, 8/27/04 DOI: 10/7/02, 6/7/91 Gillette Injury – Date of Injury Substantial evidence, including the employee’s testimony as to his job duties, minimally supported the compensation judge’s decision to impose liability for the employee’s Gillette injury on the insurer on the risk during the employee’s last five weeks of work, despite the fact that the employee’s work had been modified for most of that period. Notice of Injury Substantial evidence supported the compensation judge’s decision that the employee had no reason to know that he had sustained a Gillette injury until it was suggested by a doctor, where the employee’s symptoms after the Gillette injury were essentially the same as the symptoms he had experienced following a work injury 10 years earlier, and he thought his most recent symptoms were merely a recurrence of that earlier injury. Jurisdiction – Subject Matter The compensation judge properly concluded that he lacks subject matter jurisdiction over claims against MIGA where MIGA asserted that the claims were not “covered” pursuant to Minnesota Statutes Chapter 60C.

D-12

• COMPACT • November 2004

Summaries of Decisions Calculation of Benefits – Compensation Rate The compensation judge erred in ordering the liable employer and insurer to pay benefits based on a wage higher than the wage the employee was earning on the date of their injury. Affirmed in part and reversed in part. Cyr v. Wensmanns Homes, Inc., 8/31/04* DOI: 2/19/02 Permanent Partial Disability – Cervical Spine Minnesota Rules Part 5223.0370, subp. 4.D. Minnesota Rules Part 5223.0370, subp. 4.D.(4) Minnesota Rules Part 5223.0370, subp. 5.B. Based on the unambiguous language of the rule, the compensation judge properly awarded a 23 percent whole body disability for combined radicular syndrome and fusion of the cervical spine where, prior to surgery, the employee had findings at C5-6 and C6-7 which qualified the employee for a rating under subps. 4.D. and 4.D.(4), but after the fusion surgery no longer demonstrated radicular pain or paresthesia. Affirmed. Stenseth v. Nordstrom, 8/31/04 DOI: 5/15/01 Causation – Aggravation Substantial evidence, including expert medical opinion, supported the compensation judge’s decision that the employee’s work injury was merely a temporary aggravation of the preexisting low back condition, and, given the conflicting accounts given by the employee, the judge was justified in concluding that the injury occurred May 15, 2001. Intervenors Where the employee listed chiropractic treatment expenses from ChiroCenter on her claim petition, and the employer’s independent examiner indicated that treatment for 12 weeks was reasonable, necessary, and causally related to the employee’s work injury, the compensation judge erred in denying reimbursement to ChiroCenter based on untimely intervention. Affirmed in part and reversed in part.

D-13

• COMPACT • November 2004

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

Summaries of Decisions Chivers v. Xcel Energy, 9/2/04 DOI: 6/21/02 Appeals – Appealable Orders Orders granting or refusing discovery are interlocutory and are not appealable. This court lacks jurisdiction to consider or determine the employer and insurer’s appeal from the compensation judge’s order denying their motion to strike the employee’s Objection to Discontinuance from the calendar for failure to provide medical authorizations, and the appeal must be dismissed. Motion to dismiss granted. Hinks v. Gary Webb Services, 9/7/04 DOI: 7/26/52 Evidence – Res Judicata Where the employee’s claim for medical expenses covered a time period after a previous Decision and Order denying payment of medical benefits, and included treatment for conditions different from the condition covered in the previous litigation, the employee’s claim was not barred by res judicata or collateral estoppel. Medical Treatment and Expense Substantial evidence supported the compensation judge’s conclusion that the employee’s 1952 personal injury was a substantial contributing cause of his need for the disputed medical care and the award of medical expenses. Affirmed. Hussein v. University of Minnesota, 9/7/04 DOI: 12/3/01 Rehabilitation – Eligibility Minnesota Rules Part 5220.0100, subp. 22 Although, given the circumstances in this case, the employee may well benefit from rehabilitation services, where he has continued since his injury to work for the employer at suitable, gainful employment, the employee is not a qualified employee within the meaning of Minnesota Rules Part 5220.0100, subp. 22, and is not entitled to rehabilitation services. Medical Treatment and Expense Substantial evidence, including the treatment records and reports of Drs. Anderson, Uddin, Call and Olmstead, supports the compensation judge’s determination that the employee’s right wrist surgery was reasonable, necessary and causally related to the employee’s work injury.
D-14

Affirmed in part and reversed in part.
• COMPACT • November 2004

Summaries of Decisions Hodgson, deceased by Hodgson v. Al’s Tree Service, 9/8/04* DOD: 10/19/93 Dependency Benefits – Calculation The statute governing payments of benefits to dependents of an employee killed as a result of a work-related injury, Minnesota Statutes §176.111, does not differentiate between surviving spouses based upon whether the employee’s dependent children live with them or are supported by them. Therefore, the compensation judge erred by allowing discontinuance of the surviving spouse’s benefits in this case. Petition to Vacate Where the party which sought a default order, which was not enforced, seeks to vacate that order as improvidently granted since the ultimate amount to be paid was uncertain, the petition to vacate the default order is granted. Reversed. McBride v. Minnesota Limited, Inc., 9/9/04 DOI: 9/3/03 Discontinuance Substantial evidence supported the discontinuance of temporary total disability compensation where the employee was released to work with restrictions and was videotaped performing work activities for a local auto repair business. Temporary Partial Disability Earning Capacity In order to qualify for temporary partial disability compensation, there must be reasonably definite evidence that the injured worker sustained an actual loss in earning capacity. Where the employee did not conduct a job search and performed work activities for a friend’s local auto repair business at no pay or other compensation, the compensation judge did not commit clear error in failing to award temporary partial disability compensation based on an imputed wage. Affirmed. Hildebrandt v. City of St. Louis Park, 9/13/04 DOI: 1/25/01 Wages – Self-Employment Where the only evidence was the employee’s testimony that he generated no net income from his self-employment in the dog business, the compensation judge erred by including in the weekly wage calculation, $325 per month paid by the City of Mound to the employee for boarding impounded dogs as part of this business.
D-15
• COMPACT • November 2004 * This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions Temporary Partial Disability Substantial evidence, including the testimony of the employee, QRC Bourgeois and employment expert Kipper, supports the compensation judge’s determination that the employee’s earnings between Aug. 1, 2002, and Oct. 15, 2003, reflected the employee’s post-injury earning capacity and, although minimal, were sufficient to establish entitlement to temporary partial disability benefits. Affirmed in part and reversed in part. Kozlak v. Minnegasco, 9/17/04 DOI: 1/20/00 Medical Treatment and Expense – Reasonable and Necessary Substantial evidence in the record did not support the judge’s decision to approve the employee’s request for physical therapy and a lumbar epidural injection under the “rare case” exception to the treatment parameters, where there was simply nothing in the record to differentiate the case from any other case in which the recommend treatment exceeded the limits established by the rules. Affirmed in part and reversed in part. Luna v. Van Erkel Farms, 9/17/04 DOI: 5/21/91 Medical Treatment and Expense – Nursing Services Substantial evidence, including records from the employee’s treating doctor, supported the compensation judge’s award of nursing services for the permanently totally disabled employee. Affirmed. Webster v. Midnite Express, Inc., 9/20/04 DOI: 6/28/01 Jurisdiction – Out-of-State Employment Minnesota Statutes §176.041, subd. 4 The compensation judge erred in finding that Minnesota lacked subject matter jurisdiction to determine the employee’s claim for medical benefits where the employee (a Minnesota resident, employed by a North Dakota employer and injured in Minnesota) completed and sent an affidavit renouncing and foregoing further workers’ compensation benefits in North Dakota, did not, thereafter seek benefits in North Dakota, and there was no evidence the employee’s counsel participated in any North Dakota claim or attempted to “hedge” such that the employee’s rights in North Dakota would be preserved.

D-16

• COMPACT • November 2004

Summaries of Decisions Evidence – Res Judicata Where the decision of the North Dakota Workers Compensation Bureau involved a claim for physical therapy treatment from July 11 to Sept. 17, 2002, and the employee’s claim for medical expenses in Minnesota covered the period from Nov. 5, 2002, to Jan. 2, 2003, the doctrine of res judicata is not applicable in considering the effect of the bureau’s prior decision. Evidence – Medical Expert Opinion Causation – Temporary Aggravation Where Dr. Segal reviewed the employee’s medical records, obtained a history from the employee and performed a physical examination, the opinions of Dr. Segal were adequately founded and the compensation judge did not err in accepting his opinion that the employee’s work-related injury was temporary and had resolved, and the employee’s treatment after July 11, 2002, was not due to his personal injury. Affirmed in part and reversed in part. Taber v. Waste Management, 9/21/04 DOI: 10/8/99 Temporary Benefits Where there was substantial evidence in the record that the employee had no employment restrictions from his work injury during the time for which benefits were claimed, the compensation judge’s denial of the employee’s claim for temporary total and temporary partial disability compensation is affirmed. Rehabilitation Where there was substantial evidence in the record that the employee had no employment restrictions from his work injury, the compensation judge’s determination that the employee was not a qualified employee and not eligible for rehabilitation services is affirmed. Appeals Where the issue of the employee’s wage on the date of injury was not raised in the notice of appeal, this court has no authority to consider the issue. Affirmed.

D-17

• COMPACT • November 2004

Summaries of Decisions King v. Woodsmen Midwest, Inc., 9/30/04 DOI: 10/31/02 Temporary Benefits Substantial evidence supports the decision of the compensation judge that the employee was not entitled to wage loss benefits. Affirmed. Monnie v. Independent School District #625, 9/30/04 DOI: 8/2/02 Permanent Partial Disability The medical opinions of two physicians in the case provided substantial evidentiary support for the finding that the employee had sustained a 7 percent permanent partial disability to the back and a 7 percent permanent partial disability to the neck. Medical Treatment and Expense – Reasonable and Necessary The medical treatment parameters were inapplicable to the employee’s claim for chiropractic expense where the employer was contending that the work injury was merely temporary and had ended well before the treatment at issue. Medical Treatment and Expense – Reasonable and Necessary Substantial evidence supported the compensation judge’s determination that the chiropractic treatment rendered in the case was reasonable and necessary where, as a result of the treatment, the employee was able to remain employed. Affirmed. Wessel v. 3M Company, 9/30/04 DOI: 1/24/02, 12/10/01, 1/13/98, 10/11/95, 8/4/81, 7/24/78 Rehabilitation – Retraining Substantial evidence, including expert vocational testimony, supported the compensation judge’s decision that the proposed retraining plan was not appropriate to address the employee’s lost earning capacity.

D-18

• COMPACT • November 2004

Summaries of Decisions Maximum Medical Improvement – Service of MMI Report Where the employee’s 1978 injury contributed to the employee’s disability for the period at issue following the employee’s 2002 work injury, service of notice of MMI covering the 1978 injury was necessary to trigger the commencement of the 90-day post-MMI period for discontinuance purposes. Affirmed in part and reversed in part.

D-19

• COMPACT • November 2004

Summaries of Decisions • Judicial •

Minnesota Supreme Court
July through September 2004
Case summaries published are those prepared by the WCCA

• Bonnie M. Cull v. Wal-Mart Store, Inc., and Insurance Company of the State of Pennsylvania/AIG, claims administered by Claims Management, Inc., A04-766, July 20, 2004 Decision of the Workers’ Compensation Court of Appeals filed April 1, 2004, affirmed without opinion. • Irvin C. Hamm v. Marvin Windows & Doors, Self-Insured/Berkley Risk Administration Company, and Arctic Cat, Inc., Self-Insured/Berkley Risk Administration Company, and Michelson Chiropractic, Blue Cross/Blue Shield of Minnesota & Blue Plus, Minnesota Department of Economic Security and Minnesota Department of Human Services, Intervenors, and Special Compensation Fund, A04-895, July 20, 2004 Decision of the Workers’ Compensation Court of Appeals filed April 21, 2004, affirmed without opinion. • Randi Danielson v. Clairol, Inc., and Utica Mutual Insurance Company, and Minnesota Department of Human Services, Intervenor, and Special Compensation Fund, A04-414, July 21, 2004 Decision of the Workers’ Compensation Court of Appeals filed Feb. 20, 2004, affirmed without opinion. • Christopher Winter, deceased employee, by Karen Winter Ott v. D.J. Kranz and CNA Commercial Insurance, A04-730, July 22, 2004 Decision of the Workers’ Compensation Court of Appeals filed March 31, 2004, affirmed without opinion.

D-20

• COMPACT • November 2004

Summaries of Decisions • Richard R. Snyder v. Yellow Freight System, Self-Insured, A04-536, July 22, 2004 S Y L L A B U S (By the Court) In calculating the amount of an employer’s subrogation reimbursement from the proceeds of a thirdparty action, the employer’s credit against future workers’ compensation benefits is reduced by the costs of collection on the amount of workers’ compensation benefits actually paid. Affirmed. Considered and decided by the court en banc without oral argument. • Jeffrey Kline v. Berg Drywall, Inc., and American Compensation Insurance Co./RTW, Inc., A03-420, August 5, 2004 S Y L L A B U S (By the Court) Minnesota Statutes §176.1812, subdivision 1(a) (2002), does not authorize preclusion of judicial review. The workers’ compensation claim is not pre-empted by federal law. Exclusion of legal counsel in the early stages of a workers’ compensation alternative dispute resolution process violates Minnesota Statutes §1812, subd. 4 (2002). There is no inherent bias and conflict of interest in the selection of the arbitrator or approval of his compensation. Affirmed as modified. Heard, considered, and decided by the court en banc.

D-21

• COMPACT • November 2004