Department of Labor: 0206wcca

• Judicial •
Workers’ Compensation
Court of Appeals
October through December 2005
Case summaries published are
those prepared by the WCCA
Fallon v. AT&T Minnesota, 10/3/05

DOI: 4/4/00
Attorney Fees
Vacation of Award – Mistake
Where the employee’s attorney filed a statement of attorney fees requesting a release of previously
withheld fees, and where the employer and its insurance administrator subsequently determined that
a lesser amount of fees was being withheld and paid that amount to the employee’s attorney, thereby
resolving the claim for payment of attorney fees, the order granting attorney fees is vacated.
Vacated.
Alvord v. DeZurik d/b/a SPX Valves & Controls, 10/5/05

DOI: 12/6/00
Maximum Medical Improvement
Where it was reasonable for the judge to conclude from the treating doctor’s office notes that the
employee’s medical condition had not yet stabilized, where the judge’s decision was supported by
other expert medical opinion, and where there was a very real prospect that additional surgery would
bring further significant improvement in the employee’s condition, the compensation judge’s
conclusion that the employee had not yet reached maximum medical improvement was not clearly
erroneous and unsupported by substantial evidence.
Temporary Total Disability
Where the employee’s medical condition was unstable, where there was a likelihood of imminent
surgery, where the employee’s QRC recommended pursuing a job search only after the employee’s
condition had stabilized, and where the employer had no light duty work available for the employee,
the compensation judge’s award of temporary total disability benefits was not clearly erroneous and
Summaries of Decisions
unsupported by substantial evidence, notwithstanding the fact that the employee had been released
by his doctor to perform light duty work but had not looked for a job.
Appeals – Scope of Review
Where the finding from which the employee had cross-appealed pertained to benefits that were not at
issue before the compensation judge and that had no relevance to any claim for benefits at issue on
appeal, and where there was no merit in the employee’s further contention that the judge erred in
referring to an adverse medical exam as an independent medical exam, the WCCA declined to
address any possible error of fact in the finding appealed from or in the judge’s choice of words.
Affirmed.
Newberg v. Walgreens, 10/5/05

DOI: 12/16/99
Practice and Procedure – Independent Medical Examination

Causation
The compensation judge did not abuse his discretion in admitting the IME report and there is
substantial evidence, even in the absence of the report, to support the denial of the employee’s claim.
Affirmed.
St. John v. LeFebvre Transportation, Inc., 10/5/05

DOI: 2/27/02
Causation
Substantial evidence, including the expert opinion of the employee’s treating orthopedic surgeon,
supports the compensation judge’s finding that the employee’s Feb. 27, 2002, work-related injury
represented a substantial contributing cause of the employee’s right lower extremity condition and
related disability.
Affirmed as modified.
Skic v. Beverage Transportation Corporation, 10/6/05*

DOI: 1/10/86
Vacation of Award
The employee failed to establish good cause for vacating a compensation judge’s decision that
denied the employee’s claims.
Petition to vacate denied.
D-2 • COMPACT • February 2006 * This case is on appeal to the Minnesota Supreme Court.
Anderson v. Suburban Chrysler Plymouth, 10/13/05

DOI: 11/23/93
Causation – Aggravation
Evidence – Expert Medical Opinion
Substantial evidence, including expert opinion, supported the compensation judge’s finding that the
employee sustained a work-related aggravation of his elbow condition, notwithstanding the fact that
the expert relied on by the compensation judge performed only a “paper review,” rather than
examining the employee.
Apportionment
Settlements
Where, in a stipulation for settlement, the employee and the employer and insurer released the
insurer on the risk for a second work injury from all future liability, where the employer and insurer
agreed to continue to pay for all medical expenses causally related to the employee’s first work
injury, where the employer and insurer did not expressly reserve the right to pay only an apportioned
share of those expenses, and where the first work injury continued to be a substantial contributing
cause of the employee’s need for prescription medication, the compensation judge properly ordered
the employer and insurer on the risk for the employee’s first work injury to pay the claimed expenses
in full.
Affirmed.
Crowley v. Plehal Blacktopping, Inc., 10/13/05

DOI: 7/13/99
Attorney Fees – Roraff

Minnesota Statutes §176.081, subd. 1(a)(1)
In cases involving medical or rehabilitation benefits only, Minnesota Statutes §176.081, subd.
1(a)(1), provides for contingent attorney fees of 25/20 percent of the dollar value of the medical or
rehabilitation benefits awarded. The dollar value is the fee schedule amount for the medical expenses
awarded. The fee schedule amount for a fusion surgery, for which approval is obtained, is clearly
ascertainable whether the expense was incurred prior to the hearing or will be incurred after the
hearing. An award of contingent attorney fees on the as yet prospective costs of the employee’s
surgery is premature and the award of attorney fees is vacated.
Where the employer and insurer voluntarily paid permanency and temporary partial disability
benefits subsequent to the hearing on the employee’s claim for medical and rehabilitation benefits,
the fact the employee’s attorney established primary liability in the prior hearing is irrelevant to
entitlement to attorney fees for future benefits not in dispute at the time of the hearing. Since there
was no dispute over these benefits, there is no attorney fee due, and the benefits may not be
considered in assessing whether contingent fees on wage loss benefits are inadequate to reasonably
compensate counsel for the medical/rehabilitation dispute.
D-3 • COMPACT • February 2006
Appeals – Law of the Case
Where, at the time of the Jan. 6, 2005 hearing, no fee petition had been submitted, entitlement to
Roraff fees was not at issue, and no determination as to the amount of attorney fees or the adequacy
of any contingent fees was possible, the compensation judge’s “award” of Roraff and Heaton fees,
although unappealed, is not the law of the case nor does it have any collateral estoppel effect.

Minnesota Statutes §176.081, subd. 1(a)
Where the sole dispute is ascertainable medical or rehabilitation expenses, the employee’s attorney is
entitled to contingent fees under the 25/20 formula in Minnesota Statutes §176.081, subd. 1(a). The
only “election” available under the statute is the option of seeking additional Irwin fees if the
attorney believes that the contingent fee on the dollar value of the medical or rehabilitation benefits
awarded is inadequate to reasonably compensate the attorney for his or her services.
Vacated.
Jaynes v. Golden Crest Nursing Home, 10/13/05

DOI: 12/20/03
Evidence – Credibility
Where the judge’s finding as to the employee’s credibility was not irrelevant to the issues that had
been before her at the hearing, and where the employee’s treating surgeon had stayed oriented to and
in practical communication with the employee’s other providers over the course of four years, the
compensation judge’s finding that the employee was a credible witness and her choice of medical
expert were not improper for being either irrelevant or in reliance on unfounded opinion,
notwithstanding the fact that the credibility finding was not important to issues still on appeal and
that there was some reasonable ambiguity as to the doctor’s presumptions.
Medical Treatment and Expense – Reasonable and Necessary

Minnesota Rules Part 5221.6100, subp. 1D
Medical Treatment and Expense – Treatment Parameters
Where the employee’s pre-surgery imaging included both an MRI scan and an arthrogram, where,
subsequent to the employee’s surgery, the employee’s surgeon sought a repeat MRI and arthrogram
but only an arthrogram was conducted, where there was no evidence that the employee’s surgeon,
when he later requested a repeat MRI scan and arthrogram, was unaware of the postsurgery
arthrogram or any definitive evidence that he was unaware that it was unaccompanied by an MRI
scan, and where Minnesota Rules Part 5221.6100, subp. 1D, expressly prohibits only repeat imaging
that is conducted “with the same imaging modality,” the compensation judge’s conclusion that a
repeat MRI scan and arthrogram was reasonable and necessary and not contrary to the treatment
parameters was not clearly erroneous and unsupported by substantial evidence.

Medical Treatment and Expense – Surgery

Practice and Procedure – Prospective Orders
Evidence – Objective Evidence
Because it was based on evidence not yet in existence, the judge’s award of payment for surgery
contingent on the recommending surgeon’s assessment of future radiological evidence was improper
and was vacated.
Affirmed in part and vacated in part.
LaPanta v. Myron’s Cards & Gifts, Inc., 10/14/05*

DOI: 11/13/01, 6/26/90
Causation
Substantial evidence supports the compensation judge’s finding that the employee’s work-related
injuries did not substantially contribute to his current condition, claimed disability and need for right
knee surgery, but that his condition, claimed disability and need for surgery were causally related to
his significant pre-existing degenerative arthritis of the right knee.
Affirmed.
McLaughlin v. St. Phillips Church, 10/14/05

DOI: 9/24/00
Interest – Attorney Fees

Minnesota Statutes §549.09, subd. 1
The compensation judge properly awarded interest on late payment of attorney fees pursuant to
Minnesota Statutes §549.09, subd. 1, as the award of interest contained in Minnesota Statutes
§176.225, subd. 5, pertains only to benefits ordered paid by the Department of Labor and Industry.
Penalties – Medical Treatment and Expense
The liability of the employer for surgery is limited to the maximum fee in the medical fee schedule
or the provider’s actual fee, whichever is lower. The compensation judge properly awarded penalties
to the employee based upon the fee schedule amount due for the surgery, rather than the larger
amount prepaid by the employee.
Interest
The compensation judge erred in awarding interest on the amount prepaid by the employee in excess
of the medical fee schedule amount for the surgery.
Penalties – Attorney Fees
Where the compensation judge issued an order requiring the self-insured employer to pay attorney
fees based upon the medical benefits paid for the employee’s surgery, payment of attorney fees was
due contemporaneously with each payment of medical benefits. Since the payment of attorney fees
should have commenced in October 2003 when the first medical bills were paid, and no attorney fees
were paid until March 5, 2004, we modify the decision to increase the penalty awarded from 10
percent to 20 percent.
Affirmed in part, reversed in part and modified in part.
Schaaf (deceased) by Schaaf v. Biffs, 10/18/05

DOD: 11/27/02 DOI: 7/21/98
Causation
Substantial evidence, including expert medical opinion and medical records, supports the
compensation judge’s finding that the employee’s work-related injury in 1998 did not represent a
substantial contributing factor in the employee’s fatal myocardial infarction in 2002.
Affirmed.
Johnson v. Yellow Transportation, 10/21/05

DOI: 3/7/03, 1/18/00, 2/16/95, 6/00/93
Causation – Medical Expenses

Evidence – Credibility
Where it was supported by expert medical opinion and the expressly credited testimony of the
employee, the compensation judge’s conclusion that the employee’s pre-existing psychiatric
condition had substantially deteriorated as a result of his work-related physical injuries was not
clearly erroneous and unsupported by substantial evidence, and the judge’s consequent award of
related medical benefits, including electroconvulsive therapy, was affirmed.
Affirmed.
Geary v. McNeilus Truck and Manufacturing, 10/27/05

DOI: 9/9/02, 12/11/89, 5/11/84
Practice and Procedure
Under the particular circumstances of this case, where the employer and insurer had reason to know
that the date of the employee’s alleged work injury was uncertain, the compensation judge did not
err by selecting a date of injury somewhat different than the date designated on the employee’s claim
petition.

Causation – Substantial Contributing Cause
Substantial evidence, including expert opinion, reasonably supported the compensation judge’s
decision that the employee sustained a permanent injury in an incident at work that caused or
substantially contributed to the employee’s L1-2 disc herniation and subsequent disability and need
for medical treatment.
Apportionment – Permanent Partial Disability
The compensation judge did not err in denying the employer and insurer’s request for apportionment
for pre-existing permanent partial disability, where the record reasonably established that the pre-
existing condition was either not ratable or else that it constituted an impairment separate and
distinct from the impairment caused by the work injury for which the employer and insurer were
liable.
Affirmed as modified.
Hart v. EVTAC Mining Company, 10/31/05

DOI: 5/16/02
Vacation of Award
Where the compensation judge’s findings provide no facts essential to the ultimate decision on the
issue of whether the employee’s work injury represented a substantial contributing cause of the
employee’s loss of earnings, and therefore those findings provide no information for the reviewing
court to determine from the record whether the facts support the compensation judge’s decision,
remand for reconsideration and further findings is necessary.
Vacated and remanded.
Stange v. State of Minnesota, Department of Transportation, 10/31/05

DOI: 10/24/00, 12/21/97, 5/1/97, 11/20/89
Appeals – Notice of Appeal
The employee’s narrative notice of appeal was sufficient to confer jurisdiction on this court and the
employee’s appellate brief adequately explains the issues appealed.
Causation – Psychological Injury
A condition resulting from an indirect causal relationship as here – where the employee argued that
as a result of his low back injuries, a contentious relationship developed with the employer and the
stress of his relationship with the employer aggravated his psychological condition – is generally not
compensable as a workers’ compensation injury. The compensation judge did not err in accepting the
independent medical examiner’s opinion that the employee’s depression was substantially caused by
his struggles with the employer rather than a direct result of his back injuries.

Substantial evidence supports the compensation judge’s determination that the employee’s leave of
absence from work from November 2000 through February 2001 was a substantial result of his
noncompensable psychological condition, and his denial of temporary total disability benefits for
this period of time.
Rehabilitation – Cooperation
Substantial evidence supports the compensation judge’s finding approving discontinuance of wage
loss benefits for failure to comply with the terms of the Job Placement Plan and Agreement (JPPA).
Permanent Total Disability
Where the employee was working at the time of the hearing and the employer was paying temporary
partial disability based on his wages, the compensation judge properly found the employee was not
permanently and totally disabled as of the date of the hearing.
Job Offer – Physical Suitability
Substantial evidence supports the compensation judge’s findings that the March 20, 2003, functional
capacities evaluation provided an accurate representation of the employee’s physical capabilities
from that date through the date of hearing, and that Dr. Matson found the highway technician job
suitable for the employee and that survey work was included in the job duties of a highway
technician.
Permanent Partial Disability
Substantial evidence supports the compensation judge’s finding of a 28 percent permanent partial
disability and his determination that there was no underpayment of permanency benefits.
Medical Treatment and Expense – Treatment Parameters
Substantial evidence supports the compensation judge’s finding the employee failed to establish
grounds for departure from the treatment parameters that provide a hot tub is not indicated for home
use for low back conditions.
Rehabilitation – Retraining
Where the employee agreed he was unlikely to be able to sit through classes or concentrate to read
due to his chronic pain, the compensation judge reasonably concluded that exploration of retraining
was not appropriate at this time.

Attorney Fees – Withholding
Where the compensation judge awarded benefits from which contingent fees could be paid and no
hearing has been held on a pending attorney’s lien claim, the compensation judge did not err in
ordering withholding from the benefits awarded pending resolution of the claim.
Affirmed.
Wright v. Ecolab, Inc., 10/31/05

DOI: 11/21/94
Vacation of Award – Substantial Change in Condition
Where the employee established a substantial change in condition under the factors set forth in
Fodness v. Standard Cafe, 41 W.C.D. 1054 (W.C.C.A. 1989), vacation of the award was appropriate.
Petition to vacate granted.
Amundson v. Mac’s Rental & Sales, Inc., d/b/a Mac’s Landscaping Center, 11/1/05
DOI: 6/30/03
Penalties
Where the employer and insurer’s denial of primary liability was made following a good faith
investigation of the facts, as referred to in Minnesota Statutes §176.225, subd. 1, and although the
employer and insurer did not ultimately prevail on their defense to the claim, that defense was not
frivolous nor made in bad faith, and therefore the award of penalties for maintaining a frivolous
defense, or for a frivolous denial of payment, is reversed.
Reversed.
Haugland v. Midwest Hardwood Corporation, 11/1/05*
DOI: 12/22/01
Permanent Partial Disability – Cosmetic Disfigurement

Minnesota Rules Part 5223.0650
Minnesota Rules Part 5223.0330, subp. 3.D
Minnesota Rules Part 5223.0560, subp. 2.C.(3)(c)
“Disfigurement” means anything that disfigures or defaces; a blemish, defect or deformity. The
employee is, accordingly, entitled to compensation for a visible scar on his right eyelid as a
consequence of his work injury. Where the employee’s ratable condition is a cosmetic disfigurement
rather than a visual impairment, the compensation judge erred in awarding a two percent
permanency for lagophthalmos under Minnesota Rules Part 5223.0330, subp. 3.D., and we modify
the judge’s finding to award a 15 percent permanency under Minnesota Rules Part 5223.0560, subp.
2.C.(3)(c), for ectropion with the cornea unprotected by sleeping.
Reversed and modified.

Poderzay v. University of Minnesota, 11/1/05

DOI: 1/10/03, 7/18/02
Maximum Medical Improvement – Multiple Conditions
Where the issue was whether the employer was entitled to discontinue temporary total disability
benefits based on the employee’s attainment of maximum medical improvement [MMI], and it was
undisputed, on appeal, that the employee had not reached MMI with regard to his lumbar injury, the
judge’s failure to make a finding as to MMI with regard to the employee’s cervical condition had no
practical effect, and the court therefore declined to remand the matter or otherwise modify the
judge’s decision, even though MMI as to the employee’s cervical condition had been at issue at
hearing.
Affirmed.
Helwick v. Cherne Contracting Corporation, 11/2/05

DOI: 6/19/87
Discontinuance of Benefits
Earning Capacity
While the employee made misrepresentations about the scope and extent of his post-injury
employment, the facts misrepresented were collateral rather than directly material to the issue of his
earning capacity. Accordingly, the compensation judge was not required to find that the employee
had misrepresented his earning capacity or that discontinuance of temporary benefits was warranted.
Affirmed.
Lundeen v. Independent School District #191, 11/2/05

DOI: 9/1/00, 2/23/00
Wages – Self-employment
Where it was supported by expert accounting opinion, where much of the employee’s position was
based on speculative projection of income that he might receive upon future sale of his land, where
essentially all evidence submitted by the employee pertained to work in which his wife also played
an important part, and where it was reasonable to conclude that any arguable cash flow advantage
that might be attributable to the employee’s various tax deductions was negated by the costs of new
equipment purchased during the years reviewed, the compensation judge’s conclusion that the
employee’s self-employment in a second-job dairy operation in which he had reported no profit for
tax purposes for the past six years was not a basis for an increased date of injury weekly wage was
not clearly erroneous and unsupported by substantial evidence.
Affirmed.

Davies v. Menards, 11/4/05

DOI: 5/24/03, 12/31/02, 6/5/00
Causation – Temporary Aggravation
Substantial evidence, including the employee’s medical records and adequately founded medical
opinion, supports the compensation judge’s finding that the employee’s work injury on June 5, 2000,
was temporary.
Practice and Procedure – Alternative Findings
The compensation judge did not lack authority to make alternative findings on issues presented as
alternative arguments.
Affirmed.
Kinney v. U.S. Steel, 11/15/05

DOI: 1/22/96, 1/2/90
Vacation of Award – Void Award

Vacation of Award – Mistake
Where there was no medical support for a claim of substantial change in condition, and the employee
did not establish either incompetence or mistake with regard to the terms of the settlement
agreement, good cause to vacate the award was not established.
Astren v. Ad Art Advertising, Inc., 11/17/05

DOI: 6/6/80
Causation
Substantial evidence, including expert opinion, supported the compensation judge’s decision that the
employee’s need for Plavix and Lipitor was related to the employee’s non-work-related coronary
artery disease, rather than the employee’s work-related heart attack.
Affirmed.

Moser v. Dairy Farmers of America f/k/a Mid-America Dairymen, Inc., 11/17/05

DOI: 8/26/82

Minnesota Statutes §176.101, subd. 3(40) (1980)
In keeping with the court’s holding in Hart v. United Buckingham Freight Lines, 30 W.C.D. 342
(W.C.C.A. 1978), an award of permanent partial disability benefits for injury to internal organs under
Minnesota Statutes §176.101, subd. 3(40) (1980), cannot exceed a total of 500 weeks.
Permanent Partial Disability – Internal Organs
Total destruction of an internal organ as a result of a work injury is entitled to a permanent partial
disability rating under Minnesota Statutes §176.101, subd. 3(40) (1980), and the compensation
judge’s assignment of a zero percent rating to the employee’s lung condition after a successful
bilateral lung transplant is clearly erroneous and unsupported by substantial evidence.

Where there was no dispute over the employee’s entitlement to permanent partial disability benefits
for her skin disorder as a “not enumerated” disability under Minnesota Statutes §176.101, subd.
3(49) (1980), where awards under that subdivision are to be made for a period “not to exceed 350
weeks” based on an employee’s proof of a reduction in earning capacity rather than on the
employee’s level of impairment, and where the employee was permanently and totally disabled, the
compensation judge erred in awarding only a portion of 350 weeks based on a conclusion that the
employee was subject to a 50 percent impairment of the skin, instead of the full 350 weeks provided
for in the statute.
Permanent Partial Disability – Simultaneous Injury

As held in Tracy v. Streater/Litton Industries, 283 N.W.2d 909, 32 W.C.D. 142 (Minn. 1979), the
provision in Minnesota Statutes §176.101, subd. 3(46) (1980), for a 15 percent bonus to be added to
the employee’s permanent partial disability benefits in cases of simultaneous injury does not apply to
internal organs, and the compensation judge’s conclusion to that effect was affirmed.
Jurisdiction – Subject Matter

Minnesota Statutes §60C
Although the judge incorrectly indicated that the employee had a claim against the employer by
operation of Minnesota Statutes §60C, the statute pertaining to Minnesota Insurance Guaranty
Association (MIGA), the compensation judge properly assumed jurisdiction to determine the
employee’s claim, in that Minnesota Statutes §176.021, subd. 1, clearly indicates that it is an
employer’s obligation to pay compensation to an injured worker for a work injury, and Minnesota

Statutes §176.185, subd. 7, does not, as argued by the employer, absolve an employer of that
responsibility when its insurer becomes insolvent.
Jurisdiction – Subject Matter

Jurisdiction – Constitutional Issues
The Workers’ Compensation Court of Appeals (WCCA) has no subject matter jurisdiction over an
employer’s claim against MIGA or over an employer’s contention that the MIGA statute, Minnesota
Statutes §60C, is unconstitutional for violating an employer’s right to due process and equal
protection under the law when applied to the employer’s rights retroactively and without regard for
the employee’s date of injury.
Affirmed in part and reversed in part.
Clemmer v. National Steel Pellet Company, 11/28/05

DOI: 3/8/02
Medical Treatment and Expense – Chiropractic Treatment
Substantial evidence supports the compensation judge’s decision that the chiropractic services
provided to the employee were reasonable and necessary.
Causation – Psychological Condition
Substantial evidence supports the compensation judge’s determination that the employee’s work
injury was a substantial contributing factor in the employee’s need for psychological care.
Affirmed.
Paterson v. Hauenstein & Burmeister, 11/28/05

DOI: 9/29/00
Rehabilitation – Retraining
Substantial evidence supports the compensation judge’s findings with respect to the four factors set
forth in Poole v. Farmstead Foods, 43 W.C.D. 970 (W.C.C.A. 1989), and his award of a four-year
retraining plan with the goal of obtaining a bachelor’s degree in health information management.
Affirmed.

Shamp v. Daybreak Foods, 11/28/05

DOI: 5/22/99
Costs and Disbursements

Settlements – Interpretation
Where the stipulation for full, final and complete settlement was unambiguous and made no
provision for payment of taxable costs, the compensation judge erred in concluding that the
agreement did not close out such claims.
Reversed.
Gledhill v. Dupont Villa Apartments, 12/5/05

DOI: 1/20/04

Minnesota Statutes §176.101, subd. 1(e)(1)
The statute precludes recommencement of temporary total disability benefits after an employee has
returned to work and then is discharged for misconduct, and does not apply to terminate an
employee’s ongoing entitlement to temporary total disability benefits. Because the employee was
discharged for conduct that occurred while he was off work due to his injury and while he was
receiving temporary total disability benefits, the statutory provisions concerning cessation and
recommencement of benefits do not apply.

Termination of Employment – Misconduct
Substantial evidence of record supports the compensation judge’s finding the employer and insurer
should not have been allowed to discontinue the employee’s temporary total disability benefits as of
June 18, 2004, on the basis of alleged misconduct, because the employee’s actions which provided
the basis for the termination of his employment did not constitute misconduct.
Evidence – Burden of Proof
At a hearing on the employee’s objection to discontinuance of benefits based on misconduct, the

employer and insurer have the initial burden of proof to establish the evidentiary basis for the
discontinuance.
Evidence – Hearsay
The admission of hearsay evidence did not constitute error on the part of the compensation judge.
Affirmed.

Zufall v. State of Minnesota, Cambridge Regional Center, 12/5/05

DOI: 12/2/91
Where there has been a change in the employee’s diagnosis, more extensive medical treatment than
anticipated, entitlement to additional permanent partial disability, a change in her ability to work, and
a causal relationship between the employee’s work injury and her worsened condition, the employee
has experienced a substantial change in condition since a mediation resolution/award in 1993 and the
employee’s petition to vacate the mediation resolution/award is granted.
Petition to vacate granted.
Phan v. Radisson Hotel, 12/6/05

DOI: 5/7/97
Evidence – Res Judicata
Where the employee’s medical expenses were not at issue at a prior hearing in 1999, and the
previous claim covered temporary total disability and rehabilitation benefits from Aug. 14, 1997,
through June 14, 1999, and did not encompass the employee’s current claims for permanent total
disability and rehabilitation benefits subsequent to the 1999 hearing, the compensation judge’s
dismissal of the employee’s current claims on the basis of the doctrine of res judicata is vacated and
the case is remanded for a hearing.
Vacated and remanded.
Ward v. City of St. Louis Park, 12/7/05

DOI: 9/16/02, 3/24/02, 3/1/01, 8/24/00, 5/20/98, 9/7/96, 4/14/96, 8/21/95, 3/9/95, 2/22/95,
10/13/94, 7/14/94
Where the employer’s independent medical examiner did not improperly rely on the operative
reports of the employee’s treating surgeon and the MRI reports of the attending radiologists rather
than on arthroscopic photographs and the MRI films themselves, and where the IME’s unawareness
of the treating surgeon’s diagnosis of chondromalacia at the time of an earlier surgery was essentially
moot under the facts of the case, the court would not conclude that the IME’s otherwise well
developed opinions were without adequate foundation to be relied upon by the compensation judge.
Causation
Causation – Superseding Intervening Cause
Evidence – Burden of Proof
A compensation judge is free to accept a portion of an expert’s opinion while rejecting other
portions. Where the employee did not complain of left knee pain to a doctor for 10 years after his
1994 work injury, and where neither of the parties in their opening statements nor the judge in her
decision ever invoked the legal theory of a “superseding intervening cause,” the judge’s conclusion
that the employee’s surgery after a knee injury at home in 2004 was unrelated to the 1994 work
injury was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact
that the judge, without shifting the burden of proof to the employer, relied on the opinion of an
independent medical examiner who voluntarily referred to the 2004 injury as a “superseding
intervening injury.”
Affirmed.
Wilson v. Scanlan International, Inc., 12/9/05

DOI: 4/29/02
Evidence – Res Judicata
Where the decision of the worker’s compensation judge involved a claim for temporary total
disability benefits extending from April 20, 2002, through the date of hearing on Oct. 31, 2003, and
where the employee now claims entitlement to temporary total disability or permanent total
disability benefits from Nov. 1, 2003, the doctrine of res judicata is not applicable when considering
the effect of the previous findings and order, and does not preclude the claims presented by the
employee’s claim petition.
Reversed and remanded.

Petition to vacate dismissed without prejudice.
Mundy v. American Red Cross, 12/13/05

DOI: 3/20/98
Permanent Partial Disability – Reflex Sympathetic Dystrophy
Where the compensation judge accepted the opinions of the IME doctors that the employee did not
have persistent objective findings of functional impairment, it was not error to deny the employee’s
claim for permanent partial disability.
Permanent Total Disability – Threshold

Substantial evidence supports the compensation judge’s finding that the employee did not have
sufficient disability from pre-existing conditions to meet the requisite threshold for permanent total
disability.
Substantial evidence supports the compensation judge’s determination that the claimed prescription
expenses were not reasonable or necessary.
Affirmed.

Nelson v. Parker Hannifin Corporation, et al, 12/15/05

DOI: 9/00/75, 5/00/74, 11/00/72
Gillette Injury
Substantial evidence, including expert medical opinion, supported the compensation judge’s decision
that the employee did not sustain Gillette injuries to his neck and low back as claimed.
Affirmed.
Beckman v. Northside Construction, 12/16/05

DOI: 4/22/87
The employee did not establish good cause to vacate the award on stipulation under the factors
specified in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
Burg v. MIK Coop Trucking Association, 12/22/05

DOI: 5/6/01
Medical Treatment and Expense – Change of Physicians
Where the employee’s treatment had been varied and complex prior to his current doctor’s
involvement, where the latter was obviously aware of that treatment when he continued to
recommend conservative treatment, where the judge reasonably concluded that the employee’s
doctors had documented a treatment plan as required under the treatment parameters, and where the
employer and insurer had not offered any evidence that any form of treatment not already tried by
the employee would be proposed by another doctor, the compensation judge’s denial of the employer
and insurer’s request for a change of physicians was not clearly erroneous and unsupported by
substantial evidence, notwithstanding the fact that the employee had not demonstrated a substantial
change in his symptomology since the date of his work injury.
Affirmed.
Mankowski v. St. Paul Companies, Inc., 12/22/05

DOI: 9/27/03, 12/12/92
Causation – Gillette Injury

Gillette Injury – Date of Injury
Practice and Procedure – Matters at Issue
Where the only work injury alleged by the employee was a Gillette-type injury on Sept. 27, 2003,
where there was expert opinion that the employee was subject to an overuse injury in her right upper
extremity and that that condition was work-related, and where in her memorandum the judge had
identified as an “overuse syndrome” the more general work-related condition referenced in her
findings, the compensation judge’s finding that the employee had sustained a work-related “right
upper extremity condition” was not clearly erroneous and unsupported by substantial evidence and
did not warrant remand for additional findings as to the specific date and nature of the injury.
Notice of Injury – Gillette Injury

Minnesota Statutes §176.141
Where the judge concluded generally that the employee had given timely notice of her injury but
specified no date of that notice and offered no factual support or reasoning for her conclusion, where
the judge did not make any specific finding as to whether the timely notice that she found was actual
notice or inquiry notice, and where, in the event that the timely notice that she found was within 180
rather than 30 days of the injury, the judge did not address the factors specified in Minnesota Statutes
§176.141 that permit such delayed notice, the matter of notice of injury was reversed and remanded
for reconsideration and more specific findings.
Intervenors
Where issues at hearing had expressly included the employer’s own intervention interest for short-
term disability benefits paid to the employee during the period for which she had claimed temporary
total disability benefits, and where the judge’s findings and order neither listed the employer/
intervenor among intervenors on the caption page nor contained any specific findings relating
specifically to that party’s intervention interest, the matter was remanded to the compensation judge
for findings clarifying the employer/intervenor’s particular intervention interest, notwithstanding the
fact that the judge’s award of benefits to the employee had been made “subject to attorney fees and
the intervenors’ claim for reimbursement.”
Affirmed in part, reversed in part, and remanded.
Tourville v. Site Works Design, Inc., 12/23/05

DOI: 10/17/02

Job Search
Substantial evidence supports the compensation judge’s finding that due to his restrictions, the
employee was incapable of substantial gainful employment from Feb. 17, 2003, through Jan. 28,
2004, and therefore was not disqualified from receiving temporary total disability benefits on the
grounds that he failed to make a reasonable and diligent job search.
Penalties
Where the employee’s surgery was performed on Jan. 28, 2004, and temporary total disability
benefits were not paid until April 9, 2004, substantial evidence supports the compensation judge’s
finding that the employer and insurer neglected to timely pay compensation and the corresponding
penalty award.
Affirmed.

Kruger v. Smith Trucking, Inc., 12/27/05

DOI: 12/29/04
Causation
The record as a whole supported the judge’s denial of the employee’s claim for wage loss benefits
related to a 2004 work injury, where it was not unreasonable for the judge to find the employee’s
testimony not credible or for the judge to reject expert causation opinion as unpersuasive.
Affirmed.

• Judicial •
Minnesota
Supreme Court
October through December 2005
Case summaries published are
those prepared by the WCCA
• Jon Deines v. Custom Log Buildings/Uninsured, and Black Bear Homes, Inc./Acuity Mutual Insurance
Company, and SMDC Health System, Intervenor, and Special Compensation Fund, A05-1316, Sept. 29,
2005
Decision of the Workers’ Compensation Court of Appeals filed June 6, 2005, affirmed without
opinion.
• Darold Zwieg (deceased) v. Pope Douglas Solid Waste and Minnesota Counties Insurance Trust, and
Medicare/Noridian, Blue Cross/Blue Shield of Minnesota, St. William’s Living Center, Center for
Diagnostic Imaging, Alexandria Clinic, and Regional Diagnostic Radiology, Intervenors, A05-799,
Oct. 13, 2005
S Y L LAB U S
Penalties assessed against the employer and insurer and payable to the employee are part of the
employee’s underlying claim and are therefore vested and payable to the employee’s heirs.
The Workers’ Compensation Court of Appeals did not exceed its authority in reversing the denial of
penalties and remanding for further proceedings.
Affirmed.
• Laree E. Huff v. Northwest Airlines Corporation and Liberty Mutual Insurance Company, A05-604,
Oct. 18, 2005
Decision of the Workers’ Compensation Court of Appeals filed Feb. 24, 2005, affirmed without
opinion.
• Gary R. Meyer v. George F. Cook Construction Company, and State Fund Mutual Insurance Company,
and Gresser Concrete, and Liberty Mutual Insurance Company, and Stellar Concrete & Masonry, and
Lumbermen’s Underwriting Alliance, A05-1475, Oct. 31, 2005
Decision of the Workers’ Compensation Court of Appeals filed June 27, 2005, affirmed without
opinion.

• Adam Werneke (minor) by Matthew Werneke v. Lakeside Lawn and Landscape, Inc., and Integrity
Mutual Insurance/CompCost, Inc., and Trustmark Life Insurance Co., Intervenor, A05-1665, Nov. 22,
2005
Decision of the Workers’ Compensation Court of Appeals filed July 21, 2005, affirmed without
opinion.
• Cindy Leidenfrost v. Wal-Mart Stores, Inc., and Pennsylvania/AIG, claims administered by Claims
Management, Inc., and Institute for Low Back & Neck Care, and Abbott Northwestern Hospital,
Intervenors, A05-1666, Nov. 28, 2005
Decision of the Workers’ Compensation Court of Appeals filed July 25, 2005, affirmed without
opinion.

Department of Labor: 0206wcca

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Department of Labor: 0206wcca

Uploaded by

Copyright:

Available Formats

• Judicial •

Fallon v. AT&T Minnesota, 10/3/05

Alvord v. DeZurik d/b/a SPX Valves & Controls, 10/5/05

Maximum Medical Improvement

Temporary Total Disability

Appeals – Scope of Review

Newberg v. Walgreens, 10/5/05

Practice and Procedure – Independent Medical Examination

St. John v. LeFebvre Transportation, Inc., 10/5/05

Skic v. Beverage Transportation Corporation, 10/6/05*

Petition to vacate denied.

Anderson v. Suburban Chrysler Plymouth, 10/13/05

Crowley v. Plehal Blacktopping, Inc., 10/13/05

Attorney Fees – Roraff

Attorney Fees – Roraff

Appeals – Law of the Case

Attorney Fees – Roraff

Jaynes v. Golden Crest Nursing Home, 10/13/05

Medical Treatment and Expense – Reasonable and Necessary

D-4 • COMPACT • February 2006

Medical Treatment and Expense – Surgery

Affirmed in part and vacated in part.

LaPanta v. Myron’s Cards & Gifts, Inc., 10/14/05*

McLaughlin v. St. Phillips Church, 10/14/05

Interest – Attorney Fees

Penalties – Medical Treatment and Expense

Penalties – Attorney Fees

Affirmed in part, reversed in part and modified in part.

Schaaf (deceased) by Schaaf v. Biffs, 10/18/05

Johnson v. Yellow Transportation, 10/21/05

Causation – Medical Expenses

Geary v. McNeilus Truck and Manufacturing, 10/27/05

Practice and Procedure

D-6 • COMPACT • February 2006

Causation – Substantial Contributing Cause

Apportionment – Permanent Partial Disability

Hart v. EVTAC Mining Company, 10/31/05

Vacated and remanded.

Stange v. State of Minnesota, Department of Transportation, 10/31/05

Appeals – Notice of Appeal

Causation – Psychological Injury

D-7 • COMPACT • February 2006

Temporary Total Disability

Permanent Total Disability

Job Offer – Physical Suitability

Permanent Partial Disability

Medical Treatment and Expense – Treatment Parameters

D-8 • COMPACT • February 2006

Attorney Fees – Withholding

Wright v. Ecolab, Inc., 10/31/05

Vacation of Award – Substantial Change in Condition

Petition to vacate granted.

Permanent Partial Disability – Cosmetic Disfigurement

Reversed and modified.

Poderzay v. University of Minnesota, 11/1/05

Maximum Medical Improvement – Multiple Conditions

Helwick v. Cherne Contracting Corporation, 11/2/05

Lundeen v. Independent School District #191, 11/2/05

D-10 • COMPACT • February 2006

Davies v. Menards, 11/4/05

Causation – Temporary Aggravation

Practice and Procedure – Alternative Findings

Kinney v. U.S. Steel, 11/15/05