Re: NWCDN Minnesota Workers’ Compensation Update
WORKERS' COMPENSATION COURT OF APPEALS
1. Penalties
Meyers
v. K Byte-Hibbing Manufacturing, et al., WCCA, 12/22/05
In this case, the Workers’
Compensation Court of Appeals (“WCCA”) reversed an assessment of penalties
against an insurer under Minn. Stat. § 176.225, subd.
5. However, the WCCA did assess a
penalty of 5% to the insurer under Minn. Stat. § 176.225, subd.
1 for unreasonably delaying payment of attorney’s fees and
costs to the employee’s attorney.
The parties in this case
entered into a Stipulation for Settlement in January 2004, wherein the employee
agreed to a full, final and complete closeout of any and all claims arising out
of his work injury, except limited future medical treatment and future
attorney’s fees associated with claims for those benefits. In return, the employer and insurer agreed to
pay a lump sum of $135,000, of which $122,000 was to be paid to the employee
and $13,287.74 was to be paid directly to the employee’s attorney as attorney’s
fees and costs. The Stipulation was
submitted to a compensation judge and an Award on Stipulation was served and
filed on February 6, 2004. The
Stipulation set forth the employee’s address in Hibbing.
On February 12, 2004, the insurer requested the employee’s attorney
provide a signed W-9 federal tax form prior to issuing payment. In response, the employee’s attorney orally
gave the insurer his Tax ID number, taking the
position the insurer did not need to have a signed W-9 form in advance of
issuing payment of his attorney’s fees.
He subsequently sent the insurer a signed W-9 form. Once the insurer received the W-9 form, a
check for attorney’s fees was mailed in an envelope postmarked February 23,
2004. The employee’s attorney received
said check on February 26, 2004. The
lump sum payment check to the employee was dated February 13, 2004 and mailed
to the employee’s attorney in St. Paul, rather
than his address in Hibbing. The employee’s attorney mailed said check to
the employee on February 20, 2004.
The WCCA denied the
employee’s claim for penalties under Minn. Stat. § 176.221, subd.
1 holding that Minn. Stat. § 176.221, subd.
8 requires payment of settlement proceeds within 14
days of filing of an Award on Stipulation.
In this case, because the employee’s attorney mailed the employee’s
settlement check to the employee on the 14th day, payment was made
to the employee on a timely basis.
Additionally, the WCCA held the payment of attorney’s fees and costs to
the employee’s attorney was unreasonably delayed, and as such, assessed a
penalty of 5% under Minn. Stat. § 176.225, subd.
1. Specifically, the WCCA noted the
insurer failed to prove its policy requiring a signed W-9 form from the employee’s
attorney in advance of payment was necessitated by any legal requirement. Therefore, because the employee’s attorney
gave his Tax ID number to the insurer by telephone on February 12, 2004, at
which point the insurer had eight days to place the check in the mail and meet
the 14-day statutory payment requirement, and this was
not done. Accordingly, the payment to
the employee’s attorney was unreasonably delayed three days, and the WCCA
concluded a penalty of 5% under Minn. Stat. § 176.225, subd.
1 is appropriate.
~ ~ ~
2. Retraining
Fraser
v. City of St. Louis Park,
WCCA, 1/25/06
In this case the WCCA
determined whether a lap top computer that is not specifically required by a
retraining course is a reasonable and necessary expense pursuant to Minn. Stat.
§ 176.102, subd. 9(1) and 9(2).
The employee sustained an
injury while working as a police officer for the City of St. Louis Park. Ultimately the parties agreed that retraining
at Bethel University to complete a Master of
Education degree was appropriate. The course
specifically required that the employee have access to the Internet, with
e-mail capabilities for his use throughout his degree program. The employee had sporadic use of a laptop
computer from his daughter as well as a desktop model that he had purchased in
1998 that had become unreliable. As
such, the employee purchased a laptop with accessories at a total cost of
$1,840.69. The employee alleged that the
laptop was necessary to complete his course work at Bethel University. Specifically, the employee was required to
write and submit research papers weekly.
However, there was no specific requirement that students have their own
computer. The employee did have access
to the Bethel Computer Lab as well as sporadic use of computers in the Bloomington
classroom. Compensation Judge Danny
Kelly found that although the computer would assist the employee throughout his
degree program, it was not an essential component of the course and, therefore,
not a reasonable and necessary expense under Minn. Stat. § 176.102, subd. 9(1) and 9(2). On appeal the WCCA reversed the compensation
judge’s opinion and found that requested rehabilitation expenses need not be
“essential” to the retraining plan’s completion in order to be compensable. It is enough that they assist the employee in
the successful completion of the course work.
~ ~ ~
3. Arising Out Of And In The Course of Employment
Gerald
A. Pratt v. Minn. Tex Investments, et al., Supreme Court, 1/17/06
Where the judge reasonably
concluded that the quarter-to-half-inch rubber floor mat from which the
employee was stepping at work when his knee gave out did not represent a
special hazard or increased risk related to the employee’s work and where the
only connection between the employment and the injury was the fact that the
injury occurred on the employer’s premises during work hours, the compensation
judge’s conclusion that the employee’s injury, although in the course of his
employment, did not arise out of his employment was not clearly erroneous and unsupported
by substantial evidence. This case was
successfully defended by our office.
~ ~ ~
4. Temporary Partial Disability
Johnson
v. Laraway Roofing, et al., Supreme Court, 2/6/06
In this case, handled by
Richard Schmidt on behalf of Wilson Refrigerated Express and Great West
Casualty Company, the compensation judge awarded temporary partial disability
benefits based upon the employee’s earnings delivering newspapers. Wilson Refrigerated Express and Great West
Casualty appealed the judge’s findings, arguing to the Workers’ Compensation
Court of Appeals that the employee’s earnings were too insubstantial to
establish entitlement to temporary partial disability benefits. The WCCA reversed the judge’s findings. The employee appealed to the Supreme Court
which affirmed the decision of the WCCA.
~ ~ ~
5. Arising Out Of And In The Course Of Employment
Ledman v. Children’s Hospital, WCCA, 3/20/06
The dispute in this matter
concerns an injury the employee allegedly sustained to her left knee while
working at Children’s Hospital on March 22, 2004. However, the record indicates the employee
provided several different dates of injury throughout the course of
litigation. After the alleged incident
the employee did not notify anyone of her injury, nor did she seek treatment
immediately.
The employee claimed
entitlement to various benefits as a result of the alleged work injury to her
left knee, and the matter came on for hearing on August 4, 2005. The compensation judge denied the employee’s
claim concluding her account of her alleged fall was not credible. The compensation judge’s Findings and
Memorandum note she was troubled by discrepancies in the employee’s reports as
to the date of the alleged injury, ranging from March 21 to June of 2004. Additionally, the compensation judge noted
the employee testified her knee was so sore by April 1, 2004, she had an
observable limp, yet the employee’s nurse manager did not observe any limp when
the employee walked a short distance in and out of her office for her
performance review on that day.
Moreover, the employee did not inform the nurse manager of her injury at
that time, and despite her claim that she was experiencing swelling, increasing
pain, and limping, the employee did not seek treatment for her left knee
symptoms for another three weeks.
The WCCA affirmed the
compensation judge’s findings noting that credibility determinations are
generally for the compensation judge to make.
In this case, given the circumstances, it cannot be concluded the
compensation judge erred in rejecting the employee’s testimony as to the
occurrence of the alleged work injury.
~ ~ ~
6. Arose Out Of And In The Court Of Employment
Kurtz
v. Lakes Medi Van, Inc., WCCA, 4/25/06
The employee was a driver
representative providing non-emergency medical transportation in out state Minnesota. The employee normally commuted in his own
vehicle from his residence in Little Falls to the Brainerd garage at the
beginning of each work day and then from Brainerd back to Little Falls at the
end of each work day. On November 7,
2003, at the end of his shift, the employee telephoned his dispatcher and
requested to take his company van home for the weekend. He explained that his personal vehicle was
being repaired and that his first pick-up on the following Monday was before
7:00 a.m. in Little Falls. The
employer’s policy is that company vehicles are not for personal use unless
approved by the office. Approval is
given on a case-by-case basis. On
occasion, drivers may be instructed by the company to take the van home if
there is an early morning pick-up close to the driver’s home. On those occasions, the driver is paid for
his commute home. When the employee has
not been instructed to take the van home but permission is otherwise granted,
the employee is not paid for his commuting time or time spent using the van on
personal business. The employee’s use of
the company van was approved. He left the
Brainerd facility between 5:00 p.m. and 5:30 p.m. en route to his home in Little
Falls. While driving south on Highway
371 from Brainerd, the employee struck a deer with the company van. He pulled to the side of the road and was
killed when he was struck by another driver.
A claim for dependency
benefits was filed on behalf of the employee’s one minor dependent child on May
21, 2004. The compensation judge
determined that the employee’s use of the company van at the time of his death
was for both business and personal reasons and that, because of his scheduled
client pick-up in Little Falls on Monday morning, the employee’s drive to
Little Falls on Friday afternoon was a necessary business trip. Finding that the employee’s commute home was
a “dual purpose activity,” the judge concluded that the employee’s death arose
out of and in the course of his employment.
The WCCA concluded that the evidence was sufficient to support a finding
that the work of the employee created the necessity for the trip, which would
have had to have been made even if it had not coincided with the employee’s
commute home. The business purpose of
the trip, although not the sole reason, was reasonably at least a concurrent
reason for and not a mere incident to the employee’s personal activities on the
night on which was fatally injured.
~ ~ ~
7.
Arose Out Of And In The Court Of Employment
Ebert
v. Yellow Freight System, WCCA, 5/15/06
At issue in this matter was
the employee’s entitlement to temporary total disability benefits and medical
expenses due to cellulitis with toxic shock
syndrome. The employee was an
over-the-road truck driver and while away from home was required to stay at the
Bridgeview Hotel. The employee showered
at the hotel and slept and then began his return trip on the same day. The employee began to experience a high fever
and continued to feel poorly throughout the entire return trip. He later developed a fever of 104 degrees and
was diagnosed with cellulitis with toxic shock
syndrome. The compensation judge
determined the employee had contracted the infection in Chicago, most likely in the hotel room where
he showered and rested during the day of May 1, 2004. The compensation judge awarded the claimed
benefits based in part on a handwritten doctor’s report which although
speculative, linked the hotel stay to the employee’s illness. On appeal, the
WCCA affirmed the decision of the compensation judge indicating that while the
doctor’s office notes did not indicate a definitive diagnosis, a medical
opinion does not have to express absolute certainty that the employee’s injury
arose out of and in the course of his employment.
~ ~ ~
8. Estoppel
Kosnopfal v. Connexus
Energy, WCCA,
4/25/06
The employee sustained a
personal injury to his low back on December 6, 2002 while working for the
employer. The employer and insurer
accepted liability for the injury.
The employee treated with
various doctors following said injury.
Dr. John Stark took the employee off of work in February 2002. In May 2003, Dr. Stark released the employee
to very light work. The doctor prepared
an R-33 form on August 14, 2003, that limited all of the employee’s activities
except lifting and carrying up to 10 lbs.
Dr. Stark stated, “restrictions considered
permanent.” On September 23, 2003, Dr.
Stark did not provide any restrictions, fearing they might limit the
employee. In a Report of Work Ability
dated November 24, 2003, Dr. Stark referred to the permanent restrictions
contained in the R-33 form. On several
occasions, Dr. Stark stated that the employee’s restrictions were
permanent. On September 2, 2004, Dr.
Stark prepared a Work Ability Report and a Department of Unemployment and
Economic Development form indicating that the employee was able to work without
restrictions. On September 7, however,
the doctor noted that those reports were inconsistent with his prior opinions
and stated that the employee “obviously has a lingering disability which is
interfering with his ability to work.”
The employee began a job at
Grand Casino as a security guard on October 7, 2004. When he applied for the job, he represented
that he was capable of working without restrictions. On May 23, 2005, the employee obtained a job
as a forklift driver/material handler at Woodcraft, Inc., which he procured
through Doherty Temporary Services.
The employee filed a Claim
Petition seeking temporary partial disability benefits. The compensation judge found that the
December 6, 2002 personal injury resulted in restrictions and permanent partial
disability and awarded temporary partial disability benefits. The employer and insurer appealed, arguing
that the employee made representations to the employer and others that were
contrary to his direct testimony before the compensation judge. These representations included submitting to
the Department of Employment and Economic Development Dr. Stark’s opinion that
he was able to work without restrictions, a union grievance, and his
representations to Grand Casino and Doherty Services that he had no physical
restrictions. They argued that the
employee’s inconsistent representations estopped him
from claiming wage loss benefits.
The WCCA explained that the
elements of judicial estoppel, and its application,
have not been clearly defined in Minnesota. As a general rule, however, under the
doctrine of judicial estoppel, a party who has
successfully asserted a position in a prior proceeding may be estopped from asserting an inconsistent position in a
subsequent proceeding. In this case, the
WCCA pointed out that the employee testified he was not successful and did not receive unemployment benefits. Moreover, there was no evidence regarding the
nature of the proceeding involved. The
WCCA did not know why the form with Dr. Stark’s opinion was submitted, the
assertions made by the parties, or anything else about the unemployment proceeding. Under those circumstances, they declined to
apply the doctrine of judicial estoppel. The WCCA also pointed out that the doctrine
of equitable estoppel has been applied in workers’
compensation cases with the seeker of the equitable remedy demonstrating that
it suffered some loss through a reasonable reliance on the conduct of the party
to be estopped.
The WCCA ruled that there was no evidence that the employee’s position
regarding his ability to work induced the employer to act or fail to act in any
way. While the employee’s previous
assertions may go to the credibility of the employee, it is a question for the
compensation judge to weigh and resolve.
The WCCA ultimately decided there was no compelling reason to apply
either the doctrine of judicial or equitable estoppel.
~ ~ ~
9. Permanent Partial Disability
Howard
v. Olympic Temporary, Inc., WCCA, 5/15/06
In this case, the WCCA affirmed the compensation judge’s decision
that the employee’s permanent partial disability could be ascertained. The employee sustained an admitted injury
when he fell 30 feet from the top of a building and died approximately seven
months later. The employee’s treating physician assigned him a permanent
partial disability rating of 40% of the whole body. The doctor retained by the employer and
insure to review the employee’s records concurred with the treating doctor’s
assessment of permanent partial disability at the time of the consultation but
indicated that had the employee survived, his permanent partial disability
would have been in the 10 to 20% range.
The compensation judge awarded the employee’s dependents 40% whole body
disability, accepting the opinion of the treating physician. On appeal, the WCCA affirmed finding that the
treating physician’s testing and medical records most accurately set forth the
extent of the employee’s permanent partial disability at the time of his death.
~ ~ ~
10. Permanent Total Disability
Turner
v. EVTAC Mining, WCCA,
5/25/06
At issue in this case was
the employee’s entitlement to permanent total disability benefits due to a low
back injury. Previously the employee
claimed multiple neck and back work-related injuries. The employee’s functional
capacity evaluation indicated that the employee had restrictions but was not
prohibited from working.
The employee returned to
work with the date of injury employer full-time at a light duty job which was
generally within the employee’s restrictions as set forth in the FCE. The employee continued to work with the employer
until the employer eliminated all of its light duty positions. The employee returned to regular duty as an
automotive mechanic, a job outside his restrictions, to retain employment with
the employer. The employee continued to
work in this position until the employee was permanently laid off due to
bankruptcy proceedings of the employer.
One day after he was laid off, the employee filed a claim for social
security disability benefits. Thereafter he obtained employment but later
voluntarily quit this position.
The compensation judge
concluded that the employee had been permanently and totally disabled since he
quit his job. Reversing the decision of the compensation judge, the WCCA held
the employee was not entitled to permanent total disability benefits as the
employee continued to work with fluctuating but not clearly declining physical
ability since the date of the FCE and had not been restricted from full-time
work even by the employee’s treating doctors. Further, the employee’s job
search was not diligent and he did not establish a job search would have been
futile. Further, the evidence relied
upon by the compensation judge did not support the conclusion that the employee
was permanently and totally disabled from all substantial employment.
~ ~ ~
11. Arising Out Of And In The Course Of
Lewin v. Aspen Medical Group, WCCA, 6/21/06
In this matter, the WCCA was
faced with the question of whether an employee’s fall arose out of her
employment with the employer. As she was
walking from the nurse’s station to an examination room the employee, a LPN,
fell injuring her right knee. The
employee produced no explanation for her fall.
The employer and insurer initially admitted liability for the injury and
paid medical and wage loss benefits.
Subsequently, they filed a Petition to Discontinue Benefits based on an
allegation that the employee’s injury did not arise out of her employment. The Petition came on for hearing and the
compensation judge determined the employee’s knee injury was work related and
denied the employer and insurer’s Petition.
The WCCA reversed the decision of the compensation judge and determined
the employee failed to establish the fall was a natural incident of her work
activity as a nurse and any causal connection between her work activity and the
fall as she did not provide any evidence on that issue.
~ ~ ~
12. Notice
Adams v. DSR Sales, Inc., WCCA, 6/28/06
This case addressed the
intersection between workers’ compensation and third-party actions. The employee sustained serious injuries when
he was involved in a motorcycle accident.
The employee brought both a third-party action and filed a Claim
Petition in connection with his injuries.
While his workers’ compensation claim was pending, the employee settled
his third-party claim. The workers’
compensation insurer was not notified of and did not take part in the
third-party settlement negotiations. The
employee’s workers’ compensation matter eventually came on for hearing and the
compensation judge determined that the employee sustained a work-related
personal injury and awarded medical expenses.
The compensation judge also found the employee failed to give
proper notice to the employer and insurer of third-party settlement
negotiations as required by case law, that the employee failed to rebut the
presumption of prejudice resulting from his failure to give the required
notice, and that the entire net proceeds of the third-party settlement were
available to the insurer for purposes of a credit against its workers’
compensation liability. As to past
benefits paid, the compensation judge ruled that the workers’ compensation
insurer was entitled to a dollar-for-dollar setoff to be taken against its
subrogation interest. As to future
benefits payable to the employee, the compensation judge ordered that the cost
of collection ratio be applied which resulted with the insurer liable to pay
37.3 cents per every dollar and workers’ compensation benefits otherwise owed
while reducing their remaining available subrogation credit by one dollar. The insurer was also ordered to pay
contingent attorney’s fees. On appeal,
the WCCA affirmed the decision of the compensation judge on all issues, however,
slightly modified the calculation of the setoff. Judge David Stofferahn
dissented, indicating he would reverse the compensation judge and order the
distribution of the third-party settlement pursuant to Minn. Stat. § 176.061, subd. 6.
Additionally, he noted the employer and insurer’s notice defense was not
raised as an issue at hearing. As to
attorney’s fees, he would vacate the compensation judge’s award and not award
any contingent fees.
~ ~ ~
13. Temporary Total Disability
Groth v. Ryan Contracting Company, WCCA, 6/5/06
At issue in this matter was
the employee’s entitlement to temporary total disability and medical
benefits. The employee sustained an
admitted strain injury to his right hand on September 4, 2002. Nearly two years
after this injury the employee was diagnosed with pain disorder with
psychological factors and a general medical condition secondary to the
September 4, 2002 injury. The employee
continued to work with his date-of-injury employer until he was laid off in
December 2002. The employee filed a
Claim Petition seeking temporary total disability and medical benefits from May
1, 2003, due to his physical and resultant psychological injury. The
compensation judge denied the employee’s claim for wage loss benefits from May
1, 2003, through July 23, 2004, but ordered the employer and insurer to pay temporary
total disability benefits thereafter.
Additionally, the compensation judge found the employee did not sustain
a psychological injury and denied his claims for medical treatment expenses.
On appeal, the WCCA found
the compensation judge’s decision that the employee did not sustain a
psychological injury was supported by substantial evidence. As to the claimed medical expenses, the WCCA
found the compensation judge’s findings inadequate as they did not address
whether the claimed medical expenses were reasonable and necessary. As such, this issue was remanded to the
compensation judge for further findings.
On the issue of
the employee’s entitlement to temporary total disability
benefits, the WCCA also affirmed the decision of the compensation judge denying
benefits between May 1, 2002, and July 23, 2004 as the employee did not engage
in a diligent job search, had no written documentation of any job search, and
failed to identify any specific contacts at that time. Further, the WCCA affirmed the award of
temporary total disability benefits on and after July 23, 2004, as substantial
evidence supported the conclusion that the employee had engaged in a diligent
job search. Lastly, the WCCA affirmed
the compensation judge’s finding that the employee was not at maximum medical
improvement at the time of hearing as there was evidence that supported the
conclusion that further treatment may significantly improve the employee’s
condition.
~ ~ ~
14. Work-Related Physical Or Mental Injury
Williams
v. Twin Cities Stores, Inc., WCCA, 6/7/06
This case addressed whether
a mental injury in the absence of a physical injury was compensable under the
Minnesota Workers’ Compensation Act. At the time of the claimed injury, the
employee was working as a cashier at a convenience store when a driver of a car
crashed into the window of her store.
The employee heard the noise of the crash and immediately felt back
pain, neck pain and headaches. The
employee was not hit by the car or any debris from the crash but was presented
with what she described as a “great force” from the crash. Thereafter the employee obtained chiropractic
and other medical treatment and later began treating for depression. The matter came on for hearing and the
compensation judge found that the employee did not sustain a work-related
physical or psychological injury as the employee was not struck by the vehicle
when it crashed through the window.
While the compensation judge found the employee did sustain a
psychological disability as a result of the December 11, 2004 injury, this
disability did not result from a physical injury and therefore was not
compensable under the Act. On appeal,
the WCCA affirmed the findings of the compensation judge noting that the Act
has not been construed to allow compensation for mental disability caused by a
work-related stress without physical stimulus, trauma or injury. The WCCA concluded that there was no evidence
the employee’s physical contact with flying glass or a “great force” resulted
in any medical condition or bodily reaction.
As such, the WCCA affirmed the decision of the compensation judge
denying workers’ compensation benefits.
~ ~ ~
15. Arise Out Of And In The Course Of
Williams
v. Grand Rapids Baptist Church,
et al., WCCA,
9/12/06
At issue in this matter was
whether the employee’s motor vehicle accident arose out of and in the scope and
course of his employment. The employee
was hired as a Pastor for two separate churches with separate facilities
located approximately 12 miles apart (Cohasset and Grand Rapids). Neither church required the employee to live
on church premises. On October 26, 2003,
the employee was advised it was unnecessary for him to be present at the church
service in Cohasset; however, the employee chose to attend the service that
evening. After the service ended, the
employee was involved in a motor vehicle accident while driving from
Cohasset. A compensation judge found the
employee did not sustain a personal injury which arose out of and in the course
and scope of his employment with either of the churches and denied the
employee’s claim for benefits.
On appeal, the WCCA found
the churches and the employee had not yet entered into an employment agreement
on October 26, 2003. Thus, there is no
written agreement among the parties regarding a travel allowance. However, the Court noted payment of a travel
allowance is not determinative in this matter.
The Court noted the rule from the Gilbert
case, i.e. where an employee, who as
part of his job, is required to bring his or her own vehicle for use during the
workday, is injured off the employer’s premises during a trip to or from work,
the injury is compensable. This rule
does not apply in this matter. Rather,
the WCCA applied the analysis found in Wenda v. Olsten
Healthcare. In Wenda, the court held an
employee’s travel to locations where he was required to perform registered
nursing services did not meet the Gilbert
exception on commuting where the employee’s personal vehicle was not actually
used in the performance of his nursing duties.
Specifically, the Court noted that in order for a commute to or from
work to be considered an exception to the general rule, the Supreme Court in Gilbert required that the employee’s
vehicle must be necessary “for use during the working day.” In this case, as in Wenda, the employee’s vehicle,
although needed to get to and from work locations, was not integral to the
performance of his principal pastoral duties.
As such, the WCCA affirmed the compensation judge’s finding that the
employee’s accident did not arise out of and in the scope and course of his
employment.
~ ~ ~
16. Vacate
Cassidy
v. Environment for Learning, WCCA, 9/6/06
In this matter, the WCCA was
faced with the question of whether to vacate a compensation judge’s December
16, 1994 Findings and Order on grounds that the employee is no longer
permanently and totally disabled as a result of her work injury. In a Findings and Order filed December 16,
1994, the compensation judge found the employee suffered from chronic pain
syndrome as a result of her work injury, that the work injury was a substantial
contributing cause of the employee’s continuing chronic depression, and that
the employee had been permanently totally disabled since the date of injury. This decision was affirmed by the Workers’
Compensation Court of Appeals and the Minnesota Supreme Court.
Thereafter, the employee
intermittently treated with a psychologist.
In April of 2006, the psychologist re-evaluated the employee after not
having treated her for three years. In
his April, 2006 report, the doctor noted the employee’s chronic pain had been a
topic of discussion during every appointment over the years and opined her disc
herniation and resulting chronic pain from her March,
1981 work injury were still substantial contributing causes of her permanent
total disability.
In June, 2004 and January,
2006, the employer and insurer had the employee undergo independent medical
examinations wherein the IME doctor opined there had been inconsistencies in
the employee’s reporting of her alleged work injury, the employee exhibited
signs of symptom magnification and pain behaviors, there was no objective
evidence of lumbar radiculopathy, and video
surveillance showed the employee walking with no visible discomfort. The IME doctor concluded the 1981 work injury
was not a substantial contributing cause of the employee’s condition and she
was not permanently totally disabled.
The insurer also had the employee undergo an independent psychiatric
evaluation in January 2006. The doctor
opined the 1981 work injury was one of the employee’s many stressors and is not
a proximal cause to her current major depressive illness. Based on the aforementioned IMEs, the employer and insurer filed a Petition to Vacate the compensation judge’s 1994 Findings and Order on
the basis of a substantial change in condition.
The employer and insurer’s
Petition to Vacate is governed by Minn. Stat. § 176.461 under which cause to
vacate includes “a substantial change in medical condition since the time of
the award that was clearly not anticipated and could not reasonably have been
anticipated at the time of the award.”
The employer and insurer argued, among other things, there had been a substantial
change in the employee’s medical condition, no neurological deficits were found
on examination by their IME doctor, their IME doctor opined the employee is not
permanently totally disabled from a musculoskeletal standpoint, and the
employee takes no more than Extra Strength Tylenol for her back pain. Based on the aforementioned contentions, the
employer and insurer argued the employee’s back condition resolved or improved
to a degree not anticipated by the compensation judge’s 1994 Findings and
Order. However, the WCCA was not convinced. The Court noted the employer and insurer’s
IME doctor relied on medical records which predated the compensation judge’s
1994 decision wherein he found the employee had sustained permanent partial
disability of the back and was permanently totally disabled as a result of the
1981 work injury. The Court noted it had
been adjudicated that the employee sustained a significant work injury in
March, 1981, and that the work injury was permanent in nature. Nothing in the employer and insurer’s IME
report could be interpreted as showing a substantial improvement of the
employee’s physical condition since the issuance of the 1994 Findings and
Order. Rather, the employer and
insurer’s doctor apparently did not believe the employee ever sustained a
significant injury resulting in any permanency.
As such, the WCCA found the IME’s doctor’s
opinions insufficient to justify vacation of the compensation judge’s
decision. The employer and insurer also
argued the employee’s 1981 work injury was no longer a substantial contributing
cause of the employee’s mental health condition relying on the independent
psychiatric evaluation they had completed.
The Court instead relied upon the employee’s treating doctor noting they
were unconvinced the employee’s long term depression somehow went from relating to the 1981 work
injury as found in the 1994 Findings and Order to being related solely to other
psychosocial stressors or a chemical imbalance.
Psychiatric/psychological records from 1994 to the present reflected the
employee’s symptoms had waxed and waned, however, a constant in those records
had been the continuing reference to her chronic pain, which her doctor,
psychiatrist and psychologist related to her 1981 work injury. As such the WCCA found there was not a substantial
change in the employee’s psychiatric condition since the issuance of the 1984
Findings and Order.
~ ~ ~
17. Arising Out Of And In The Course Of
Penn v. NewMech Companies,
Inc., et al., WCCA, 10/16/06
The
issue in this case was whether the employee’s depression was causally related
to his admitted work injuries. The compensation judge found that the injuries
were not a substantial contributing factor to the development of the employee’s
major depressive disorder or anxiety disorder with depressive mood. The
compensation judge concluded the employee’s psychological condition was not a
result of his pain complaints or loss of ability to function but of anxiety
related to his commencement of a post-injury job as an estimator, and denied
the employee’s claim. The employee appealed, and the WCCA affirmed.
The
employee sustained rotator cuff tears to both his shoulders as the result of
two separate work incidents. The employee subsequently underwent four
surgeries and a Functional Capacity Evaluation. The FCE placed significant
restrictions on the employee’s work activities which precluded him from
returning to his pre-injury job as a journeyman plumber. The employer offered,
and the employee accepted, a job as an estimator which was within his
restrictions and offered the same salary and benefits as his pre-injury
position.
The
employee’s initial job performance evaluations were positive. However, medical
records showed that a few months later the employee returned to his treating
physician reporting the stress of his new job was bothering him. In addition,
testimony and evidence admitted at hearing indicated that the employee began to
feel overwhelmed by the demands of his new job and that his work performance
deteriorated. In response, the employee sought treatment for depression. He
was diagnosed with major depression and prescribed antidepressants.
During
the hearing two medical opinions were offered regarding the cause of the
employee’s depression. Both opinions opined that the transition to the new job
and the stresses and the feelings of being overwhelmed substantially contributed
to the employee’s depressive episode. Dr. Augdahl, employee’s treating
psychologist, however opined that the work injuries were a substantial
contributing cause to said depressive episode. Dr. Gratzer, after conducting
an independent medical evaluation, disagreed and concluded that the physical
injuries the employee sustained to his shoulders were not substantial
contributing factors to his depressive episode. At the conclusion of the
trial, the compensation judge accepted the opinion of Dr. Gratzer, and found
the employee’s work injuries were not a substantial contributing factor to his
depression.
The
employee appealed the compensation judge’s Findings and Order on both factual
and legal bases. First, the employee argued that the judge’s finding that loss
of function arising from the employee’s work injuries was not a substantial
contributing factor in his disabling psychological condition was not supported
by substantial evidence in the record. Second, the employee contended that
the compensation judge erred as a matter of law in concluding that the causal
link between the employee’s shoulder injuries and his psychological condition
was “so indirect as to break the chain of causation.”
In
ruling on the factual issue, the WCCA reasoned that it does not necessarily
follow that the physical injury caused the mental injury just because the
mental injury followed the physical injury. The Court also rejected the
employee’s argument that because a career change was necessitated by the work injuries,
the mental stress subsequently caused by the job transition was a direct and
natural result of the employee’s work injuries. The WCCA found the
compensation judge’s reliance on Dr. Gratzer’s opinion was not in error and
that substantial evidence supported the compensation judge’s decision.
In
ruling on the employee’s legal contention, the WCCA stressed that “the question
as to whether subsequent injuries or aggravations related in some way to the
primary injury were only compensable with a showing that they were a direct and
natural result” of the initial injury. Here, the WCCA found that the injury
was not the medical cause of the claimed psychological consequence, or
in other words, the employee’s psychological condition was not a direct consequence
of physical pain or physical inability to perform his post-injury job. Thus,
the employee’s claimed psychological consequence is not compensable.
~
~ ~
18. Average
Weekly Wage
Harris v. Jimmy Jingle, et al., WCCA, 11/1/06
The WCCA once again addressed
average weekly wage in this case. The employee worked for the employer as a
sales manager responsible for the sale of vending installation agreements and
customer service. On July 26, 1999, the employee sustain an admitted injury to
his low back. The employer and insurer paid compensation to the employee based
upon a weekly wage which included certain payments for “overtime hours” in 1999
that they later alleged should not have been included in the weekly wage
calculations. As a result, the employer and insurer claimed that they had
overpaid the employee and were entitled to a credit against future
compensation. The employee, however, claimed that he had been underpaid
benefits. According to a written employment agreement, in 1999 the employee’s
base pay was $600.00 per week. In addition, the employee was to be paid
placement and incentive bonuses based upon his work. During the 26-week period
preceding the employee’s injury, his bonuses ranged from $181.00 to $3,226.00.
The employee was also paid $4,111.04 for his additional work for a cafeteria
project. Two issues before the Court included whether the employee’s earnings
were irregular or difficult to determine, and whether the earnings from the
cafeteria project should be included in his average weekly wage calculation.
In the Findings and Order issued February 14, 2006, the compensation judge
found that the employee’s earnings were irregular and difficult to determine
and that the employee worked regular and frequent overtime for the cafeteria
project. As a result, she used the statutory method to determine the
employee’s average weekly wage and also included the cafeteria project income
as overtime. The employer and insurer appealed the judge’s calculation of the
employee’s base wage and the inclusion of his cafeteria project earnings.
The WCCA found that since the
employee’s weekly wage included sales commissions that were irregular, it was
proper for the compensation judge to use the statutory formula. This was
despite the fact that the employee’s employment agreement stated that his base
pay was $600.00 per week.
Regarding the employee’s
additional earnings from the cafeteria project, the employer and insurer argued
that the employee was a salaried employee and did not qualify for overtime;
that the overtime was not regular or frequent as required by Minn. Stat. §
176.011, subd. 18; that the cafeteria project was a one-time project that did
not extend past February 24, 1999 (the majority of this work occurred before
the 26-week period prior to the date of injury); and there was no documentation
of the overtime making it difficult to determine what period of time the
overtime covered. The WCCA acknowledged that the evidence was subject to
differing interpretations, however, the compensation judge’s decision was
supported by substantial evidence. The compensation judge had determined that
the employee was paid $4,111.04 over a 24-week period for the cafeteria
project, therefore, she divided that figure by the 24 weeks and arrived at a
weekly amount of $171.29. She concluded that this accurately reflected the
employee’s earning capacity on the date of injury. The WCCA noted that as it
has stated on numerous occasions, when evidence is not available in order to
calculate the average weekly wage according to the statutory formula, the
compensation judge may use another calculation method as long as it fairly
represents the employee’s lost earning capacity. The WCCA affirmed the
compensation judge’s findings.
~
~ ~
19. Medical/Temporary
Total Disability
Abdelrazig v. American Bottling Company, et al.,
WCCA, 11/16/06
In this case, the Workers’
Compensation Court of Appeals addressed four issues: admissibility of an
independent medical report post-120 days; diagnostic medical expenses; the
nature of the employee’s injury; and benefits although the employee had no
restrictions.
As early as 2002, the
employee knew that his left arm was smaller than his right arm, however, he did
not seek treatment for this condition until his work-related injury on
September 13, 2004. The employee testified that on September 13, 2004, he was
stocking shelves when he heard a “pop” in his left shoulder and on that day he
consulted with Dr. William Isaksen regarding his left shoulder. The employer and
insurer denied primary liability for the employee’s condition and injury. On
October 26, 2004, the employee filed a Claim Petition for temporary total
disability benefits from and after September 14, 2004. At the request of the
employer and insurer, the employee was examined by Dr. Joel Gedan on May 25,
2005. Dr. Gedan found that the employee’s injury was a soft tissue injury or
shoulder strain. He also opined that the employee was at maximum medical
improvement and had no restrictions related to the September 2004 work injury.
After the hearing on January 30, 2006, the compensation judge found that the
employee had sustained a temporary injury on September 13, 2004, and that he
had reached MMI as of June 13, 2004. He also ordered that temporary total
disability benefits and medical benefits be paid through 90 days post-MMI. The
employee appealed, and the employer and insurer cross-appealed.
The employee objected to the
admission of Dr. Gedan’s report since it was filed past the granted extension to
May 20, 2005. The WCCA found that the employer and insurer had originally
requested the extension since an IME was scheduled for March 26, 2005;
therefore, it appeared that the granted extension to May 20, 2005 was a
typographical error. The WCCA also found that there was no indication that the
employee had been prejudiced by the delay in the examination since his hearing
was not until January 30, 2006. As a result, the WCCA affirmed that Dr.
Gedan’s report could be entered into evidence.
The employer and insurer
appealed the award of medical expenses arguing that the employee’s medical
treatment after the injury related to his pre-existing condition, therefore, it
was not reasonable and necessary to cure or relieve the employee from the
effects of his work injury. Citing previous cases, the WCCA reiterated that
diagnostic treatment or evaluation to rule out alternative diagnoses may be
compensable even if the ultimate diagnosis was non-work-related. Ultimately
finding no causal relationship between the employee’s injury and his
pre-existing condition, therefore, did not render the employee’s medical
treatment noncompensable.
The WCCA also found that Dr.
Gedan’s medical opinion that the employee’s work injury was temporary in nature
supported the compensation judge’s finding of a temporary injury. In addition,
since Dr. Gedan determined that the employee was at MMI and had no physical
restrictions as of May 26, 2005, the employee was not entitled to temporary
total disability benefits or medical expenses beyond that date. As a result,
the WCCA reversed the award of temporary total disability benefits and medical
expenses after that date.
~
~ ~
20. Permanent
Partial Disability
Pratley v. Moniterm Corporation, et al., WCCA, 11/21/06
The Workers’ Compensation
Court of Appeals addressed whether an employee should be able to receive
permanent partial disability for vision loss in one eye along with permanent
partial disability for cosmetic disfigurement.
The employee sustained an
admitted personal injury to her right eye on February 7, 1989. As a result of
this injury, the employee’s iris was badly damaged and the pupil was an
abnormal shape and increased size. The employer and insurer paid the employee
for 24% permanent partial disability for the complete loss of vision in one
eye. Although the Minnesota Workers’ Compensation Guidelines do not have a
section that pertains specifically to eye disfigurement, Dr. Audrey Fox
assessed and rated the employee’s cosmetic disfigurement of her right eye to be
appropriately 10% permanent partial disability of the total body. The employee
filed a Claim Petition seeking payment for the permanent partial disability as
rated by Dr. Fox. The compensation judge awarded this rating pursuant to Weber
v. City of Inver Grove Heights, 461 N.W.2d 918 (Minn. 1990). The employer
and insurer appealed.
The employer and insurer
argued that a cosmetic disfigurement permanent partial disability award under Weber
was an error of law. The appellants contended that the employee was fully
compensated for her injury under Minn. Rule 5223.0030, subp. 1, when she was
given a 24% disability.
Although the 24% permanent
partial disability for the employee was specifically for the loss of sight in
her right eye, it was not for any disfigurement. Since a cosmetic
disfigurement is anything that disfigures or defaces, and since the employee
had a physical scar through the cornea of her right eye with significant damage
to her iris causing an abnormal shape and increased size, the WCCA determined
that she was entitled to a permanent partial disability rating although there
was not a cosmetic disfigurement rating for an eye. According to Minn. Stat. §
176.105(1)(c), codification of the 1992 Weber decision, if there was an
injury that was not rated by the permanent partial disability schedule, the
unrated injury could be assigned and compensated according to the most similar
condition that was rated. The court found that the fundamental purpose of
permanent partial disability is to compensate for functional impairment whereas
compensation for cosmetic disfigurement is for a separate and distinct
impairing condition. If an employee has two separate and distinct impairing
conditions, both conditions may be awarded. As a result, the WCCA affirmed the
compensation judge’s award of 10% whole body disability for the employee’s
right eye cosmetic disfigurement.
~
~ ~
21. Res
Judicata/collateral estoppel
Watson v. Minn Serv., Inc., a/k/a Signature Dining, et
al., WCCA, 10/9/06
The employee appealed from
the compensation judge’s dismissal of her claims on grounds of res judicata.
On November 28, 2001, the employee sustained an admitted work-related injury to
her low back. In August of 2004, the employee filed a Medical Request, seeking
authorization for an MRI scan and a referral to a physiatrist. The employee
also filed a Claim Petition alleging entitlement to wage loss benefits,
permanent partial disability benefits, and rehabilitation assistance. The
matter, at the employee’s request, were not consolidated.
The employee’s Medical
Request came on for hearing first. The issues were whether the proposed MRI
and referral to Dr. Agre was reasonable and necessary and whether the November
28, 2001 work injury was a substantial contributing factor to the recommended
treatment. The compensation judge in her Findings and Order determined that
the evidence failed to establish that the November 28, 2001 work injury was a
substantial contributing factor to the MRI and follow-up visit with Dr. Agre, a
Physiatrist.
A hearing was then
subsequently held regarding the employee’s Claim Petition before the same
compensation judge. The employer and insurer contended, in part, that the
employee’s claim for wage loss benefits, permanent partial disability benefits,
and rehabilitation benefits were barred by res judicata and/or
collateral estoppel. In her decision, the compensation judge found, in
relevant part, that the current issue of whether the work injury was a
substantial contributing factor to the ongoing condition was identical to the
issue at the prior medical request hearing. The compensation judge, thus,
found that the employee was precluded from relitigating the nature of the
November 28, 2001 work injury in the subsequent hearing on the Claim Petition.
The WCCA found that the
compensation judge’s decision that the employee’s claims were barred by res
judicata was clearly erroneous. The WCCA reasoned that “it was one thing
to find that the need for recommended treatment may be related to a
pre-existing condition, while it is quite another to find that the employee no
longer suffers from the effects of an admitted injury.” In addition, the WCCA
distinguished the case of Publicover v. Voltelcom, 64 W.C.D. 231
(W.C.C.A. 2004) finding that, unlike in Publicover, the compensation
judge made no specific findings here as to whether the employee’s injury was
temporary, resolved, and/or a finding that the employee’s ongoing condition was
unrelated to the injury. As a result, the WCCA reversed the Findings and Order
of the compensation judge and remanded the matter for further proceedings.
~
~ ~
22. Temporary
Partial Disability
Adams v. Hyman Freightways, et al.,
WCCA, 10/16/06
The issue on appeal is the
employer and insurer’s entitlement to a discontinuance of temporary partial
disability compensation payments based upon 450 weeks having elapsed after the
date of injury. The facts of the case were not in dispute. The employee
sustained three work-related injuries with three different employers and
insurers. The initial injury occurred on November 11, 1993, when the employee
was working for Hyman Freightways, insured by Liberty Mutual. The second
injury was on December 28, 1998, at Viracon, insured by Insurance Company of Pennsylvania, and the third injury was on September 9, 2002, at Filister Enterprises,
insured by Cambridge Integrated Services. The employee was awarded temporary
partial disability compensation from December 12, 2004, and continuing through
the date of the hearing. Liberty Mutual was ordered to be the paying agent.
On October 21, 2005, Liberty
Mutual filed a Notice of Intention to Discontinue Compensation Benefits,
seeking to discontinue the employee’s temporary partial disability compensation
based on Minn. Stat. § 176.101, subd. 2(b) which states that temporary partial
disability benefits were not payable after 450 weeks after the date of injury.
The employee objected to the discontinuance and argued that Liberty Mutual
should be barred from asserting the 450-week defense to the payment of
temporary partial disability benefits based on equitable estoppel and/or
laches. The employee asserted that Liberty Mutual should have and could have
raised the issue during the initial hearing. Further that Liberty Mutual’s
failure to do so resulted in prejudice to the employee as no payments have been
made of temporary partial disability benefits.
The WCCA rejected the
employee’s arguments, however, agreed with the compensation judge that the
relevant question in this matter is a procedural one as the rights of the
employee and the obligations of the two other parties remain at issue. The
WCCA affirmed the compensation judge’s denial of the discontinuance citing Hammer
v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634,
640 (Minn. 1989). In that decision, the insurer was ordered to continue to pay
temporary total disability compensation where the employee had not reached
maximum medical improvement from all injuries despite the fact that the
employee had reached maximum medical improvement from the injury covered by the
insurer. The rationale underlying the decision was to prevent the creation of
an unwarranted gap in the employee’s benefits in a case where the employee’s
entitlement to temporary partial disability compensation was undisputed, and a
denial of the discontinuance was warranted.
The WCCA, however, pursuant
to Minn. Stat. § 176.421, subd. 6, did remand the matter for further hearing,
stating an Order for Joinder should be issued adding the other two insurers as
parties to the pending litigation. The WCCA also stated the compensation judge
should allocate liability, determine an appropriate paying party, make findings
as to the correct amounts to be paid to the employee for temporary partial disability
benefits, and may consider any other issues raised by the parties.
~
~ ~
23. Arise Out Of
And In The Course Of Employment
Yusuf v. Hilton Hotel, et al., WCCA, 12/4/06
Typically if an employee is
injured while attending a voluntary recreational activity sponsored by their
employer, the injury is not compensable. In this particular case, however, the
Minnesota Workers’ Compensation Court of Appeals reversed the compensation
judge’s decision that this “Olympic” activity barred the employee’s claim.
The employee was born and
raised in Somalia and came to the United States about seven years prior to the
hearing. She testified that she had difficulty understanding English. The
employee began working for Minneapolis Hilton as a housekeeper in 2001. During
an employer-sponsored event, “Housekeeping Olympics,” the employee injured her
right knee. The event took place at the hotel during her work shift and the
employees were on the clock during the event. The employee testified that she
understood that she was required to attend the event. Other management
employees of Hilton Hotel, however, testified that the event was voluntary and
that the employee could have left for the day.
Pursuant to Minn. Stat. §
176.021, subd. 9, injuries incurred while participating in a voluntary
recreational program sponsored by the employer do not arise out of and in the
course of employment unless the injured employee was ordered or assigned to
participate in the program. When applying this statute, therefore, there are
two steps. First, the activity must be voluntary; and second, it must be shown
that the employee was not ordered to participate. In the present case, the
WCCA questioned whether the Housekeeping Olympics was truly a recreational
activity. The program activities were those activities normally expected of
housekeepers. In addition, the event was on the employer’s premises during
work hours while employees were still punched in. The Court noted that simply
labeling a work event as an “Olympics” or as a “Fun Day” does not transform it
into recreation. Regarding the second step, the employee testified that a
supervisor had told her that her attendance was required. Although other
employees testified that her attendance was voluntary, the employee was not
made aware that participation was voluntary. Since the two steps for the
statute were not satisfied, the WCCA reversed the compensation judge’s decision
which barred the employee’s claim and remanded the case back to the
compensation judge for consideration of further issues.
~
~ ~
24. Gillette Injury
Furey v. Grand Itasca Clinic & Hospital, et al.,
WCCA, 12/5/06
In this particular case, the
Minnesota Workers’ Compensation Court of Appeals addressed the culmination date
of the employee’s Gillette injury. Beginning in June 2003, the employee
was on her feet most of the day while performing her job duties. By October
2004, the employee began having heel and feet pain, therefore, she sought
medical treatment on December 7, 2004. During that appointment, the employee
received an injection in her right heel. On March 28, 2005, she returned for
medical treatment complaining of intense pain in the bottom of her left heel.
She received steroid injections in her left heel on that day and again on May
9, 2005. Medical notes from August 2, 2005 indicate that the employee’s heel
condition was related to excessive walking, overuse, and was a work-related
injury. The employee’s left foot was casted and she received work
restrictions. On August 2, 2005, the employee reported a work injury to her
supervisor. Since there was no available light-duty work, the employee was
unable to work because of her foot condition from August 2, 2005 through
November 17, 2005. On September 30, 2005, the employee filed a Claim Petition
claiming a Gillette injury culminating on September 1, 2005. The
employer denied primary liability, disputed the date of injury, and asserted
failure of timely notice. In April, 2006, the employee amended her Claim
Petition to an injury date of August 2, 2005. The compensation judge found
that the employee had sustained a Gillette-type injury to her left heel
which culminated on August 2, 2005. The employer appealed.
In its appeal, the employer
contended that the employee’s Gillette injury culminated on December 7,
2004. The WCCA noted that the Minnesota Supreme Court has held that Gillette
injuries are compensable once their effect is serious enough to disable the
employee from work. This does not mean that the last date of work is
necessarily the date of injury. All evidence should bear on the issue
determining the date of injury. The date of ultimate breakdown can be found to
be the date of injury. As previously held by the WCCA, the timing of a Gillette
injury is fact specific.
In this particular case
August 2, 2005, was the first date that any doctor mentioned the employee’s
left heel condition being related to her work and it was the first date that
any physical work restrictions were enacted. These facts would allow the
compensation judge to find that the culmination date for the employee’s Gillette
injury was August 2, 2005. The compensation judge’s findings were affirmed.
~
~ ~
25. Outside The
Scope Of Employment
Allen v. Fastenal, et al., WCCA, 12/1/06
The employer and insurer
appealed the compensation judge’s finding that the employee’s injury did not
result from the performance of a prohibited act. The employee’s job duty was
to obtain parts off shelves in the employer’s warehouse. It was the standard procedure
for the employees to use a picker machine to obtain the parts which were on the
upper shelves. On or about June 15, 2005, the employer instituted a new safety
requirement prohibiting the employees from using the picker machine without a
safety harness attached to the picker. On August 4, 2005, the employee climbed
onto a picker to obtain a box of parts and did not wear a safety harness.
Unfortunately, as the employee was in the process of stepping off the platform
onto the pallet, which he thought was on the forks of the picker, he fell
approximately 12 feet onto the cement floor. Apparently the picker clamp had
failed to latch onto the pallet and the pallet was not on the forks. The
employer and insurer argued that since the employee was performing an act
prohibited by the employer, using the picker machine without a harness, this
took the employee outside the scope of his employment and his injury was not
compensable. The employee testified that between June 15, 2005 and August 5,
2005, the safety harnesses were not always available, that not all employees
used the safety harnesses, and that the failure to use the harness was not the
reason why he was injured. The compensation judge found that the employee’s
operation of the mechanized picker without a safety harness was not inherently
hazardous and the employee’s failure to use the harness was foreseeable by the
employer. The employer and insurer appealed.
Pursuant to case law, if an
employer expressly prohibits a specific act and the disregard of that
prohibition is not reasonably foreseeable by the employer, the violation of
that prohibition by the employee takes the employee outside the scope of his
employment making the resulting injury uncompensable. The Minnesota Workers’
Compensation Court of Appeals has previously noted that not every safety rule
limits the scope of employment. The more minor the prohibited act, the more
foreseeable that it will be violated. In this particular case, the
compensation judge noted in his Memorandum that it was not the result of the
employee’s failure to wear a harness that caused his injury rather it was due
to a defect in the picker lift itself. In addition, since other employees had
used the lift after June 15, 2005 without a harness, it was foreseeable that
workers would occasionally violate the safety harness policy. The compensation
judge, therefore, concluded that the employee’s violation of the safety harness
policy was reasonably foreseeable. The WCCA found that the judge’s conclusions
were supported by ample evidence and the decision was affirmed.
~
~ ~
26. Contribution
Roemhildt v. Gresser Companies, Inc., Supreme Court, 3/29/07
The employee in this case
filed a workers’ compensation claim against two former employers and their insurers,
Met Con Companies/State Fund Mutual Companies and Gresser Companies/Zurich
Insurance Company. Gresser filed a Petition for Contribution against Met Con.
Gresser then commenced payment of benefits pursuant to a Temporary Order.
Thereafter, Gresser and the employee reached a lump sum settlement of all
claims, except future medical expenses at a mediation. Met Con was invited to
join the mediation, but declined. A Stipulation for Settlement between the
employee and Gresser stated, among other things, that (1) employee accepted the
lump sum payment as a full, final and complete settlement of all past, present,
or future claims that he might have against Gresser and Met Con, except claims
for future medical expenses; (2) Gresser preserved its claim for contribution
and reimbursement against Met Con; (3) the settlement did not limit any defense
that Met Con may have against the Employee; (4) Gresser would pay the employee
a lump sum; and (5) the employee would assign to Gresser all rights he had against
Met Con. At the hearing on this matter, the compensation judge found Met Con
was liable to the employee for benefits and that Gresser’s settlement with the
employee was reasonable. The compensation judge awarded Gresser contribution
for paid benefits, including the attainment of the lump sum settlement. The
Workers’ Compensation Court of Appeals affirmed the finding that Met Con was
liable to the employee, but reversed on Met Con’s liability for contribution
concluding that the settlement could not be enforced against Met Con because
Met Con was not a party to this settlement and Met Con could not be required to
contribute for benefits that Gresser had paid but that had not yet accrued.
The WCCA also affirmed the
rejection of Met Con’s statute of limitation defense. The compensation judge
had previously found Met Con’s statute of limitations defense failed because
the payments Met Con had made to the employee, before Met Con denied liability,
tolled the statute of limitations.
The Minnesota Supreme Court
affirmed the WCCA’s ruling regarding the statute of limitations. Met Con’s
payment of benefits to and on behalf of the employee are considered
“proceedings” under Minn. Stat. § 176.151, and are significant to toll the
statute of limitations, even though Met Con filed a second Notice of Insurer’s
Primary Liability denying the claim within the required time period.
The Supreme Court reversed
the WCCA’s opinion regarding the contribution claim. The Court noted that
under the common law of contribution the fact that one of the liable persons
was not a party to a settlement is not an obstacle to contribution. Second,
the Court agreed that basic fairness requires the parties in a workers’
compensation proceeding be afforded reasonable notice and an opportunity to be
heard before decisions concerning entitlement to benefits can be made, however,
the Court also noted the Gresser settlement did not purport to establish Met
Con’s liability to the employee. Instead, Met Con had a full opportunity to
defend against liability to the employee during the evidentiary hearing on
Gresser’s contribution claim. Lastly, the Court faced the issue of whether a
non-settling employer/insurer can be required to contribute to a lump sum
settlement that includes payment for benefits that have not yet accrued. The
Court held the compensation judge does have jurisdiction to award contribution
based on a settlement which includes future benefits. That jurisdiction is
reinforced by the statutory authorization of a compensation judge to approve
settlements that include future benefits and to compute an employer’s liability
for future benefits into a lump sum amount.
~
~ ~
27. Medical
Reider v. Anoka-Hennepin School District No. 11,
Supreme Court, 3/8/07
The employee in this case
filed a Claim Petition seeking payment of outstanding medical and chiropractic
treatment expenses for Gillette injuries. The employee underwent an
independent medical examination with a neurologist on October 26, 2004, at the
request of the School District. The doctor concluded the employee had not
sustained any type of repetitive trauma or Gillette-type injury and had
no permanent injuries as a result of her job as a sign language interpreter.
In February 2005, the parties held a settlement conference where no settlement
was reached. On March 29, 2005, the School District filed a motion for an
examination by a neutral physician pursuant to Minn. Stat. § 176.155, subd. 2.
In its request, the School District said that a dispute exists as to whether
the employee sustained a work injury and, if so, the nature and extent of such
injury. Because “of the disputes herein,” the School District argued that
Minn. Stat. § 176.155, subd. 2, required the appointment of a neutral
physician. On April 7, 2005, a Notice of Hearing was filed scheduling the
matter for a hearing on August 5, 2005. In a letter dated June 13, 2005, the School District requested an Order on its motion for a neutral-physician examination, or,
in the alternative, a continuance. The employee then objected to the
designation of a neutral physician asserting that “in view of the upcoming
hearing, it would be untimely to try to secure this opinion.” A compensation
judge denied the School District’s motion. The hearing was held as scheduled.
The compensation judge found the employee sustained Gillette-type
injuries and awarded compensation for permanent partial disability. By panel
majority, the WCCA also affirmed the compensation judge’s denial of the School
District’s request for a neutral-physician examination. The School District
challenged only the denial of the neutral-physician examination.
On appeal to the Minnesota
Supreme Court, the School District argued its request fell within the provision
of Minn. Stat. § 176.155, subd. 2, which states that “when an interested party
requests, not later than 30 days prior to a scheduled prehearing conference,
that a neutral physician be designated, the compensation judge shall make such
a designation.” The Court held the plain language of the statute does not make
a prehearing conference such a condition or a condition to a neutral
examination. The Court held subdivision 2 is not ambiguous and must be read so
as to give effect to all of its provisions. The first provision gives the
compensation judge the discretion to appoint a neutral physician when she
believes it is necessary, even if there has not been a request by the parties.
This provision also gives the compensation judge discretion to appoint a
neutral physician when a party has made a request but the request is not timely
because the request is made less than 30 days before the prehearing
conference. The second provision removes this discretion when a party has made
a request and the request falls within the time deadline provided - not later
than 30 days before a scheduled prehearing conference. Thus the compensation
judge had no discretion to deny the School District’s request for a neutral
examination.
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28. MMI
Narez v. LSI Corporation of America, Inc., et al.,
WCCA, 3/14/07
The employee appealed from
the compensation judge’s finding that she had reached maximum medical
improvement (“MMI”) and the resultant discontinuance of her temporary total
disability benefits. On August 23, 2005, the appellant injured her low back
while attempting to catch a box of hinges as it fell. She sought medical
attention and was diagnosed with a lumbar strain. She was treated with
medication and provided restrictions. On September 8, 2005, she began
chiropractic treatment and shortly thereafter underwent an MRI of the lumbar
spine. The MRI was read to show a subligamentous disc herniation at the L5-S1
level with corresponding impingement on the S1 nerve root. She continued with
chiropractic treatment and was released to work on a part-time basis on
November 22, 2005. Upon return to work, she noted an exacerbation of pain and
was again taken off work. The appellant has not returned to work since that
time.
On December 7, 2005, the
appellant underwent an independent medical examination. The examiner found her
low back condition to be causally related to the August 23, 2005, incident.
The examiner further found that the chiropractic care was not appropriate and
recommended a lumbar epidural steroid injection. He opined, that if the
injection was not successful, a microdiscectomy should then be performed.
On January 18, 2006, the
appellant was referred to a neurosurgeon complaining of continuous low back
pain, bilateral weakness of her lower extremities, and pain and numbness in her
left leg. The surgeon noted the appellant’s hesitancy over undergoing surgery
and that her current conservative treatment has not resulted in any significant
improvement of her condition. He concluded that in the long run she is
probably going to need surgery.
The appellant was
subsequently referred to the Midway Pain Center. The Center recommended
medication, physical therapy at MAPS, and an epidural steroid injection. In
accordance with the recommendations she underwent an injection at the L5-S1 level
on March 7, 2006, and commenced physical therapy. The records demonstrate that
neither the injection or therapy produced a significant or long lasting change
in her pain symptoms.
On June 7, 2006, the
appellant was re-evaluated by the independent medical examiner. The examiner
now opined that she had reached maximum medical improvement provided that she
does not elect to have surgery. He further released the appellant to work with
permanent restrictions. The appellant sought a second opinion from Dr. Alfonso
Morales. Dr. Morales reviewed her medical records and issued a report stating
that the appellant had not reached maximum medical improvement “due to the fact
the patient has not undergone surgery.” He further recommended physical
therapy, epidural steroid injections, myofascial trigger point injections, and
pool therapy.
On June 19, 2006, the
employer and insurer filed an NOID seeking to discontinue temporary total
disability benefits on the grounds that appellant had reached maximum medical improvement
based upon the IME report and the expiration of the 90-day period set forth in
Minn. Stat. § 176.101, subd. 1(j). The appellant objected and an
administrative conference was held on September 19, 2006. In her Findings and
Order filed October 4, 2006, the compensation judge found that “the employee’s
continuation of prescribed non-surgical medical treatment does not support a
reasonable expectation of future improvement.” The compensation judge adopted
the opinion of the neurosurgeon and further found that the employee had
attained maximum medical improvement since she had chosen not to have surgery.
As a result, the employee’s temporary total disability benefits were
discontinued as of September 11, 2006.
The WCCA concluded that there
was substantial evidence in the record which supports a finding of MMI as of
June 7, 2006 and thus affirmed the findings of the compensation judge. The
WCCA reasoned that the real issue is a question of what is the appropriate
medical care for the appellant and not an issue of whether appellant refused
surgery. The WCCA held there is no current recommendation for surgery and
that the evidence demonstrated that the conservative care provided to appellant
from the date of injury did not result in any significant improvement of her
condition. In addition, the WCCA found there is no evidence which would suggest
a substantial improvement in the employee’s condition could reasonably be
anticipated. As a result, the date of MMI found by the compensation judge was affirmed.
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