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NEWS FROM MINNESOTA

Cousineau McGuire

   Date:        May 23, 2007
   From:       Cousineau McGuire Chartered
         Thomas P. Kieselbach
         tpk@cousineaulaw.com
         Thomas F. Coleman
         tfc@cousineaulaw.com
COUSINEAU MCGUIRE CHARTERED

Minneapolis Office
1550 Utica Avenue South
Suite 600
Minneapolis, MN 55416-5318
Telephone: (952) 546-8400
Facsimile: (952) 546-0628

Northern Wisconsin/Michigan Office
225 East Aurora Street
Ironwood, Michigan 49938
Telephone: (906) 932-0726
Facsimile: (906) 932-1688
www.cousineaulaw.com.

 


 

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.

 

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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.

 

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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.

 

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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.

 

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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.

 

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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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