• Judicial •

Workers’ Compensation
Court of Appeals
October through December 2004
Case summaries published are
those prepared by the WCCA

Cameron v. Metro Transit/Metro Council, 10/1/04

DOI: 5/10/99

Causation – Aggravation

Substantial evidence of record, including expert medical opinion, supports the compensation judge’s
finding that the employee’s work-related injury of May 10, 1999, was a temporary aggravation that
resolved within three months.

Causation – Gillette Injury

Substantial evidence of record, including expert medical opinion, supports the compensation judge’s
finding that the employee did not sustain a Gillette injury, culminating on April 3, 2002, as a result of
his work activities as a bus driver.

Earning Capacity
Temporary Partial Disability

Where it is not clear from the limited evidence of record whether the employee’s wage loss after July
5, 1999, was causally related to his 1999 work injury, the compensation judge reasonably denied the
employee’s claim for temporary partial disability benefits.

Affirmed.

Sorby v. DCI, Inc., et al, 10/1/04

DOI: 10/4/00, 2/5/81

Vacation of Award – Newly Discovered Evidence

Where one of the issues at hearing was whether an employer and insurer had paid workers’
compensation benefits for an earlier injury, where there was a lack of documentation of payments
for that earlier injury and no file existed at the Department of Labor and Industry, Workers’
 Summaries of Decisions

Compensation Division, for that injury, where the compensation judge found that benefits had not
been paid by the earlier employer and insurer, and where documents showing that such benefits had
been paid were located after the findings and order were issued, the petition to vacate the findings
and order in the matter is granted.

Petition to vacate granted.

Carlino v. Peterson Construction, 10/4/04

DOI: 7/21/03

Causation

Substantial evidence, including the employee’s testimony, found credible by the compensation judge,
and the adequately founded opinion of the employee’s treating surgeon, supports the compensation
judge’s finding the employee suffered a personal injury in the nature of a C6-7 herniated disc in a
work accident on July 21, 2003.

Temporary Total Disability

There is no requirement an injured employee be formally taken off work by a medical provider to be
totally disabled. Where the employee testified he took several days off work following the injury due
to his pain and symptoms, the compensation judge could conclude the employee was incapacitated
from working due to the injury and did not err in awarding temporary total disability benefits for that
period.

Intervention
Minnesota Statutes §176.361 (2002)

The intervenors attached to their motions to intervene documentation sufficient to establish their
reimbursement interest. No objection was made to the reasonableness or necessity of the charges
or contrary proof submitted. By failing to attend the hearing, the intervenors waived only the right
to submit additional evidence, examine witnesses and make statements or arguments. There was no
failure to “appear” in this case requiring denial of payment of reasonable, necessary and causally
related medical treatment provided by or paid for by the intervenors.

Affirmed.

Fieck, deceased by Dokken and Nelson vs. Brandrup & Associates, 10/6/04
DOD: 3/29/95

Vacation of Award – Mistake

Where there was no evidence in the record that the alleged mistake was both mutual and a mistake of
fact, and where any arguable mistake was instead apparently a mistake in legal judgment, the court
lacked authority to grant the employer and insurer’s petition to vacate the order for reallocation at
issue.

Petition to vacate denied.

D-2 • COMPACT • February 2005
 Summaries of Decisions

Hanegmon v. National Steel Pellet, 10/6/04

DOI: 8/29/81

Attorney Fees
Calculation of Benefits – Statutory Interest
Minnesota Statutes §176.225, subd. 5

Attorney fees are compensation for purposes of interest under Minnesota Statutes §176.225, subd.
5, and Minnesota Statutes §176.221, subd. 7, and interest on compensation that is due is mandatory
under the statute, regardless of whether entitlement to such fees has been pleaded or ordered; and,
notwithstanding the facts that entitlement to interest was not expressly pleaded in the claim petition
and the judge had on an unrelated legal basis denied the penalties that were claimed under Minnesota
Statutes §176.225, where payment of previously ordered fees was found by the compensation judge
to have been unreasonably and inexcusably delayed, the Workers’ Compensation Court of Appeals
(WCCA) affirmed the compensation judge’s decision to award interest on the fees at issue, but it
modified that award to be assessed at a rate provided for in Minnesota Statutes §176.221, subd. 7,
rather than at the 12 percent rate provided for in Minnesota Statutes §176.225, subd. 5.

Penalties
Minnesota Statutes §176.225, subd. 5

Awards of additional “compensation” authorized under section 176.225 are clearly penalties by their
inherent nature, notwithstanding the arguably more express “penalty” language of other statutes
providing for payment of penalties to the division rather than to the employee, and the court found
no reason to reverse the compensation judge’s decision to deny penalties under section 176.225 by
application of Minnesota Statutes §79A.10, subd. 2, which protects the Minnesota Self-Insurer’s
Security Fund against liability for certain penalties.

Evidence – Res Judicata

Final orders of a compensation judge may be modified only by the Workers’ Compensation
Court of Appeals – either by timely appeal or by petition to vacate – or by the Supreme Court,
not by a compensation judge. Where one compensation judge’s award of subdivision 7 fees,
arguably contrary to an earlier stipulation for settlement, was a final order, and where a subsequent
compensation judge’s award of a credit for the payment of those subdivision 7 fees pursuant to that
award constituted an effective modification of that award, the subsequent judge’s award of a credit
was reversible error, the only proper procedural remedy being a petition to the WCCA to vacate the
award of the fees.

Modified in part, affirmed in part, and reversed in part.

D-3 • COMPACT • February 2005

 Summaries of Decisions

Thuringer v. Virginia Regional Medical Center, 10/7/04

DOI: 7/25/02

Evidence – Credibility
Causation

The compensation judge’s determination finding the employee’s testimony credible was not
clearly erroneous. Based, in part, on the employee’s testimony, substantial evidence supports the
compensation judge’s finding the employee’s injury was caused by her crutch slipping on a piece of
metal on the floor at work.

Arising Out of and In the Course Of

The compensation judge did not err in finding the employee’s injury arose out of her employment
where the injury-producing hazard, a small piece of metal on the floor, increased the risk of harm to
this employee who was walking on crutches, and the source of the harm was a hallway floor that was
part of the work environment.

Affirmed.

Bradwell v. U.S. Roof Tech Corporation, 10/12/04*

DOI: 2/4/89, 11/4/87

Stipulation for Settlement

Credits and Offsets – Credit for Overpayment
Child Support Payments

The parties stipulated and agreed the employer and insurer would incur an overpayment and continue
to pay full permanent total disability benefits until an SSDI lump-sum payment was received by the
employee. If, upon receipt of the SSDI payment, the employee failed to reimburse the insurer within
30 days, the parties agreed the insurer could take a 100 percent credit against ongoing benefits until
the overpayment was satisfied. In June 2003, the employer and insurer sought to discontinue the
employee’s permanent total benefits to recoup the overpayment. At that time, the insurer was making
payments from the employee’s workers’ compensation benefits directly to the state of Minnesota
and the state of Iowa under an attachment order for child support. The compensation judge erred in
holding the minor children had an independent right to claim a portion of the employee’s worker’s
compensation benefits by way of the child support attachment orders, and the employer and insurer
are entitled to take a 100 percent credit in accordance with the Stipulation for Settlement until the
overpayment is satisfied.

Reversed.

D-4 • COMPACT • February 2005 * This case is on appeal to the Minnesota Supreme Court.
 Summaries of Decisions

Qadiid v. Acrometal Companies, Inc., 10/12/04*

DOI: 5/1/02

Causation – Psychological Injury

Evidence – Expert Opinion

The compensation judge’s finding of a psychological injury secondary to a work-related traumatic

brain injury is supported by the evidence, including the adequately founded opinion of two treating
psychiatrists.

Maximum Medical Improvement

Substantial evidence supports the compensation judge’s determination that the employee has not
reached maximum medical improvement (MMI) from his head injury or the psychological effects of
the injury.

Withdrawal from Labor Market

Substantial evidence supports the finding the employee did not withdraw from the labor market
where the employee had not been released to return to work and was temporarily totally disabled,
and the compensation judge accepted as credible the testimony of the employee’s witness that the
employee was not working and had earned, at most, $500 as a return on his investment in a café the
witness owned.

Affirmed.

Trboyevich v. Potlatch Corporation, 10/12/04

DOI: 5/26/02

Maximum Medical Improvement

Substantial evidence supports the compensation judge’s determination that the employee had not
reached maximum medical improvement where the employee’s treating doctor was recommending
additional treatment approaches to improve the employee’s condition.

Temporary Total Disability – Misconduct

Minnesota Statutes §176.101, subd. 1(e)(1) which bars the reinstatement of temporary total
compensation when the employee has been terminated for misconduct does not apply when
temporary total compensation was never paid to the employee.

Affirmed.

D-5 • COMPACT • February 2005 * This case is on appeal to the Minnesota Supreme Court.
 Summaries of Decisions

Winkel v. Jacobson Transport, 10/12/04

DOI: 12/24/83

Causation

Substantial evidence, including the opinions of several experts, supported the compensation
judge’s decision that the employee’s left knee condition was not a compensable consequence of the
employee’s work-related right knee injury.

Affirmed.

Vaynberg v. The McKnight Foundation, 10/14/04

DOI: 4/26/96

Jurisdiction – Subject Matter

As compensation judges are charged with responsibility to enforce provisions of the Minnesota
Workers’ Compensation Act, the compensation judge had subject matter jurisdiction to address the
employer and insurer’s motion to compel attendance at an independent medical examination.

Appeals
Jurisdiction – Subject Matter

The Workers’ Compensation Court of Appeals lacks subject matter jurisdiction to consider an appeal
from an order compelling the employee’s attendance at an independent examination, as an order
compelling attendance is not a final or appealable order under Minnesota Statutes §176.421.

Appeal dismissed.

Sweet deceased by Sweet v. Tremendous Entertainment, Inc., 10/15/04*

DOI: 10/4/02

Causation

Substantial evidence supported the judge’s decision that the employee’s work activities did not
substantially contribute to his cardiac arrest or resulting death.

Affirmed.

Beers v. General Mills, 10/20/04

DOI: 1/14/97

Evidence – Expert Medical Opinion

Causation

Absolute certainty in the opinion of an expert medical witness is not essential to support a finding as
to a relationship between a work injury and subsequent disability; a medical opinion is sufficient if it
is probably true. The standard for expert opinion testimony is the “reasonable probability” standard,
D-6 • COMPACT • February 2005 * This case is on appeal to the Minnesota Supreme Court.
 Summaries of Decisions

that is, the expert testimony must demonstrate it was more likely than not that the personal injury
was a substantial contributing cause of the disability. Considering the testimony of the employee’s
cardiologist, Dr. Taylor, as a whole, along with the opinion of Dr. Wolters and the testimony of the
employee, there is adequate support for the compensation judge’s finding of causation.

Affirmed.

Brovitch v. Park Landscaping, 10/20/04

DOI: 9/6/88

Vacation of Award – Substantial Change in Condition

When the employee established a substantial change in condition, under the factors specified in
Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), vacation of the award was appropriate.

Petition to Vacate Granted.

Reich v. F&S Construction, 10/21/04

DOI: 1/00/01, 12/17/86

Practice and Procedure – Statute of Limitations

Minnesota Statutes §176.151

Where the compensation judge expressly credited the employee’s testimony that the employer’s
owner had assured him that the bills for treatment for his work injury would be paid, where the
employee was justified in relying on the owner’s statements, and because other than for payment of
his medical expenses the employee had had no reason to file a claim for benefits at the time of his
work injury, the employer and insurer were estopped from pleading the statute of limitations as a
defense, and the compensation judge erred in denying benefits based on the statute of limitations.

Medical Treatment and Expense

Intervenors

Where there was no dispute over the fact that the treatment at issue was reasonable and necessary
and causally related to the work injury, and where the employee had made a direct claim for payment
of the treatment expenses at issue, the compensation judge’s order denying payment of the treatment
expenses at issue was reversed, notwithstanding the fact that several of the providers involved and
one third-party payor of the employee’s medical bills had not formally intervened in the case.

Reversed.

Walbridge v. Northern Hydraulics, 10/22/04*

DOI: 8/19/95

Causation

Substantial evidence, including expert opinion, supported the compensation judge’s decision
regarding the nature and extent of the employee’s work injury.
D-7 • COMPACT • February 2005 * This case is on appeal to the Minnesota Supreme Court.
 Summaries of Decisions

Rehabilitation – Retraining

Substantial evidence, including expert vocational opinion, supported the compensation judge’s
conclusion that retraining was not reasonably required to restore the employee’s lost earning
capacity.

Vacation of Award – Substantial Change in Condition

The employee’s alleged improvement following a 1996 determination of maximum medical

improvement (MMI) did not constitute good cause to vacate the MMI decision.

Affirmed.
Petition to vacate denied.

Koshak v. Reserve Mining Company, et al, 10/26/04

DOI: 10/6/99, 9/00/81

Permanent Total Disability

Where the employee’s surgeon had considered the necessity of the employee’s early retirement
due to his work injury, where several physicians had agreed that the employee’s low-back-related
physical condition restricted him to only a few hours of very sedentary work each of only a few days
each week, where the employee had most recently been totally restricted from even such work due
to abdominal problems arguably related to his work injury, and where the employee was 63 years
of age, had completed no formal education beyond a GED, and was no longer able to work at the
maintenance tasks in which he had most of his employment experience, the compensation judge’s
award of permanent total disability benefits was not clearly erroneous and unsupported by substantial
evidence, notwithstanding the fact that a vocational expert had provisionally identified a few jobs in
the employee’s job market for which he might be qualified.

Affirmed as modified.

Scanlon v. Caille Farm, Inc., 10/26/04*

DOI: 5/29/02

Exclusions from Coverage – Family Farm

The compensation judge properly concluded that the employer, which was engaged primarily in the
business of training horses and riders for show and recreational riding, was not a farm operation
within the meaning of the family farm exclusion.

Affirmed in part and vacated in part.

D-8 • COMPACT • February 2005 * This case is on appeal to the Minnesota Supreme Court.
 Summaries of Decisions

Knutson v. Jordan Mill Work, 10/28/04

DOI: 1/23/97, 9/28/95, 2/9/95, 1/19/95

Vacation of Award – Substantial Change in Condition

The employee has not established a substantial change in medical condition which would support
vacating the stipulations at issue.

Petition to vacate denied.

Haag v. Minnesota Department of Labor and Industry, 11/1/04

DOI: 1/14/02

Penalties
Notice of Discontinuance
Minnesota Statutes §176.238

The statutes and rules provide for penalties to be assessed against an employer and insurer for an
improper discontinuance. The compensation judge properly disallowed a penalty under Minnesota
Statutes §176.221, subd. 3, because it applies to a failure to “begin payment,” and this was a
discontinuance case, but as Minnesota Rules Part 5220.2720, subp. 2.C., allows a penalty for
improper discontinuance, we reinstate the penalty assessed by the commissioner but limit the amount
to the $1,000 level allowed by Minnesota Statutes §176.238, subd. 10.

Penalties
Notice of Discontinuance
Minnesota Statutes §176.225, subd. 1

Where the employer and insurer improperly retroactively discontinued temporary total disability
benefits, the compensation judge erred in setting aside the penalty assessed by the commissioner
under Minnesota Statutes §176.225, subd. 1, and we reinstate the penalty payable to the employee
for violation of Minnesota Statutes §176.238.

Affirmed in part, reversed in part and vacated in part.

Lehner v. Como Transport, Inc., 11/1/04

DOI: 4/7/01

Causation

Substantial evidence, including expert opinion, supported the compensation judge’s decision that the
employee’s 2001 fall at work was a substantial contributing cause of the employee’s bilateral cubital
tunnel syndrome.

Affirmed.

D-9 • COMPACT • February 2005

 Summaries of Decisions

Wittrock v. Dalco Roofing and Sheet Metal, 11/2/04

DOI: 4/22/02

Medical Treatment and Expense – Reasonable and Necessary

Substantial evidence, including expert opinion, supported the compensation judge’s decision that
proposed surgery was reasonable and necessary to treat the employee’s work injury.

Affirmed.

Bloom v. Slash, Inc, f/k/a GT Interactive Software, et al, 11/3/04

DOI: 6/21/96

Practice and Procedure – Dismissal

Vacation of the compensation judge’s order for dismissal was appropriate where the judge made no
findings on factual issues and there was no record of the proceedings leading to the dismissal.

Vacated and remanded.

Humphreys v. Grandmas, Inc., 11/3/04

DOI: 7/6/02

Causation – Substantial Contributing Cause

Substantial evidence supports the compensation judge’s finding that the employee’s work injury of
July 2, 2002, was no longer a substantial contributing cause of the employee’s left upper extremity
condition after March 27, 2003.

Affirmed.

Stone v. Harold Chevrolet, 11/3/04*

DOI: 5/3/01

Permanent Partial Disability – Reflex Sympathetic Dystrophy

Minnesota Rules Part 5223.0430, subp. 6

When the compensation judge determined that the employee had a functional impairment as a result
of his reflex sympathetic dystrophy, an award of permanent partial disability compensation was
appropriate pursuant to Minnesota Rules Part 5223.0430, subp. 6.

Affirmed.

D-10 • COMPACT • February 2005 * This case is on appeal to the Minnesota Supreme Court.
 Summaries of Decisions

Hennings v. Lakes Gas Company, 11/8/04

DOI: 3/20/91

Vacation of Award – Substantial Change in Condition

Where the employee underwent an amputation of his right forearm as a result of his reflex
sympathetic dystrophy and was assessed as having an increased permanent partial disability relative
to his work injury, the employee showed a substantial change in medical condition to support
vacating the stipulation and awards at issue.

Petition to vacate awards on stipulation granted.

Burnsed v. Vehicular Testing Services, et al, 11/9/04

DOI: 1/29/00, 1/8/97

Practice and Procedure – Dismissal

Where the occurrence of a work injury was undisputed, where there appeared to be numerous issues
of fact as to the nature and extent of the employee’s disability, where it had been by agreement of
the parties that the matter be originally stricken from the calendar only for the purpose of mediation,
where, at the time of the filing of the operative motion to dismiss, the matter had not yet been
stricken from the calendar for a full year pursuant to provisions of Minnesota Statutes §176.305,
subd. 4, and where there was no definitive finding or evidence of full compliance with the notice
provisions of that subdivision, the compensation judge erred in dismissing the employee’s claim with
prejudice, and her decision doing so was reversed and remanded for a hearing on the employee’s
claim petition.

Reversed and remanded.

Cruz v. Deli Express, 11/10/04

DOI: 4/23/02

Causation – Temporary Aggravation

Substantial evidence supports the compensation judge’s determination that the employee’s injury
was temporary and had resolved by July 7, 2003.

Affirmed in part, vacated in part.

Noggle v. Lazer Communications, Inc., 11/10/04

DOI: 4/10/03

Arising Out Of and In the Course Of

Substantial evidence supports the compensation judge’s determination that the employee’s cervical
injury and need for surgery arose out of and in the course of his employment where the employee,

D-11 • COMPACT • February 2005

 Summaries of Decisions

while driving in the course of his employment as a technical supervisor, described a pop in his neck
and immediate onset of severe pain while turning his head sharply to the right to merge into traffic.

Affirmed.

Johnson v. Apple Valley Health Care Center, 11/12/04

DOI: 1/5/90

Appeals – Interlocutory Orders

The pretrial order determining the nature of the proceeding to be held before the compensation judge
does not constitute a final determination of the rights of the parties on the merits nor is it decisive of
any substantive or ultimate right of the parties. The employee’s appeal is premature and this court
lacks subject matter jurisdiction to consider the appeal.

Appeal dismissed.

Kuehn v. St. Louis County, 11/16/04*

DOI: 1/4/96

Settlements – Interpretation
Penalties

Where the stipulation for settlement was silent as to the employer’s right to a credit for sick leave
paid during a period in which the stipulation provided for payment of temporary total disability
benefits, and where the record indicated that the parties had expressly discussed the credit issue
prior to executing the stipulation, the compensation judge properly concluded that the employer had
intentionally underpaid compensation when it withheld amounts representing sick leave pay from the
temporary total disability benefits specified by the stipulation, warranting an award of penalties.

Affirmed.

Keuten v. Viele Contracting, Inc., 11/18/04

DOI: 9/20/91

Vacation of Award – Substantial Change in Condition

Where there was insufficient evidence of a substantial change in condition, pursuant to the factors
listed in Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989), the employee’s
petition to vacate the award on stipulation is denied.

Vacation of Award – Fraud

Where about seven years separate the employee’s representations as to the nature and extent of his
symptoms from the contradictory evidence of videotapes, these are simply too remote in time from
each other to support vacation of an award on the basis of fraud.

Petition to vacate denied.

D-12 • COMPACT • February 2005 * This case is on appeal to the Minnesota Supreme Court.
 Summaries of Decisions

Homan v. Hoffman Engineering/Pentair Company, et al, 11/23/04

DOI: 1/15/01, 7/26/69

Causation – Gillette Injury

Where the expert opinion that was relied on was properly founded on facts that were substantially
supported by the evidence, including the records of the treating surgeon, and where that opinion
clearly supported the judge’s decision, the compensation judge’s conclusion that the employee
sustained a Gillette-type injury on the date alleged was not clearly erroneous and unsupported by
substantial evidence.

Medical Treatment and Expense – Reasonable and Necessary

Medical Treatment and Expense – Surgery
Temporary Total Disability

Where the conclusion of the judge was supported not only by the opinion of an independent medical
examiner but also by the records of the employee’s surgeon, the compensation judge’s conclusion
that the employee’s first forearm surgery and immediately subsequent total disability were related to
his second, overuse syndrome, work injury was not clearly erroneous and unsupported by substantial
evidence.

Temporary Partial Disability

Where the employee’s surgeon and the independent examiners for both employer/insurers had
recommended restrictions related to the employee’s work injuries, one of the independent examiners
relating restrictions solely to the employee’s second injury, the compensation judge’s conclusion that
the employee was subject to restricted employment and was entitled to temporary partial disability
benefits half apportioned to the employee’s second injury was not clearly erroneous and unsupported
by substantial evidence, nor was there any prejudice in the judge’s award of the full amount of the
benefits against the second employer/insurer where temporary partial disability benefits were no
longer available under the law in effect at the time of the first injury.

Apportionment – Rehabilitation Benefits

Where it was evident, from the development of the employee’s second, overuse syndrome, injury,
from the restrictions issued by the employee’s surgeon, and from the employee’s several aborted
attempts to return to his pre-injury job, that the employee had become increasingly unlikely to be
physically able to return to the kind of work that he was employed at at the time of his second injury,
the compensation judge’s apportionment of half of the employee’s rehabilitation expenses against
the insurer on the risk for the second injury was not clearly erroneous and unsupported by substantial
evidence, notwithstanding the fact that the employee may not have been rated with any additional
permanent partial disability.

Affirmed.

D-13 • COMPACT • February 2005

 Summaries of Decisions

Grenfell v. Zumbrota Healthcare, 11/24/04

DOI: 3/11/03

Causation

Substantial evidence, including expert opinion, supported the compensation judge’s conclusion
that the employee’s work injury was a substantial contributing cause of the employee’s left knee
condition and resulting disability.

Affirmed.

Jacobson v. Hennepin Faculty Associates, 11/24/04

DOI: 1/28/00, 1997, 1996, 1993, 1982

Vacation of Award

Where the employee’s petition to vacate two stipulations on the basis of a substantial change in
medical condition, mutual mistake of fact, and/or newly discovered evidence, involves complex
issues of medical and legal causation, the case is referred to the Office of Administrative Hearings
for factual findings to be reported back to the WCCA for determination of the petition.

Referred to OAH for an evidentiary hearing.

Palmi v. Inter City Oil, 11/24/04

DOI: 2/22/99

Rehabilitation – Change of QRC

Substantial evidence supports the compensation judge’s finding that a change in qualified
rehabilitation consultant (QRC) would help to restore effective and balanced communications
between parties and that a change of QRC is in the best interests of the parties.

Causation
Rehabilitation

Where the employee has physical restrictions from his work injury and is restricted from returning
to his previous truck driving job, and he has not been able to earn his pre-injury wage since his work
injury, substantial evidence, including medical records in evidence and the employee’s testimony,
supports the compensation judge’s finding that the employee’s work injury was a substantial
contributing cause of the employee’s loss of earning capacity and need for certain rehabilitation
services.

Rehabilitation – Eligibility

Where the employee had a job available to him with a guaranteed annual salary, with the potential to
earn additional money through commissions, and there was evidence that the employee is reasonably
likely to return to his pre-injury wage in a reasonable time, substantial evidence supports the
D-14 • COMPACT • February 2005
 Summaries of Decisions

compensation judge’s finding that additional vocational assessment or other rehabilitation services in
the nature of new job development or retraining research were unreasonable and unnecessary.

Affirmed.

Sever v. Radotich Heating and Sheet Metal, 11/24/04

DOI: 12/22/99

Rehabilitation – Retraining

Where it was reasonably supported by analysis under all of the factors identified in Poole v.
Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989), the compensation judge’s award of retraining
benefits was not clearly erroneous and unsupported by substantial evidence.

Temporary Partial Disability

Where the employee had petitioned for temporary total disability benefits during the period of any
retraining program that might be certified by the judge, and where, at trial, the employee’s counsel
advised the court that his client was working two or three hours a week under a work/study program
and that the judge should take earnings in that program into consideration in any award of wage-loss
benefits should the retraining plan be approved, the compensation judge’s award of temporary partial
disability benefits concurrent with retraining benefits was not clearly erroneous and unsupported
by substantial evidence, notwithstanding the employer and insurer’s contention that the employee’s
work/study earnings did not represent his true earning capacity and that they had not received proper
notice of the claim prior to trial.

Affirmed.

Voshage v. State (MNSCU), Winona State University, 11/24/04*

DOI: 4/23/02, 12/1/01

Causation – Gillette Injury

Substantial evidence in the form of a well-founded medical opinion supports the compensation
judge’s determination that the employee did not sustain an injury to her cervical spine.

Affirmed.

Countryman v. Firefly Creek Casino, 12/6/04

DOI: 10/17/92

Vacation of Award – Substantial Change in Condition

The employee did not establish good cause to vacate the mediation award pursuant to the factors
specified in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).

Petition to vacate denied.

D-15 • COMPACT • February 2005 * This case is on appeal to the Minnesota Supreme Court.
 Summaries of Decisions

Figgs v. Dungarvin, Inc., 12/9/04

DOI: 1/17/04

Termination of Employment – Misconduct

Minnesota Statutes §176.101, subd. 1(e)(1)

Substantial evidence supports the compensation judge’s finding that the employee’s actions did
not constitute misconduct justifying cessation of temporary total disability compensation under
Minnesota Statutes §176.101, subd. 1(e)(1).

Affirmed.

Clemmer v. National Steel Pellet Company, 12/13/04

DOI: 3/8/02

Medical Treatment and Expense – Surgery

Substantial evidence in the form of the independent medical examiner’s (IME) opinion supports the
compensation judge’s decision that the proposed surgery to lengthen the employee’s Achilles tendon
was reasonable and necessary.

Practice and Procedure – Expedited Hearing

Minnesota Statutes §176.106, subd. 7

Where the employee’s medical request for surgery approval was set for hearing on an expedited
basis pursuant to Minnesota Statutes Ԥ176.106, subd. 7, the compensation judge did not err in
refusing to expand the issues to include the designation of the employee’s treating doctor.

Affirmed.

Schwieters v. Order of St. Benedict, 12/13/04

DOI: 10/17/91

Permanent Partial Disability

Substantial evidence, including medical opinions and the employee’s extensive medical records,
supported the judge’s decisions as to the appropriate permanent partial disability ratings attributable
to the employee’s cervical, lumbar, and traumatic brain injuries. The judge’s award was, however,
modified to correct calculation errors.

Affirmed in part and modified in part.

D-16 • COMPACT • February 2005

 Summaries of Decisions

Scheunemann v. Installation Concepts/Multiple Concepts Interiors, Inc., 12/14/04

DOI: 2/6/03, 10/25/00

Causation

Substantial evidence supports the compensation judge’s finding of a new, work-related injury to the
back on Feb. 6, 2003, based on the judge’s acceptance of the employee’s testimony as credible, and
the well-founded opinion of the employee’s treating surgeon.

Notice of Injury

Substantial evidence, including the employee’s testimony that he was on the phone at work
discussing the job with his supervisor at the time of the injury, yelled when he felt a pop in his back,
and the supervisor asked him what he did, is sufficient to support a finding of inquiry notice on the
date of the Feb. 6, 2003, injury.

Causation
Rehabilitation

Substantial evidence supports the compensation judge’s determination that the employee’s Feb. 6,
2003, injury necessitated additional rehabilitation services causally related to the employee’s new
injury.

Causation
Medical Treatment and Expense

Substantial evidence supports the compensation judge’s award of reimbursement for counseling
provided by Primary Behavioral Health Clinic from Dec. 11, 2003, through the date of hearing.

Affirmed.

Hiller v. Parker Hannifin, 12/14/04

DOI: 9/16/02

Temporary Total Disability

Minnesota Statutes §176.101, subd. 1(h)

A written report placing restrictions on the employee is not necessary for the compensation judge
to determine that the employee continues to have limitations on his ability to return to work. The
compensation judge may rely on the credible testimony of the employee and on the record as a
whole.

Affirmed.

D-17 • COMPACT • February 2005

 Summaries of Decisions

Doree v. SICK Optics, Inc., 12/14/04

DOI: 9/3/03

Temporary Total Disability

Although the medical records were somewhat ambiguous, there was substantial evidence to support
the compensation judge’s finding that the employee’s left shoulder injury continued to play a
substantial contributing role in the employee’s need for medical restrictions.

Affirmed.

Kunferman v. Ford Motor Company, 12/16/04*

DOI: 2/19/91, 6/30/88

Temporary Partial Disability – Earning Capacity

Where the employee returned to work on a full-time basis, during two time periods post-retraining,
substantial evidence supports the compensation judge’s finding that the employee’s loss of earnings
during those two periods were presumed to accurately represent her retained earning capacity and
therefore served as a basis for calculation of temporary partial disability benefits.

Temporary Partial Disability – Earning Capacity

Where the employee returned to work on a part-time basis during a two-year period of time post-
retraining, and where the employee was released to work on a full-time basis and conducted no
search for additional work to supplement her part-time hours, the compensation judge’s finding
that the employee was entitled to the presumption that her actual earnings represented her earning
capacity was not supported by substantial evidence and was clearly erroneous, and we, therefore,
reverse the award of temporary partial disability benefits for that period of time.

Affirmed in part and reversed in part.

Neururer v. Jamar Company, 12/21/04

DOI: 11/8/98

Permanent Total Disability

In view of the entire record as submitted, including expert vocational testimony and the employee’s
tax returns, substantial evidence supports the judge’s conclusion that the employee’s activities at his
own business do not constitute gainful employment and that he is permanently and totally disabled.

Affirmed.

D-18 • COMPACT • February 2005 * This case is on appeal to the Minnesota Supreme Court.
 Summaries of Decisions

Kromschroeder v. ME International, 12/21/04

DOI: 8/00/00

Causation – Aggravation
Causation – Pre-Existing Condition

Where they were supported by expert medical opinion and were not otherwise unreasonable, the
compensation judge’s conclusions that the only work-related injuries proven to be at issue were
the admitted carpal and cubital nerve tunnel injuries in the employee’s wrists and elbows and
that those injuries were effectively resolved upon the employee’s post-surgical release to return
to work without restrictions were not clearly erroneous and unsupported by substantial evidence,
notwithstanding the fact that the employee had been initially diagnosed with wrist tendonitis and
also with symptoms of arguably transient or pre-existing shoulder problems.

Affirmed.

D-19 • COMPACT • February 2005

 Summaries of Decisions
• Judicial •

Minnesota
Supreme Court
October through December 2005
Case summaries published are
those prepared by the WCCA

• Anita S. Tillemans v. Pierce Company of Minneapolis, Inc., and Mutual Insurance

Corporation, n/k/a APCapitol, and Park Nicollet Hospital, intervenor, A04-1205, _____

Decision of the Workers’ Compensation Court of Appeals filed June 2, 2004, affirmed without
opinion.

• David J. Ganfield v. City of Richfield, Self-Insured, Administered by Berkley Risk

Administrators Company, and City of Apple Valley, Self-Insured, Administered by the
League of Minnesota Cities Insurance Trust Workers’ Compensation Plan, A04-1162,
Sept. 29, 2004

Decision of the Workers’ Compensation Court of Appeals filed May 24, 2004, affirmed without
opinion.

• Clara Wensman v. Order of St. Benedict/St. John’s University, Self-Insured, and

BRAC, Administrator, and Center for Diagnostic Imaging, St. Cloud Orthopedics, and
Medicare, Intervenors, A04-1463, Oct. 27, 2004

Decision of the Workers’ Compensation Court of Appeals filed July 14, 2004, affirmed without
opinion.

• John T. Kowalik v. Martinson Construction, Uninsured, and Schuett Construction,

Uninsured, and Minnesota Department of Human Services and HealthPartners, Inc.,
Intervenors, A04-1436, Oct. 27, 2004

Decision of the Workers’ Compensation Court of Appeals filed July 8, 2004, affirmed without
opinion.

• Clint M. Webb v. Hercules, Inc.,/Burns Philip, Inc., and Broadspire, f/k/a Kemper
Services, and Twin Cities Bakery Drivers Health & Welfare Fund, Intervenor, A04-
1736, Nov. 23, 2004

Decision of the Workers’ Compensation Court of Appeals filed Aug. 16, 2004, affirmed without
opinion.
D-20 • COMPACT • February 2005
 Summaries of Decisions

• John A. Ahles v. John A. Dalsin & Sons, Self-Insured, adm’d by Berkley Risk
Administrators Company, and McGrath Sheet Metal/Minneapolis Convention Center,
and Zurich North American Insurance Group, and Sheet Metal #10 Benefit Fund, Twin
Cities Anesthesia Associates, and Minnesota Department of Labor and Industry/VRU,
Intervenors, A04-1648, Nov. 23, 2004

Decision of the Workers’ Compensation Court of Appeals filed Aug. 9, 2004, affirmed without
opinion.

D-21 • COMPACT • February 2005