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COMPACT Minnesota Department of Labor and Industry

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COMPACT Minnesota Department of Labor and Industry Powered By Docstoc
					COMPACT   for workers' compensation professionals


                                                             May 2007
                                                     Minnesota Department of Labor and Industry



 CONTENTS
     2    Updates from the Workers' Compensation Division
             • Information sheet: release of medical records
             • Work comp claims statistics-at-a-glance
             • Exploration of forms-driven to data-driven system continues

     3 Work comp penalties fund Assigned Risk Safety Account

     3 Moving away from using Social Security numbers

     4 Department welcomes new Workers' Compensation Division
       employees

     4 From the State Register: Provider participation list available

     5 Basic adjusters' training 2007: information, registration

    D-1 Court decisions: January through March 2007




Claims brochure            Department welcomes new                   Court decisions:
    updated                  work comp employees              October through December 2006



                                                                      Summaries of
                  2                                    4            Decisions              D-1
          Updates from the Workers' Compensation Division
          · Information sheet: release of medical records
          The Department of Labor and Industry (DLI) has recently developed an information sheet to clarify
          appropriate application of the Minnesota workers' compensation law as it relates to the release of medical
          records of injured workers. The document provides links to other related Web sites and information about
          the release of medical records under Minnesota Statutes § 176.138 of the Minnesota workers' compensation
          law, the Minnesota Health Records Act in Minn. Stat. § 144.335, the federal Health Insurance Portability and
          Accountability Act (HIPAA) and other state and federal workers' compensation laws. It is on the DLI Web site
          at www.doli.state.mn.us/pdf/medical_records_release0407.pdf.

         · Work comp claims statistics-at-a-glance                         Minnesota workers' compensation claims
         The Department of Labor and Industry's (DLI) Research                                Part of body
         and Statistics unit has updated its annual Minnesota                                 Head 2% (except eyes)
                                                                            Fingers 8%
         workers' compensation claims characteristics brochure and
                                                                                                              Eyes 1%
         has produced a teen claims characteristics handout.
                                                                           Hands 4%                            Neck 2%

         The brochure and handout provide statistics-at-a-glance                                                Shoulders 8%
                                                                            Wrists 6%
         about injury, illness and fatality claims for 2005 (2003
                                                                                                                  Back 23%
         through 2005 for teens), such as the number of claims,               Arms 6%
         nature of injury or disease, occupation of injured workers
                                                                               Trunk 7%                           Legs 3%
         and injured worker characteristics. The brochure also
                                                                              (except back)
         provides resources for further workers' compensation                                                     Knees 9%
         statistical information.                                          Body systems 1%
                                                                                                                 Ankles 5%
         The brochure (current and past versions) and handout are            Multiple parts 12%
         online at www.doli.state.mn.us/pubwkcp.html. For more
         information, contact DLI's Research and Statistics unit at                      Toes 1%                 Feet 3%
         dli.research@state.mn.us or (651) 284-5025.

         · Exploration of forms-driven to data-driven system continues
         Currently, the Department of Labor and Industry (DLI) Workers' Compensation Division regulates largely
         through the receipt of forms submitted by workers' compensation insurers, employees, qualified rehabilitation
         consultants and attorneys. Each of the forms is scanned into the document imaging system, employed by the
         department since the mid 1990s, and certain data elements are entered into the department's database. The
         Workers' Compensation Division staff uses the data and images to monitor and react to actions on each case to
         ensure compliance with the workers' compensation laws.

         DLI has been evaluating the possibility of moving toward data-driven regulation in workers' compensation
         instead of its current forms-based approach. As part of this project, DLI developed a pilot to work with the
         information collected on one workers' compensation form – the Notice of Intention to Discontinue (NOID)
         – via the data it contains rather than a scanned image of the form. DLI and consultants have been working to
         identify data elements involved in each of DLI's regulatory and administrative functions.

         As the department continues to explore moving toward a data-driven system, the pilot to evaluate use of the
         information contained on the NOID form vs. review of the form is complete and lessons learned have been
         documented. Members of the advisory committee, which includes external stakeholders (insurer, attorneys,
         Office of Administrative Hearings, Workers' Compensation Court of Appeals and rehabilitation consultants),
         have been asked for their goals and concerns related to a data-driven system. The first phase of the project is
         expected to be completed in May.
2   • COMPACT • May 2007
         Work comp penalties fund Assigned Risk Safety Account
         Throughout the workers' compensation statutes there are fines and penalties that may
         be assessed for infractions within the system. Under the workers' compensation
         law, penalties are paid either to the Assigned Risk Safety Account or directly to
         injured employees. The Assigned Risk Safety Account was created in 1992 by
         the Minnesota Legislature to finance safety programs within the Department of
         Labor and Industry (DLI).

         One of those programs is the Safety Hazard Abatement Grant Program, administered
         by DLI's Workplace Safety Consultation unit. This program provides matching grants of
         up to $10,000 to employers for equipment or training designed to reduce the risk of injury and illness to
         its workers. During the first half of the current state-fiscal-year, 77 grants have been awarded, totaling
         nearly $367,000.

         For more information about:
               • safety grants, visit www.doli.state.mn.us/grants.html; or
               • fines and penalties, visit www.doli.state.mn.us/pdf/fines06.pdf.



           Moving away from using Social Security numbers
           By Jana Williams, Information Processing Center Director



           The Department of Labor and Industry (DLI)            that is assigned to an injured worker after an
           is committed to reducing the possibility of           initial injury is reported. The number (up to
           someone stealing Social Security numbers              10 digits) is then linked to the Social Security
           used in its current system. A DLI committee           number and used in data tables for all injuries
           has been discussing issues and options for            for the same individual. The DLI committee's
           some time.                                            preliminary recommendation is to continue
                                                                 using the Social Security number for the initial
           Division files, used to store injury claim             submission of a work injury, but communicate
           records at DLI, were set up many years ago            the internal system number to the parties for
           to use the injured worker's Social Security           use on subsequent filings.
           number and date of injury. This system is
           still used today. The committee's original            Details concerning the implementation of
           goal was to try to eliminate or minimize              this change, such as how to communicate the
           the use of Social Security numbers, starting          WCID number quickly, what forms need to be
           with correspondence sent by the department.           revised, etc., are still at the discussion stage,
           Eliminating the use of the Social Security            although the department hopes to implement
           numbers completely is very difficult, because          this change within the next 18 months.
           it is a widely recognized, unique number that
           identifies an individual.                              Those who have concerns or suggestions
                                                                 about this system change may contact Cindy
           DLI proposes to instead use a computer-               Valentine, DLI's chief information officer, at
           generated system number (WCID number)                 cindy.valentine@state.mn.us.

3   • COMPACT • May 2007
          Department welcomes new Workers' Compensation Division employees
           The Department of Labor and Industry (DLI) is pleased to
           announce the recent appointments of Sandra Barnes, Amy
           Borgeson, Walter Bowser and Thomas Germscheid to its
           Benefit Management and Resolution unit, and Clayton
           Overmire to its Claims Services and Investigations unit.

           Sandra Barnes is a graduate of William Mitchell College of
           Law. She has primarily represented employers and insurers
           in workers' compensation matters for the past few years.

           Amy Borgeson is a graduate of the University of
                                                                   New DLI employees (l to r): Thomas Germscheid,
           Minnesota Law School. During the past several years,    Sandra Barnes, Amy Borgeson and Clayton Overmire.
           she has exclusively defended employers and insurers in
           workers' compensation matters. Borgeson also formerly worked as a settlement judge for DLI.

           Walter Bowser is also a graduate of the University of Minnesota Law School. He was most recently
           employed as a district court judge, unemployment compensation judge and mediator/arbitrator.

           Thomas Germscheid is a graduate of William Mitchell College of Law. He has been employed
           for several years as an arbitrator and attorney representing individuals and insurers in workers'
           compensation, personal injury and employment matters.

           Clayton Overmire previously worked nine years in the private sector investigating and handling
           complex insurance injury claims in both workers' compensation and automotive no-fault.


          From the State Register
          Provider participation list available
                             Minnesota Statutes § 256B.0644 and Minnesota Rules parts 5221.0500, subp. 1 and
                             9505.5200 to 9505.5240, also known as DHS “Rule 101,” require health care providers
                             that provide medical services to an injured worker under the workers’ compensation law
                             to participate in the Medical Assistance Program, the General Assistance Medical Care
                             Program and the MinnesotaCare Program.

                             Notice is hereby given that the Minnesota Health Care Programs provider participation list
                             for April 2007 is now available. The provider participation list is a compilation of health
                             care providers that are in compliance with the Department of Human Services (DHS)
          Rule 101. If a providers' name is not on the list, the department considers the provider noncompliant.

          The list of providers is separated by provider type, each section is in alphabetical order by provider name
          and there is no additional information on the list other than the provider’s name. This list is distributed on
          a quarterly basis to the Department of Employee Relations, the Department of Labor and Industry, and the
          Department of Commerce. To obtain the list, call Julie Hervas, DHS Rule 101 specialist, at (651) 431-2704
          or toll-free at 1-800-366-5411. You may fax your request to (651) 431-7462 or mail it to the Department of
          Human Services, P.O. Box 64987, St. Paul, MN 55164-0987.
4   • COMPACT • May 2007
         minnesota department of
       labor & industry
       Workers' Compensation Division



                Basic Adjusters’ Training 2007
                             – Two remaining two-day sessions in 2007! –

                                                                    /
                                          June 18 and 19 Oct.11 and 12

                                                 8:30 a.m. to 4 p.m.
 This training is recommended for claim adjusters who have less than one year of
 experience in Minnesota workers’ compensation. Session topics include:

                                                  •   Overview of Minnesota workers’ compensation
                                                  •   Waiting period
                                                  •   Liability determination
                                                  •   Indemnity benefits
                                                  •   Rehabilitation benefits and issues
                                                  •   Medical benefits and issues
                                                  •   Penalties
                                                  •   Dispute resolution
                                                  •   How to file forms

                                                  Location:         Minnesota Department of Labor and Industry
                                                                    443 Lafayette Road N.
                                                                    St. Paul, MN 55155
                                                                    Minnesota Room

                                                  Cost:             $175 for the two-day session (includes lunch)

 Early registration is encouraged. Each session is limited to 30 people. Classes will be filled on a first-come,
 first-served basis. If your reservation is not one of the first 30 received, you will be contacted about other
 available sessions.

 If you need special accommodations to enable you to participate in this event or have questions about this training, call Jana Williams
 at (651) 284-5304, toll-free at 1-800-342-5354 or TTY (651) 297-4198. The Department of Labor and Industry reserves the right to
 cancel a session if there are not enough participants registered.
                      Register online at https://secure.doli.state.mn.us/wcadjtrainreg

                                                        Registration form
 Please register me for the Basic Adjusters’ Training session checked below. Enclosed is my check made payable
 to: Minnesota Department of Labor and Industry.

                      June 18 and 19, 2007                                               Oct. 11 and 12, 2007

 Name and phone:
 E-mail address:
 Company name and address:



 Number of months of experience with Minnesota workers’ compensation:

 To register more than one person from your company for this class, attach a sheet listing additional names, telephone numbers and
 number of months of experience. Send form and check to: Attn: Financial Services, Minnesota Department of Labor and
5Industry, 443 Lafayette Road N., St. Paul, MN 55155.
  • COMPACT • May 2007

 www.doli.state.mn.us/workcomp.html                                                                     Minnesota FEI #416007162
• Judicial •



         Workers’ Compensation
        Court of Appeals
           January through March 2007
               Case summaries published are
                those prepared by the WCCA




Kerr v. Target Corporation, 1/2/07

                                             Causation
                                 Evidence – Expert Medical Opinion

Substantial evidence, including expert medical opinion, supports the compensation judge’s
conclusion that the employee’s hand and wrist symptoms were not caused, aggravated or accelerated
by the employee’s work activities.

Affirmed.

Neri v. U.S. Steel Corporation, 1/3/07

                           Practice and Procedure – Statute of Limitations

Where the employer had represented expressly, in its report to the employee on his employer-
conducted hearing test, that the employee’s hearing loss was “not related to job noise exposure,” and
where the judge expressly credited the employee’s testimony that he relied to his detriment on this
representation in not immediately filing a claim, the compensation judge’s conclusion that the statute
of limitations was tolled regarding the employee’s hearing injury was not clearly erroneous and
unsupported by substantial evidence, notwithstanding the employer’s recommendation at the time of
the hearing report that the employee seek medical attention and notwithstanding the fact that the
employee had long-term service on his union’s safety committee and was well familiar with the use
of hearing protection equipment.

Affirmed.

Yates v. Muller Logging, Inc., 1/3/07

                                             Gillette Injury
                                Gillette Injury – Ultimate Breakdown

Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that
the employee sustained a Gillette injury to his cervical spine as a result of his work activities with
      Summaries of Decisions

         the employer; the fact that the employee was arguably not “disabled” due to his condition until after
         economic layoff does not relieve the employer and insurer of liability.

                                              Permanent Partial Disability

         Where the employee received little treatment for his work injury due to lack of insurance, where the
         only doctor to rate permanent partial disability did not note objective clinical findings as required by
         the permanency rule at issue, and where the issue of maximum medical improvement was not
         litigated or determined, the compensation judge’s award for permanent partial disability was
         premature.

                                    Practice and Procedure – Admission of Evidence

         The compensation judge did not err by receiving into evidence a letter, written by the employee’s
         attorney to the employee’s independent medical examiner, about the nature of the employee’s work
         activities and treatment.

         Affirmed in part, vacated in part.

         Haeg v. Seko Worldwide d/b/a Vast Logistics, 1/4/07*

                                          Contribution and Reimbursement
                                                     Settlements
                                         Minnesota Statutes § 176.221, subd. 9

         Minnesota Statutes § 176.221, subd. 9, regarding payment of full wages to an injured employee, is
         silent on the question of whether an employer who pays full wages is entitled to reimbursement. In
         this case, where the stipulation for settlement preserved the non-participating employer’s claim for
         reimbursement and provided an opportunity to be heard on the claim, and where there was no
         evidence the employer paid wages pursuant to a contract or other agreement between the employer
         and the employee providing for reimbursement of such wages in the event of an award of temporary
         disability benefits, there is no basis for an award of reimbursment, and the denial of the employer’s
         claim is affirmed.

                                                   Vacation of Award

         Where the employer failed to prove entitlement to reimbursement of wages paid to the employee,
         there is no error of law and no basis for vacation of the award on stipulation on this ground. Nor does
         it appear the employer’s remedies for recovery of wage payments outside the workers’ compensation
         system were prejudiced by the stipulation for settlement and we decline to vacate the award on this
         basis.

                                                      Attorney Fees
                                              Jurisdiction – Subject Matter

         Whether there existed a conflict of interest between the employer and insurer, and whether the
         insurer was obligated to provide separate counsel to its insured, are not issues arising under the
D-2   • COMPACT • May 2007                                      *This case is on appeal to the Minnesota Supreme Court.
      Summaries of Decisions

         workers’ compensation laws of this state, and this court lacks jurisdiction to resolve the insured
         employer’s claim for payment of attorney fees from the insurer.

         Affirmed.
         Petition to vacate award denied.

         Madden v. Prairie Community Services, 1/5/07

                                                     Causation
                                             Maximum Medical Improvement

         Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that
         the employee continued to suffer from the effects of her work injury, that she has restrictions as a
         result of that injury, and that she has not yet reached maximum medical improvement.

                                      Termination of Employment – Misconduct
                                      Minnesota Statutes § 176.101, subd. 1(e)(1)

         Given the employee’s explanations for her actions, it was reasonable for the compensation judge to
         conclude that the employee was not terminated for misconduct for the purposes of Minnesota
         Statutes § 176.101, subd. 1(e)(1).

                                        Temporary Total Disability – Job Search
                                             Temporary Total Disability

         Where the employee’s treating doctor had indicated that the employee was capable of work within
         restrictions, and where there was no medical or vocational evidence establishing that the employee
         was unable to work or look for work, substantial evidence did not support the compensation judge’s
         award of temporary total disability benefits.

         Affirmed in part and reversed in part.

         Rine v. City of Minnetonka, 1/9/07

                                                        Causation
                                            Evidence – Expert Medical Opinion
                                                  Evidence – Credibility

         The compensation judge did not err in relying on the adequately founded opinions of the employee’s
         treating cardiologist, or in accepting the employee’s testimony regarding the stress involved in her
         patrol officer duties. Substantial evidence supports the compensation judge’s finding that the
         employee sustained a permanent, work-related injury on May 24, 2001, in the nature of an atrial
         fibrillation condition.

         Affirmed.



D-3   • COMPACT • May 2007
      Summaries of Decisions

         Hawley v. Kwik Trip, Inc., 1/10/07

                                             Causation – Permanent Injury

         Substantial evidence, including the employee’s testimony and the opinions of the employee’s
         consulting physicians, supports the compensation judge’s determination that the employee’s October
         2003 injury was work-related and permanent.

                                                     Causation
                                       Minnesota Rules Part 5223.0410, subp. 7

         The evidence does not support a finding of reflex sympathetic dystrophy (RSD) under Minnesota
         Rules Part 5223.0410, subp. 7, and the compensation judge’s finding to that effect is vacated.
         However, there is ample evidentiary support for the finding that the employee sustained a work-
         related injury to her left arm that caused impairment of function and required permanent work
         restrictions.

                                                 Evidence – Admission

         There was no abuse of discretion where the employer and insurer failed to demonstrate prejudice as
         a result of the compensation judge’s admission of the employee’s job logs and the Jan. 20, 2006,
         letter from the employee’s physician.

                                                       Job Search

         The evidence sufficiently supports the compensation judge’s findings that the employee conducted a
         diligent job search and was entitled to temporary total disability benefits from November through
         Jan. 14, 2005; from Feb. 1 through April 29, 2005; and from July 21 to Aug. 20, 2005. The employee
         failed to conduct any job search from April 30 to May 4, and from May 26 to June 26, 2005, and the
         award of temporary total disability for this period of time is reversed.

                                     Permanent Partial Disability – Weber Rating

         Where the employee did not qualify for a diagnosis of RSD under the permanency rules, but did
         have objective findings of functional impairment, the compensation judge did not err in accepting
         the employee’s physician’s rating of a 7 percent permanency under Weber, extrapolating from
         Minnesota Rules Part 5223.0410, subp. 7.A.

                                              Temporary Partial Disability

         The compensation judge did not err in accepting the driving restrictions imposed by her treating
         physician, and accepting the physician’s conclusion that the employee’s post-injury job at K-Mart
         was appropriate despite the fact the employee may occasionally exceed her restrictions. Nor is the
         compensation judge’s award of temporary partial disability benefits based on her earnings at K-Mart
         clearly erroneous.

         Affirmed in part, reversed in part, and vacated in part.
D-4   • COMPACT • May 2007
      Summaries of Decisions

         Volness v. Cemstone, 1/10/07

                                            Causation – Medical Treatment

         The compensation judge’s finding that the employee’s second surgery was unrelated to the 2004
         work injury was supported by her choice of well-founded medical opinion, as well as by her
         reasonable interpretation of the opinions of the treating physician and by the employee’s testimony
         and medical records.

                                    Practice and Procedure – Adequacy of Findings
                                             Minnesota Statutes § 176.371

         The compensation judge’s findings and orders adequately disclose the factual and legal basis for his
         decision and are sufficient under Minnesota Statutes § 176.371. The absence of a detailed explanation
         of the rejection of certain evidence is not, accordingly, here a basis for remand or reversal.

         Affirmed.

         Nerud v. Duininck Brothers, Inc., 1/11/07

                                   Permanent Partial Disability – Brain Dysfunction
                                         Permanent Partial Disability – Eye
                                          Minnesota Rules Part 5223.0360
                                          Minnesota Rules Part 5223.0330

         Substantial evidence, including expert medical opinion, supports the compensation judge’s findings
         regarding permanent partial disability ratings for brain dysfunction, emotional disturbance and vision
         impairment.

                                       Permanent Partial Disability – Bladder
                                   Permanent Partial Disability – Reproductive Tract
                                          Minnesota Rules Part 5223.0600

         Where it is unclear from the judge’s findings and order, and from his analysis of the employee’s
         claims for permanent partial disability benefits related to his brain injury, whether he considered the
         issue of whether the employee’s brain injury, and his findings on MRI scans of his brain, could be
         deemed to be a objectively demonstrated neurological lesion necessary for an award of permanent
         partial disability benefits for reproductive and urinary tract dysfunction, and whether the
         compensation judge considered whether the employee has organic dysfunction and an anatomic loss
         or alteration under the permanent partial disability rules, we vacate the denial of permanent partial
         disability benefits related to reproductive and urinary tract dysfunction and remand the matter to the
         compensation judge for reconsideration.

         Affirmed in part, vacated in part, and remanded in part.




D-5   • COMPACT • May 2007
      Summaries of Decisions

         Gjerde v. The Pillsbury Company/General Mills, Inc., 1/18/07*

                                         Causation – Permanent Aggravation

         Substantial evidence, including expert opinion, supported the compensation judge’s finding that the
         employee’s work injury permanently aggravated the employee’s pre-existing osteoarthritis.

         Affirmed.

         Timmer v. Independent School District #482, 1/23/07*

                                              Permanent Total Disability

         Substantial evidence supports the compensation judge’s conclusion that the employee is permanently
         and totally disabled as the result of her work injury.

                                 Medical Treatment and Expenses – Nursing Services

         Where the services provided were limited to cleaning services not related to personal care of the
         employee, the services are not covered by workers’ compensation.

         Affirmed in part and reversed in part.

         Stordahl v. Advanced Communications, Inc., 1/26/07

                                             Temporary Partial Disability

         Where the record did not establish that the employee had any wage loss for purposes of temporary
         partial disability, the compensation judge did not err in denying that claim.

                                      Medical Treatment and Expense – Surgery

         Where, on the date of hearing, the employee was only 33 years old, was less than six months post-
         injury, had not followed up on recommendations for weight loss and active rehabilitation, and had
         only minimal disc disruption on discogram, and where the only physician recommending surgery did
         not explain why he was no longer recommending conservative care, the compensation judge did not
         err in denying the employee’s request for approval of fusion surgery.

         Affirmed.

         McIntyre v. Wilson Lines of Minnesota, 1/31/07

                                                       Causation

         Substantial evidence, including the employee’s testimony and the medical evidence, supports the
         compensation judge’s finding that the employee has bilateral hand and arm symptoms secondary to
         his work-related injury to the cervical spine on July 30, 2001.
D-6   • COMPACT • May 2007                                    *This case is on appeal to the Minnesota Supreme Court.
      Summaries of Decisions

                                                Evidence – Res Judicata

         The finding, in a prior findings and order, that the employee was not permanently and totally
         disabled as of Aug. 3, 2004, does not preclude a finding of permanent total disability from and after
         Aug. 4, 2004. The employee need not, necessarily, provide evidence of a material change in
         condition, but is required only to provide proof of the existence of the claimed disability during the
         time for which benefits are claimed.

                                               Permanent Total Disability

         Substantial evidence, including both expert medical and vocational opinion, supports the
         compensation judge’s determination that a job search would have been fruitless, and that the
         employee was permanently and totally disabled, effective Aug. 4, 2004.

         Affirmed.

         Duggan v. United Properties, 2/1/07

                               Medical Treatment and Expense – Treatment Parameters
                                  Minnesota Rules Part 5221.6100, subp. 2.G.(1)

         Where the chart notes of the employee’s treating and consulting physicians, along with the
         employee’s testimony, provided sufficient evidence that the employee’s condition had not improved
         with initial nonsurgical management, and where the consulting physician recommended that the
         employee undergo a discogram, following an MRI scan, so that he could review the diagnostic
         testing to determine the level and extent of pathology and the appropriate treatment options, the
         compensation judge’s conclusion that the employee had satisfied the criteria in Minnesota Rules Part
         5221.6100, subp. 2.G.(1), for authorizing discography was not clearly erroneous and unsupported by
         substantial evidence.

         Affirmed.

         Coffing v. Independent School District #194, 2/5/07

                                                Attorney Fees – Roraff
                                                Attorney Fees – Heaton

         Where it had been the employer and insurer, not the employee’s attorney, who had prevailed in
         continuing the employee’s rehabilitation benefits, where, in her findings and order on attorney fees,
         the compensation judge adopted by reference “as though set forth verbatim” her own earlier findings
         and order on issues of the employee’s entitlement to benefits, and where, in that earlier findings and
         order, she referenced the records and opinions of the employee’s treating doctor no fewer than 16
         times, the compensation judge’s determination that a Roraff fee of $500, instead of $10,106.25, was
         reasonable for the attorney’s work on medical and related matters in the case was not clearly
         erroneous and unsupported by substantial evidence for any failure to contemplate the treating
         doctor’s testimony or for any inattention to the complexities of the case.


D-7   • COMPACT • May 2007
      Summaries of Decisions

                                                 Attorney Fees – Irwin

         Where, in one of her findings and order, the judge clearly addressed deliberately at least five of the
         seven factors for determining a reasonable attorney fee under Irwin v. Surdyk’s Liquor, the
         compensation judge’s determination that a Roraff fee of $500, instead of $10,106.25, was reasonable
         for the attorney’s work on medical and related matters in the case was not clearly erroneous and
         unsupported by substantial evidence for any failure to analyze the facts of the case pursuant to the
         “Irwin factors,” notwithstanding the fact that the judge did not mention the Irwin case by name
         anywhere in her decision.

         Affirmed.

         Higbee v. Mid Central Steel Erectors, 2/6/07

                                              Permanent Total Disability

         Substantial evidence, including expert opinion, supported the compensation judge’s decision that the
         employee was permanently and totally disabled as a substantial result of his work-related low back
         injury and resulting failed fusion surgery.

                                              Apportionment – Equitable

         Equitable apportionment is not available where a portion of the employee’s disability is attributable
         to an earlier work injury that occurred when the employee was self-employed and uninsured against
         workers’ compensation liability.

         Affirmed.

         Hovland v. Streater, Inc., 2/6/07

                                                       Causation

         Substantial evidence in the form of a well-founded medical opinion supports the compensation
         judge’s decision that the employee’s work injury is a substantial contributing factor in his ongoing
         disability.

         Affirmed.

         Ripplinger v. Sears Imported Auto, Inc., 2/7/07

                                                       Causation

         Substantial evidence, including witness testimony, medical records and expert medical opinion,
         supports the compensation judge’s finding that the employee did not sustain a left shoulder injury as
         a result of his work with the employer.

         Affirmed as modified.
D-8   • COMPACT • May 2007
      Summaries of Decisions

         Christensen v. Nokken Farms, Inc., 2/8/07

                                                 Wages – Irregular
                                           Wages – Multiple Employments
                                              Wages – Seasonal Work
                                               Wages – Calculation

         Where the employee’s wages were irregular and seasonal, the compensation judge did not err in
         calculating the employee’s weekly wage for the employer by dividing the total wages earned by the
         employee by the total number of days worked (15), and multiplying this daily wage by five. On the
         facts of this case, where the number of days worked by the employee for the second employer was
         unknown, the compensation judge appropriately calculated the employee’s weekly wage by dividing,
         by 26, the employee’s total earnings from the second employer during the 26 weeks prior to the
         injury.

                                                      Penalties

         Where the employer and insurer presented a colorable legal defense, the employee is not entitled to
         an award of penalties.

         Affirmed.

         Bartz v. Meadow Lane Healthcare, 2/26/07*

                                 Vacation of Award – Substantial Change in Condition

         Where the employee failed to provide evidence that there was an unanticipated substantial change in
         condition since the time of settlement, the petition to vacate is denied.

         Petition to vacate denied.

         Wiirre v. Health Personnel Options, 2/26/07

                                             Jurisdiction – Subject Matter

         The compensation judge lacked jurisdiction to prospectively order the employer and insurer to
         continue to pay or provide for prescribed medications on behalf of the employee beyond the date of
         the hearing, and the order must be vacated.

         Vacated in part.

         Custer v. Independent School District #2154, 2/28/07

                                             Rehabilitation – Retraining

         Where the employee returned to work with the employer, but was precluded from performing her
         previous part-time work with the second employer for whom she had worked at the time of her
D-9   • COMPACT • May 2007                                    *This case is on appeal to the Minnesota Supreme Court.
       Summaries of Decisions

         injury due to her physical work restrictions, and where the record contains a labor market survey,
         vocational reports and testimony that reflect that the proposed retraining could provide the employee
         with an economic status as close as possible to her pre-injury status, substantial evidence supports
         the compensation judge’s findings that the Poole factors had been met and the compensation judge’s
         related award of a retraining program.

         Affirmed.

         Noeker v. Nordling Construction, et al, 2/28/07

                                            Causation – Medical Treatment

         Substantial evidence supports the compensation judge’s findings that the employee’s 1974 work
         injury was causally related to the employee’s current need for physical therapy and a home cervical
         traction unit, and that the employee’s 2001 work injuries were not causally related to his need for
         that medical treatment.

         Affirmed.

         Richards v. ABF Freight System, 2/28/07

                                              Causation – Gillette Injury
                                              Evidence – Burden of Proof
                                           Practice and Procedure – Remand

         Where the employee’s doctor did not reference the employee’s neck complaints in all of his
         treatment records in part because he kept separate records on the employee’s upper extremity injury
         and his low back injury, where the judge had noted that lack of referencing as a basis for his denial
         of neck-related as opposed to shoulder-related benefits, and where the judge appeared to have
         applied an outdated legal standard for proving a Gillette-type injury, the compensation judge’s denial
         of benefits for either a specific or a Gillette-type work injury to the neck was reversed and remanded
         for reconsideration of the evidence in light of the current legal standard.

                                                     Causation
                                                Evidence – Credibility

         Where it was supported by expert medical opinion and was not otherwise unreasonable, the
         compensation judge’s conclusion that the employee’s shoulder disability was both work-related and
         permanent in nature was not clearly erroneous and unsupported by substantial evidence.

                                              Temporary Total Disability
                                                    Job Search

         Where the only hard evidence of any search for work over the three-year span of the employee’s wage
         replacement claim was a log of his having made five “cold calls” a day for a period of two months, the
         compensation judge’s award of temporary total disability benefits was, except for a period when the
         employee was medically restricted from working, unsupported by substantial evidence,
         notwithstanding the fact that the employee was without a QRC’s assistance in his job search.
D-10   • COMPACT • May 2007
       Summaries of Decisions

                                              Temporary Partial Disability
                                                  Earning Capacity

         Where there was expert medical opinion that the employee was permanently restricted from
         returning to his pre-injury work as a truck driver, and where the self-insured employer did not rebut
         the presumption that the employee’s post-injury wages as a security guard constituted a reasonable
         representation of his post-injury earning capacity, the compensation judge’s award of temporary
         partial disability benefits was not clearly erroneous and unsupported by substantial evidence.

         Affirmed in part, reversed in part, and remanded.

         Strand v. United States Steel Corporation, 2/28/07

                                                       Causation

         Substantial evidence, including expert opinion, supported the compensation judge’s decision that the
         employee sustained permanent injuries to her neck and low back as a result of her work-related
         accident.

                                              Temporary Partial Disability
                                                  Earning Capacity

         Where the employee was working full time, with substantial overtime, on the date of injury, and she
         was not restricted as to hours, worked only part time, and did not look for other work after the injury,
         the compensation judge erred in applying the presumption that actual earnings are representative of
         the employee’s earning capacity.

         Affirmed in part, reversed in part, and remanded.

         Vellieux v. Catholic Charities, 3/8/07

                                 Vacation of Award – Substantial Change in Condition

         Under the circumstances of this case, especially given the substantial increase in permanent partial
         disability and change in the employee’s ability to work, good cause existed to vacate the award on
         stipulation.

         Petition to vacate award granted.

         Hassan v. Specialty Staff, Inc., 3/13/07

                                                  Temporary Benefits

         Substantial evidence, including medical expert opinion, supports the compensation judge’s finding
         that the employee did not need work restrictions from and after Nov. 12, 2005, and the judge’s denial
         of wage loss benefits after Nov. 11, 2005.


D-11   • COMPACT • May 2007
       Summaries of Decisions

                                       Practice and Procedure – Matters at Issue

         The employee’s claim of entitlement to additional permanent partial disability benefits was not at
         issue before the compensation judge, and the judge properly concluded the dispute was a matter for
         future determination if necessary.

         Affirmed.

         Narez v. LSI Corporation of America, Inc., 3/13/07

                                             Maximum Medical Improvement

         Substantial evidence supports the compensation judge’s determination that the employee reached
         maximum medical improvement (MMI) from the effects of her work injury.

         Affirmed.

         Boyington v. Hirschbach Motor Lines, Inc., 3/15/07

                                 Vacation of Award – Substantial Change in Condition

         Under the circumstances of this case, especially given the substantial increase in permanent partial
         disability and change in the employee’s ability to work, good cause existed to vacate the award on
         stipulation.

         Petition to vacate award granted.

         Moore v. Q Carriers, Inc., 3/16/07

                              Medical Treatment and Expense – Reasonable and Necessary
                                            Causation – Medical Treatment

         Where there was properly founded expert medical opinion that the employee’s headache complaints
         were of headache that was migraine in nature and causally related to his work injury, the
         compensation judge’s award of payment for numerous emergency room treatments for migraine
         headache complaints was not clearly erroneous and unsupported by substantial evidence.

                              Medical Treatment and Expense – Reasonable and Necessary
                                            Causation – Medical Treatment

         Where the hospitalization at issue followed within hours of the employee’s intravenous medication
         for migraine headache pain, where the employee’s migraine headache pain was found to be causally
         related to the employee’s work injury, and where there was expert medical opinion that one of the
         intravenous medications infused into the employee just prior to his hospitalization was capable of
         causing a dangerous spike in blood sugars, the compensation judge’s award of payment for the
         employee’s emergency hospitalization for heart-related symptoms and dangerously high blood
         sugars was not clearly erroneous and unsupported by substantial evidence.
D-12   • COMPACT • May 2007
       Summaries of Decisions

                                Medical Treatment and Expense – Diagnostic Testing

         Where there were objective clinical findings by a medical expert that the employee was subject to
         carpal tunnel syndrome bilaterally, and where a repeat EMG of the employee’s upper extremities had
         been recommended by that expert to confirm that diagnosis, the compensation judge’s award of a
         repeat EMG of the employee’s upper extremities was not clearly erroneous and unsupported by
         substantial evidence, notwithstanding the fact that the employee’s earlier post-work-injury EMG had
         proved negative.

         Affirmed.

         Christenson v. Independent School District #281 – Robbinsdale, 3/21/07

                                Vacation of Award – Substantial Change in Condition

         Where the employee failed to provide evidence of an unanticipated substantial change in medical
         condition since the time of the award, the petition to vacate must be denied.

         Petition to vacate award denied.

         Liniewicz v. Muller Family Theatre, 3/21/07

                                       Permanent Total Disability – Retirement
                                        Minnesota Statutes § 176.101, subd. 4

         The employee’s continued participation in job search past age 67 and job search under the direction
         of the QRC and placement vendor is evidence which supports the finding that the retirement
         presumption in Minnesota Statutes § 176.101, subd. 4, was rebutted.

         Affirmed.

         Zupon v. Forklifts, Inc., et al, 3/22/07

                                     Permanent Total Disability – Effective Date

         Substantial evidence supports the compensation judge’s determination that the employee was
         temporarily totally disabled from July 27 to Oct. 27, 2004, and that the employee did not become
         permanently and totally disabled until Nov. 12, 2004.

                                            Vacation of Award – Mutual Mistake

         Where there was no evidence the employee made a mistake regarding the union contract submitted
         into evidence, and the employee disputed the employer’s entitlement to reimbursement of on-the-job
         injury payments made to the employee, the employer failed to establish a mutual mistake of fact
         sufficient to vacate the award.



D-13   • COMPACT • May 2007
       Summaries of Decisions

                                              Attorney Fees – Excess Fees

         The compensation judge did not err in awarding an additional $13,000 in attorney fees, where the
         employee’s attorney properly filed a request for excess fees, and the compensation judge’s findings
         pursuant to the factors set forth in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn.
         1999) are supported by substantial evidence.

         Affirmed.
         Petition to vacate award denied.

         Hollen v. Community Maintenance, Inc., 3/23/07

                                                       Causation

         Given the record as a whole, and especially considering that the employee’s treating physicians were
         apparently unaware of the employee’s extensive history of pre-injury symptoms and treatment,
         substantial evidence supported the compensation judge’s denial of benefits related to the employee’s
         bilateral shoulder condition.

                                            Causation – Psychological Injury

         Where the compensation judge made arguably inconsistent findings, and the basis for her decision
         was not clear, the employee’s claim for a consequential psychological injury was remanded for
         further findings and explanation.

         Affirmed in part, reversed in part, and remanded.

         Kroells v. Cemstone, Inc., 3/23/07

                                          Causation – Medical Treatment
                                      Medical Treatment and Expense – Surgery
                                        Evidence – Expert Medical Opinion

         Where letters written by the treating doctor subsequent to his office notes on the date of injury did
         not dispel the discrepancy between those office notes and the employee’s testimony as to his
         symptoms on the date of injury, and where the medical records did not support the employee’s
         testimony that his symptoms were entirely different after the work injury and before his next visit to
         the treating doctor, the compensation judge’s conclusion that the employee’s work injury was not a
         substantial contributing factor in his need for recommended surgery was not clearly erroneous and
         unsupported by substantial evidence.

         Affirmed.




D-14   • COMPACT • May 2007
   Summaries of Decisions
   • Judicial •



                Minnesota
               Supreme Court
               January through March 2007
                   Case summaries published are
                    those prepared by the WCCA



         • Kris Hahn v. Graco, Inc., Self-Insured/Administered by ASU Risk Management Services,
           A06-1737, Dec. 28, 2006

            Decision of the Workers’ Compensation Court of Appeals filed Aug. 17, 2006, affirmed without
            opinion.

         • Janice M. Falls v. Coca Cola Enterprises, Inc., and Sedgwick Claims Management Services,
           Inc., A06-994, January 18, 2007

                                                   S Y L LAB U S

            The temporary total disability compensation cessation condition in Minn. Stat. § 176.101, subd.
            1(i) (2004), under which temporary total disability compensation ceases if an employee refuses an
            offer of suitable work, does not apply to work offers made before the commencement of
            temporary total disability compensation.

            Employee’s engagement in activities beyond the restrictions set by a physician did not constitute a
            constructive refusal of suitable employment.

            Affirmed.

         • Betty A. Zadrozny v. Northwest Airlines and Liberty Mutual Insurance Company, A06-2037,
           Jan. 24, 2007

            Decision of the Workers’ Compensation Court of Appeals filed Aug. 17, 2006, affirmed without
            opinion.

         • Howard P. Williams v. Grand Rapids Baptist Church, Uninsured, and Calvary Pines Baptist
           Church, Uninsured, and SMDC Health System, Minnesota Department of Labor and
           Industry/Vocational Rehabilitation unit, Arrowhead Consultation Services, Intervenors,
           and Special Compensation Fund, A06-1875, Jan. 24, 2007

            Decision of the Workers’ Compensation Court of Appeals filed Sept. 12, 2006, affirmed without
            opinion.

D-15   • COMPACT • May 2007
       Summaries of Decisions

         • Charles Ball by Diana Mancino v. Pear One, Inc.,/Craig Rebers, and Uninsured, and Special
           Compensation Fund, A06-1980, Jan. 24, 2007

            Decision of the Workers’ Compensation Court of Appeals filed Sept. 18, 2006, affirmed without
            opinion.

         • David T. Adams v. DSR Sales, Inc., and Milwaukee Insurance Group, A06-1402, Feb. 15, 2007

                                                      S Y L LA B U S

            The proceeds of the settlement of the third-party action are subject to allocation in accordance with
            Minn. Stat. § 176.061, subd. 6 (2006).

            Reversed and remanded.

         • Inocencio Zamorano Hernandez v. Fantom Wire, Inc., and State Fund Mutual Insurance
           Company, and Specialty Staff, Inc., Self-Insured, claims administered by Meadowbrook
           Insurance Group, A06-2260, March 1, 2007

            Decision of the Workers’ Compensation Court of Appeals filed Oct. 31, 2006, affirmed without opinion.

         • Connie C. Reider v. Anoka-Hennepin School District No. 11, Self-Insured, and Noran
           Neurological Clinic, and Blaine Chiropractic Center, Intervenors, A06-1344, March 8, 2007

                                                      S Y L LA B U S

            Minnesota Statutes § 176.155, subd. 2 (2006), providing for the designation of a neutral physician to
            make an examination of the injured worker, is mandatory when an interested party makes a timely
            request for such designation.

            Reversed and remanded.

         • Stanley L. Roemhildt v. Gresser Companies, Inc., and Zurich Insurance Company/Creative Risk
           Solutions, A06-1721, and Met Con Companies and State Fund Mutual Insurance Company, A06-
           1793, March 29, 2007

                                                      S Y L LA B U S

            1. An employer/insurer’s voluntary payment of benefits within the limitations period constitutes a
               “proceeding” that satisfies the workers’ compensation statute of limitations and the employer/
               insurer’s subsequent denial of liability does not restart the running of the limitations period.

            2. A non-settling employer/insurer is liable for contribution to a settling employer/insurer, even
               though the settlement includes future benefits, if a temporary order has been issued under Minn.
               Stat. § 176.191, subd. 1 (2006) requiring the settling employer/insurer to pay benefits and a
               compensation judge properly finds that the non-settling employer was also liable to the employee
               and that the settlement of the employee’s claim was reasonable.

            Affirmed in part, reversed in part.
D-16   • COMPACT • May 2007

				
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