Department of Labor: 0807wcca

• Judicial •
Workers’ Compensation
Court of Appeals
April through June 2007
Case summaries published are
those prepared by the WCCA
Akkanen v. Viratec Thin Films, Inc., 4/5/07
Vacation of Award – Substantial Change in Condition
Where the record did not contain adequate information to establish either change in ability to work
or causation between the current worsened condition and the employee’s work injuries, and where
the claimed increase in permanent partial disability was minimal, the employee had not established
good cause to vacate the award.
Petition to vacate award denied.
Olds v. Lutheran Social Services of Minnesota, 4/9/07*
Causation – Permanent Aggravation
Substantial evidence, including adequately founded medical expert opinion, supports the
compensation judge’s decision finding a permanent, work-related aggravation of the employee’s
pre-existing low back condition.
Permanent Total Disability – Insubstantial Income
Although the employee was working only 16 hours per week and was receiving Social Security
disability benefits prior to her work injuries, there is evidence the employee’s post-injury restrictions
would not allow the employee to perform any regular or consistent employment, resulting in an
insubstantial income, and the compensation judge did not err in awarding permanent total disability
benefits.
Permanent Total Disability
A disability is permanent for workers’ compensation purposes if it is likely to exist for an indefinite
period of time. There was no evidence that any further treatment would significantly aid the
employee in returning to work, and the compensation judge’s finding of permanent total disability
was not premature.
*This case is on appeal to the Minnesota Supreme Court.

Summaries of Decisions
Credit and Offsets – Social Security Offset
There is no substantial evidence that the employee’s low back condition was a factor in the 1999
award of Social Security disability benefits to the employee, and it cannot be concluded that the
disability benefits were occasioned by the employee’s 2002 and 2003 work injuries to the low back,
thus the allowance of a statutory offset for Social Security benefits must be reversed.
Affirmed in part and reversed in part.
Lamkin v. JWS Homes and Contracting, Inc., 4/10/07
Practice and Procedure – Dismissal
An order of dismissal on procedural grounds should be granted only under exceptional circumstances.
The primary factor to be considered is the prejudicial effect of the order upon the parties to the action.
In this case, the prejudicial effect of dismissal of the employee’s claim without a hearing on the merits
outweighs the expense of appearing at the hearing, at which the employee failed to appear, to the
employer.
Reversed and remanded.
McLeod v. Magnuson Farms, 4/10/07
Where the employee’s petition to vacate the 1989 award on stipulation is based on a change in
medical condition since the time of the award, and while the employee has demonstrated his need for
more extensive medical treatment, causally related to his work injury, than was contemplated at the
time of the award but has not necessarily shown a change in diagnosis nor entitlement to additional
permanent partial disability since the 1989 award on stipulation, and where there is inadequate
information to determine whether later-developed medical conditions and a subsequent injury are
causally related to his 1985 low back injury, and where the employee has not demonstrated a change
in his ability to work, there is an inadequate basis for vacating the award on stipulation and the
petition to vacate is denied.
Meyers v. Minnesota Electric Supply Company, 4/11/07
Causation
Substantial evidence supports the compensation judge’s determination that the employee failed to
establish by preponderance of the evidence that her work injury was a substantial contributing factor
in her wage loss and need for medical treatment.
Affirmed.
D-2 • COMPACT • August 2007

Whitemore v. Holm Brothers Construction, Inc., 4/11/07
Causation – Medical Treatment
Under the circumstances of this case, the record as a whole, including the records of one of the
employee’s treating physicians, adequately supported the compensation judge’s award of medical
expenses related to cardiac and visual testing and treatment, despite the fact that the employee’s
treating physicians had reached no firm conclusions as to the cause of the employee’s ongoing
symptoms.
Affirmed as modified.
Burgin v. Metro Transit, 4/13/07
Causation – Temporary Aggravation
Substantial evidence, including medical records and expert medical opinion, supports the
compensation judge’s finding that the employee’s work-related injury of Feb. 22, 2006, was a
temporary aggravation that resolved by May 22, 2006.
Affirmed.
Erickson v. City of St. Paul, 4/16/07
Rehabilitation – Eligibility
Rehabilitation – Retraining
The employee’s resignation from a job that paid a wage the same as or more than his pre-injury wage
does not terminate his entitlement to rehabilitation services, where, as a result of his work-related
injuries, he is permanently precluded from engaging in his usual and customary occupation held at
the time of his injury. The employee’s proposed retraining plan is appropriate, when considering the
Poole factors.
Affirmed.
Dietz v. Vohs Enterprises, 4/20/07
Maximum Medical Improvement

Temporary Total Disability
Where it was supported by the 2004 formal MMI opinions of a neurosurgeon and a neuropsychologist
and also by records of the employee’s extensive treatment by no fewer than 10 other doctors, none of
whom had offered an opinion that the employee had not reached MMI, the compensation judge’s
conclusion that the employee had reached MMI over 90 days prior to her 2005 termination from
employment, and so was not entitled to recommencement of her temporary total disability benefits
from the date of her termination, was not clearly erroneous and unsupported by substantial evidence.

Medical Treatment and Expense – Reasonable and Necessary
Where it would have been reasonable for the compensation judge to conclude from the statements of
medical experts recommending chronic pain treatment that there was little to be gained by further
diagnostic expense, where there was no evidence of record that the employee’s neuropsychological
IME upon recommendation of a neurosurgical IME had been intended to be a “neutral” examination
or was otherwise prejudicial to the employee, and where at any rate the employee had had ample
opportunity to correct any related misunderstanding prior to the original neuropsychological
examination, the compensation judge’s denial of the employee’s request for a repeat
neuropsychological evaluation was not clearly erroneous and unsupported by substantial evidence.
Affirmed.
Davis v. Metro Dental, 4/23/07
Where the records submitted failed to establish a significant change in diagnosis, a substantial
deterioration in medical condition or a significant change in the employee’s ability to work, the
employee’s petition to vacate an award on stipulation must be denied.
Nagle v. Lifeworks Services, 4/27/07

Evidence – Expert Medical Opinion
Substantial evidence, in the form of a well-founded medical opinion, supports the compensation
judge’s determination that the employee’s work injury was not a substantial contributing factor to her
need for medical care.
Affirmed.
Vick v. Northern Engraving Corporation, 4/30/07
Practice and Procedure – Matters at Issue

Appeals – Scope of Review
Where the employee did not address in his brief the specific finding from which he had appealed
pertaining to one injury date, and where no other injury dates had been identified at hearing as being
at issue, there was no basis for concluding that the judge erred in her decision by failing to consider
other injury dates.
Affirmed.

Flaskamp v. Northwest Airlines, 5/1/07
Wages – Calculation
Wages – Irregular
Where no evidence was submitted or testimony provided establishing vacation pay, holiday pay, sick
leave pay or specific personal leave time during the 26 weeks prior to the employee’s work injury,
the compensation judge did not err in concluding the employee’s earnings were irregular, or in using
an averaging formula to determine the employee’s weekly wage.
Causation – Gillette Injury
Substantial evidence, including the opinions of the employee’s treating physicians, supports the
compensation judge’s determination that the employee sustained a Gillette injury to the cervical
spine as a result of his work activities for the employer and that his work injury was a contributing
cause of his need for surgery.
Affirmed.
Irvin v. Red Wing Shoe Company, 5/1/07
Causation – Consequential Injury
Where the employee sought workers’ compensation benefits claiming that her low back condition
was caused or substantially contributed to by her earlier injury to her left foot and also developed as
a result of her employment during a later period of time, and where the compensation judge found
that her low back condition developed as a consequence of the earlier work injury, but made no
finding concerning whether the employee later sustained a separate work-related injury, the
compensation judge applied an incorrect causation test when arriving at his conclusions. The matter
is remanded for reconsideration and a determination of whether the disputed low back condition
arose out of and in the course and scope of employment.
Medical Treatment and Expense
Where the employee’s extensive conservative treatment as well as four surgeries had not relieved her
persistent symptoms and foot pain, where one of the employee’s treating physicians recommended
an implantation of a neurostimulator in an attempt to alleviate her symptoms, and where the record
contains a properly founded medical opinion concerning the potential benefits of the stimulator, we
conclude that substantial evidence in the record supports the judge’s approval of the proposed
implantation of the spinal cord stimulator.
Medical Treatment and Expense – Treatment Parameters

Minnesota Rules Part 5221.6020, subp. 2
The permanent medical treatment parameters do not apply to treatment for an injury after an
employer and insurer have denied liability for the injury and have denied that the employee’s
current condition, for which the employee sought disputed medical treatment, is causally related to
her work injury. A denial of liability includes both a denial of primary liability and a denial of
medical causation for subsequent symptoms or conditions.
Where the employee remains subject to physical work restrictions as a result of her work injury, and
those restrictions prevent her from returning to her pre-injury job with the employer, and where the
employee has not yet returned to suitable gainful employment, the compensation judge’s conclusion
that the employee remains a qualified employee for receipt of rehabilitation assistance and his related
award of rehabilitation assistance were supported by substantial evidence of record.
Affirmed in part, and vacated and remanded in part.
Jeffrey v. Banana Republic, 5/1/07*
Attorney Fees – Irwin Fees
Where the compensation judge properly applied the factors in Irwin v. Surdyk’s Liquor, 599 N.W.2d
132, 59 W.C.D. 319 (Minn. 1999) to the facts in this case, the compensation judge’s award of
attorney fees to the employee’s attorney for his representation of the employee was not clearly
erroneous and not an abuse of discretion, and therefore must be affirmed.
Affirmed.
Murphy v. Northwest Sheetmetal Company, 5/2/07
Vacation of Award – Mistake
A compromise settlement of a workers’ compensation claim is contractual in nature. Generally, a

contract may be rescinded or voided upon a showing of mutual mistake as to a material fact. A
person who signs a contract may not void it on the ground that he or she did not read it or thought its
terms to be different. If the terms of a contract are free from ambiguity and there is no fraud or
misrepresentation, a mistake of one party alone as to the terms or subject matter of a contract is not a
basis for vacation. In this case, where the stipulation for settlement explicitly closed out the disputed
prescription expenses, where the employee was represented by counsel and does not claim any
infirmity or disability at the time he signed the stipulation, where there was no allegation or evidence
of fraud, misrepresentation or intent to deceive, and where counsel for the employer and insurer
denied any mutual mistake, the employee failed to establish a mutual mistake of fact sufficient to
vacate the award on stipulation.
Vacation of award on stipulation denied.
D-6 • COMPACT • August 2007 *This case is on appeal to the Minnesota Supreme Court.
Burkhalter v. Trend Enterprises, Inc., 5/3/07
Causation
Substantial evidence, including the employee’s testimony and the opinion of her treating physician,
supported the compensation judge’s decision that the employee’s 2002 work injury was a substantial
contributing cause of her continuing symptoms and need for treatment.
Affirmed in part and vacated in part.
Hanegmon v. Chisholm Health Center, 5/3/07
Where the employee failed to comply with discovery requests on multiple occasions and also failed
to comply with two orders compelling discovery; where the matter had remained stricken from the
trial calendar for more than 20 months, at least in part because of delays attributable to the
employee’s failure to comply with discovery requests and court orders; and where the unnecessary
costs incurred by the employer and insurer far exceeded the value of the claims at issue, the
compensation judge did not err in dismissing those claims with prejudice.
Affirmed.
Zaback v. Cowboy Concrete, 5/15/07
Arising Out Of and In the Course Of – Special Errand
Substantial evidence supports the compensation judge’s determination that the employee was injured
while on a special errand for the employer and that, as a result, his injuries were covered under the
Workers’ Compensation Act.
Affirmed.
Hogan v. Super Valu/Cub Foods, 5/18/07
Where the independent medical examiner’s earlier opinion was made assuming a false premise,
where it was not unreasonable for the judge to rely on the examiner’s later, changed opinion, and
where some of the medical bills at issue were not itemized sufficiently to determine whether they
applied to the employee’s thoracic condition or to his lumbar condition, the compensation judge’s
conclusion that the employee did not prove that his admitted lumbar work injuries were a substantial
contributing factor in medical expenses related to his thoracic back was not clearly erroneous and
unsupported by substantial evidence.
Where the employee did not brief his appeal from the judge’s finding as to the reasonableness and
necessity of medical expenses potentially related to the employee’s admitted lumbar work injury, and
where the judge’s finding was at any rate supported by expert medical opinion, the compensation
judge’s conclusion that all medical treatment after a specified date — whether to the thoracic spine
or to the lumbar spine — was not reasonable and necessary was not clearly erroneous and
Affirmed.
Williams v. Chisholm Health Center, 5/21/07
Substantial evidence supports the compensation judge’s finding that the employee’s July 2005 work
injury was a temporary aggravation of his pre-existing low back condition.
Penalties
Minnesota Statutes § 176.225
A penalty is not appropriate where benefits are the subject of a real controversy and the employer
and insurer interpose a colorable claim or good faith defense. Where there is evidence to support the
employer and insurer’s denial of primary liability, a penalty under Minnesota Statutes § 176.225 is
not appropriate, even though the employer and insurer did not ultimately prevail on their defense to a
portion of the claim.
Affirmed.
McCoy v. Hennepin Home Health Care, 5/23/07
Medical Treatment and Expense – Change of Physician
Where the employee did not return to her treating surgeon following carpal tunnel surgery in 2003
and had no ongoing relationship with a medical provider, she was entitled to select a primary health
care provider. The compensation judge’s denial of the employee’s request for a new treating
physician must, accordingly, be reversed.
Substantial evidence supports the compensation judge’s finding that the employee does not have
work restrictions and is not a qualified employee entitled to rehabilitation benefits.
Ludescher v. Univerity of Minnesota, 5/24/07
Attorney Fees – Roraff
Remand for hearing and new findings was necessary where no evidentiary hearing was held and
where the judge erred in evaluating whether there existed a genuine dispute over payment of medical
expenses, erred by assuming that the employer did not object to the hours claimed by the employee’s
attorney, and erred by failing to rule on the effect of the employee’s failure to request certification of
a dispute by the Department of Labor and Industry.
Vacated and remanded.
Schmitt v. Innovative Lawn Systems, Inc., 5/24/07*
Jurisdiction – Subject Matter

Insurance – Coverage
Where, contrary to the insurer’s assertion, the claim before the compensation judge related not to a
claim for negligence or breach of contract against the insurer’s agent but to direct claims by the
employee for workers’ compensation benefits and by the employer for insurance coverage, the
coverage issue before the compensation judge was clearly ancillary to the employee’s claim for
benefits and therefore fell within the purview of the compensation judge’s jurisdiction, as had been
implied though not explicitly addressed in several precedent cases.
Where the employer’s owner was unsophisticated in business matters and relied upon the employer’s
insurance agent to provide the employer with all necessary business insurance, where that agent
issued certificates of insurance coverage to that owner indicating that workers’ compensation
insurance was in place, where it was reasonable for that owner to rely on those representations, and
where that owner did rely on those representations to the employer’s detriment, the compensation
judge’s conclusion that the insurer was estopped from denying coverage of the employer against the
injured employee’s claims was not clearly erroneous and unsupported by substantial evidence.
Attorney Fees
Where the insurer refused to defend the employer against the employee’s claims on grounds that it
was not liable for coverage, where the employer sought reimbursement of attorney fees payable to an
attorney independently retained for its defense, and where that claim for reimbursement constituted a
claim for damages for breach of contract against the insurer, the compensation judge’s denial of the
employer’s claim for attorney fees was affirmed, pursuant to the Minnesota Court of Appeals’
holding in Sazama Excavating v. Wausau Insurance Companies, 521 N.W.2d 379 (Minn. App. 1994),
pet. for rev. denied (Minn. Oct. 27, 1994).
Affirmed.
Cornell v. ABF Freight Systems, Inc., 5/31/07

Medical Treatment and Expense – Surgery
Substantial evidence, including medical opinion, supports the compensation judge’s award of
expenses incurred for treatment of the employee’s low back since June 8, 2005, and approval of the
proposed surgery.
Affirmed.
Malecha v. ABC Bus Company, 5/31/07

Medical Treatment and Expese – Surgery
Substantial evidence in the form of a well-founded medical opinion supports the compensation
judge’s decision that the requested SI fusion surgery was causally related to the work injury and was
reasonable and necessary medical treatment.
Affirmed.
Farnsworth v. Northwest Airlines Corporation, 6/6/07
Temporary Partial Disability
Substantial evidence supports the compensation judge’s conclusion that the employee is
underemployed and his current earnings do not reflect his actual earning capacity, and the judge’s
denial of temporary partial disability benefits.
Affirmed.
Costello v. Clay County Sheriff’s Department, 6/7/07
Practice and Procedure – Remand
Where the compensation judge failed to address the issue of the reasonableness and necessity of a
surgical procedure and nonetheless ordered reimbursement of the associated expenses, the order for
reimbursement is vacated and the case is remanded for determination of the issue.

Ellsworth v. Days Inn/Brutgers Equities, 6/8/07
Causation – Reflex Sympathetic Dystrophy

Where it was amply supported by expert medical opinion, the compensation judge’s conclusion that
the employee’s diagnosis of reflex sympathetic dystrophy was valid and that the condition was
causally related to the work injury was not clearly erroneous and unsupported by substantial
evidence, notwithstanding marked inconsistency in the employee’s symptoms and weakness in her
credibility due in large part to her somatization disorder and other psychiatric disorders, and
notwithstanding the fact that the employee’s symptomology did not fully meet the requirements for
an award of permanent partial disability benefits under Minnesota Rules Part 5223.0430, subpart 6.
Permanent Partial Disability – Reflex Sympathetic Dystrophy

Where it was based on an established medical diagnosis and otherwise supported by expert medical
opinion, the compensation judge’s award of permanent partial disability benefits related to the
employee’s reflex sympathetic dystrophy was not clearly erroneous and unsupported by substantial
evidence, notwithstanding the fact that the employee did not manifest a full five of the diagnostic
“conditions” listed in Minnesota Rules Part 5223.0430, subp. 6, notwithstanding the fact that the
qualifying conditions that the employee did manifest were not shown to appear concurrently in the
same moment of time, and notwithstanding the fact that the employee’s diagnosis of RSD was not
uncontested.
Where the employee was affirmatively found to be subject to work-related reflex sympathetic
dystrophy, where there was substantial evidence that syndrome severely disabled the employee, and
where the compensation judge’s findings and memorandum clearly indicated that the judge
contemplated the “Schulte factors” as codified in Minnesota Statutes § 176.10 1, subd. 5, in making
his decision, the compensation judge’s award of permanent total disability benefits was not clearly
erroneous and unsupported by substantial evidence.
Affirmed.
Hagy v. Morton Buildings, Inc., 6/8/07
Notice of Injury – Gillette Injury

Where the employer was informed of a work-related condition resulting in physical work
restrictions, the employer had adequate notice of an injury, as required by Minnesota Statutes
§ 176.141, and the compensation judge’s finding that the employee failed to provide timely notice is
not supported by substantial evidence in the record and is reversed.

Jotblad v. City of St. Paul, 6/11/07
Causation – Psychological Injury
Substantial evidence of record supports the compensation judge’s finding that the employee’s work
injury of June 7, 1996, was a substantial contributing factor in causing or significantly aggravating
her psychological condition and diagnosis.
Substantial evidence supports the compensation judge’s finding that the employee is permanently
and totally disabled as a result of her work-related psychological condition.
Substantial evidence, including expert medical opinion, supports the compensation judge’s finding
that the employee sustained a Gillette injury to her right wrist in the nature of carpal tunnel
syndrome.
Affirmed.
Crocker v. HMS Host Corporation, 6/14/07
Notice of Injury
Evidence – Credibility
Where the judge was clearly aware of the conflicts between the employee’s testimony and
documentary evidence referenced by the employer and insurer, and where the employee’s testimony,
that he did not more actively pursue a workers’ compensation claim initially because he “didn’t want
to make waves,” did not compel a conclusion that the employee was not credible in his testimony
that he advised his supervisors of his injury on the date of its occurrence, the compensation judge’s
conclusion that the employee gave statutorily proper notice of his work injury was not clearly
Causation
Where the judge acknowledged that the employee had pre-existing degenerative disc disease in his
lumbar spine but concluded, nevertheless, that the employee had experienced a work-related physical
insult to his pre-existing condition that effectively removed him from continuing in his job with the
employer, and where that conclusion was supported by the employee’s testimony and medical records,
the compensation judge’s conclusion that the employee’s work was a substantial contributing factor in
his disability was not clearly erroneous and unsupported by substantial evidence.

Job Search
Where the judge reasonably concluded that, prior to his termination, the 60-year-old, 17-year
employee was medically restricted by his work injury from returning to his job with the employer
and there was no evidence that lighter duty work was available, where the judge reasonably concluded
that, subsequent to his termination, the employee was unable to receive necessary medical treatment
because his health insurance had been canceled, and where the judge reasonably concluded that, while
limited, the employee’s efforts to find work since his termination had been reasonable in light of the
effects of his work injury, his limited employment history, and his lack of vocational/rehabilitation
assistance, the compensation judge’s award of temporary total disability benefits was not clearly
Affirmed.
London v. United Parcel Service, 6/14/07
Substantial evidence supports the compensation judge’s determination that the employee’s work
injury of Aug. 1, 2006, was a temporary aggravation of his pre-existing neck and back condition,
from which the employee had fully recovered by Aug. 21, 2006.
Affirmed.
Maricle v. Farmstead Foods, 6/14/07*
Causation
Substantial evidence, including the employee’s testimony, medical records and expert medical
opinion, supported the finding that the employee’s claimed disability and medical care were not
causally related to the employee’s work activities for the employer, Farmstead Foods, or to her
Sept. 29, 1989, work injury with the employer.
Affirmed.
Fenstermaker v. Thermoform Plastic, Inc., 6/19/07
Where there is conflicting evidence on whether the employee has experienced a change in her ability
to work and whether the employee has sustained additional permanent partial disability that is
causally related to her 2001 work injury, we refer this matter to the Office of Administrative
Hearings for an evidentiary hearing.
Referred to OAH for evidentiary hearing.
Lang v. Harvey Vogel Manufacturing Company, 6/19/07
Causation – Psychological Condition

Substantial evidence, including the well-founded opinion of the employee’s treating psychologist,
support the compensation judge’s finding that the employee’s July 15, 2005, personal injury was a
substantial contributing factor to the employee’s psychological condition.

Substantial evidence, including the well-founded opinion of the independent medical examiner, a
psychiatrist, supports the compensation judge’s determination that the employee’s psychological
condition was not of such a degree as to totally disable the employee.
Discontinuance – Matters at Issue
Where counsel for the employee agreed at the start of the hearing on discontinuance that job search
would be an issue, the compensation judge did not impermissibly expand the issues to include the
defense of failure to diligently search for work.
Job Search
Rehabilitation – Cooperation
An injured employee proves total disability by showing, by a diligent job search to no avail, that
work the employee is capable of doing in his injured condition is unavailable. Where the employee
failed to cooperate with the vocational rehabilitation plan in effect, the compensation judge’s denial
of temporary total disability benefits from and after June 21, 2006, must be affirmed.
Job Offer – Refusal

Minnesota Statutes § 176.101, subd. 1(i)
On the facts of this case, the employer and insurer failed to meet their burden of proving the May 24,
2006, job offer was consistent with the plan of rehabilitation as required by Minnesota Statutes
§ 176.101, subd. 1(i), and the compensation judge’s refusal to discontinue temporary total disability
benefits on the basis of refusal of a job offer is affirmed.
Affirmed.
Rechtfertig v. Michael Spiering, 6/19/07*
Exclusion from Coverage – Casual Employment

Minnesota Statutes § 176.041, subd. 1(k)
Where the employee was hired by a homeowner to help close-in a garage apartment being built by
the homeowners, which was intended for their own use, the work was temporary and of relatively
short duration, the days of work were uncertain and dependent on whether there was work to do on a
particular day and whether a family member would be present at the property, the employment was
“casual” and the compensation judge erred in finding to the contrary.
Reversed.
Stordahl v. Advanced Communications, Inc., 6/21/07
Causation – Intervening Cause

Where the employee followed the recommendation of his treating doctor and where there was no
determination by a compensation judge as of the date of surgery that surgery was unreasonable and
unnecessary, it was error for the compensation judge to determine that the employee’s decision to
proceed with surgery was so unreasonable, negligent, dangerous or abnormal as to constitute a
superseding, intervening cause that relieves the employer and insurer from further liability.
Reversed.
Gunderson v. A E Conrad Company, 6/22/07
Where there is conflicting evidence on the issues of whether the employee’s ability to work had
changed and whether the employee’s current medical condition was causally related to his work
injury, we refer the matter to the Office of Administrative Hearings for an evidentiary hearing and
findings on those issues.
Schutz v. Brookdale Chrysler Plymouth, 6/25/07
Where the evidence submitted showed a significant change in diagnosis, including a failed fusion
and a four-level fusion repair, and a substantial change in the employee’s ability to work, from full-
time at the time of the settlement to a three-and-a-half-year period of inability to work since the first
fusion surgery, the employee established good cause to vacate the July 1998 Award on Stipulation.
Vacation of award on stipulation granted.
Graves v. Virginia Regional Medical Center, 6/26/07
Where the employee was permanently precluded from performing her pre-injury job, had an
admitted loss of earning capacity causally related to her work injury, and had a significant continuing
wage-loss four years after her injury, and where the employer introduced no evidence indicating that
the employee could reasonably expect to earn her pre-injury wage any time in the near future, the
record supported the compensation judge’s decision to grant the employee’s request to modify her
rehabilitation plan to include exploration of retraining, despite the lack of expert vocational opinion
expressly supporting the request.
Affirmed.

• Judicial •
Minnesota
Supreme Court
• Victor Victor v. Smithway Motor Xpress, and Liberty Mutual Insurance Company, and
Grand Itasca Hospital, Minnesota Department of Labor and Industry/Vocational
Rehabilitation unit, Grand Itasca Clinic, and CIGNA Healthcare/Primax Recoveries
Incorporated, Intervenors, A06-2413, March 28, 2007
Decision of the Workers’ Compensation Court of Appeals filed Nov. 21, 2006, affirmed without
opinion.
• Ilham M. Yusuf v. Hilton Hotel, and ACE/Gallagher Bassett Services, Inc., and Park Nicollet
Health Services, and HealthPartners, Inc., Intervenors, A06-2474, March 29, 2007
Decision of the Workers’ Compensation Court of Appeals filed Dec. 4, 2006, affirmed without
opinion.
• Bruce Gjerde v. The Pillsbury Co./General Mills, Inc., and Self-Insured, administered by
Liberty Mutual Insurance Cos., and Fairview Health Services, Twin Cities Orthopedics,
P.A., and HealthPartners, Inc., Intervenors, A07-370, May 30, 2007
Decision of the Workers’ Compensation Court of Appeals filed Jan. 18, 2007, affirmed without
opinion.
• Tamara Joan Haeg v. SEKO Worldwide d/b/a Vast Logistics, and Minnesota Assigned Risk
Plan, administered by Berkley Risk Administrators, and Regions Hospital, St. Paul
Radiology, North Memorial Ambulance Service, and Twin City Anesthesia Associates,
Intervenors, A07-258, May 30, 2007
opinion.
• Linda Timmer v. Independent School District #482, and Self-Insured/Berkley Risk

Administrators, A07-361 and A07-367, June 4, 2007
opinion.

• Shirley Bartz v. Meadow Lane Healthcare and Constitution State Services, A07-583,
June 25, 2007
Decision of the Workers’ Compensation Court of Appeals filed Feb. 26, 2007, affirmed without
opinion.

• Judicial •
Workers’ Compensation
Court of Appeals
Akkanen v. Viratec Thin Films, Inc., 4/5/07
Where the record did not contain adequate information to establish either change in ability to work
or causation between the current worsened condition and the employee’s work injuries, and where
the claimed increase in permanent partial disability was minimal, the employee had not established
good cause to vacate the award.
Olds v. Lutheran Social Services of Minnesota, 4/9/07*
Causation – Permanent Aggravation
Substantial evidence, including adequately founded medical expert opinion, supports the
compensation judge’s decision finding a permanent, work-related aggravation of the employee’s
pre-existing low back condition.
Permanent Total Disability – Insubstantial Income
Although the employee was working only 16 hours per week and was receiving Social Security
disability benefits prior to her work injuries, there is evidence the employee’s post-injury restrictions
would not allow the employee to perform any regular or consistent employment, resulting in an
insubstantial income, and the compensation judge did not err in awarding permanent total disability
benefits.
A disability is permanent for workers’ compensation purposes if it is likely to exist for an indefinite
period of time. There was no evidence that any further treatment would significantly aid the
employee in returning to work, and the compensation judge’s finding of permanent total disability
was not premature.
*This case is on appeal to the Minnesota Supreme Court.

Credit and Offsets – Social Security Offset
There is no substantial evidence that the employee’s low back condition was a factor in the 1999
award of Social Security disability benefits to the employee, and it cannot be concluded that the
disability benefits were occasioned by the employee’s 2002 and 2003 work injuries to the low back,
thus the allowance of a statutory offset for Social Security benefits must be reversed.
Lamkin v. JWS Homes and Contracting, Inc., 4/10/07
Practice and Procedure – Dismissal
An order of dismissal on procedural grounds should be granted only under exceptional circumstances.
The primary factor to be considered is the prejudicial effect of the order upon the parties to the action.
In this case, the prejudicial effect of dismissal of the employee’s claim without a hearing on the merits
outweighs the expense of appearing at the hearing, at which the employee failed to appear, to the
employer.
McLeod v. Magnuson Farms, 4/10/07
Where the employee’s petition to vacate the 1989 award on stipulation is based on a change in
medical condition since the time of the award, and while the employee has demonstrated his need for
more extensive medical treatment, causally related to his work injury, than was contemplated at the
time of the award but has not necessarily shown a change in diagnosis nor entitlement to additional
permanent partial disability since the 1989 award on stipulation, and where there is inadequate
information to determine whether later-developed medical conditions and a subsequent injury are
causally related to his 1985 low back injury, and where the employee has not demonstrated a change
in his ability to work, there is an inadequate basis for vacating the award on stipulation and the
petition to vacate is denied.
Meyers v. Minnesota Electric Supply Company, 4/11/07
Causation
Substantial evidence supports the compensation judge’s determination that the employee failed to
establish by preponderance of the evidence that her work injury was a substantial contributing factor
in her wage loss and need for medical treatment.
Affirmed.

Whitemore v. Holm Brothers Construction, Inc., 4/11/07
Under the circumstances of this case, the record as a whole, including the records of one of the
employee’s treating physicians, adequately supported the compensation judge’s award of medical
expenses related to cardiac and visual testing and treatment, despite the fact that the employee’s
treating physicians had reached no firm conclusions as to the cause of the employee’s ongoing
symptoms.
Affirmed as modified.
Burgin v. Metro Transit, 4/13/07
Substantial evidence, including medical records and expert medical opinion, supports the
compensation judge’s finding that the employee’s work-related injury of Feb. 22, 2006, was a
temporary aggravation that resolved by May 22, 2006.
Affirmed.
Erickson v. City of St. Paul, 4/16/07
The employee’s resignation from a job that paid a wage the same as or more than his pre-injury wage
does not terminate his entitlement to rehabilitation services, where, as a result of his work-related
injuries, he is permanently precluded from engaging in his usual and customary occupation held at
the time of his injury. The employee’s proposed retraining plan is appropriate, when considering the
Poole factors.
Affirmed.
Dietz v. Vohs Enterprises, 4/20/07
Maximum Medical Improvement

Where it was supported by the 2004 formal MMI opinions of a neurosurgeon and a neuropsychologist
and also by records of the employee’s extensive treatment by no fewer than 10 other doctors, none of
whom had offered an opinion that the employee had not reached MMI, the compensation judge’s
conclusion that the employee had reached MMI over 90 days prior to her 2005 termination from
employment, and so was not entitled to recommencement of her temporary total disability benefits
from the date of her termination, was not clearly erroneous and unsupported by substantial evidence.

Where it would have been reasonable for the compensation judge to conclude from the statements of
medical experts recommending chronic pain treatment that there was little to be gained by further
diagnostic expense, where there was no evidence of record that the employee’s neuropsychological
IME upon recommendation of a neurosurgical IME had been intended to be a “neutral” examination
or was otherwise prejudicial to the employee, and where at any rate the employee had had ample
opportunity to correct any related misunderstanding prior to the original neuropsychological
examination, the compensation judge’s denial of the employee’s request for a repeat
neuropsychological evaluation was not clearly erroneous and unsupported by substantial evidence.
Affirmed.
Davis v. Metro Dental, 4/23/07
Where the records submitted failed to establish a significant change in diagnosis, a substantial
deterioration in medical condition or a significant change in the employee’s ability to work, the
employee’s petition to vacate an award on stipulation must be denied.
Nagle v. Lifeworks Services, 4/27/07

Substantial evidence, in the form of a well-founded medical opinion, supports the compensation
judge’s determination that the employee’s work injury was not a substantial contributing factor to her
need for medical care.
Affirmed.
Vick v. Northern Engraving Corporation, 4/30/07
Practice and Procedure – Matters at Issue

Appeals – Scope of Review
Where the employee did not address in his brief the specific finding from which he had appealed
pertaining to one injury date, and where no other injury dates had been identified at hearing as being
at issue, there was no basis for concluding that the judge erred in her decision by failing to consider
other injury dates.
Affirmed.

Flaskamp v. Northwest Airlines, 5/1/07
Wages – Calculation
Wages – Irregular
Where no evidence was submitted or testimony provided establishing vacation pay, holiday pay, sick
leave pay or specific personal leave time during the 26 weeks prior to the employee’s work injury,
the compensation judge did not err in concluding the employee’s earnings were irregular, or in using
an averaging formula to determine the employee’s weekly wage.
Substantial evidence, including the opinions of the employee’s treating physicians, supports the
compensation judge’s determination that the employee sustained a Gillette injury to the cervical
spine as a result of his work activities for the employer and that his work injury was a contributing
cause of his need for surgery.
Affirmed.
Irvin v. Red Wing Shoe Company, 5/1/07
Causation – Consequential Injury
Where the employee sought workers’ compensation benefits claiming that her low back condition
was caused or substantially contributed to by her earlier injury to her left foot and also developed as
a result of her employment during a later period of time, and where the compensation judge found
that her low back condition developed as a consequence of the earlier work injury, but made no
finding concerning whether the employee later sustained a separate work-related injury, the
compensation judge applied an incorrect causation test when arriving at his conclusions. The matter
is remanded for reconsideration and a determination of whether the disputed low back condition
arose out of and in the course and scope of employment.
Medical Treatment and Expense
Where the employee’s extensive conservative treatment as well as four surgeries had not relieved her
persistent symptoms and foot pain, where one of the employee’s treating physicians recommended
an implantation of a neurostimulator in an attempt to alleviate her symptoms, and where the record
contains a properly founded medical opinion concerning the potential benefits of the stimulator, we
conclude that substantial evidence in the record supports the judge’s approval of the proposed
implantation of the spinal cord stimulator.
Medical Treatment and Expense – Treatment Parameters

The permanent medical treatment parameters do not apply to treatment for an injury after an
employer and insurer have denied liability for the injury and have denied that the employee’s
current condition, for which the employee sought disputed medical treatment, is causally related to
her work injury. A denial of liability includes both a denial of primary liability and a denial of
medical causation for subsequent symptoms or conditions.
Where the employee remains subject to physical work restrictions as a result of her work injury, and
those restrictions prevent her from returning to her pre-injury job with the employer, and where the
employee has not yet returned to suitable gainful employment, the compensation judge’s conclusion
that the employee remains a qualified employee for receipt of rehabilitation assistance and his related
award of rehabilitation assistance were supported by substantial evidence of record.
Affirmed in part, and vacated and remanded in part.
Jeffrey v. Banana Republic, 5/1/07*
Attorney Fees – Irwin Fees
Where the compensation judge properly applied the factors in Irwin v. Surdyk’s Liquor, 599 N.W.2d
132, 59 W.C.D. 319 (Minn. 1999) to the facts in this case, the compensation judge’s award of
attorney fees to the employee’s attorney for his representation of the employee was not clearly
erroneous and not an abuse of discretion, and therefore must be affirmed.
Affirmed.
Murphy v. Northwest Sheetmetal Company, 5/2/07
Vacation of Award – Mistake
A compromise settlement of a workers’ compensation claim is contractual in nature. Generally, a

contract may be rescinded or voided upon a showing of mutual mistake as to a material fact. A
person who signs a contract may not void it on the ground that he or she did not read it or thought its
terms to be different. If the terms of a contract are free from ambiguity and there is no fraud or
misrepresentation, a mistake of one party alone as to the terms or subject matter of a contract is not a
basis for vacation. In this case, where the stipulation for settlement explicitly closed out the disputed
prescription expenses, where the employee was represented by counsel and does not claim any
infirmity or disability at the time he signed the stipulation, where there was no allegation or evidence
of fraud, misrepresentation or intent to deceive, and where counsel for the employer and insurer
denied any mutual mistake, the employee failed to establish a mutual mistake of fact sufficient to
vacate the award on stipulation.
Vacation of award on stipulation denied.
Burkhalter v. Trend Enterprises, Inc., 5/3/07
Causation
Substantial evidence, including the employee’s testimony and the opinion of her treating physician,
supported the compensation judge’s decision that the employee’s 2002 work injury was a substantial
contributing cause of her continuing symptoms and need for treatment.
Affirmed in part and vacated in part.
Hanegmon v. Chisholm Health Center, 5/3/07
Where the employee failed to comply with discovery requests on multiple occasions and also failed
to comply with two orders compelling discovery; where the matter had remained stricken from the
trial calendar for more than 20 months, at least in part because of delays attributable to the
employee’s failure to comply with discovery requests and court orders; and where the unnecessary
costs incurred by the employer and insurer far exceeded the value of the claims at issue, the
compensation judge did not err in dismissing those claims with prejudice.
Affirmed.
Zaback v. Cowboy Concrete, 5/15/07
Arising Out Of and In the Course Of – Special Errand
Substantial evidence supports the compensation judge’s determination that the employee was injured
while on a special errand for the employer and that, as a result, his injuries were covered under the
Workers’ Compensation Act.
Affirmed.
Hogan v. Super Valu/Cub Foods, 5/18/07
Where the independent medical examiner’s earlier opinion was made assuming a false premise,
where it was not unreasonable for the judge to rely on the examiner’s later, changed opinion, and
where some of the medical bills at issue were not itemized sufficiently to determine whether they
applied to the employee’s thoracic condition or to his lumbar condition, the compensation judge’s
conclusion that the employee did not prove that his admitted lumbar work injuries were a substantial
contributing factor in medical expenses related to his thoracic back was not clearly erroneous and
Where the employee did not brief his appeal from the judge’s finding as to the reasonableness and
necessity of medical expenses potentially related to the employee’s admitted lumbar work injury, and
where the judge’s finding was at any rate supported by expert medical opinion, the compensation
judge’s conclusion that all medical treatment after a specified date — whether to the thoracic spine
or to the lumbar spine — was not reasonable and necessary was not clearly erroneous and
Affirmed.
Williams v. Chisholm Health Center, 5/21/07
Substantial evidence supports the compensation judge’s finding that the employee’s July 2005 work
injury was a temporary aggravation of his pre-existing low back condition.
Penalties
A penalty is not appropriate where benefits are the subject of a real controversy and the employer
and insurer interpose a colorable claim or good faith defense. Where there is evidence to support the
employer and insurer’s denial of primary liability, a penalty under Minnesota Statutes § 176.225 is
not appropriate, even though the employer and insurer did not ultimately prevail on their defense to a
portion of the claim.
Affirmed.
McCoy v. Hennepin Home Health Care, 5/23/07
Medical Treatment and Expense – Change of Physician
Where the employee did not return to her treating surgeon following carpal tunnel surgery in 2003
and had no ongoing relationship with a medical provider, she was entitled to select a primary health
care provider. The compensation judge’s denial of the employee’s request for a new treating
physician must, accordingly, be reversed.
Substantial evidence supports the compensation judge’s finding that the employee does not have
work restrictions and is not a qualified employee entitled to rehabilitation benefits.
Ludescher v. Univerity of Minnesota, 5/24/07
Attorney Fees – Roraff
Remand for hearing and new findings was necessary where no evidentiary hearing was held and
where the judge erred in evaluating whether there existed a genuine dispute over payment of medical
expenses, erred by assuming that the employer did not object to the hours claimed by the employee’s
attorney, and erred by failing to rule on the effect of the employee’s failure to request certification of
a dispute by the Department of Labor and Industry.
Schmitt v. Innovative Lawn Systems, Inc., 5/24/07*
Jurisdiction – Subject Matter

Where, contrary to the insurer’s assertion, the claim before the compensation judge related not to a
claim for negligence or breach of contract against the insurer’s agent but to direct claims by the
employee for workers’ compensation benefits and by the employer for insurance coverage, the
coverage issue before the compensation judge was clearly ancillary to the employee’s claim for
benefits and therefore fell within the purview of the compensation judge’s jurisdiction, as had been
implied though not explicitly addressed in several precedent cases.
Where the employer’s owner was unsophisticated in business matters and relied upon the employer’s
insurance agent to provide the employer with all necessary business insurance, where that agent
issued certificates of insurance coverage to that owner indicating that workers’ compensation
insurance was in place, where it was reasonable for that owner to rely on those representations, and
where that owner did rely on those representations to the employer’s detriment, the compensation
judge’s conclusion that the insurer was estopped from denying coverage of the employer against the
injured employee’s claims was not clearly erroneous and unsupported by substantial evidence.
Attorney Fees
Where the insurer refused to defend the employer against the employee’s claims on grounds that it
was not liable for coverage, where the employer sought reimbursement of attorney fees payable to an
attorney independently retained for its defense, and where that claim for reimbursement constituted a
claim for damages for breach of contract against the insurer, the compensation judge’s denial of the
employer’s claim for attorney fees was affirmed, pursuant to the Minnesota Court of Appeals’
holding in Sazama Excavating v. Wausau Insurance Companies, 521 N.W.2d 379 (Minn. App. 1994),
pet. for rev. denied (Minn. Oct. 27, 1994).
Affirmed.
Cornell v. ABF Freight Systems, Inc., 5/31/07

Substantial evidence, including medical opinion, supports the compensation judge’s award of
expenses incurred for treatment of the employee’s low back since June 8, 2005, and approval of the
proposed surgery.
Affirmed.
Malecha v. ABC Bus Company, 5/31/07

Medical Treatment and Expese – Surgery
Substantial evidence in the form of a well-founded medical opinion supports the compensation
judge’s decision that the requested SI fusion surgery was causally related to the work injury and was
reasonable and necessary medical treatment.
Affirmed.
Farnsworth v. Northwest Airlines Corporation, 6/6/07
Temporary Partial Disability
Substantial evidence supports the compensation judge’s conclusion that the employee is
underemployed and his current earnings do not reflect his actual earning capacity, and the judge’s
denial of temporary partial disability benefits.
Affirmed.
Costello v. Clay County Sheriff’s Department, 6/7/07
Practice and Procedure – Remand
Where the compensation judge failed to address the issue of the reasonableness and necessity of a
surgical procedure and nonetheless ordered reimbursement of the associated expenses, the order for
reimbursement is vacated and the case is remanded for determination of the issue.

Ellsworth v. Days Inn/Brutgers Equities, 6/8/07
Causation – Reflex Sympathetic Dystrophy

Where it was amply supported by expert medical opinion, the compensation judge’s conclusion that
the employee’s diagnosis of reflex sympathetic dystrophy was valid and that the condition was
causally related to the work injury was not clearly erroneous and unsupported by substantial
evidence, notwithstanding marked inconsistency in the employee’s symptoms and weakness in her
credibility due in large part to her somatization disorder and other psychiatric disorders, and
notwithstanding the fact that the employee’s symptomology did not fully meet the requirements for
an award of permanent partial disability benefits under Minnesota Rules Part 5223.0430, subpart 6.
Permanent Partial Disability – Reflex Sympathetic Dystrophy

Where it was based on an established medical diagnosis and otherwise supported by expert medical
opinion, the compensation judge’s award of permanent partial disability benefits related to the
employee’s reflex sympathetic dystrophy was not clearly erroneous and unsupported by substantial
evidence, notwithstanding the fact that the employee did not manifest a full five of the diagnostic
“conditions” listed in Minnesota Rules Part 5223.0430, subp. 6, notwithstanding the fact that the
qualifying conditions that the employee did manifest were not shown to appear concurrently in the
same moment of time, and notwithstanding the fact that the employee’s diagnosis of RSD was not
uncontested.
Where the employee was affirmatively found to be subject to work-related reflex sympathetic
dystrophy, where there was substantial evidence that syndrome severely disabled the employee, and
where the compensation judge’s findings and memorandum clearly indicated that the judge
contemplated the “Schulte factors” as codified in Minnesota Statutes § 176.10 1, subd. 5, in making
his decision, the compensation judge’s award of permanent total disability benefits was not clearly
Affirmed.
Hagy v. Morton Buildings, Inc., 6/8/07
Notice of Injury – Gillette Injury

Where the employer was informed of a work-related condition resulting in physical work
restrictions, the employer had adequate notice of an injury, as required by Minnesota Statutes
§ 176.141, and the compensation judge’s finding that the employee failed to provide timely notice is
not supported by substantial evidence in the record and is reversed.

Jotblad v. City of St. Paul, 6/11/07
Causation – Psychological Injury
Substantial evidence of record supports the compensation judge’s finding that the employee’s work
injury of June 7, 1996, was a substantial contributing factor in causing or significantly aggravating
her psychological condition and diagnosis.
Substantial evidence supports the compensation judge’s finding that the employee is permanently
and totally disabled as a result of her work-related psychological condition.
Substantial evidence, including expert medical opinion, supports the compensation judge’s finding
that the employee sustained a Gillette injury to her right wrist in the nature of carpal tunnel
syndrome.
Affirmed.
Crocker v. HMS Host Corporation, 6/14/07
Notice of Injury
Evidence – Credibility
Where the judge was clearly aware of the conflicts between the employee’s testimony and
documentary evidence referenced by the employer and insurer, and where the employee’s testimony,
that he did not more actively pursue a workers’ compensation claim initially because he “didn’t want
to make waves,” did not compel a conclusion that the employee was not credible in his testimony
that he advised his supervisors of his injury on the date of its occurrence, the compensation judge’s
conclusion that the employee gave statutorily proper notice of his work injury was not clearly
Causation
Where the judge acknowledged that the employee had pre-existing degenerative disc disease in his
lumbar spine but concluded, nevertheless, that the employee had experienced a work-related physical
insult to his pre-existing condition that effectively removed him from continuing in his job with the
employer, and where that conclusion was supported by the employee’s testimony and medical records,
the compensation judge’s conclusion that the employee’s work was a substantial contributing factor in
his disability was not clearly erroneous and unsupported by substantial evidence.

Job Search
Where the judge reasonably concluded that, prior to his termination, the 60-year-old, 17-year
employee was medically restricted by his work injury from returning to his job with the employer
and there was no evidence that lighter duty work was available, where the judge reasonably concluded
that, subsequent to his termination, the employee was unable to receive necessary medical treatment
because his health insurance had been canceled, and where the judge reasonably concluded that, while
limited, the employee’s efforts to find work since his termination had been reasonable in light of the
effects of his work injury, his limited employment history, and his lack of vocational/rehabilitation
assistance, the compensation judge’s award of temporary total disability benefits was not clearly
Affirmed.
London v. United Parcel Service, 6/14/07
Substantial evidence supports the compensation judge’s determination that the employee’s work
injury of Aug. 1, 2006, was a temporary aggravation of his pre-existing neck and back condition,
from which the employee had fully recovered by Aug. 21, 2006.
Affirmed.
Maricle v. Farmstead Foods, 6/14/07*
Causation
Substantial evidence, including the employee’s testimony, medical records and expert medical
opinion, supported the finding that the employee’s claimed disability and medical care were not
causally related to the employee’s work activities for the employer, Farmstead Foods, or to her
Sept. 29, 1989, work injury with the employer.
Affirmed.
Fenstermaker v. Thermoform Plastic, Inc., 6/19/07
Where there is conflicting evidence on whether the employee has experienced a change in her ability
to work and whether the employee has sustained additional permanent partial disability that is
causally related to her 2001 work injury, we refer this matter to the Office of Administrative
Hearings for an evidentiary hearing.
Lang v. Harvey Vogel Manufacturing Company, 6/19/07
Causation – Psychological Condition

Substantial evidence, including the well-founded opinion of the employee’s treating psychologist,
support the compensation judge’s finding that the employee’s July 15, 2005, personal injury was a
substantial contributing factor to the employee’s psychological condition.

Substantial evidence, including the well-founded opinion of the independent medical examiner, a
psychiatrist, supports the compensation judge’s determination that the employee’s psychological
condition was not of such a degree as to totally disable the employee.
Discontinuance – Matters at Issue
Where counsel for the employee agreed at the start of the hearing on discontinuance that job search
would be an issue, the compensation judge did not impermissibly expand the issues to include the
defense of failure to diligently search for work.
Job Search
Rehabilitation – Cooperation
An injured employee proves total disability by showing, by a diligent job search to no avail, that
work the employee is capable of doing in his injured condition is unavailable. Where the employee
failed to cooperate with the vocational rehabilitation plan in effect, the compensation judge’s denial
of temporary total disability benefits from and after June 21, 2006, must be affirmed.
Job Offer – Refusal

Minnesota Statutes § 176.101, subd. 1(i)
On the facts of this case, the employer and insurer failed to meet their burden of proving the May 24,
2006, job offer was consistent with the plan of rehabilitation as required by Minnesota Statutes
§ 176.101, subd. 1(i), and the compensation judge’s refusal to discontinue temporary total disability
benefits on the basis of refusal of a job offer is affirmed.
Affirmed.
Rechtfertig v. Michael Spiering, 6/19/07*
Exclusion from Coverage – Casual Employment

Minnesota Statutes § 176.041, subd. 1(k)
Where the employee was hired by a homeowner to help close-in a garage apartment being built by
the homeowners, which was intended for their own use, the work was temporary and of relatively
short duration, the days of work were uncertain and dependent on whether there was work to do on a
particular day and whether a family member would be present at the property, the employment was
“casual” and the compensation judge erred in finding to the contrary.
Reversed.
Stordahl v. Advanced Communications, Inc., 6/21/07
Causation – Intervening Cause

Where the employee followed the recommendation of his treating doctor and where there was no
determination by a compensation judge as of the date of surgery that surgery was unreasonable and
unnecessary, it was error for the compensation judge to determine that the employee’s decision to
proceed with surgery was so unreasonable, negligent, dangerous or abnormal as to constitute a
superseding, intervening cause that relieves the employer and insurer from further liability.
Reversed.
Gunderson v. A E Conrad Company, 6/22/07
Where there is conflicting evidence on the issues of whether the employee’s ability to work had
changed and whether the employee’s current medical condition was causally related to his work
injury, we refer the matter to the Office of Administrative Hearings for an evidentiary hearing and
findings on those issues.
Schutz v. Brookdale Chrysler Plymouth, 6/25/07
Where the evidence submitted showed a significant change in diagnosis, including a failed fusion
and a four-level fusion repair, and a substantial change in the employee’s ability to work, from full-
time at the time of the settlement to a three-and-a-half-year period of inability to work since the first
fusion surgery, the employee established good cause to vacate the July 1998 Award on Stipulation.
Vacation of award on stipulation granted.
Graves v. Virginia Regional Medical Center, 6/26/07
Where the employee was permanently precluded from performing her pre-injury job, had an
admitted loss of earning capacity causally related to her work injury, and had a significant continuing
wage-loss four years after her injury, and where the employer introduced no evidence indicating that
the employee could reasonably expect to earn her pre-injury wage any time in the near future, the
record supported the compensation judge’s decision to grant the employee’s request to modify her
rehabilitation plan to include exploration of retraining, despite the lack of expert vocational opinion
expressly supporting the request.
Affirmed.

• Judicial •
Minnesota
Supreme Court
• Victor Victor v. Smithway Motor Xpress, and Liberty Mutual Insurance Company, and
Grand Itasca Hospital, Minnesota Department of Labor and Industry/Vocational
Rehabilitation unit, Grand Itasca Clinic, and CIGNA Healthcare/Primax Recoveries
Incorporated, Intervenors, A06-2413, March 28, 2007
Decision of the Workers’ Compensation Court of Appeals filed Nov. 21, 2006, affirmed without
opinion.
• Ilham M. Yusuf v. Hilton Hotel, and ACE/Gallagher Bassett Services, Inc., and Park Nicollet
Health Services, and HealthPartners, Inc., Intervenors, A06-2474, March 29, 2007
Decision of the Workers’ Compensation Court of Appeals filed Dec. 4, 2006, affirmed without
opinion.
• Bruce Gjerde v. The Pillsbury Co./General Mills, Inc., and Self-Insured, administered by
Liberty Mutual Insurance Cos., and Fairview Health Services, Twin Cities Orthopedics,
P.A., and HealthPartners, Inc., Intervenors, A07-370, May 30, 2007
opinion.
• Tamara Joan Haeg v. SEKO Worldwide d/b/a Vast Logistics, and Minnesota Assigned Risk
Plan, administered by Berkley Risk Administrators, and Regions Hospital, St. Paul
Radiology, North Memorial Ambulance Service, and Twin City Anesthesia Associates,
Intervenors, A07-258, May 30, 2007
opinion.
• Linda Timmer v. Independent School District #482, and Self-Insured/Berkley Risk

Administrators, A07-361 and A07-367, June 4, 2007
opinion.

• Shirley Bartz v. Meadow Lane Healthcare and Constitution State Services, A07-583,
June 25, 2007
Decision of the Workers’ Compensation Court of Appeals filed Feb. 26, 2007, affirmed without
opinion.

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• Judicial •

Akkanen v. Viratec Thin Films, Inc., 4/5/07

Vacation of Award – Substantial Change in Condition

Petition to vacate award denied.

Olds v. Lutheran Social Services of Minnesota, 4/9/07*

Causation – Permanent Aggravation

Permanent Total Disability – Insubstantial Income

Permanent Total Disability

*This case is on appeal to the Minnesota Supreme Court.

Credit and Offsets – Social Security Offset

Affirmed in part and reversed in part.

Lamkin v. JWS Homes and Contracting, Inc., 4/10/07

Practice and Procedure – Dismissal

Reversed and remanded.

McLeod v. Magnuson Farms, 4/10/07

Vacation of Award – Substantial Change in Condition

Petition to vacate award denied.

Meyers v. Minnesota Electric Supply Company, 4/11/07

D-2 • COMPACT • August 2007

Whitemore v. Holm Brothers Construction, Inc., 4/11/07

Causation – Medical Treatment

Burgin v. Metro Transit, 4/13/07

Causation – Temporary Aggravation

Erickson v. City of St. Paul, 4/16/07

Dietz v. Vohs Enterprises, 4/20/07

Maximum Medical Improvement

D-3 • COMPACT • August 2007

Medical Treatment and Expense – Reasonable and Necessary

Davis v. Metro Dental, 4/23/07

Vacation of Award – Substantial Change in Condition

Petition to vacate award denied.

Nagle v. Lifeworks Services, 4/27/07

Causation – Medical Treatment

Vick v. Northern Engraving Corporation, 4/30/07

Practice and Procedure – Matters at Issue

D-4 • COMPACT • August 2007

Flaskamp v. Northwest Airlines, 5/1/07

Causation – Gillette Injury

Irvin v. Red Wing Shoe Company, 5/1/07

Causation – Consequential Injury

Medical Treatment and Expense

Medical Treatment and Expense – Treatment Parameters

Affirmed in part, and vacated and remanded in part.

Jeffrey v. Banana Republic, 5/1/07*

Attorney Fees – Irwin Fees

Murphy v. Northwest Sheetmetal Company, 5/2/07

Vacation of Award – Mistake

A compromise settlement of a workers’ compensation claim is contractual in nature. Generally, a

Vacation of award on stipulation denied.

Burkhalter v. Trend Enterprises, Inc., 5/3/07

Affirmed in part and vacated in part.

Hanegmon v. Chisholm Health Center, 5/3/07

Zaback v. Cowboy Concrete, 5/15/07

Arising Out Of and In the Course Of – Special Errand

Hogan v. Super Valu/Cub Foods, 5/18/07

Causation – Medical Treatment

Medical Treatment and Expense – Reasonable and Necessary

Williams v. Chisholm Health Center, 5/21/07

Causation – Temporary Aggravation

McCoy v. Hennepin Home Health Care, 5/23/07

Medical Treatment and Expense – Change of Physician

Affirmed in part and reversed in part.

Ludescher v. Univerity of Minnesota, 5/24/07