Department of Labor: 1103wcca

• Judicial •
Workers’ Compensation
Court of Appeals
July through September 2003
Case summaries published are
those prepared by the WCCA
Christensen v. Weis Builders, 7/2/03

DOI: 1/27/99, 10/5/97
Contribution and Reimbursement
Where it was supported by expert medical opinion and not contrary to factors for consideration identified in
Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975), the
compensation judge’s denial of contribution/reimbursement and apportionment was not clearly erroneous and
unsupported by substantial evidence.
Affirmed.
Beckwith v. Sun Country Airlines, 7/3/03

DOI: 5/23/00
Attorney Fees
Practice and Procedure
Attorneys in contested attorney fee cases may not expect a compensation judge to consider any documentation
or other evidence that is not submitted to the judge in paper form.
Attorney Fees – Roraff
Under the circumstances of this case, the compensation judge did not err in concluding that the employee’s
attorney was adequately compensated for his work by the contingent fee.
Affirmed.
Summaries of Decisions
St. John v. Menards, 7/8/03

DOI: 12/31/00, 11/26/96, 9/11/95
Gillette Injury
Substantial evidence supports the determination of the compensation judge that the employee sustained a
Gillette injury to both hips.
Temporary Total Disability
Substantial evidence supports the determination of the compensation judge that the employee was temporarily
totally disabled for a period of eight weeks between hip replacement surgeries where the employee was
experiencing buckling of her hips which caused her to fall on at least one occasion.
Calculation of Benefits
The employee was entitled to payment of benefits pursuant to Kirchner where she was entitled to temporary
partial disability compensation from her 1995 injury at the time she sustained her 2000 injury which resulted in
total disability.
Affirmed.
Brown v. Omni Remanufacturing, 7/10/03

DOI: 12/5/98

Attorney Fees – Irwin
Where the statutory maximum attorney fee has been paid for work on a post-Oct. 1, 1995, injury, all additional
fees for legal services related to that same injury are excess fees and must be computed in light of the seven
factors articulated in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).
Reversed and remanded.
Westad v. Y R Sharp Concrete Construction, 7/10/03

DOI: 6/27/01
Gillette Injury
Causation
The compensation judge could reasonably conclude that the employee’s expert’s opinion was based upon an
erroneous understanding of the employee’s job activities and therefore was not persuasive to support the
employee’s claim that his left knee condition was work-related. The compensation judge reasonably found,
based on substantial evidence, that the employee failed to prove that he sustained a Gillette left knee injury on
June 27, 2001, as a result of his work activities.
Affirmed.
D-2 • COMPACT • November 2003
Anderson, deceased by Anderson v. Boise Cascade Corporation, 7/11/03

DOI: 6/23/98; DOD: 12/10/99
Permanent Partial Disability
Where the employer stipulated that the employee’s work-related asbestos exposure substantially contributed
to the employee’s lung disease and permanent partial disability, but argued that no permanent partial disability
benefits were payable since no claim was made or filed before the employee’s death, the employee’s heirs are
entitled to payment of permanent partial disability benefits because permanent partial disability vests and is
payable to the estate of a deceased employee where permanent partial disability is ascertainable before the
date of death.
Affirmed.
Schmidt v. Nortel Networks, Inc., 7/11/03

DOI: 11/21/00
Attorney Fees
The compensation judge did not abuse his discretion in determining that the service of the employee’s previous
attorney were reasonable and the fee claimed was appropriate.
Affirmed.
Miller v. R225 ENT Limited, 7/14/03

DOI: 6/29/99
Attorney Fees – Subdivision 7 Fees

Minnesota Statutes §176.081, subd. 7
Under the unique facts of the case, including the fact that the employer and insurer did not file an objection to
counsel’s statement of attorney fees, the compensation judge could reasonably infer that a dispute existed over
benefit payment so as to warrant an award pursuant to Minnesota Statutes §176.081, subd. 7.
Affirmed.
Banken v. Lac Qui Parle Coop Oil, et al, 7/16/03*

DOI: 1/25/01, 7/25/97, 1/24/97, 11/19/96
Attorney Fees – Subd. 7 Fees

Attorney Fees – .191 Fees
Minnesota Statutes §176.191
When the employee’s attorney is paid fees pursuant to Minnesota Statutes §176.191, no award to the employee
under Minnesota Statutes §176.081, subd. 7, may be made.
Reverses.
* This case is on appeal to the Minnesota Supreme Court. November 2003 • COMPACT • D-3
Warrington v. Pearl Baths, et al, 7/16/03

DOI: 1/30/02, 5/9/89
Vacation of Award – Mutual Mistake
Based on undisputed affidavit and documentary evidence of a mutual mistake, that is, inadvertent insertion of
a page from an earlier draft version that did not included certain negotiated language into the final, executed
Stipulation for Settlement, the parties’ Joint Petition to Vacate the stipulation is granted.
Petition to vacate award granted.
Kloes v. Advance United Expressway, 7/17/03*

DOI: 11/25/81
Calculation of Benefits – Adjustment of Benefits

Minnesota Statutes §176.101, subd. 1(a)
Where language in Minnesota Statutes §176.645 cited by the employee was most reasonably construed as
intended to preclude limiting adjusted benefits to the date-of-injury SAWW, not to preclude application of an
already limited compensation rate to the adjustment provisions of the statute, where the compensation judge
had aptly concluded that the suggestion in the 1981 version of Minnesota Statutes §176.101, subd. 1(a), that
compensation was to be calculated based on a daily wage rather than a weekly wage was “a distinction
without a difference,” and in that an employee’s permanently applicable initial compensation rate has always
been understood to be ultimately a weekly rate rather than a daily rate, the compensation judge did not err in
concluding that the employee had not sustained an underpayment of benefits as a result of any miscalculation of
his annual adjustments consequent to any misreading of Minnesota Statutes §176.101, subd. 1(a).
Affirmed.
Neururer v. Jamar Company, 7/17/03

DOI: 11/8/98
Practice and Procedure – Remand
Where it had been undisputed after the earlier proceeding that the employee provided notice of injury to his
employer on Nov. 2, 1999, over 30 days after but within 180 days after his May 26, 1999, recognition of his
injury’s potential compensability; where the issue on remand was therefore whether the employee had proven
a mistake or ignorance of fact or law sufficient to permit notice of injury to be given between 30 and 180 days
following recognition of the injury; where, in proposed findings submitted to the judge on remand, both parties
acknowledged that the notice period began to run on May 26, 1999, and neither party suggested a change in
that date; and where the judge on remand changed that recognition date from May 26, 1999, to March 31,
1999, thereby effectively barring the employee’s claim and eliminating the court’s whole reason for remanding,
the judge exceeded the scope of the remand and erred when he changed his previously uncontested finding
establishing May 26, 1999, as the commencement date for the statutory notice period.
D-4 • COMPACT • November 2003 * This case is on appeal to the Minnesota Supreme Court.
Notice of Injury – Gillette Injury

Where there was no indication in his decision on remand that the judge rejected the employee’s testimony that
the employee was unaware that an injured employee is normally required to furnish notice of injury within 30
days of recognizing a work injury, and where there was no evidence that any prejudice to the employer and
insurer had resulted from the employee’s failure to give notice prior to expiration of the statutory 180-day
notice period, the compensation judge’s conclusion that the employee had failed to reasonably satisfy the
“mistake, inadvertence, ignorance of fact or law” provisions of the notice statute was clearly erroneous and
unsupported by substantial evidence, and the matter was reversed and remanded again for further findings on
the issue of causation and other non-notice issues of the employee’s entitlement to benefits.
Bye v. Federal Reserve Bank of Minneapolis, 7/21/03

DOI: 1/20/98
Costs and Disbursements
Where the employee has not yet filed a statement of costs and disbursements and no order has been issued
resolving any such claim, the employee’s appeal regarding costs and disbursements is not ripe for determination.
Where the employee established primary liability for her trigger digits and right lateral epicondylitis conditions,
but did not recover medical expenses to treat those conditions, the employee is not entitled to Roraff fees.
Attorney Fees – Practice and Procedure
Where neither the employee’s letter amending the claim petition or the employee’s pre-trial statement were
offered into evidence or brought to the attention of the compensation judge at the hearing, the employee failed
to establish a genuine dispute and failed to establish entitlement to Roraff attorney fees with respect to her
medical mileage claim.
Affirmed.
Schelonka v. Waite Park Manufacturing, 7/21/03

DOI: 2/9/00
Causation – Substantial Contributing Cause
Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s
work injury was merely temporary.
Affirmed.
November 2003 • COMPACT • D-5

Kaisershot v. Earthworks Excavating, 7/23/03*

DOI: 9/30/00
Arising Out Of and In the Course Of
Where, at the time of his Saturday injury, the employee was evidently performing a task beneficial to the
employer, agreed to by the employer, and on the employer’s premises, the compensation judge’s conclusion
that the employee’s injury was one arising out of and in the course of employment was not clearly erroneous
and unsupported by substantial evidence, notwithstanding the facts that the employee normally worked only
Monday through Friday and on the day of his injury was being compensated for his work only by permission
to use company machinery for personal reasons.
Practice and Procedure – Admission of Evidence

Evidence – Credibility
Where the employer and insurer had disclosed the employer’s owner as a probable witness but had elected at
hearing not to offer his testimony, where the employee had then, having already rested his case, requested and
been allowed to call that witness as part of his case in chief, where the employer and insurer, after the employee’s
direct examination of that witness, were given ample opportunity to cross-examine the witness, and where that
witness’s testimony was in the end not material to the issues on appeal, notwithstanding the employer and
insurer’s contention that the judge’s express crediting of the employee’s testimony over that of the witness
distracted the judge from more critical legal analysis, the compensation judge did not err in permitting the
employee to call the employer’s owner as a witness even after the employee had initially rested his case.
Evidence – Expert Medical Opinion
Where the employee’s doctor had treated the employee for severe joint problems related to his hemophilia for
several years and was sufficiently familiar with the mechanics of the employee’s work injury to form an adequate
basis for his opinions, where those opinions were based on adequate factual history from the employee, from
a review of medical records, and from physical examinations, the compensation judge’s decision to rely on the
opinions of the employee’s doctor was upheld.
Practice and Procedure – Notice of Issues
Where the compensation judge made a finding as to the reason for the employee’s termination, where that
issue was neither before the judge for determination nor in any way relevant to issues before the judge, except
to the extent that the termination was either voluntary or involuntary, and where the employee did not dispute
the employer and insurer’s request that the finding be modified, the compensation judge’s finding as to the
reason for the employee’s termination was modified as requested, to reflect only that the termination was
involuntary.
Affirmed as modified.
Korach v. Central Container Corporation, 7/23/03

DOI: 7/24/00
Arising Out Of and In the Course Of – Prohibited Act
The compensation judge properly concluded that the employee was barred from receiving workers’
compensation benefits for his July 24, 2002, injury by the employer’s safety rules and specific instructions
against operating a particular type of forklift without specific training and licensure as a driver on that type of
forklift.
Affirmed.
Kuisle v. Sunrise Assisted Living a/k/a Karrington Assisted Living, 7/23/03*

DOI: 11/8/99
Causation
Substantial evidence, including expert medical opinion, supports the compensation judge’s denial of the employee’s
claims based on his finding that the employee’s work-related injury resulted in a temporary aggravation of her
pre-existing low back condition and resulted in no injury to her right foot or leg.
Affirmed.
Helget v. Pies, Inc., 7/30/03

DOI: 3/27/91, 10/1/90, 8/30/90, 6/8/89
Causation – Intervening Cause

Causation – Medical Expenses
Where the facts in one case relied on by the appealing employer and insurer were distinguishable because the
employee in that case was no longer being treated for the work injury, and where the other two cases relied on
by the employer and insurer were merely affirmances of reasonable factual conclusions, the compensation
judge’s implicit conclusion that the employee’s nonwork-related motor vehicle accident was not a superseding/
intervening cause of the employee’s need for neck surgery was not clearly erroneous and unsupported by
substantial evidence.
Where the information relied on by the doctors whose opinions were relied on by the compensation judge was
reasonably complete, where those doctors had had ample opportunity to discuss with the employee her history
of symptoms and care, and where the judge had indicated in his memorandum that he had carefully considered
all documentary evidence submitted, the medical opinions on which the judge relied were not insufficiently
founded, and the compensation judge’s choice of medical opinions on which to rely was not clearly erroneous
and unsupported by substantial evidence, notwithstanding the judge’s failure to address expressly the adverse
opinion in his findings and order.
Affirmed.
Brew, Jr. v. College of St. Scholastica, 8/5/03

DOI: 4/18/94
Rehabilitation – Eligibility
Substantial evidence supports the compensation judge’s determination that the employee is not entitled to a
rehabilitation consultation because the employee has no residual disability or restrictions relating to his work
related injury, and therefore has no underlying entitlement to rehabilitation benefits.
Affirmed.
Doesken v. Hinding Heating, et al, 8/5/03

DOI: 11/8/00, 5/19/98, 1/10/89
Apportionment – Equitable Apportionment
Substantial evidence, including expert medical opinion, supports the compensation judge’s apportionment of
liability between the employee’s injuries and her award for reimbursement of benefits to the employer and
insurer at the time of the employee’s second and third injuries.
Affirmed.
Rice v. United Parcel Service, 8/5/03

DOI: 11/13/01, 5/6/85, 11/26/84
Causation – Gillette Injury
Substantial evidence, including the opinion of the independent medical examiner, supports the compensation
judge’s determination that the employee did not sustain a Gillette injury to his knees as a result of his work
activities for the employer.
Affirmed.
Sherwin v. Allina Health System/Mercy Hospital, 8/5/03

DOI: 8/24/00
Rehabilitation – Retraining
Substantial evidence, including multiple labor market surveys, supports the compensation judge’s findings that
employment as a nurse practitioner would be reasonably attainable upon completion of retraining, and that the
requested retraining would produce an economic status as close as possible to that which the employee would
have enjoyed without the disability, and the judge’s approval of the employee’s request for 156 weeks of
retraining as a nurse practitioner.
Affirmed.

Langlois v. University of Minnesota, 8/6/03*

DOI: 10/1/95
Applying the factors set forth in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), to
the facts peculiar to these medical expense cases, the compensation judge’s award of $21,000 in attorneys is
reversed, and an award of $7,500 is substituted.
Reversed.
Ryan v. University of Minnesota, 8/6/03*

DOI: 10/10/94
Applying the factors set forth in Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), to
the facts peculiar to these medical expense cases, the compensation judge’s award of $21,000 in attorneys is
reversed, and an award of $7,500 is substituted.
Reversed.
Shelton v. Independent School District #625, 8/6/03*

DOI: 10/21/94
Rehabilitation – Cooperation
The compensation judge erred in denying temporary total disability benefits on job search grounds where the
employee was cooperating with rehabilitation assistance during the period at issue.
Penalties
Under the circumstances of this case, the compensation judge did not err in awarding a 10 percent penalty
under Minnesota Statutes §176.225, subd. 1, rather than a 25 percent penalty under Minnesota Statutes
§176.225, subd. 5.
Affirmed in part and reversed in part.
Boeder v. Minnesota Department of Natural Resources, 8/7/03*

DOI: 6/9/99
Wages – Seasonal Work
Under the circumstances of this case, the compensation judge did not err in concluding that the employee’s
weekly wage should be determined with reference only to the job he was working on the date of injury and not
to another job for the employer that he had held just prior to the injury and expected to go back to.
Job Search
Given his unappealed finding that the employee had cooperated with rehabilitation assistance, the compensation
judge erred in denying temporary total disability benefits based on the employee’s failure to look for alternate
employment.
Bennett v. TTC Illinois, Inc., 8/11/03

DOI: 1/15/01
Where the employer and insurer paid medical expenses and later withdrew their admission of primary liability
at a hearing for wage loss benefits, the employee’s attorney was not entitled to Roraff fees for succeeding in re-
establishing primary liability at that hearing for the medical expenses already paid and the employee’s right to
claim future medical expenses when there was no current medical claims at issue at that hearing.
Affirmed.
Ross v. NewMech Companies, Inc., 8/12/03

DOI: 10/31/00
Temporary or Permanent Aggravation
Substantial evidence including medical opinion and records and the employee’s testimony supported the
compensation judge’s finding of a permanent injury.
Restrictions
Substantial evidence including medical opinion and records and the employee’s testimony supported the
compensation judge’s finding that the employee was subject to medical restrictions.
Job Search – Reasonably Diligent
Substantial evidence supports the compensation judge’s finding that the employee had conducted a reasonable
diligent job search for the period during which the employee, consistent with his 25 years of prior practice,
relied exclusively on his union hiring hall in seeking employment within his restrictions.
Temporary Partial Disability
The compensation judge did not clearly err in awarding temporary partial disability compensation where there
was no evidence that jobs within the employee’s restrictions actually existed in Minnesota and where there was
evidence indicating that driving for long distances to work was medically inappropriate for the employee as a
result of the work injury.
Affirmed.
Leonard v. Yellow Freight System, Inc., 8/18/03

DOI: 1/10/01
Maximum Medical Improvement
Substantial evidence, including the employee’s testimony, medical records, and expert medical opinion, supported
the finding that the employee had reached maximum medical improvement from his Jan. 10, 2001, work injury
as of Aug. 21, 2002.
Affirmed.
Eide v. Timberland Lumber Company, 8/19/03*

DOI: 2/4/02
Notice of Discontinuance
Practice and Procedure – Expedited Hearing
Where the employer and insurer did not assert a claim that the employee’s injury was temporary in either of
two NOIDs or the petition for discontinuance, the claim was not included in the issues enumerated by the
compensation judge at the beginning of the hearing, and the employee did not clearly and unambiguously agree
to further expansion of the issues, the compensation judge’s finding that the employee’s personal injury was a
temporary aggravation of a pre-existing condition and his order permitting the employer and insurer to discontinue
wage loss benefits is reversed.
Reversed in part.
LaFore v. WCI/Frigidaire Freezer Products, 8/20/03

DOI: 7/1/94
Attorney Fees
The compensation judge did not abuse his discretion in finding that the employee’s former attorney was entitled
to a fee of $13,000 under Minnesota Statutes §176.081, subd. 1.
Affirmed.
Johnson v. Waseca Independent School District #829, 8/21/03

DOI: 5/19/02, 6/1/00
Causation – Intervening Cause
The compensation judge reasonably concluded that the employee’s activity in moving a couch that weighed
more than her 15 pound lifting restriction, re-injuring her work-related arm fracture, was not an intervening and
superseding cause of the employee’s need for further medical treatment and ongoing disability.
Affirmed.
Melin v. Lakehead Constructors, 8/25/03

DOI: 3/26/97
Temporary Total Disability – Medically Unable to Continue

Temporary Benefits – Fully Recovered
Minnesota Statutes §176.101, subds. 1(2)(1) and 1(e)(2)
Where, on the date of the commencement of the 2000-2001 benefits period at issue, the employee had
apparently been repeatedly back to work since his 1997 work injury, was currently on layoff from work, was
not medically unable to perform any work, and was clearly over 90 days post his 1998 MMI, the compensation
judge’s award of temporary total disability benefits was clearly erroneous under Minnesota Statutes §176.101,
subds. 1(e)(1) and 1(e)(2), notwithstanding the fact that the employee may have been anticipating surgery
related to his work injury.

Earning Capacity
Where the employee found light duty work for a month while he awaited surgery and for a month following his
convalescence from that surgery, and where the employer did not during that time offer the employee alternative
higher paying work, substantial evidence supported the compensation judge’s conclusion that the employee’s
imminent surgery and his continuing recovery from that surgery sufficiently restricted the employee to overcome
the employer and insurer’s argument that the employee could have been working at higher-paying backhoe
tasks such as he was able to perform prior to his work injury.

Minnesota Statutes §176.101, subds. 1(e)(1) and 1(e)(2)
Where the compensation judge found expressly that the employee did not conduct a reasonably diligent job
search and where the judge nevertheless awarded the benefits at issue based solely on an express but erroneous
conclusion that the employee was under and cooperated with a statutory rehabilitation plan during the period
at issue, substantial evidence did not support the compensation judge’s award for that portion of the period
during which the employee was not subject to a rehabilitation plan, but substantial evidence did support the

award for the remainder of the period, and Minnesota Statutes §176.101, subds. 1(e)(1) and 1(e)(2), did not
apply to preclude that award, given that the employee remained restricted by his work injury and had not yet
reached a second MMI consequent to injury-related surgery.
Michel v. University of Minnesota, 8/28/03

DOI: 3/27/02
Substantial evidence supports the determination of the compensation judge that the employee’s second job
constituted regular employment.
Temporary Total Disability – Temporary Partial Disability
Substantial evidence supports the determination of the compensation judge that the employee was entitled to
wage loss benefits since she had physical limitations affecting her earning capacity and she cooperated with
rehabilitation services.
Affirmed.
Hoy v. Employment Plus, 9/3/03

DOI: 11/5/01
Substantial evidence supports the decision of the compensation judge that the employee was not able to work
without restrictions.
Causation
Substantial evidence supports the decision of the compensation judge that the employee’s right thumb condition
was not causally related to his work injury.
Affirmed.
Drouillard v. St. Mary’s Medical Center/Duluth Clinic, 9/4/03*

DOI: 6/14/00, 6/00/90
The compensation judge properly applied the areas of concern set forth in Poole v. Farmstead Foods, Inc., 42
W.C.D. 970 (W.C.C.A. 1989), in evaluating the proposed retraining to obtain a Bachelor of Nursing degree,
and substantial evidence supports the compensation judge’s findings and award of retraining benefits as outlined
in the plan.
Affirmed.
Hieserich v. Breitbach Construction, 9/4/03

DOI: 8/2/00, 9/6/90
Penalties
The compensation judge’s award of a 15 percent penalty under Minnesota Statutes §176.225, subd. 1, on the
basis of interposing a frivolous defense or unreasonably delaying payment, is not supported by the evidence,
nor is CNA liable for a penalty for failure to pay benefits under a temporary order when no such order was
issued.
Apportionment – Equitable
Where the employee’s current permanency rating results in part from a single surgical procedure to which both
the 1990 and the 2000 injuries contributed, the compensation judge’s application of equitable apportionment
was not clearly erroneous. Where the judge apportioned liability for the employee’s 20 percent permanency
equally between the insurers, and CNA had previously paid 7 percent permanent partial disability benefits, we
modify the award so that CNA pays an additional 3 percent, and State Farm Mutual is liable for the remaining
half, or a 10 percent whole body disability.
Affirmed in part, as modified, and reversed in part.
Ronzino v. Action Mailing Service, Inc., 9/4/03

DOI: 12/13/00
Intervenors
Settlements
Under the circumstances of this case, the compensation judge did not err in concluding that the intervenor was
not effectively excluded from settlement negotiations so as to warrant full reimbursement of its claim.
Affirmed.
Schultz v. Wholesale Produce Supply Company, Inc., 9/4/03

DOI: 4/27/00
Where this court lacked subject matter jurisdiction to review an Order on Agreement issued after an administrative
conference prior to a decision on the merits, there is no record of the proceedings at the administrative conference,
and the appellants did not allege prejudice or insufficient time to prepare to litigate, the compensation judge’s
decision concluding the Order was not binding in a hearing on the employee’s claim petition was not an abuse
of discretion or legally erroneous.
Affirmed.

Hallaway v. Mora Plumbing and Heating, Inc., 9/5/03*

DOI: 10/28/98
Vacation of Award – Substantial Change in Condition
Where there is no change in diagnosis, no substantial change in the employee’s ability to work, no substantial
change in permanent partial disability and no need for extensive medical care not contemplated at the time of
the award, good cause has not been established to set aside the award on stipulation.
Petition to vacate award denied.
Kramarenko v. Miracle Cleaning Company, 9/5/03

DOI: 10/2/97
Evidence – Res Judicata

Where the same ultimate issue presented to the compensation judge, whether the employees were in the
course of their employment at the time of the accident, was addressed by the district court and court of
appeals, and where the same parties, the employer and the employees, were involved in the district court
action, collateral estoppel bars the employees from now proceeding with a claim based on the premise that
their injuries are compensable under the exception found in Minnesota Statutes §176.011, subd. 16.
Affirmed.
Kubat v. St. Louis County, 9/5/03

DOI: 3/25/85
The compensation judge erred in issuing amended findings reflecting the parties’ purported stipulation as to
permanent total disability, where the employer objected to the request for amended findings and where there
was no evidence in the record definitively establishing that the parties had in fact agreed to permanent total
disability.
Loyevskiy v. Miracle Cleaning Company, 9/5/03

DOI: 10/2/97
Evidence – Res Judicata

Where the same ultimate issue presented to the compensation judge, whether the employees were in the
course of their employment at the time of the accident, was addressed by the district court and court of
appeals, and where the same parties, the employer and the employees, were involved in the district court
action, collateral estoppel bars the employees from now proceeding with a claim based on the premise that
their injuries are compensable under the exception found in Minnesota Statutes §176.011, subd. 16.
Affirmed.
Stotts v. Polaris Industries, 9/5/03

DOI: 10/15/90
Where there was evidence that the employee already possessed several innate qualities beneficial to one
seeking entry into the sales and marketing area in which the employee sought retraining, where advancement in
that area appeared dependant just as much and maybe more on on-the-job training than on formal schooling,
where neither the employee nor her QRC had conducted a reasonable aggressive job search either within the
50-mile radius or outside of it, where there was evidence that a graduate of the proposed retraining program
could not expect a wage much more than that earned by the employee at the time of her work injury over 12
years earlier, where there was expert vocational opinion that the employee had not diligently sought work
either within or without a 50-mile radius of her home and could not expect to improve her employability by
means of the proposed retraining program, and where the employee had expressed willingness to move outside
of a 50-mile radius from her home in northwestern Minnesota in order to work, if not simply to look for work,
the compensation judge’s denial of retraining was not clearly erroneous and unsupported by substantial evidence.
Affirmed.
Medalen v. WASP, Inc., 9/10/03

DOI: 11/21/01, 4/3/97
Substantial evidence, including expert medical and scientific opinions, supports the compensation judge’s finding
that the employee’s exposure to paint was not a substantial contributing factor in the development of her basal
cell carcinoma.
Affirmed.
Reeder v. Metro Transit, 9/11/03

DOI: 6/6/01
The compensation judge did not err in denying the employee’s claim for benefits related to a seizure condition
allegedly resulting from work-related blunt head trauma where the only medical opinion evidence supportive of
the employee’s claim indicated merely that the employee “possibly” or “probably” had a seizure condition that
“might” or “could” be the result of a work incident, especially where there was no objective evidence that the
employee in fact had a seizure condition and where at least two other physicians found no causation.

Earning Capacity
The compensation judge properly denied, as premature, the employee’s claim for wage loss benefits for a
period in which the employee was working but was allegedly not paid.
Affirmed.
Devitt v. Barrett Moving and Storage, 9/15/03

DOI: 11/6/98
Attorney Fees – Heaton
When retraining benefits were the subject of the dispute for which attorney services were provided, Heaton
fees are paid only if the contingency fees from benefits received by the employee are not adequate to reasonably
compensate the employee’s attorney.
Reversed.
Drevecky by Drevecky v. Wolkerstorfer Company, 9/16/03

DOD: 2/11/01; DOI: 5/19/92, 5/9/91
Causation
Substantial evidence, including expert medical testimony and the employee’s uncle’s testimony, supports the
compensation judge’s finding that the employee’s suicide was causally related to his work injury.
Attorney Fees
Where a claim is asserted on behalf of the employee’s estate pursuant to Minnesota Statutes §176.111, subd.
22, and benefits are awarded, partial reimbursement of attorney fees under Minnesota Statutes §176.081,
subd. 7 is appropriate.
Affirmed.
Parker v. University of Minnesota, 9/16/03*

DOI: 8/2/00, 7/21/99, 6/11/98
Rehabilitation – Fees and Costs
Substantial evidence supports the determination of the compensation judge that the services of the QRC were
reasonable and necessary where the employer’s offer of employment was physically unsuitable.
The QRC was not barred from payment for services where the services were provided after the initiation of
litigation over entitlement to rehabilitation.
Affirmed.
Welch v. AB Weiss Systems, et al, 9/17/03

DOI: 5/11/93, 5/30/91
Appeals – Procedure
An order denying joinder is not a final or appealable order under Minnesota Statutes §176.421, subd. 1.
Dismissed.
Richardson v. Hennepin County Medical Center, 9/18/03

DOI: 4/17/95
Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s
1995 work injury was not a substantial contributing cause of the employee’s condition, need for surgery, or
disability after February 1997.
Affirmed.
Midtling v. Schwan’s Sales Enterprises, 9/22/03

DOI: 9/23/98
Evidence
The compensation judge did not err or abuse her discretion by leaving the record open beyond 30 days and
admitting into evidence the post-hearing report of the employee’s medical expert.
The employee’s medical witness had sufficient knowledge about the matter at issue to render an expert opinion.
Any failure to comment upon or explain the mechanism of the injury may go to the persuasiveness or weight of
the opinion, but does not render the opinion without foundation. A compensation judge is not required to refer
to or comment upon every piece of evidence introduced at the hearing. The judge clearly stated which medical
opinion she found persuasive, and there was no lack of foundation for that opinion.
Affirmed.
Moreno v. Northwest Surfacing Company, 9/29/03

DOI: 9/11/98
Evidence – Credibility
Where there was no evidence in the employee’s initial medical records, in his contemporaneous employment
records, or in the testimony of his coworker to corroborate the employee’s claim of a specific work injury on
or about the date alleged, and where there was definite evidence in the employee’s time cards that he was not
working at the location of the alleged injury on or about the date originally alleged, the compensation judge’s
conclusion that the employee’s claim of a specific work injury was not credible was not clearly erroneous and
Notice of Injury – Trivial Injury Rule
The purpose of the trivial injury rule is to toll the statutory period during which notice of injury must be issued.
Where the court had affirmed the compensation judge’s conclusion that the employee’s claim of a specific
work injury was not credible, any issue as to statutory notice of such an injury was moot, rendering also moot
any issue as to the propriety of the judge’s application of the trivial injury rule.
Reversal or remand for a new trial was unnecessary where none of various alleged procedural irregularities in
the hearing before the compensation judge was so prejudicial, either individually or collectively, as to have
altered the outcome of the hearing.
Affirmed.
Polz v. Jackson County Sheriff’s Department, 9/29/03

DOI: 6/22/00
Arising Out Of and In the Course Of

Where the employee experienced a right hip dislocation while at work as he started to lean against a retaining
wall, and where the employee had a pre-existing history of medical treatment related to his right hip, substantial
evidence of record supported the compensation judge’s determination that the employee’s injury did not arise
out of employment with the employer and that there was no causal connection between the employee’s injury
and his employment.
Affirmed.
Stange v. State of Minnesota, Department of Transportation, 9/29/03

DOI: 11/24/00, 12/00/97, 11/00/89
Causation
Substantial evidence supports the compensation judge’s finding that the employee sustained a temporary
aggravation of his pre-existing low back condition on Oct. 24, 2000, and that the aggravation had resolved
within two days of the incident.
Affirmed.

Lehman v. Dakota Growers Pasta Company, 9/30/03

DOI: 9/18/00
Earning Capacity
Where the employee conceded that her job search was minimal, and where a diligent job search was a critical
component of the employee’s rehabilitation plan and JPPA, the compensation judge’s conclusion that the
employee failed to prove that her wage loss during the period at issue was substantially related to her work
injuries was not clearly erroneous and unsupported by substantial evidence, notwithstanding the rebuttable
presumption that actual post-injury earnings normally constitute a fair representation of an employee’s post-
injury earning capacity.
Where the judge determined that the employee was generally cooperative with rehabilitation efforts during the
period at issue, and where job logs and the testimony of the employee supported the judge’s decision, the
compensation judge’s conclusion that the employee had demonstrated a loss of earning capacity attributable to
her work injury and so was entitled to benefits based on her actual earnings was not clearly erroneous and
Permanent Partial Disability
Where it was sufficiently supported by the employee’s medical records as well as her testimony, the compensation
judge’s award of permanent partial disability benefits for the employee’s bilateral carpal tunnel syndrome was
not clearly erroneous and unsupported by substantial evidence.
Affirmed.

• Judicial •
Minnesota
Supreme Court
July through September 2003
Case summaries published are
those prepared by the WCCA
• Fernando Correa v. Waymouth Farms, Inc., and St. Paul Mercury Insurance Company,
C9-02-1172, July 3, 2003
Temporary Total Disability – Job Search
The employee came to the United States in 1987 with a passport and visa but never became a citizen nor
obtained legal authorization to work in the United States. In November 1999, he was hired by Waymouth
Farms and on March 3, 2000, he injured his back at work. The employer accepted the injury as compensable,
but did not pay any benefits because Correa continued to work. On July 20, 2000, he underwent surgery.
Waymouth Farms paid Correa wage loss and medical benefits, and provided rehabilitation services. After the
surgery, he returned to work on a restricted basis.
In February 2001, the Immigration and Naturalization Service notified the employer that the alien registration
number Correa provided did not exist and that the Social Security number provided by Correa did not match
his name. The employer suspended Correa and gave him 48 hours to provide valid documentation. He notified
Waymouth Farms that he could not provide the documentation. Waymouth Farms then terminated his employment
effective Feb. 7, 2001. After his termination, Correa commenced a job search without the assistance of a
QRC.
On Feb. 21, 2001, Waymouth Farms filed a notice of intention to discontinue Correa’s temporary total disability
benefits on the ground that he was medically released to work but could not, as an unauthorized alien, legally
work in the United States. He objected and requested an administrative conference. Waymouth Farms’ request
to discontinue benefits was denied. In May 2001, Waymouth Farms filed a petition to discontinue compensation.
The compensation judge found that Correa’s job search was both reasonable and diligent under the circumstances
and denied the petition. On appeal to the WCCA, the sole issue was whether Correa was entitled to temporary
total disability benefits for the period from Feb. 7 to March 6, 2001. Waymouth Farms argued that Correa
was not entitled to receive benefits for that period because he was not legally able to work in the United States
and, as a matter of law, was unable to perform a reasonable and diligent job search as required by Minnesota
Statutes §176.101, subd. 1(g) (2002). The WCCA concluded that his unauthorized status did not, as a matter
of law, prevent him from conducting a reasonable and diligent job search and affirmed the compensation judge.
Waymouth Farms appealed, arguing to the Supreme Court that the Immigration Reform Control Act (IRCA)
prevents unauthorized aliens from conducting a diligent job search because they cannot legally be employed.
The IRCA makes it illegal to knowingly employ unauthorized aliens and requires employers to check for
documentation of citizenship or immigration status for all employees. Employers who knowingly employ
unauthorized aliens are subject to civil and criminal sanctions. The IRCA also makes it unlawful for any person
to tender fraudulent documentation. The court noted that the IRCA does not prohibit unauthorized aliens from
receiving state workers’ compensation benefits generally, or temporary total disability benefits conditioned on
a diligent job search specifically. Additionally, all employees, including unauthorized aliens, are protected by the
provisions of the National Labor Relations Act (NLRA) and Fair Labor Standards Act (FLSA).
The court examined the definition of employee in M.S. §176.011, subd. 9. It provides “any person who
performs services for another for hire including *** an alien ...” and noted that the clear language of the act
does not distinguish between authorized and unauthorized aliens. The court stated: “Had the Legislature
intended to exclude unauthorized aliens from coverage under the act, it could easily have done so ...” Additionally,
M.S. §176.101, subd. 1(g) does not specifically exclude unauthorized aliens from receiving temporary total
disability benefits conditioned on a diligent job search. Therefore, the court concluded that plain meaning of the
act permits unauthorized aliens to receive temporary total disability benefits conditioned on a diligent job
search.
• Sandra M. Vigoren v. Joseph Catering and Fremont and Compensation Insurance

Group, A03-377, August 7, 2003
Decision of the Workers’ Compensation Court of Appeals filed March 27, 2003, affirmed without opinion.
• Mike Smith v. Quebecor Printing, Inc., and Kemper National Insurance Companies,
and Minneapolis Orthopedic and Arthritis Institute, Blue Cross/Blue Shield, Midas
Recovery (Standard Insurance), Minnesota Department of Labor and Industry/Vocational
Rehabilitation, Minnesota Department of Human Services, and Abbott-Northwestern
Hospital, Intervenors, A03-291, August 15, 2003
Decision of the Workers’ Compensation Court of Appeals filed March 19, 2003, affirmed without opinion.

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• Judicial •

Christensen v. Weis Builders, 7/2/03

Contribution and Reimbursement

Beckwith v. Sun Country Airlines, 7/3/03

Attorney Fees – Roraff

St. John v. Menards, 7/8/03

Temporary Total Disability

Brown v. Omni Remanufacturing, 7/10/03

Attorney Fees – Roraff

Reversed and remanded.

Westad v. Y R Sharp Concrete Construction, 7/10/03

Anderson, deceased by Anderson v. Boise Cascade Corporation, 7/11/03

Permanent Partial Disability

Schmidt v. Nortel Networks, Inc., 7/11/03

Miller v. R225 ENT Limited, 7/14/03

Attorney Fees – Subdivision 7 Fees

Banken v. Lac Qui Parle Coop Oil, et al, 7/16/03*

Attorney Fees – Subd. 7 Fees

Warrington v. Pearl Baths, et al, 7/16/03

Vacation of Award – Mutual Mistake

Petition to vacate award granted.

Kloes v. Advance United Expressway, 7/17/03*

Calculation of Benefits – Adjustment of Benefits

Neururer v. Jamar Company, 7/17/03

Practice and Procedure – Remand

Notice of Injury – Gillette Injury

Reversed and remanded.

Bye v. Federal Reserve Bank of Minneapolis, 7/21/03

Costs and Disbursements

Attorney Fees – Roraff

Attorney Fees – Practice and Procedure

Schelonka v. Waite Park Manufacturing, 7/21/03

Causation – Substantial Contributing Cause

November 2003 • COMPACT • D-5

Kaisershot v. Earthworks Excavating, 7/23/03*

Arising Out Of and In the Course Of

Practice and Procedure – Admission of Evidence

Evidence – Expert Medical Opinion

Practice and Procedure – Notice of Issues

Korach v. Central Container Corporation, 7/23/03

Arising Out Of and In the Course Of – Prohibited Act

Kuisle v. Sunrise Assisted Living a/k/a Karrington Assisted Living, 7/23/03*

Helget v. Pies, Inc., 7/30/03

Causation – Intervening Cause

Evidence – Expert Medical Opinion

Brew, Jr. v. College of St. Scholastica, 8/5/03

Doesken v. Hinding Heating, et al, 8/5/03

Apportionment – Equitable Apportionment

Rice v. United Parcel Service, 8/5/03

Causation – Gillette Injury

Sherwin v. Allina Health System/Mercy Hospital, 8/5/03

D-8 • COMPACT • November 2003

Langlois v. University of Minnesota, 8/6/03*

Attorney Fees – Irwin

Ryan v. University of Minnesota, 8/6/03*

Attorney Fees – Irwin

Shelton v. Independent School District #625, 8/6/03*

Affirmed in part and reversed in part.

Boeder v. Minnesota Department of Natural Resources, 8/7/03*

Wages – Seasonal Work

Affirmed in part and reversed in part.

Bennett v. TTC Illinois, Inc., 8/11/03

Attorney Fees – Roraff