• Judicial •

Court of Appeals
July through September 2007
Case summaries published are those prepared by the WCCA

Workers’ Compensation

Southerland v. Kables, Inc.,/Slumberland Furniture, 7/3/07

Causation Evidence – Expert Medical Opinion Substantial evidence, including lay witness testimony and the adequately founded opinion of the independent medical examiner, supports the compensation judge’s determination that the employee did not sustain a work-related pneumothorax injury in December 2004. Affirmed.
Westphall v. Honeywell, Inc., 7/3/07

Causation Substantial evidence supports the compensation judge’s finding that the employee’s work-related right shoulder injury was not a substantial contributing cause of the employee’s inability to work overtime hours and resulting decreased earning capacity. Affirmed
Galdamez v. Kennedy Transmission, 7/5/07

Attorney Fees – Roraff Where all issues before the compensation judge in the current proceeding were issues of medical benefits left open by a previous full, final, and complete settlement, where there was no petition for attorney fees yet before the judge, where the judge awarded payment of some of the medical expenses at issue to two intervenors and did not in any way support her finding denying attorney fees, the compensation judge’s apparently legal conclusion that the employee’s attorney was “not entitled to attorney’s fees on payments made to intervenors” was reversible error. Reversed.

Summaries of Decisions
Bense v. Alliance Savings Company, et al, 7/6/07*

Jurisdiction – Out-of-State Injury Where it is asserted that an insurer provided coverage for a joint employer of a Minnesota resident injured out-of-state, the insurer is properly joined as a party to the pending case. Affirmed.
Bloom v. Slash, Inc., f/k/a GT Interactive Software, et al, 7/6/07*

Practice and Procedure – Dismissal Where the issue on appeal had to do with the employee’s repeated noncompliance with discovery requests and court orders and not with the nature of the employers’ and insurers’ defenses, and where the employee had clearly been afforded more than ample notice and opportunity to respond to the judge’s orders prior to the judge’s dismissal of her claim, the compensation judge’s order dismissing the employee’s claim with prejudice, after the claim had not progressed seven years after it was first filed and eleven years after the alleged injury, was neither factually unreasonable nor legally erroneous. Affirmed.
Ruby v. Casey’s General Store, 7/6/07

Job Offer – Refusal Substantial evidence supports the compensation judge’s findings that the work offered did not meet the employee’s work restrictions and that the employee did not unreasonably refuse a written job offer. Affirmed.
Petrus v. Minnegasco, Inc., 7/11/07*

Causation – Gillette Injury Where the employee had worked for the employer as an appliance repairman for more than 19 years prior to his work-related specific knee injury in 1999, where the employee had been working for the employer at what was essentially a desk job from 2000 to 2005, during which period his specific knee injury had resolved, the court concluded that the employee’s Gillette injury claim in 2005 could not be construed so narrowly as to be alleging trauma cumulative over only the past five years of the employee’s employment, and the compensation judge’s conclusion that the employee’s deteriorated knee condition in 2005 was not work-related was remanded for reconsideration. Affirmed in part and vacated and remanded in part.
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• COMPACT • November 2007 *This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions
Tuell v. Northwest Airlines Corporation, 7/11/07

Practice and Procedure – Dismissal Jurisdiction Minnesota Statutes § 176.041, subd. 4 Where the employee was injured in Michigan, the compensation judge erred in relying on Minnesota Statutes § 176.041, subd. 4, and Pauli v. Pneumatic Systems, Inc., 328 N.W.2d 743, 35 W.C.D. 551 (Minn. 1983), in dismissing the employee’s claims in Minnesota. Reversed.
Moore v. University of Minnesota, 7/13/07

Evidence – Privilege Minnesota Statutes § 176.138(a) The compensation judge did not err by sustaining the employee’s objection to the employer’s attempt to elicit the employee’s authorization to solicit a medical opinion report from the employee’s treating physician under Minnesota Statutes § 176.138(a). Causation Substantial evidence, including expert opinion, adequately supported the compensation judge’s decision that the employee’s erectile dysfunction was causally related to his work-related low back condition. Affirmed.
Boutto v. U.S. Steel Corporation, 7/18/07

Temporary Partial Disability – Earning Capacity Temporary Partial Disability – Retirement An injured worker is not forever bound to his employer in order to retain his entitlement to benefits, and, where the employee was subject to restrictions related to his work injury at all times during the period of this claim, the fact that the employee accepted an early retirement incentive from his employer while still physically able to perform his post-injury job with the employer was not relevant to the question of whether the employee’s loss of earning capacity in his post-retirement job was causally related to the work injury, and the compensation judge’s award of temporary partial disability benefits was not clearly erroneous and unsupported by substantial evidence. Rehabilitation – Eligibility That rehabilitation is “necessary” in a case does not mean that it is “indispensable,” only that it will materially assist the injured employee in restoring his capacity to earn a livelihood, and, where it was supported by the opinion of a vocational expert, the compensation judge’s award of rehabilitation
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Summaries of Decisions benefits was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee had already, without the aid of professional assistance, achieved his goal of obtaining full-time post-injury employment. Affirmed.
Myers v. Minnesota Vikings Football Club, Inc., 7/20/07

Notice of Injury Where the employee testified that he was treated by the employer with a splint and taping for a right hand injury in 1978 and again for a left wrist injury in 1979, where there was an employer’s record of his being treated with taping for the wrist injury in 1979, where the employee’s testimony was consistent with details of the history that he had given to a doctor two years before hearing, and where there was expert medical opinion supporting a causal connection between the 1978 and 1979 splintings and tapings and the employee’s eventual development of latent Dupuytren’s contracture bilaterally, the compensation judge’s conclusion that the employee gave proper notice of injury related to his 2003 claim to benefits based on the Dupuytren’s contracture was not clearly erroneous and unsupported by substantial evidence. Practice and Procedure – Statute of Limitations Where there was no basis for concluding that treatment for the employee’s 1978 and 1979 hand and wrist injuries with taping and splinting was not “meaningful” treatment, was not treatment voluntarily provided for an admitted work injury, and was not treatment for an injury precipitating the Dupuytren’s contracture condition for which the employee sought benefits, and where the judge’s decision was not otherwise unreasonable, the compensation judge’s conclusion that the statute of limitations was tolled by the 1978 and 1979 treatment relative to the employee’s 2003 claim for benefits was not clearly erroneous and unsupported by substantial evidence. Causation – Intervening Cause The applicable standard in determining whether there is a non-work-related superseding, intervening cause of an employee’s disability is not whether the employee would or would not be disabled “but for” the non-work-related factor but whether the employee’s work-related injury is a “substantial contributing factor” in the employee’s disability; and, where the judge applied the proper standard, the compensation judge’s conclusion that the employee’s knee injury was not a superseding, intervening cause of the wage loss for which the employee sought compensation based on bilateral hand and wrist injuries was not clearly erroneous and unsupported by substantial evidence. Appeals – Scope of Review The jurisdiction of the Workers’ Compensation Court of Appeals is “limited to the issues raised by the parties in the notice of appeal,” Minnesota Statutes § 176.421, subd. 6; an appealing party’s brief on appeal may address only issues raised in that party’s notice of appeal, Minnesota Rules part 9800.0900, subp. 1; and an issue raised for the first time on appeal is not properly before the court and will not be addressed, Malinoski v. North American Cable Sys., slip op. (W.C.C.A. Dec. 14,
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• COMPACT • November 2007

Summaries of Decisions 1989). Where there was no reference to issues of apportionment or credit related to the employee’s 1980 knee injury either in the transcript of hearing or in the Notice of Appeal or in the compensation judge’s Findings and Order, issues of apportionment or credit were not proper subjects for the court’s review and were not addressed. Temporary Partial Disability – Earning Capacity Where the employee’s claim for wage replacement during several years beginning decades earlier was supported by tax and other financial records and by the employee’s testimony as to his job search, and where the employer and insurer offered no evidence to rebut the employee’s claim that his earning capacity was reflected in his actual earnings, the compensation judge’s award of temporary partial disability benefits was not clearly erroneous and unsupported by substantial evidence. Earning Capacity Job Search Where the employee’s tax records reflected minimal earnings during the years in question, and where the employee offered minimal testimony regarding his efforts to find work during those years, the compensation judge’s denial of wage replacement benefits for three years in the early 1990s for which the employee claimed wage replacement in 2003 was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employer and insurer presented no evidence to rebut the employee’s claim that his actual earnings reflected his earning capacity. Affirmed.
Lamminen, Jr. v. Potlatch Corporation, 8/8/07

Temporary Partial Disability – Earning Capacity Where the employee was working full time, at a wage loss and with significant restrictions related to his injury, and where there was no evidence of higher-paying work available to the employee, no evidence that the employee refused higher-paying work, and no evidence that the employee failed to cooperate with rehabilitation efforts during the period in question, substantial evidence did not support the compensation judge’s denial of temporary partial disability benefits. Reversed.
Kellison v. Anderson Trucking Services, Inc., 8/13/07

Appeals – Interlocutory Order The compensation judge’s orders denying a motion to dismiss a claim petition on grounds that the claim is barred by res judicata and denying an evidentiary motion are not appealable. Appeal dismissed.
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Summaries of Decisions
Barron v. Jerry Szulim, et al, 8/15/07

Employment Relationship – Independent Contractor Minnesota Statutes § 176.042, subd. 2 Where the requirements of Minnesota Statutes § 176.042, subd. 2, were not all met, the compensation judge reasonably concluded that the petitioner was an employee of the subcontractor and was not an independent contractor at the time of his injury. Employment Relationship – Partnership Minnesota Statutes § 323A.0308 Substantial evidence supports the compensation judge’s determination that the petitioner and subcontractor were not working in a partnership relationship, either formally or in the nature of an “ostensible partnership” or a partnership by estoppel as described by Minnesota Statutes § 323A.0308. Employment Relationship – General Contractor Minnesota Statutes § 176.042 Subdivision 1 of 176.042 applies where the individual claiming to have employee status has been injured, and does not apply to determine a subcontractor’s relationship with a general contractor. Substantial evidence supports the compensation judge’s findings that the subcontractor was not an employee of the general contractor at the time of the petitioner’s injury. Special Compensation Fund – Penalty Minnesota Statutes § 176.183, subd. 2 The wording of the statute is mandatory and requires an uninsured employer to pay a penalty of 65 percent of all workers’ compensation benefits paid on its behalf to an injured employee. The statute does not designate a general contractor as an “employer” for purposes of paying the 65 percent penalty to the Special Compensation Fund, and although the general contractor here is liable for payment of workers’ compensation benefits, the general contractor is not required to pay the 65 percent penalty to the Special Compensation Fund. Special Compensation Fund – Lien for Repayment Minnesota Statutes § 176.215 Minnesota Statutes § 176.215, subd. 1, provides for a lien in favor of the Special Compensation Fund against the general contractor, as the general contractor is liable for payment of benefits in view of the uninsured status of the subcontractor. Minnesota Statutes § 176.215, subd. 2, provides the general contractor with a subrogation interest against the subcontractor, for all workers’ compensation benefits that the general contractor has been ordered to pay.

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• COMPACT • November 2007

Summaries of Decisions Special Compensation Fund – Lien for Repayment Minnesota Statutes § 176.183, subd. 2 Minnesota Statutes § 176.183, subd., 2, provides for a lien in favor of the Special Compensation Fund against the uninsured employer for the 65 percent penalty imposed on the employer. Affirmed in part, reversed in part, and modified in part.
Sorby v. Soil Testing Service of Minnesota, 8/20/07

Practice and Procedure – Remand Given her previous unappealed findings and our instructions on remanding the matter, the compensation judge erred in concluding that injuries the employee sustained in Texas constituted a superseding, intervening cause of the employee’s disability, including wage loss, need for treatment, and permanent partial disability. Causation Apportionment – Permanent Partial Disability Where a Minnesota work injury and Texas work injuries were all substantial contributing causes of the employee’s permanent partial disability, and no specific permanency rating was assigned solely to the Texas injuries, the employee was entitled to benefits for the full extent of his permanent partial disability from the Minnesota employer, with credit for permanent partial disability benefits paid, if any, by the Texas employer. Reversed.
Budke v. St. Francis Medical Center, 8/23/07

Retraining Substantial evidence, including expert vocational opinion, supported the finding that the employee’s proposed retraining plan was not reasonable or necessary. Rehabilitation Expenses Substantial evidence supported the compensation judge’s determination as to the amounts the employee had proven that she paid for the skill enhancement seminars for which reimbursement was awarded. Practice and Procedure – Evidence This court need not consider whether the compensation judge’s refusal to admit the employee’s proposed post-hearing exhibits was an abuse of discretion, where the admission of the exhibits would not have materially changed the results in the case.
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• COMPACT • November 2007

Summaries of Decisions Intervention Minnesota Statutes § 176.361 Where the employee’s training seminar expenses were partly paid by her and partly by a post-injury employer, but her contract with the post-injury employer did not require her to repay training seminar expenses it paid on her behalf, the post-injury employer did not have a right to intervene in the employee’s claim for reimbursement for those expenses. Affirmed, as modified.
Krueger v. Ritter Agri Sales, Inc., 8/29/07

Causation – Intervening Cause The doctrine of a superseding, intervening cause does not apply where an employee sustains a reinjury or aggravation while performing work activities. Where the July 29, 2003, injury occurred while working for the employer, the defense of a superseding, intervening cause cannot provide a viable defense to liability for the admitted March 25, 2003, personal injury. Permanent Partial Disability – Thoracic Spine Substantial evidence supports the compensation judge’s award of a 5 percent permanent partial disability to the thoracic spine as a result of the employee’s March 25, 2003, personal injury. Permanent Total Disability Where the compensation judge’s finding of permanent total disability is based, in part, upon medical opinion which the judge rejected, and, in part, on medical opinion that concluded the employee’s inability to work was not causally related to the personal injury; and where the restrictions and limitations resulting from the work injury, and the effect of the employee’s work injury on his ability to work are not clear from the judge’s decision, the findings relating to permanent total disability are vacated and remanded to the compensation judge for reconsideration. Affirmed in part, reversed in part, and vacated and remanded in part.
Larsen v. Kraft Foods, Inc., 8/29/07

Medical Treatment and Expense – Treatment Parameters Minnesota Rules Part 5221.6200, subp. 3B(2) Where the medical records reflected that the employee’s subjective complaints remained at a high level, that her pain continued, that her function had not increased significantly, and that her objective findings were unchanged in the medical records, the compensation judge’s conclusion that the employee’s physical therapy was not sufficiently effective in “maintaining functional status” to entitle the employee to treatment beyond an additional twelve visits under Minnesota Rules Part 5221.6200, subp. 3B(2), was not clearly erroneous and unsupported by substantial evidence.
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• COMPACT • November 2007

Summaries of Decisions Medical Treatment and Expense – Reasonable and Necessary Substantial evidence, including expert medical opinion, supports the compensation judge’s denial of approval for payment of expenses related to additional physical therapy. Permanent Partial Disability Where the employee’s condition did not qualify for a permanency rating under the permanency rules, the compensation judge did not err in accepting expert medical opinion to that effect, and the compensation judge’s denial of the claim for permanent partial disability benefits is affirmed. Affirmed.
Charley v. FMC Corporation, 8/30/07

Attorney Fees – Contingent Attorney Fees – Fees on Appeal An award of fees on appeal under Minnesota Statutes § 176.511 is not includable in the $13,000 cap on attorney fees established under Minnesota Statutes § 176.081. Reversed.
Manning v. Allside Builders Supply Company, 8/30/07

Vacation of Award – Substantial Change in Condition The employee has experienced an unanticipated substantial change in condition since an award on stipulation was issued in 2001 and the employee’s petition to vacate is granted. Petition to vacate granted.
Baker v. Northwest Airlines, 8/31/07

Causation Substantial evidence supports the compensation judge’s finding that the employee’s carpal tunnel syndrome continues to be a substantial contributing cause of the employee’s ongoing disability and need for restrictions. Affirmed.

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Summaries of Decisions
Spencer v. Jedlicki Trucking, Inc., 8/31/07

Employment Relationship Dependency Benefits Where only the petitioner and not her deceased husband had been expressly hired by the alleged employer to haul freight on the date at issue, where the parties stipulated that the deceased was given permission to ride along with his wife but was expressly told that he must not drive, where the alleged employer was aware of the deceased’s serious health issues, and where there was no evidence that the deceased was being paid as a “ride-along helper” to the petitioner, the deceased’s previous employment by the alleged employer was irrelevant, and the compensation judge’s conclusion that the deceased was not an employee at the time of his fatal accident while driving as his wife slept in the truck in the course of their delivery trip was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Birkholz v. Wagner Spray Tech, 9/5/07

Appeals – Record Where no record was made of the hearing below on the employee’s counsel’s petition for attorney fees, the findings and order must be vacated and the matter remanded for reconsideration. Attorney Fees – Roraff Where the sole dispute involved ascertainable medical expenses, the employee’s attorney is entitled to contingent attorney fees under the 25/20 statutory formula on medical benefits awarded. If this fee is inadequate to reasonably compensate the employee’s attorney, an additional hourly fee may be assessed. The employee has the burden of proving the claim for attorney fees, including submission of exhibits establishing the amount of the medical expenses awarded. Vacated and remanded.
Curtis v. Ballard Ready Mix, et al, 9/5/07

Vacation of Award – Mistake The uninsured employer failed to establish grounds for vacating an award for a mutual mistake of fact where any mistake was one of law and there was no showing of mutuality. Petition to vacate findings and order denied.

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Summaries of Decisions
Zaitz v. Thomas Dougherty d/b/a Midwest Meats & Produce, 9/6/07

Practice and Procedure – Ripeness Settlements The Special Compensation Fund cannot be compelled to enter into a settlement agreement. Where the employee sought only settlement of future medical expenses and made no claim for payment of medical benefits, there was no justiciable controversy and the compensation judge properly dismissed the employee’s claim petition. Affirmed.
Gombold v. Metal Craft Machine & Engineering, 9/11/07

Rehabilitation – Change of QRC Where the employee’s QRC failed to provide the employer and insurer with relevant information concerning the employee’s unpaid work activities, it was reasonable for the judge to conclude that the employer and insurer had lost confidence in the QRC’s neutrality, justifying a change of QRCs in the “best interest of the parties.” Affirmed.
Tabbert v. Hammer Residences, Inc., 9/14/07

Causation Causation – Pre-Existing Condition Where it was not unreasonable for the employee himself, and so for the examining physician the next day, to initially associate the employee’s symptoms with his pre-existing non-herniated low back condition, and where the first medical report of a work-related mechanism of injury about a month later, after symptoms had become more clearly radicular, had been already corroborated by the employer’s First Report of Injury two weeks earlier, the compensation judge’s finding of primary liability for a work-related injury was not clearly erroneous and unsupported by substantial evidence. Permanent Partial Disability – Back Minnesota Rules Part 5223.0390, subpart 4E Where the treating doctor had found a “quite significant foot drop weakness” that had merely “improved” since the “not complete” resorption of the employee’s herniated lumbar disc, and where the employee had continuing very substantial radicular-like pain symptoms in his leg and there was MRI evidence of continuing disc herniation, it was not unreasonable for the compensation judge to conclude that the doctor’s foot-drop finding qualified as an “objective radicular finding” of “nerve root specific muscle weakness in the lower extremity” under Minnesota Rules Part 5223.0390, subpart 4E, and the judge’s award of compensation for a 13 percent whole-body impairment based on that subpart and subpart 4E(1) of that rule, for persistence of symptoms, was not clearly erroneous and unsupported by substantial evidence.
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Summaries of Decisions Apportionment – Permanent Partial Disability Minnesota Rules Part 5223.0390, subpart 3 Where Minnesota Rules Part 5223.0390, subpart 3, required that, for a rating for lumbar pain syndrome, there be symptoms of pain and stiffness substantiated by “persistent” objective clinical findings, and where the employee had not had any treatment for his low back for nearly fourteen months prior to his work-related lumbar disc herniation, the compensation judge’s denial of apportionment of 10 percent of the employee’s 13 percent permanent partial disability rating to the employee’s pre-existing lumbar pain syndrome was not clearly erroneous and unsupported by substantial evidence. Affirmed.
Boegeman v. Home Instead Senior Care, 9/18/07

Causation – Temporary Injury Substantial evidence, including the reports and opinions of the employer and insurer’s medical experts, supports the finding that the employee’s February 2006 work injury was temporary and had resolved by August 2007. Affirmed.
Clark v. Lake Superior Paper Industries, 9/18/07

Attorney Fees Substantial evidence supports the compensation judge’s finding that permanent partial disability voluntarily paid by the employer and insurer was not a disputed benefit, and that a fee award based on it was not appropriate. Affirmed.
Fraser v. City of St. Louis Park, 9/18/07

Attorney Fees – Heaton A determination that the attorney’s hourly rate and time expended were reasonable does not automatically entitle the attorney to the total fee claimed. Rather, a reasonable fee is to be determined based on all of the factors listed in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), and those factors need not be given equal weight. Affirmed.

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Summaries of Decisions
Dorley v. Maranatha Care Center, 9/27/07

Causation Substantial evidence in the form of MRI reports, treatment records, and the opinion of the employee’s surgeons supports the compensation judge’s determination that the employee’s work injury was a substantial contributing factor in the employee’s current condition and disability. Maximum Medical Improvement Substantial evidence supports the compensation judge’s determination that MMI had not been reached before the date of hearing where the only evidence of MMI before that date was in an IME report using a diagnosis not accepted by the compensation judge. Job Search Substantial evidence exists to support the compensation judge’s finding of a job search sufficient for an award of temporary total disability benefits given the employee’s significant obstacles in finding employment, and her cooperation with rehabilitation services. Affirmed.

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• COMPACT • November 2007

Summaries of Decisions • Judicial •

Minnesota Supreme Court
July through September 2007
Case summaries published are those prepared by the WCCA

• James E. Gluba, deceased by Lorraine Gluba v. Bitzan & Ohren Masonry and Grinnell Mutual Group, A06-1849, July 26, 2007

S Y L LAB U S Relator has not established that Minnesota Statutes § 176.101, subd. 5(2) (2006), violates the constitutional guarantee of equal protection because he has failed to demonstrate that the statute’s eligibility thresholds for certain workers’ compensation benefits (1) do not apply uniformly to all injured workers; (2) do not reflect genuine and substantial distinctions among injured workers; and (3) do not effectuate the purpose of the workers’ compensation law. Affirmed.
• Mary R. Olds v. Lutheran Social Services of Minnesota, Self-Insured/CompCost, Inc., and Twin Cities Spine Center, Intervenor, A07-932, Aug. 21, 2007

Decision of the Workers’ Compensation Court of Appeals filed April 9, 2007, affirmed without opinion.
• Mark J. Jeffrey v. Banana Republic, and American Home Assurance, administered by AIG Claim Services, Inc., A07-1033, Aug. 21, 2007

Decision of the Workers’ Compensation Court of Appeals filed May 1, 2007, affirmed without opinion.

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• COMPACT • November 2007