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					COMPACT for workers' compensation professionals
         o     k        p
        for workers' compensation professionals



                                                            August 2010
                                                       Minnesota Department of Labor and Industry

CONTENTS
    2   Claims adjuster licensing change became effective July 1

    2   Workers' compensation rulemaking update

    3   New benefit and provider fee levels effective October 2010

    4   Teen claim characteristics information sheet updated

    5   Compensation rates as of Oct. 1, 2010

    6   Recap of second annual Workers' Compensation Policy Summit

    7   CompFact: The geography of indemnity payments

    8   Results of 2010 Special Compensation Fund assessment

    9   DLI mediation program receives positive feedback

  10    Building the system: DLI's alternative dispute-resolution through the years

  10    Compliance self-evaluation worksheet in development

  11    Fall 2010 training opportunities for adjusters and rehabilitation providers

  D-1   Court decisions: April through June 2010


                                                                            Court decisions:
Workers' compensation            Recap of second annual Workers'        April through June 2010
 rulemaking update                 Compensation Policy Summit


                                                                           Summaries of
                    2                                   6                Decisions                D-1
          Claims adjuster licensing changes became effective July 1
          The Minnesota Department of Commerce recently announced important licensing changes effective July 1,
          2010. One of the changes was in Minnesota Statutes chapter 72B, Insurance Adjusters.

          Information from the Department of Commerce Web site states: “Insurance adjuster licenses will be issued
          with the following line of authority: property and casualty, workers’compensation and crop. All current
          independent and public adjuster licenses will be converted to the P&C line of authority on July 1, 2010.”

          Changes to Minn. Stat. 72B.045, Subd. 1 clarify that independent and public adjusters are subject to
          continuing education requirements. If you are currently a workers’ compensation claims adjuster and are
          concerned these changes might apply to you, review the information on the Department of Commerce Web
          site and/or contact that department’s Market Assurance division at (651) 296-2488.

          Questions about continuing education can be directed to education.commerce@state.mn.us. The general
          contact number for licensing at the Department of Commerce is (651) 296-6319. For the complete
          Department of Commerce document, visit www.state.mn.us/mn/externalDocs/Commerce/Licensing_
          Changes_July_1_ 2010_020810122538_LicensingChangesEffective7-1-10.pdf.

          Workers’ compensation rulemaking update
          Permanent partial disability schedule – The Notice of Adoption of amendments to the permanent partial
          disability schedule, in Minnesota Rules chapter 5223, was published in the State Register Aug. 2 – www.
          comm.media.state.mn.us/bookstore/stateregister/35_05.pdf (p. 138). The final rule amendments as adopted
          became effective Aug. 9, 2010. The adopted amendments are the same as the amendments originally
          proposed, which can be viewed at www.dli.mn.gov/PDF/docket/5223_0310_0650proprules_071409.pdf.

          Treatment parameter amendments – The Notice of Adoption of amendments to the permanent treatment
          parameter rules in Minn. R. chapter 5221 was published in the State Register Aug. 2 – www.comm.
          media.state.mn.us/bookstore/stateregister/35_05.pdf (p. 138). These amendments are also effective Aug.
          9, 2010. The Notice of Adoption identifies three minor changes to the rule amendments as proposed; the
          rules as proposed can be viewed at www.dli.mn.gov/PDF/docket/5221_6040_6305proprules_071009.pdf.

          Workers’ compensation medical fee schedule; independent medical examination fees – There are three
          updates to the workers’ compensation medical fee schedule, effective for medical services provided on or
          after Oct.1, 2010.

            1) Pursuant to Minn. Stat. § 176.136, subd. 1a (g), a Notice of Incorporation of Relative Value Tables was
               published in the State Register July 26 – www.comm.media.state.mn.us/bookstore/stateregister/35_04.pdf
               (p.105). This notice incorporates specified 2009 relative value tables established by the Centers for
               Medicare and Medicaid Services for its national physician fee schedule. Additional information about how
               to access these tables is available on the department’s Web site at www.dli.mn.gov/WC/HealthCareProv.asp.

            2) The amendments to Minn. R. chapter 5221 to implement the above relative value tables for workers’
               compensation have been approved by the Office of Administrative Hearings. These amendments were
               published on pages 227 through 246 in the State Register on Aug. 16, 2010 – www.comm.media.state.
               mn.us/bookstore/stateregister/35_07.pdf.

            3) The adjustments to the workers’ compensation fee schedule conversion factors, which will be in Minn.
               R. 5221.4020, subp. 1b(B), as well as adjustments to the independent medical examination maximum
               fees in Minn. R. 5219.0500, are described on the next two pages.
2   • COMPACT • August 2010
              New benefit and provider fee levels effective October 2010
              By Brian Zaidman, Research Analyst, Policy Development, Research and Statistics,
              and Kate Berger, General Counsel



          The statewide average weekly wage (SAWW) effective Oct. 1, 2010, is $868, a 1.14 percent decrease
          from the current SAWW of $878, which has been in effect since Oct. 1, 2009. [See the table on this
          page.] The levels for minimum and maximum weekly benefit payments are presented in the table on
          page 5. The statewide annual average wage will change to $45,095 on Jan. 1, 2011.

          The new SAWW is based on 2009 payroll and employment figures supplied by the Department of
          Employment and Economic Development and the calculation procedure in Minnesota Statutes § 176.011,
          subd. 1b. The change in the SAWW is the basis for
          the Minn. Stat. § 176.645 annual benefit adjustment.
                                                                  Statewide average weekly wage
          The time of the first adjustment is limited by Minn.     Effective Oct. 1 of the indicated year
          Stat. § 176.645, subd. 2.
                                                                                                   Statewide
                                                                                                    average
          Pursuant to Minnesota Rules 5220.1900, subp. 1b,                                        weekly wage
          the maximum qualified rehabilitation consultant                    1997 .....................   $553 ..................... 5.53%
          (QRC) hourly fee will remain the same, at $92.82,                 1998 .....................   $579 ..................... 4.70%
          as of Oct. 1, 2010. The maximum hourly rate for                   1999 .....................   $615 ..................... 6.22%
          rehabilitation job development and placement                      2000 .....................   $642 ..................... 4.39%
                                                                            2001 .....................   $680 ..................... 5.92%
          services, whether provided by rehabilitation vendors              2002 .....................   $702 ..................... 3.24%
          or by QRC firms, will also remain the same, at                     2003 .....................   $718 ..................... 2.28%
          $70.46.                                                           2004 .....................   $740 ..................... 3.06%
                                                                            2005 .....................   $774 ..................... 4.59%
                                                                            2006 .....................   $782 ..................... 1.03%
          This year there are two adjustments to the workers'               2007 .....................   $808 ..................... 3.32%
          compensation medical fee schedule conversion                      2008 .....................   $850 ..................... 5.20%
          factors:                                                          2009 .....................   $878 ..................... 3.29%
                                                                            2010 .....................   $868 .................... -1.14%
            1. Conversion factor adjustment based on
               updated relative value units (RVUs) and
               rules – The fee schedule in effect until Oct. 1, 2010, used 1998 Medicare RVUs. Pursuant to Minn.
               Stat. § 176.136, subd. 1a, paragraph (h), the Department of Labor and Industry (DLI) is updating
               the workers' compensation medical fee schedule by incorporating by reference the 2009 Medicare
               RVUs. The Notice of Incorporation by Reference of Relative Value Tables was published in the State
               Register on July 26, 2010. The rules to implement the relative value tables were published in the
               State Register on Aug. 16, 2010. As required by Minn. Stat. § 176.136, subd. 1a, paragraph g (2),
               DLI has adjusted the conversion factors so that overall payment for services covered under both the
               old and new RVUs will be the same under both sets of RVUs1. As required by this law, DLI has done
               this separately for each of the four categories of service listed below. Since the 2009 Medicare RVUs
               are generally higher than the 1998 RVUs for all four categories of service, the conversion factors
               have been reduced for all four categories to maintain the same overall payment for services covered
               by both sets of RVUs.

              2. Conversion factor annual adjustment – Pursuant to Minn. Stat. § 176.136, subd. 1a, paragraph g (1),
                 which provides for annual adjustment of the medical fee schedule conversion factors by no more
          1
           DLI used a database from a large insurer for this calculation.
3   • COMPACT • August 2010                                                 New benefit and provider fee, continues ...
           New benefit and provider fee, continued ...

               than the percent change in the SAWW, the conversion factors for the new fee schedule as described
               above are being decreased by 1.14 percent.

          As a result of both adjustments, subject to approval by an administrative law judge at the Office of
          Administrative Hearings, effective Oct. 1, 2010, the new conversion factors will be:

            • medical/surgical services in part 5221.4030...................................................................$67.23

            • pathology/laboratory services in part 5221.4040 ...........................................................$39.60

            • physical medicine/rehabilitation services in part 5221.4050..........................................$52.35

            • chiropractic services in part 5221.4060 ..........................................................................$53.48

          Additional background about the fee schedule and tables showing changes to the RVUs and conversion
          factors are online at www.dli.mn.gov/WC/HealthCareProv.asp.

          Minnesota Rules, part 5219.0500, subp. 4, provides for adjustment of the maximum fees for independent
          medical examinations in the same manner as the adjustment of the conversion factor. Therefore, the
          maximum independent medical examination fees will decrease by 1.14 percent for services provided
          on or after Oct. 1, 2010, subject to approval by an administrative law judge.

          An official notice of the medical fee schedule conversion factors and independent medical examination
          fees as approved by the administrative law judge will be published in the State Register in September.


            Teen claims characteristics information sheet updated
                                                                                         Part of body injured
               When teenagers step into the job market
               with their first job, they often don't
                                                                                    Head and neck 4%
               realize the dangers that face them in the
               workplace or – being teenagers – they
                                                                                                                      Shoulders 5%
               may just still think they are invincible.                                    Chest 1%
                                                                                                                        Arms 5%
               But the total number of teen work injuries                                                      Menu
                                                                                             Wrists 5%
               in Minnesota is estimated at between                                        Hands 11%                     Back 17%
               1,200 and 1,500 annually. And nationally,                                  Fingers 14%
               about 70 teens die from work injuries
               every year.                                                                                              Legs 2%

               View the updated information sheet
               about workers' compensation teen claim                                 Body systems and
                                                                                                                        Knees 6%
                                                                                      internal organs 2%
               characteristics to learn which industries
               have the most claims, the nature of the
               injury or disease, common characteristics                               Multiple parts 8%
               of injuries and more.
                                                                                                                        Ankles 7%
               • www.dli.mn.gov/RS/ClaimCharac.asp
                                                                                                                      Feet 6%
                                                                                                           Toes 1%


4   • COMPACT • August 2010
                                                  Compensation rates as of Oct. 1, 2010


                                           Statewide average weekly wage (SAWW) = $868
                                       Percentage change in SAWW from previous year = -1.14%
                                        (Apply Minn. Stat. § 176.645 adjustment as necessary based on date of injury.)

Maximum under M.S. 176.101 and 176.111             Minimum under M.S. 176.101, subd. 1(2)                Supplementary benefits under M.S. 176.132
                                                                                                                          (Minnesota Statutes 1994)
                100% of SAWW                   50% of the SAWW or gross wage, whichever is                       and permanent total minimum under
                                                                                                                         M.S. 176.101, subd. 4
       10-01-86 .............$360.00           less, but in no case less than 20% of the SAWW
                                                                                                                    (for injuries 10-1-95 and later)
                                                           50%                                   20%
       10-01-87 .............$376.00
                                           10-01-86 ....$180.00 (gross wage - $270.00) ... $ 72.00       10-01-92 ...............$298.35      (rounded to $299)
       10-01-88 .............$391.00
                                           10-01-87 ....$188.00 (gross wage - $282.00) ... $ 75.20       10-01-93 ...............$314.60      (rounded to $315)
       10-01-89 .............$413.00
                                           10-01-88 ....$195.50 (gross wage - $293.25) ... $ 78.20       10-01-94...............$319.80       (rounded to $320)
       10-01-90 .............$428.00
                                           10-01-89 ....$206.50 (gross wage - $309.75) ... $ 82.60       10-01-95............. $328.25        (rounded to $329)*
       10-01-91 .............$443.00
                                           10-01-90 ....$214.00 (gross wage - $321.00) ... $ 85.60       10-01-96 ...............$340.60      (rounded to $341)*
            105% of SAWW                   10-01-91 ....$221.50 (gross wage - $332.25) ... $ 88.60       10-01-97 ...............$359.45      (rounded to $360)*
       10-01-92 ........... $481.95                                                                      10-01-98 ...............$376.35      (rounded to $377)*
                                                 20% of the SAWW or the employee's actual
       10-01-93 ........... $508.20                                                                      10-01-99 ...............$399.75      (rounded to $400)*
                                                        weekly wage, whichever is less
       10-01-94 ........... $516.60                                                                      10-01-00 ...............$417.30      (rounded to $418)*
                                                          10-01-92 ........... $91.80
             Set by Statute                               10-01-93 ........... $96.80                    10-01-01 ...............$442.00      (round)
       10-01-95 ............ $615.00                      10-01-94 ........... $98.40                    10-01-02 ...............$456.30      (rounded to $457)*
       10-01-00 .............$750.00                                                                     10-01-03 ...............$466.70      (rounded to $467)*
                                                  Set by statute, the listed amount or the employee's
       10-01-08 .............$850.00                  actual weekly wage, whichever is less              10-01-04 ...............$481.00      (round)
                                                           10-01-95 ........... $104.00                  10-01-05 ................ $503.10    (rounded to $504)*
                                                           10-01-00 ........... $130.00                  10-01-06 ................ $508.30    (rounded to $509)*
                                                                                                         10-01-07 ................ $525.20    (rounded to $526)*
                                                                                                         10-01-08 ................ $552.50    (rounded to $553)
                                                                                                         10-01-09 ................ $570.70    (rounded to $571)*
                                                                                                         10-01-10 ................ $564.20    (rounded to $565)*
                                                                                                         *Rounding applies to supplementary benefits.
CHALLENGING TIMES:
UNLOCKING NEW OPPORTUNITIES
       2nd Annual Workers’ Compensation Policy Summit, June 14 through 16, 2010
        Hosted by the Minnesota Department of Labor and Industry and the Workers' Compensation Advisory Council




 Left: Governor's Award for Innovative Measures in Workers' Compensation recipients – (l to r) Starkey Laboratories, Inc.; Mayo Clinic; and
 Innovance, Inc. – are congratulated by Department of Labor and Industry Commissioner Steve Sviggum (second from right). Right: Attendees
 listen to a panel of state legislators discussing workers' compensation, business and industry policy reform issues, during the policy summit.




 Left: During one of 26 breakout sessions offered, Lois Casteel, ALARIS, presents "60 is the new 40!" about the safety issues of an aging
 workforce. Right: Summit participants visit with Department of Labor and Industry Commissioner Steve Sviggum in a casual setting prior to
 dinner and the general session speaker for the evening, St. Louis Park Mayor Jeff Jacobs.


                   View a slideshow of the event at www.dli.mn.gov/Summit
          CompFact
            The geography of indemnity payments
          Analysis of indemnity benefit payments made in 2008 to injured
          workers, regardless of the year of the claim, shows significant regional
          differences. The map below shows the mean indemnity benefits paid
          during 2008 to injured workers in each of the six state planning areas.
          Injured workers in northeast Minnesota received the highest mean
          benefit amount, 39 percent higher than injured workers in southwest
          Minnesota and 16 percent higher than the statewide average of $8,000.
          The seven-county metro planning region accounted for 49 percent of
          the workers receiving benefits, while the northeast region had the fewest
          injured workers, with only 8 percent of the total.




                                 Northwest                     Northeast
                                  $7,800                        $9,200




                                              Central $8,500



                                                          Metro $8,200




                                 Southwest                      Southeast
                                   $6,600                        $6,700



7   • COMPACT • August 2010
         P T
       OMPACT    ugust
                  gu
                August 2010
          Results of 2010 Special Compensation Fund assessment
          By John Kufus, Accounting Officer
          Financial Services

          The Special Compensation Fund (SCF) assessment funds Minnesota's workers' compensation
          programs. Seventy percent of the assessment dollars go to funding the supplementary and
          second-injury benefit programs. The assessment also pays the operating expenses of the Workers'
          Compensation Division of the Department of Labor and Industry, the Office of Administrative
          Hearings and the Workers' Compensation Court of Appeals.

          As a result of legislation enacted in 2002, the assessment process has changed. Companies are no
          longer required to report on a semi-annual basis. The report is now being done on an annual basis. The
          report form is mailed to companies at least 45 days before the due date of April 1.

          The Special Compensation Fund assessment is directly invoiced by the Minnesota Department
          of Labor and Industry. The first half of the assessment is invoiced by June 30 of each year, and
          is due Aug. 1 of that year. The second billing is due Feb. 1 of the following year, and is mailed
          approximately 30 days before the due date.

          The estimated state-fiscal-year 2011 funding requirement for the SCF was determined to be $91
          million. The liability was divided between the insurers and self-insurers by the ratio of their 2009
          indemnity payments to the total indemnity reported by both groups.

                                             2009          Ratio        Estimated       DSR pure
                                          indemnity                     liabilities     premium
                         Insurers        $306,270,258      75.50%      $68,702,234    $792,995,304
                         Self-insurers   $ 99,402,044      24.50%      $22,297,766
                         Total           $405,672,302     100.00%      $91,000,000    $792,995,304


          Insurer premium surcharge rate
          The insurer premium surcharge rate applied for the purpose of determining the Special
          Compensation Fund assessment was 8.6636 percent. The rate was determined by dividing the insurer
          portion of the SCF state-fiscal-year 2011 liability ($68,702,234) by the 2009 designated statistical
          reporting pure premium reported by all insurers to the Minnesota Workers' Compensation Insurers
          Association ($792,995,304).

          Self-insured assessment rate
          The imputed self-insured assessment rate was 22.4319 percent. It was determined by dividing the
          self-insured portion of the Special Compensation Fund state-fiscal-year 2011 liability ($22,297,766)
          by the total 2009 indemnity reported by the self-insured employers ($99,402,044).

          If you need further information, contact John Kufus at (651) 284-5179 or john.kufus@state.mn.us.



               Follow us on                                   @ www.twitter.com/mndli
8   • COMPACT • August 2010
          DLI mediation program receives positive feedback
          By Brian Zaidman, Research Analyst
          Policy Development, Research and Statistics

          The Department of Labor and Industry’s Benefit Management and Resolution unit gathered feedback
          from its customers this spring and found that mediation service participants were very pleased with
          their experience.

          A customer feedback form was distributed to all mediation session
          participants between March 22 and May 21. Eighty-four participants
          completed the 12-item feedback form; 72 were handed in immediately
          following the session and 12 were returned by mail.

          The respondents were distributed among four groups:
             • injured workers, 26 percent;
             • worker attorneys, 30 percent;
             • employers and employers’ representatives, 17 percent; and
             • insurance company representatives, 27 percent.

          The figure below shows the percentage of respondents answering “Yes” to each item. There was very
          little variation among the respondent groups, except for the question about whether the mediation
          session facility was acceptable; only 82 percent of the insurer representatives answered “Yes.”

          Overall satisfaction with mediation was very positive: 84 percent rated it “excellent,” 15 percent
          rated mediation “good” and only one percent rated it as “poor.”

          For respondents who had previous experience with mediation, 38 percent responded that the recent
          session experience was better than their previous mediation experience and 62 percent rated it the
          same as their previous experience.

                                    Mediation feedback responses – March, April, May 2010

                    The session was easy to arrange and schedule.

                              Parking was available and convenient.

                                           The facility was acceptable.

                          Did you understand what was happening?

          Did you have adequate opportunity to express your position?

                    Did the mediator handle the session impartially?

          Did the mediator manage the session time appropriately?

           Did the mediator move the matter effectively toward resolution?

                     Did the mediator act courteously and professionally?


                                                                         84%   86%   88%   90%   92%   94%    96%   98% 100%
                                                                                       Percent responding "Yes"
9   • COMPACT • August 2010
            BUILDING THE SYSTEM:
            DLI's alternative dispute-resolution through the years
                                                        Anyone who has worked in the workers' compensation
                                                        field for even a short time knows benefit disputes go
                                                        with the territory, and have – most likely – interacted
                                                        with one aspect or another of the dispute-resolution
                                                        system. Knowing how the dispute-resolution system
                                                        works helps make everyone more effective when
                                                        attempting to resolve disputes at any point in a claim.

                                                        Disputes about benefit eligibility issues are an inevitable
                                                        consequence of three factors. First, the facts and
                                                        circumstances of each case are unique and are
                                                        sometimes not entirely clear. Second, workers'
                                                        compensation benefits represent a significant expense to
                                                        employers and a significant benefit to employees. Third,
                                                        because benefits at stake can be substantial, claims
                                                        handlers and injured workers each have an incentive to
                                                        advance their arguments to their respective advantage.

           Since nearly the inception of workers’ compensation in Minnesota more than 95 years ago, the agency
           that is now the Department of Labor and Industry (DLI) has focused on finding ways, early in the claim
           process, to fairly and equitably resolve disputes among involved parties.
                                                                                             Click here to
           Learn about the alternative dispute-resolution services available from DLI and     read report
           how the present system developed in History and development of DLI's dispute-           now
           resolution system by DLI Mediator/arbitrator Philip B. Moosbrugger.




            Compliance self-evaluation worksheet in development
           The Compliance Team of the Department of            administrators to send a summary of their
           Labor and Industry's (DLI) Benefit Management        completed worksheet to the department
           and Resolution unit is developing                          to show the areas where training
           a self-evaluation worksheet to                               would be most helpful for all
           help insurers and third-party                                 companies. These worksheets
           administrators self-identify                                   will be available soon from the
           areas of concern about                                           department.
           compliance with the workers’
           compensation statutes and rules.                              Additional training by the department
                                                                   is always available; call Jim Vogel, training
           Beyond helping companies self-identify              coordinator at (651) 284-5265 or visit the Web
           problem areas of compliance to focus                site at www.dli.mn.gov/WC/Training.asp for
           on, DLI will ask insurers and third-party           more information.
10   • COMPACT • August 2010
fall 2010 training opportunities
adjusters in minnesota
Basic adjuster's training – one session left in 2010: Oct. 26 and 27, 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. 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                                     • Participants questions

Training is at the Minnesota Department of Labor and Industry, 443 Lafayette Road N., St. Paul. The cost
is $150 for the two day session (includes lunch). All participants must pre-register.

               – More information and registration at www.dli.mn.gov/WC/TrainingIns.asp –


adjusters in illinois, kansas, wisconsin

 Out-of-state adjuster training – Three cities, one full-day and one half-day, take one or both
 Schaumburg, Ill. – Aug. 25 and 26 | Overland Park, Kan. – Sept. 8 and 9 | Wausau, Wis. – Oct. 20 and 21

 Each location will have a full day of condensed basic adjuster's training, followed by a half day for questions
 and answers. At each location, participants can attend either session or both sessions.

                    Full day                                              Half day
              • Waiting period                                       • Forms/filing refresher
              • Liability determination                              • Denials of liability
              • Indemnity benefits                                    • Communication with DLI
              • How to file forms and more                            • Participants questions and more

 The cost is $75 for the full day, $35 for the half day. All participants must pre-register.

               – More information and registration at www.dli.mn.gov/WC/TrainingIns.asp –


rehabilitation providers in minnesota

 Rehabilitation update conference – Sept. 23 or Oct. 14, 8:45 a.m. to 3:30 p.m.
 Scaling new heights
 Attendance at one of the rehabilitation update conference sessions is required of all qualified rehabilitation
 consultants (QRCs) and QRC interns. Registered rehabilitation vendors must send at least one representative
 from their organization. CEUs have been applied for. Topics include:

              • Retraining plan development                          • Providing cost-effective placement
              • Labor market survey trends                           • Online form submission

 Training is at the Continuing Education and Conference Center, University of Minnesota, St. Paul campus. The
 cost is $75 and includes continental breakfast, lunch and refreshments. All participants must pre-register.

               – More information and registration at www.dli.mn.gov/WC/TrainingRp.asp –
• Judicial •



         Workers’ Compensation
        Court of Appeals
               April through June 2010
               Case summaries published are
                those prepared by the WCCA




Goenner v. Oscar J. Boldt Construction Company, 4/2/10

                                   Causation – Medical Treatment

Substantial evidence, including expert medical opinion, supports the compensation judge’s finding
that the employee’s injury resulted in a torn meniscus and subsequent recurrent tear, that the injury
aggravated the employee’s underlying condition and that the claimed Synvisc injections to the
employee’s knee were casually related to his injury.

Affirmed.

Hodgin v. Xcel Energy, 4/5/10

                                     Temporary Total Disability
                                        Job Offer – Refusal

The compensation judge’s determination that the employee, who was medically restricted from
driving, reasonably refused the employer’s job offer due to lack of reasonable transportation
alternatives and her consequent denial of the employer’s request to discontinue temporary total
disability benefits were not manifestly contrary to the evidence.

                         Medical Treatment and Expense – Nursing Services

Where the care provided to the employee was not provided by a family member, the four-factor test
of Ross v. Northern States Power Co., 442 N.W.2d 296, 42 W.C.D. 7 (Minn. 1989) does not apply.
Substantial evidence supports the compensation judge’s determination that home health aide services
provided to the employee following his rotator cuff surgery were “nursing” services and were
compensable.

                      Medical Treatment and Expense – Treatment Parameters

The evidence of record was insufficient to support the compensation judge’s application of the
“rare case” exception and her award of payment for a mechanical lift chair where payment for such
      Summaries of Decisions

         durable medical equipment for home use is precluded by the treatment parameters, and the evidence
         failed to establish the lift chair was necessary to obtain proper treatment or maintain vocational
         functioning.

                                              Rehabilitation – Change of QRC

         Where there was no evidence that rehabilitation services were delayed, the QRC’s failure to timely
         file the employee’s rehabilitation plan does not require a change of QRC. The compensation judge
         did not unreasonably conclude the QRC’s failure to thoroughly explore all public transportation
         alternatives did not rise to a level of conduct that justified replacing her as the employee’s QRC.

         Affirmed in part and reversed in part.

         Brownell v. Hibbing Taconite Mining Company, 4/8/10

                                               Rehabilitation – Consultation

         Where the record reasonably supported the compensation judge’s conclusion that the employee
         failed to establish that he is subject to restrictions as a result of his work injuries, the judge’s denial
         of a rehabilitation consultation was not clearly erroneous or unsupported by substantial evidence.

         Affirmed.

         Jackson v. Minneapolis Public School Special District #1, 4/8/10

                                 Medical Treatment and Expense – Treatment Parameters
                                       Minnesota Rules Part 5221.6050, subp. 8

         The compensation judge’s conclusion that the employee had a documented medical complication
         satisfying the departure provision of Minnesota Rules Part 5221.6050, subp. 8.A, was supported by
         substantial evidence including medical records and lay testimony.

         Affirmed.

         Lopez v. Dura Supreme, Inc., 4/8/10

                                                 Causation – Gillette Injury
                                              Gillette Injury – Date of Injury
                                       Gillette Injury – Multiple Employer-Insurers

         Where the first of two insurers had settled all claims against it, where the employee testified credibly as
         to the progressive worsening of her symptoms during the period of the second insurer’s coverage, where
         the judge’s finding of a Gillette injury during the period of the second insurer’s coverage was supported
         by expert medical opinion and where it was not unreasonable for the judge to find that a Gillette injury
         culminated on the date on which the employee was laid off by the employer, the compensation judge’s
         award of medical benefits based on a finding of a Gillette injury during the period of the second insurer’s
         coverage was not clearly erroneous and unsupported by substantial evidence.
D-2   • COMPACT • August 2010
      Summaries of Decisions

                                             Causation – Medical Treatment

          Where the only work-related injury found by the judge was a carpal tunnel injury and the MRI scan
          at issue was recommended related to a shoulder impingement syndrome, where the first medical
          reference to a shoulder impingement syndrome had occurred nearly two years after the employee
          stopped working for the employer, where at least two examining doctors found no evidence of
          impingement syndrome and where the prescribing doctor did not expressly relate the impingement
          syndrome to the employee’s carpal tunnel work injury, the compensation judge’s award of payment
          for a right shoulder MRI scan was clearly erroneous and unsupported by substantial evidence.

          Affirmed in part and reversed in part.

          Wolf v. Boston Scientific Corporation, 4/12/10*

                                           Practice and Procedure – Dismissal

          Where there was no hearing and therefore no evidence or record for review, we are unable to
          perform our appellate review function in order to determine whether repeated orders to compel
          discovery were appropriate or whether the employee’s failure to request another pretrial hearing is an
          exceptional circumstance appropriate to justify dismissal with prejudice in this case.

          Reversed and remanded.

          Gorres v. Brett A. Duncan & R. Duncan Farms, Inc., a/k/a Duncan Farms, Inc., 4/26/10

                                        Exclusions from Coverage – Family Farm

          The statute, the case law and the record as a whole supported the compensation judge’s conclusion
          that the employer qualified as a family farm, within the meaning of Minnesota Statutes § 176.011,
          subd. 11a, and that the employee’s claim is therefore not compensable under the workers’
          compensation act, pursuant to Minnesota Statutes § 176.041, subd. 1(b).

          Affirmed.

          Christensen v. Northwest Airlines Corporation, 4/30/10

                                               Rehabilitation – Retraining

          Substantial evidence supports the compensation judge’s determination that, applying the factors set
          forth in Poole v. Farmstead Foods, Inc., 42 W.C.D. 970 (W.C.C.A. 1989), the proposed retraining
          plan leading to a two-year associate degree in histotechnology was reasonable and appropriate for
          the employee.

                                               Rehabilitation – Retraining

          Substantial evidence supports the compensation judge’s finding that the histotechnology program at
          Argosy University was reasonable and appropriate, where the employer and insurer failed to demonstrate
D-3   • COMPACT • August 2010                                   *This case is on appeal to the Minnesota Supreme Court.
      Summaries of Decisions

         that the histotechnology program at North Hennepin Community College would be equally effective in
         returning the employee to employment, or that the difference in cost was not substantial as to outweigh
         the apparent advantage of enrollment in the Argosy University histotechnology program.

         Affirmed as modified.

         Keppers v. Red Wing Shoe Company, 4/30/10

                                                 Evidence – Res Judicata

         Where there was an unappealed finding in a previous proceeding that the employee’s injury was a
         substantial cause of his “ongoing” knee problems, where the judge suggested in his memorandum that this
         finding had res judicata effect on the employee’s entitlement to more recent periods of wage replacement
         and different medical benefits, but where there was no evidence of actual application of res judicata
         principles in the judge’s current findings and orders, the compensation judge’s suggestion that res judicata
         applied was erroneous, but not to the extent of mandating reversal of the judge’s findings and order.

                                             Causation – Substantial Evidence

         Where the employer contended that the employee’s work-related knee injury was completely resolved
         by means of a 2008 arthroscopic meniscus repair and that his ACL problem pre-existed his 2006 work
         injury, where the only pre-injury ACL abnormality was a fraying repaired in 2005, where the employee’s
         ACL was now partially torn and where the judge’s decision was supported by expert medical opinion, the
         compensation judge’s conclusion that the employee’s work injury was a substantial factor in his need for
         total knee replacement was not clearly erroneous and unsupported by substantial evidence.

                                Medical Treatment and Expense – Reasonable and Necessary
                                        Medical Treatment and Expense – Surgery

         Where the employee was diabetic and had a nonhealing infection in his right knee, where the
         employer’s medical expert had opined that any need for the recommended total right knee
         replacement was neither causally related to the work injury nor reasonable and necessary given
         the infection and where the judge had found the need for the surgery causally related to the work
         injury but not reasonable and necessary given the infection, the compensation judge’s denial of
         total knee replacement in reliance on the employer’s doctor’s opinion was not clearly erroneous and
         unsupported by substantial evidence, notwithstanding the doctor’s contrary causation opinion.

         Affirmed.

         Van Buren v. City of Willmar, 4/30/10*

                                Arising Out Of and In the Course Of – Recreational Activity

         The employee’s personal injury, which occurred when he was playing basketball on the employer’s
         premises while he was on his unpaid lunch break, was not in the course of his employment and is not
         compensable.

         Reversed.
D-4   • COMPACT • August 2010                                    *This case is on appeal to the Minnesota Supreme Court.
      Summaries of Decisions

         Peterson v. Hibbing Taconite Company, 5/7/10

                                                Practice and Procedure

         Where the employer and insurer or insurers at the time of the alleged work injuries were not
         provided with notice of the litigation, and were not represented during the pendency of the claim, the
         findings and order resulting from that litigation must be vacated.

         Vacated.

         Powell v. Stein Industries, Inc., 5/11/10

                                   Discontinuance – Notice of Intent to Discontinue

         The compensation judge properly concluded the employer and insurer’s notice of intent to
         discontinue benefits (NOID) was legally deficient. However, on the facts peculiar to this case,
         we conclude the compensation judge erred in refusing to consider the employee’s objection to
         discontinuance and in ordering continuing payment of temporary partial disability benefits solely on
         the basis of the insufficiency of the NOID.

         Vacated and remanded.

         Idleburg v. Golden Living Center, 5/26/10

                                 Arising Out Of and In the Course Of – Special Hazard
                                          Causation – Pre-existing Condition

         Where medical evidence and testimony as to the mechanism of the onset of the employee’s knee pain
         at work was both varying and undefined, where the employee’s surgeon described the employee’s
         condition as primarily a degenerative one probably involving some pre-existing cartilage damage in
         her knee, where that surgeon was unable to attribute the employee’s problems to any particular event
         and where the immigrant employee’s contention that the record was inaccurate due to a language
         barrier was rebutted by evidence that a translator was always present at her examinations, the
         compensation judge’s conclusion that the employee did not prove that her knee disability arose out
         of her employment was not clearly erroneous and unsupported by substantial evidence.

         Affirmed.

         Antolak v. Marigold Foods, 5/27/10

                                 Vacation of Award – Substantial Change in Condition

         The employee has failed to establish an unanticipated substantial change in medical condition since
         the award on stipulation on Oct. 10, 2001.

         Denied.


D-5   • COMPACT • August 2010
      Summaries of Decisions

         Gaboury v. Ebenezer Luther Hall, 5/27/10

                                            Causation – Medical Treatment

         Substantial evidence, including well-founded medical expert opinion, supports the compensation
         judge’s determination that the employee’s August 2004 work-related injury was a substantial
         contributing cause of the employee’s need for medical treatment to the lumbar spine in 2008 and
         2009.

         Affirmed.

         Woodford v. Xcel Energy, 5/27/10

                                                       Causation

         Substantial evidence supports the findings that the employee sustained an injury to his low back as
         a result of his work injury in 2009, and that there is a causal connection between that injury and the
         employee’s current medical condition and need for surgery.

                                               Rehabilitation – Eligibility

         A rehabilitation consultation cannot be denied on the basis that the employee is not a qualified
         employee.

                                                    Rehabilitation
                                        Minnesota Statutes § 176.102, subd. 4(s)

         Pursuant to Minnesota Statutes § 176.102, subd. 4(a), the employee was entitled to a rehabilitation
         consultation on request, where the employer did not timely apply for a waiver pursuant to Minnesota
         Rules Part 5220.0110, subp. 7.A.(2).

         Affirmed in part and reversed in part.

         Kong v. Primeflight Aviation Services/SMS Holdings, Inc., 5/28/10

                                                         Notice

         Where the compensation judge made erroneous conclusions regarding evidence of the employer’s
         actual knowledge of the employee’s injury, we vacate and remand for reconsideration of the judge’s
         findings on notice.

                                                 Practice and Procedure

         The compensation judge did not err by allowing the employer and insurer to submit a witness’s
         testimony by deposition where the employee was given an opportunity to cross-examine the witness
         by deposition.


D-6   • COMPACT • August 2010
      Summaries of Decisions

                                                       Job Search

         Substantial evidence supports the compensation judge’s finding that the employee did not conduct a
         diligent job search.

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

         Smith v. Heartwood Construction, Inc., 5/28/10

                                                       Causation
                                           Evidence – Expert Medical Opinion

         Substantial evidence, including expert medical opinion, supports the compensation judge’s finding
         that the employee’s work injury is a substantial contributing cause of his wage loss.

                                               Temporary Total Disability

         Substantial evidence of record supports the compensation judge’s conclusion that the employee
         conducted a diligent job search during the period of time for which he has claimed temporary total
         disability benefits.

         Affirmed.

         Mewhorter v. Morrell Services, et al, 6/1/10*

                                              Temporary Total Disability
                                         Minnesota Statutes § 176.101, subd. 1(k)

         Where the employee’s temporary total disability was due to the combined effect of three injuries and
         where the employee was paid 104 weeks of temporary total disability compensation following the
         last of the injuries, the employee is not entitled to additional temporary total disability compensation
         from the earlier injuries.

         Affirmed.

         Brustad v. HealthEast/St. Joseph’s Hospital, 6/7/10

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

         Where it was not unreasonable for the judge to rely on the IME’s opinion that the employee’s right
         knee strain/contusion did not permanently aggravate his pre-existing arthritis, where it was not
         unreasonable for the judge to conclude that any change in the employee’s degenerative arthritis had
         occurred independent of his work injury, where there was evidence that the recommended surgery
         might actually worsen the employee’s arthritis and where there was no evidence that the judge was
         biased against the employee out of personal offense at his lawyer’s mistake as to the hearing’s
D-7   • COMPACT • August 2010                                  *This case is on appeal to the Minnesota Supreme Court.
      Summaries of Decisions

         formality, the compensation judge’s denial of payment for surgery addressing consequences of the
         employee’s degenerative arthritis was not clearly erroneous and unsupported by substantial evidence.

         Affirmed.

         Ramirez v. Action Roofing, 6/8/10

                                      Temporary Total Disability – Work Restrictions

         Substantial evidence, including medical opinion and the employee’s testimony, supports the
         compensation judge’s finding that the employee had work restrictions through the date of the hearing.

         Affirmed.

         Archibald v. Cedarview Care Center, 6/9/10

                                               Jurisdiction – Subject Matter
                                       Practice and Procedure – Expedited Hearing
                                        Practice and Procedure – Matters at Issue

         Where the only material issue in dispute at the formal, expedited hearing de novo was whether a
         change of QRC was reasonable and in the best interests of the parties, and where neither party
         indicated that it was unprepared to litigate that issue, the compensation judge erred in concluding
         that she was without jurisdiction to decide the issue purely on grounds that it had not been originally
         identified in a Rehabilitation Request, and the judge’s decision to that effect was reversed and
         remanded for trial on the merits.

         Reversed and remanded.

         Hicks v. Knights Formal West n/k/a Norcostco, et al, 6/9/10

                                 Vacation of Award – Substantial Change in Condition

         The employee did not establish good cause to vacate the awards on stipulation on grounds of
         substantial change in condition where any changes were or could have reasonably been anticipated
         and/or the changes were not substantial.

         Petition to vacate denied.

         Leach v. Ulland Brothers, Inc., 6/11/10

                                 Vacation of Award – Substantial Change in Condition
                                             Vacation of Award – Mistake
                                  Vacation of Award – Newly Discovered Evidence

         The employee’s petition to vacate an award on stipulation is denied where the employee failed to
         establish a substantial change in condition, mistake, or newly discovered evidence.

         Petition to vacate award on stipulation denied.
D-8   • COMPACT • August 2010
      Summaries of Decisions

         Patnode v. Seagate Technologies, Inc., et al 6/14/10

                                               Apportionment – Equitable
                                                       Causation

         The fact that the employee’s physical impairment was registered after a 1981 injury does not necessarily
         mean that that injury was permanent or that the injury was a substantial contributing cause of the
         employee’s later disability and need for medical treatment following a work-related injury in 2001.

                                               Settlements – Interpretation

         The compensation judge properly interpreted the parties’ settlement agreement to preclude the
         employer and insurer from denying primary liability for the injury covered by the agreement.

         Affirmed.

         Rezaie v. Wal-Mart Stores, Inc., 6/21/10

                                         Permanent Total Disability – Threshold
                                         Minnesota Statutes § 176.101, Subd. 5

         Where the compensation judge indicated that there was insufficient evidence to determine the
         employee’s permanent partial disability rating but concluded that the employee was permanently
         totally disabled, the finding of permanent total disability is reversed because there is no finding that
         the employee had met the applicable permanent partial disability statutory threshold.

         Reversed, in part.

         Ek v. Virginia Regional Medical Center, 6/29/10

                                     Practice and Procedure – Statute of Limitations

         Substantial evidence supported the compensation judge’s decision that the employee had not been
         incapacitated for purposes of extending the time for filing her claim petition, pursuant to Minnesota
         Statutes § 176.151(3). As such, the judge properly dismissed that claim petition with prejudice.

         Affirmed.

         Olson v. 3M Company, 6/29/10

                                      Permanent Total Disability – Discontinuance
                                        Permanent Total Disability - Retirement

         The discontinuance provisions of Minnesota Statutes §§ 176.238 and 176.239 do not apply where an
         employee has been adjudicated permanently and totally disabled, or has been administratively
         determined permanently and totally disabled. The proper procedure for obtaining a determination
         granting or denying a discontinuance of permanent and total disability benefits is to file with the
D-9   • COMPACT • August 2010
       Summaries of Decisions

         Workers’ Compensation Court of Appeals a petition to vacate and set aside an award pursuant to
         Minnesota Statutes §§ 176.451 and 176.521 and/or a petition to discontinue permanent and total
         disability benefits, as appropriate. In cases in which the presumptive retirement provision of
         Minnesota Statutes § 176.101, subd. 4, applies, an employer or insurer may discontinue payment of
         permanent total disability to an employee who has been adjudicated or administratively determined
         to be permanently and totally disabled without filing with the court a petition to discontinue benefits,
         at the risk of imposition of a penalty if benefits are improperly discontinued.

         Petition to discontinue permanent total disability benefits granted.

         Hindersheid v. Grussing Roofing, Inc., 6/30/10

                                              Rehabilitation – Cooperation

         Given all the circumstances of the case, including the employee’s extremely poor reading skills and
         his physical condition, substantial evidence did not support the judge’s conclusion that the employee
         failed to cooperate with rehabilitation efforts.

                                      Practice and Procedure – Expedited Hearing

         The compensation judge erred in making a finding as to maximum medical improvement, during an
         expedited hearing on the employee’s objection to discontinuance, where that issue was not raised in
         the pleadings or by the parties.

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

         Vick v. Northern Engraving Corporation, 6/30/10

                                               Evidence – Res Judicata
                                            Evidence – Estoppel and Laches
                                            Causation – Medical Treatment

         Where the judge’s 2006 and 2008 denials of the employee’s previous medical claims did not mean
         that his work injuries were temporary or that he was foreclosed from claiming payment for future
         medical treatment, where there was nothing in the prior decisions to suggest a break in the chain of
         causation, but where the exact nature of the employee’s current medical claims was not clear from
         the record, the compensation judge’s conclusion that her earlier decisions did not bar, by res judicata
         or collateral estoppel, the employee’s claim for payment of medical expenses after September 2005
         was affirmed with modification to permit litigation of only those expenses not at issue in the judge’s
         2006 and 2008 denials.

         Affirmed with modification and remanded.




D-10   • COMPACT • August 2010
   Summaries of Decisions
   • Judicial •



                Minnesota
               Supreme Court
                  April through June 2010
                    Case summaries published are
                     those prepared by the WCCA


                 • David K. Seehus v. Bor-Son Construction, Inc., and CNA-RSKO, and Wesley Residence,
                   Inc., and MIGA by GAB Robins North America, and Twin Cities Spine Center, Blue
                   Cross/Blue Shield of Minnesota & Blue Plus, SMDC Health System, Minnesota DLI/
                   Vocational Rehabilitation unit, Dr. Christine A. Audette, and Chiropractic Health
                   Center, Intervenors, A09-1388, June 10, 2010

                                            S Y L L A B U S (by the court)

         1. A solvent workers’ compensation insurer does not have a claim against the Minnesota Insurance
         Guaranty Association (MIGA) for contribution arising out of an employee’s claim petition involving
         disability resulting from successive accidental injuries because the insurer’s claim is not a “covered
         claim” under Minnesota Statutes ch. 60C (2008). But when a solvent workers’ compensation insurer
         is determined to bear some causal responsibility for an employee’s claim, the solvent workers’
         compensation insurer is solely liable for the claim.

         2. In a workers’ compensation employee claim petition proceeding involving successive accidental
         injuries and successive insurers including MIGA, the workers’ compensation court has subject-
         matter jurisdiction to determine causal responsibility for the employee’s claim under Minnesota
         Statutes ch. 176 (2008).

         3. Because the solvent workers’ compensation insurer was determined by the workers’ compensation
         court to bear some causal responsibility for the employee’s claim, the solvent workers’ compensation
         insurer is solely liable for the claim.

         Reversed; decision of workers’ compensation judge reinstated.




D-11   • COMPACT • August 2010

				
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