WCCA Case Summaries through March 2020

Robert Maxfield v. Stremel Mfg. and Sentry Ins. Group, No. WC19-6282 (W.C.C.A. Dec. 6, 2019)

ISSUE: Permanent total disability – substantial evidence.

 

Employee appealed the compensation judge’s finding that he was not permanently totally disabled. The Employee sustained an admitted work-related low back injury in 1991. Various benefits were paid to and on behalf of the Employee.

 

In July of 2017, the Employee filed a claim petition seeking permanent total disability benefits. At the request of the Employer and Insurer, he underwent an independent vocational exam. The independent vocational expert found that he had self-limited his return to work efforts, that job placement efforts had been ineffective and that he was physically capable of full-time, light duty work. The expert opined there were thousand of jobs within the employee’s geographical area that he was qualified for.

 

The compensation judge found the Employee had failed to prove he was permanently and totally disabled and denied his claim. Specifically, the judge found the employee conducted little or no job search and that his job search was self-limited. The judge adopted the opinion of the independent medical examiner.

 

The W.C.C.A. affirmed, holding substantial evidence supported the compensation judge’s findings.

 

Summary By: Emily Johnson

 

 

 

Mark Gerdes v. Mammoth/Nortek and Nat’l Union Ins. Co./Gallagher Bassett Services, Inc., No. WC19-6289 (W.C.C.A. Dec. 19, 2019)

ISSUE: Vacation of Award – substantial change in condition.

 

The Employee filed a Petition to vacate a 1998 Award. He argued there was a substantial change in his cervical spine condition that was not anticipated and could not have been reasonably anticipated by the parties. He pointed to the fact that he had extensive additional medical treatment for an admitted injury, had a change in his diagnosis and had a change in his ability to work since the time of the Award.

 

Employer and Insurer pointed to the fact that he did not have any additional permanency ratings since the Award and had not shown that the worsening of his condition was not and could not have been reasonably anticipated.

 

Generally, when evaluating a petition to vacate based upon an alleged substantial change in medical condition, the court considers various factors: 1) a change in diagnosis; 2) a change in the employee’s ability to work; 3) additional permanent partial disability; 4) the necessity of more costly and extensive medical care than initially anticipated; 5) a causal relationship between the injury covered by the settlement and the employee’s current worsened condition; and 6) the contemplation of the parties at the time of the settlement.

 

With respect to the Employee’s argument that he had a change in diagnoses, the compensation judge found this factor weighed in the employee’s favor. He went from having cervical spine disease from C4-7 to C2 through T1. The change in ability to work also weighed towards the employee’s position, as he had gone from active retraining and self-employment to receiving social security disability benefits. Employer and Insurer conceded the Employee had undergone more costly and extensive medical procedures and they had paid for it due to the causal relationship.

 

On the other hand, there was no additional permanency rating and the court found from the overall terms of the stipulation that the parties had anticipated the value of future wage loss and/or PPD benefits. The court also held the worsening of the adjacent cervical spine was or could have been reasonably anticipated by the parties.

 

Given the Employee’s failure to demonstrate that the worsening of his cervical condition was not and could not have been reasonably anticipated the court held he had not shown good cause to vacate the award. The W.C.C.A. affirmed.

 

Summary By: Emily Johnson

 

 

 

Myron Williams v. Farmers Union Indus. and SFM Risk Sols., No. WC19-6308 (W.C.C.A. Dec. 23, 2019)

ISSUE: Causation – Substantial evidence

 

The Employee appealed the compensation judge’s decision that he did not suffer a psychological injury arising from a physical injury. The Employee had an admitted injury where a scraper blade struck him in the chin, requiring three stitches. In the course of his treatment, he reported being anxious about returning to work because he feared being hurt again. He was referred for a physiological consult.

 

The Employer and Insurer’s independent medical doctor found the Employee had sustained only a laceration/contusion injury that was resolved and had no consequential psychological injury.

 

Then, the employee suffered another work injury when a co-worker accidentally spilled grease on him, causing second-degree burns. The Employee was released to return to work after the burns healed but did not return. He sought mental health treatment as was restricted from working because one of his treating providers concluded his symptoms were consistent with PTSD and severe depression. Another treating provider later opined these diagnoses were directly related to the work injuries.

 

The Employee had another independent medical exam at the request of the Employer and Insurer. The doctor concluded he had not developed any psychiatric conditions as the result of his physical injuries. The doctor also conducted a PTSD analysis under the DSM-5 criteria and found the Employee did not meet the criteria for a PTSD diagnosis.

 

A formal hearing was eventually held on the Employer and Insurer’s Petition to Discontinue Benefits. The Compensation judge found the opinions of the IME doctors to be more persuasive and held the Employee had not developed any psychological impairment as the result of his physical injuries and that he no longer had restrictions.

 

The W.C.C.A. reviewed the case under the Hengemuhle standard (whether the compensation judge’s decision was based on substantial evidence.) The W.C.C.A. held that the compensation judge’s decision was based on substantial evidence and was therefore affirmed.

 

Summary By: Emily Johnson

 

 

 

Scott Koehnen v. Flagship Marine Co. and Auto Owners Ins. Co., No. WC19-6287 (W.C.C.A. Dec. 27, 2019)

ISSUE: Intervenors – Standing.

 

A health care provider appealed an order dismissing their petition seeking payment of bills for treatment rendered to the Employee for a work-related injury. The provider had been placed on notice of its right to intervene and had not done so. The intervention rights of the provider were extinguished in an award on stipulation. This case was handled by CWK Attorneys Natalie Lund and Michael Johnson.

 

The provider acknowledged receipt of an intervention notice, but chose not to intervene, instead relying on the Employee’s attorney’s assurances that the bill would be satisfied. The parties eventually settled with multiple intervenors included in the settlement. An award was issued, extinguishing the provider’s interest on a statutory basis. Months later, the provider filed a Petition for Payment of Medical Expenses, which was dismissed by a compensation judge.

 

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the W.C.C.A. considers anew. The provider argued the Award was unenforceable because it extinguished its rights on the basis that the provider chose not to intervene in the claim. The provider also argued it was effectively excluded from settlement negotiations.

 

The W.C.C.A. found that the language of Minn. Stat. 176.361 is clear that where a motion to intervene is not timely filed, the potential intervenor’s interest “shall” be extinguished and the entity “may not collect”. Thus, the provider was properly extinguished and the compensation judge properly dismissed the provider’s Petition for payment.

 

Summary By: Emily L. Johnson

 

 

 

Luis Sagastume v. Viking Acoustical Corp. and and Amtrust Group, No. WC19-6302 (W.C.C.A. Dec. 30 2019)

ISSUE: Causation – Gillette injury; Notice of injury – substantial evidence.

 

The Employer and Insurer appealed the compensation judge’s determination that the Employee had sustained a Gillette injury to the left shoulder. Employer and Insurer argued the Employee had not proved a Gillette injury and/or that there wasn’t proper Notice of said injury.

 

To establish a Gillette injury, an employee must “prove a causal connection between his or her ordinary work and ensuing disability.” This primarily depends on medical evidence, but ultimately, it is the responsibility of the compensation judge to weigh all the evidence and make a determination regarding causation. The Employer and Insurer argued that the Employee’s testimony regarding his job duties was not credible in light of testimony from the Employer, and that the Employee’s medical opinions lacked adequate foundation as they relied on same. Pointing to the rule that the assessment of credibility is the unique function of the trier of fact, the W.C.C.A. found that with the testimony provided and medical opinions adopted, the compensation judge had adequate support for the finding of a Gillette injury.

 

With respect to the notice issue, there was conflicting testimony from the Employee and Employer as to when, how and if the Employee gave notice of an injury. In finding the Employee’s testimony credible, the compensation judge ruled there was timely notice. Again, the compensation judge is the uniquely qualified to assess credibility. The W.C.C.A. therefore affirmed the compensation judge’s reliance on the Employee’s testimony in resolving the conflicting evidence regarding notice.

 

Summary By: Emily L. Johnson

 

 

 

Michael Otto v. Heartland Motor Co., No. WC19-6304 (WCCA Jan. 15, 2020)

ISSUES: Temporary total disability; Withdrawal of Labor Market; Job Offer Refusal; Job Search

 

In this matter, the Employee underwent a C5-7 fusion following an admitted injury to his neck and left shoulder. He had been working as an auto mechanic for the Employer. He was given permanent work restrictions following the surgery. He had also started to experience a “gagging condition” due to the surgery, but was not given restrictions for that. He applied for and received SSDI due to this condition. After consulting with the Employee and QRC, Employer offered a job to the Employee as a diagnostic technician and tailored the job duties to fit with the permanent restrictions. However, the technician job only paid $600 per week, and Employee’s Average Weekly Wage was $1,601.40. Because of this, the QRC opined that the job was not suitable or consistent with the rehabilitation plan. Employee rejected the job. Employer and Insurer filed a Petition to Discontinue. The compensation judge denied the Petition finding that Employee did not withdraw from the labor market, did not refuse a suitable job offer, and had conducted a diligent job search.

 

On appeal, the WCCA affirmed the decision and analyzed each issue separately. The WCCA found that Employee did not withdraw from the labor market because even though Employee had been receiving SSDI, the application did not prevent him from finding employment in the future. As to the job offer, the WCCA agreed that a job offer with a $1,000 weekly difference did not constitute suitable, gainful employment. Lastly, the WCCA found that consistent with the rehabilitation plan, Employee had applied for the suitable employment options and there is no evidence that Employee should have applied for other job opportunities.

 

Summary by: Parker T. Olson

 

 

 

Debra Karsky v. Tri City Coop Oil Ass’n and Ram Mut. Inc. Co, No. WC19-6310 (WCCA Jan. 28, 2020)

ISSUES; Causation, Substantial Evidence

 

In this case, Employee had been working as a café manager when she slipped and fell on a wet floor causing a right elbow and mild head injury. She went for treatment and no restrictions were provided because Employee could modify her work duties as needed. It was noted that she may have possible allusion fractures in the right elbow. Two weeks later, Employee returned for medical treatment and was noted as “full and pain-free and good strength.” She continued to treat and was eventually diagnosed with right shoulder bursitis and underwent an injection. Notably, Employee had a history of right upper extremity problems, including right epicondylitis and possible early mild carpal tunnel syndrome. She was also previously recommended for a right shoulder surgery before the work injury, but declined the option. Employee eventually underwent a right shoulder arthroscopic surgery following the work injury, and the procedure was noted to be work-related by Employee’s treating physician. Dr. Cederberg performed an IME, and noted that Employee sustained an avulsion fracture injury related to the work incident, which had fully resolved without need for ongoing treatment or disability. Employee’s claim was denied at Hearing.

 

Employee appealed. The WCCA affirmed the decision finding that the compensation judge’s decision was supported by substantial evidence in the form of relying on a well-founded medical opinion from Dr. Cederberg. The choice of experts is a decision for the compensation judge, and should not be disturbed as long as the medical opinion has adequate foundation.

 

Summary by: Parker T. Olson

 

 

 

Perpich v. Delta Airlines, Inc., No. WC19-6317 (WCCA March 4, 2020):

ISSUES: Evidence – Expert Testimony; Causation – Substantial Evidence.

 

In this case, Employee sustained injuries to her knee and low back in 2014 while working as a flight attendant when the plane had a sudden drop in altitude. The claim was denied on the basis of the IME Report of Dr. Edward Szalapski, who opined that Employee’s knee injury was was the result of aging rather than the work incident and that the low back claim was also not related to the incident. The compensation judge found that Employee had sustained a permanent left knee injury, but that the preponderance of the evidence failed to show that Employee sustained an injury to her low back on the date of injury.

 

Employee appealed the compensation judge’s determination that the preponderance of the evidence failed to demonstrate she sustained a low back injury as a result of the work incident. Employee argued that Dr. Szalapski, who opined the low back condition was result of a degenerative process, was not medically competent to render such an opinion. Specifically, Employee noted that Dr. Szalapski had not performed a low back surgery in over 20 years and that therefore he lacked foundation and expertise to render an opinion regarding Employee’s low back. However, the WCCA disagreed and noted that Dr. Szalapski as a board-certified orthopedic surgeon was qualified to render an opinion regarding causation for Employee’s low back claim. The ruling is that where a doctor has sufficient expertise and foundation to render an opinion, the competency of the witness goes to the weight of the opinion, and not its admissibility. The compensation was entitled to rely upon the opinion of Dr. Szalapski. The WCCA affirmed it accordingly.

 

Summary by: Bryan M. Wachter

 

 

 

Gibson v. City of St. Paul, No. WC19-6316 (WCCA March 17, 2020):

ISSUES: Evidence; Causation

 

In this case, Employee sustained a neck, left shoulder, and low back injury when he fell on ice while carrying poles for the Employer. Notably, Employee had also sustained a prior work injury to his neck and left shoulder after lifting a 200-lb. deer while working for the South Carolina state highway Department. An IME was completed by Dr. Paul Wicklund, who diagnosed Employee with multilevel degenerative disc disease and that the back and neck injuries were temporary and fully resolved. Dr. Wicklund also opined that Employee did not sustain a shoulder injury. At the Hearing, the compensation judge adopted the opinions of Dr. Wicklund and denied Employee’s claims.

 

Employee appealed pro se and disputed the finding that his low back injury was temporary and that he had not sustained a work-related shoulder injury. Employee did not object to the opinion of Dr. Wicklund at the time of the hearing on the basis of foundation, and therefore waived the objection. Ultimately, the WCCA found that substantial evidence supports the judge’s findings on the basis of a choice of experts and that Dr. Wicklund’s report is well-founded. The WCCA affirmed the decision accordingly.

 

Summary by: Bryan M. Wachter

Summary of Current Operations at the Office of Administrative Hearings and Minnesota Department of Labor and Industry Due to COVID-19

The Office of Administrative Hearings and Minnesota Department of Labor and Industry are continuing to update the method of handling appearances for the foreseeable future due to COVID-19. CWK will monitor and keep you updated as important announcements are made. Below is a summary of how these appearances are being handled for the time being.

 

At the Office of Administrative Hearings, all in-person Hearings are being left to the parties’ and judge’s discretion. However, judges are typically only allowing in-person Hearings if the case involves a “priority situation.” Each will be handled on a case-by-case basis with some Hearings will be held by telephone or being continued. All parties are still required to abide by timelines for exhibits, including e-Filing at least one day in advance. Larger Hearing rooms are being used to accommodate social distancing guidelines for Hearings that have been deemed a “priority situation.”

 

All other appearances at OAH will be held by telephone only for the foreseeable future. This includes Mediations, Asbestos Conferences, Settlement Conferences, Minn. Stat. 176.239 Conferences, Minn. Stat. 176.106 Conferences, Pretrial Conferences, Motion Hearings, and Attorney Fee Hearings.

 

At this time, all appearances at the Minnesota Department of Labor and Industry, including Medical Conferences, Rehabilitation Conferences, and Mediations are also being held by phone only. The parties are still expected to abide by deadlines for submitting exhibits.

 

Different guidelines have been implemented by the Minnesota Judicial Branch for district court proceedings. Please feel free to contact a CWK attorney with any questions regarding any court proceedings.

What workers’ compensation insurers should know about compensability of infectious diseases such as COVID-19

Infectious diseases such as COVID-19 can be compensable as either a personal injury or occupational disease in certain situations.  CWK attorney Whitney Teel did a deep dive into the issue during the H1N1 outbreak in 2009, and the caselaw is applicable to the current COVID-19 outbreak.

 

The quick answer is it is possible for COVID-19 to be a compensable workers’ compensation injury in Minnesota, but as always the burden of proof is on the Employee.  With infectious diseases, such as polio, influenza, tuberculosis, or COVID-19, proving point of contraction is critical.  Employers are encouraged to let their workers’ compensation insurer know if an employee tests positive for COVID-19.

 

Read Whitney’s entire article on infectious diseases and workers’ compensation claims HERE

 

If you have additional questions you can contact Whitney Teel HERE

Minnesota Supreme Court Decision: Ewing v. Print Craft, 01/02/2020

On January 2, 2020, the Minnesota Supreme Court issued its decision in Ewing v. Print Craft, Inc., A19-0534 (Minn. 2020) and held that the Employer and Insurer in the case were not liable for rehabilitation services provided after the date in which Employee’s work-related injury had resolved, as opposed to the argued cutoff date in which the Employer and Insurer filed their Rehabilitation Request seeking termination of said services. The summary of the case is below.

 

Employee sprained his left ankle in December 2015 while working for the Employer. After seeing several specialists, doctors at Mayo Clinic concluded that Employee’s injury had resolved no later than April 20, 2016. Employee first met with QRC Ann Brown on the same date (April 20, 2016) to determine if he was eligible for rehabilitation services. QRC Brown concluded that Employee was eligible, and rehabilitation services commenced thereafter. Employee continued receiving medical treatment for his ankle through 2016, however Employee then also began reporting headaches, memory loss, and tinnitus. QRC Brown arranged a neurological consultation to rule out a concussion, which was denied by the Employer and Insurer based on the denial of primary liability for any head injury. In the meantime, Employee underwent an independent medical examination with Dr. Joel Gedan on November 7, 2016, who concluded that Employee’s ankle injury had resolved and that he sustained no other injury. Employer and Insurer successful discontinued Employee’s wage loss benefits based on this IME Report. Employer and Insurer then filed a Rehabilitation Request on April 6, 2017 requesting a termination of the rehabilitation plan. At the Hearing, the compensation judge held that Employee’s injury was temporary and had fully resolved no later than April 20, 2016 (based on the opinions of the IME and doctors at Mayo Clinic), and that no rehabilitation services were warranted after this date.

 

QRC Brown appealed to the WCCA and asserted that she was entitled to payment for services rendered between September 2016 and April 2018. The WCCA reversed the compensation judge, and held that it was an error as a matter of law to assign the cutoff date of April 20, 2016 for rehabilitation services, and instead held that the cutoff date was April 6, 2017, when the Rehabilitation Request was filed. Employer and Insurer appealed to the Minnesota Supreme Court.

 

The Minnesota Supreme Court held that Employers and Insurers are only liable for reasonable and necessary rehabilitation services provided to a qualified Employee. Because of this, a QRC bears the risk of an adverse determination as to primary liability and the related risk of non-payment where there is a dispute over Employee’s eligibility for services. Based on these principles, the Employee’s injury in the present case resolved on April 20, 2016, and therefore, Employer and Insurer were not liable for rehabilitation services thereafter, as opposed to the date of April 6, 2017 when the Rehabilitation Request to terminate services was filed. The original decision of the compensation judge was reinstated.

 

One takeaway from this case is that disputed/denied rehabilitation services can be cut off retroactively, based on when the Employee’s injury fully resolved. QRCs that provide rehabilitation services on these denied claims do so at their own risk, with the possibility of non-payment for said services. The full Ewing decision is found HERE.

 

Summary by: Parker T. Olson

LUND AND JOHNSON PREVAIL AT WCCA IN HIGH INTEREST CASE

Koehnen v. Flagship Marine Co. and Auto-Owners Insurance and Keith Johnson, D.C.

WC19-6287 (W.C.C.A. Dec. 27, 2019)

 

On December 27, 2019, the Minnesota Workers’ Compensation Court of Appeals affirmed the Order of the compensation judge dismissing the Petition for Payment of Medical Expenses filed by a medical provider, Keith Johnson, D.C.

 

The chiropractor was properly placed on notice of right to intervene pursuant to Minn. Stat. § 176.361 and chose not to file a Motion to Intervene, which would have made the provider a party to the claim. The Employee ultimately settled his claim with the Employer and Insurer and those providers which had intervened were included in the settlement. The Award extinguished the right of the chiropractor to recover payments pursuant to the statute and Minn. Rule 1420.1850.

 

Eight months after the Award was filed, the chiropractor filed a Petition for Payment of Medical Expenses. The Employee and the Employer and Insurer filed Motions to Dismiss and the compensation judge dismissed the Petition with prejudice, concluding that the chiropractor did not have standing to file such a Petition because there was no outstanding claim by the Employee. The chiropractor appealed to the Workers’ Compensation Court of Appeals, arguing: 1) the Award was unenforceable and invalid as his rights were extinguished on the basis he chose not to intervene; 2) the rule and statute relied upon by the compensation judge and Office of Administrative Hearings exceeded the express or implied authority granted by the legislature; and 3) he was entitled to full payment per case law as he was excluded from settlement negotiations.

 

The WCCA affirmed the Order dismissing the Petition, finding that the medical provider chose not to be a party to the case and avail himself of the remedies provided by statute when he chose not to intervene. Because he was not a party to the case, he had no authority or standing to bring a claim under Minn. Stat. § 176.291 or assert the Award collaterally. Due to the lack of standing, the WCCA did not address other arguments by the chiropractor.

 

The case affirms that under Minn. Stat. § 176.361, Subd. 2(a) and Minn. Rule 1420.1850, a potential intervenor who is properly provided notice of right to intervene and does not file a Motion to Intervene within 60 days of notice shall have their right to recover extinguished.

 

The Petitioner’s Bar wrote an amicus brief in support of the Employer and Insurer on this case.  We expect counsel for Johnson Chiropractic to appeal to the Minnesota Supreme Court with his constitutional argument, in particular.  Both sides of the Bar will likely contribute amicus briefs in the Supreme Court matter.

 

CWK attorneys Natalie K. Lund and Michael R. Johnson handled the case on behalf of the Employer and Insurer. Please contact either of them with any questions.  You can also see the decision document HERE.

November 2019 Minnesota Supreme Court & WCCA Decisions

Block v. Exterior Remodelers, Inc., No. A19-0584 No. WC18-6214 (Minn. November 27, 2019)

ISSUE: Payment made pursuant to an award that is later vacated on the basis of a substantial change in medical condition does not constitute a mistake in fact under Minn. Stat. § 176.179 (1988).

 

In this case, Employee injured his low back in 1988 while working as a roofer. As a result, Employee had two back surgeries, one in 1988 and a second in 1991. In 1992, Employer and Employee entered into a full, final, and complete settlement for $40,000, excluding future medical expenses. Then in 2009, Employee experienced new symptoms related to the 1988 injury which resulted in two additional back surgeries in 2009 and 2010. In 2016, Employee filed a Petition to Vacate the Award and argued that there was:  (1) a mutual mistake of fact when the Settlement was entered into; and (2) a substantial change in his medical condition that could not have been anticipated at the time of the Award. The WCCA vacated the Award based on a substantial change in Employee’s medical condition. The issue is whether Employer was entitled to a credit for the $40,000 already paid under the vacated Award. The compensation judge ruled that section Minn. Stat. § 176.179 did not apply, and that Employer was entitled to a full credit against Employee’s current claim for benefits.  The WCCA affirmed. Employee appealed to the decision to the Minnesota Supreme Court.

 

The Minnesota Supreme Court reviews an interpretation of the Workers’ Compensation Act de novo, or from the beginning; anew. The Workers’ Compensation Act allows parties to enter into a settlement subject to approval by a compensation judge. An award may be set aside later if the WCCA determines that there is cause to vacate it.  Minn. Stat. § 176.461 (1988). In this case, the WCCA vacated the Award based on the substantial change in medical condition. Employee argued that there was also a mistake of fact because when the parties settled Employee’s claim, they believed that Employee’s back injury was cured. Therefore, payment of an award that is later vacated must be a mistake and 176.179 bars the Employer from taking any credit for amounts already paid. The Court found, however, that there was no mutual mistake in the award. Neither settling party in 1992 could have foreseen or predicted medical developments 17 years later and that does not make the original Settlement and Award a mistake. Because no mistake of fact or law occurred, no mistaken compensation was paid and section 176.179 does not apply. The decision was affirmed.

 

 

Lenneman v. Brainerd Gen. Rental, No. WC19-6278 (W.C.C.A. November 13, 2019)

ISSUES: Expert Medical Opinion; Need for surgery casually related to Employee’s work injury; and Substantial Evidence for denial of claim. 

 

In this case, the employee suffered two injuries to his right great toe. First, August 8, 2015, he was wearing steel-toed boots when a trailer tipped and landed on his right great toe. Second, on December 29, 2016, Employee attempted to move a wood block by kicking it with his right foot.  Because the wood block was frozen to the ground, the impact from the kick injured the employee’s right great toe. Despite the two injuries, the employee did not seek medical care for his right great toe until February 2017. Employee saw Dr. Peter MacKay, Dr. Aaron Hokanson, a chiropractor, Dr. David Ruta between March 21, 2017 and May 14, 2018. Only Dr. Ruta on May 14, 2018 recommended surgery to Employee’s right great toe after assessing it as having right hallux rigidus, grade 2-3, which was notably symptomatic and “post-traumatic.”  Employee then filed a medical request seeking approval of the surgery recommended by Dr. Ruta.  His request was denied at an administrative conference, as it was determined the Employee had failed to prove by a preponderance of the evidence that the work injuries, singularly or combined, were substantial contributing factors to his need for the surgery. The Employee appealed the decision for a full hearing. Employer requested Employee be examined by Dr. Devanshu Kansara. Dr. Kansara agreed with Dr. Ruta’s diagnosis and recommendation for surgery, but did not agree that the work injuries were significant enough to play a substantial contributing role. The compensation judge Dr. Kansara’s opinion persuasive and adopted it.  Consequently, the compensation judge denied all the employee’s claims arising from his two injuries to his right great toe, including the proposed surgery.

 

The employee did not meet the burden of proving his case. Dr. Ruta ultimately did not opine that the employee’s right great toe condition was more probably work-related than not. Conversely, Dr. Kansara’s opinion did express the necessary amount of certainty, that more probably than not the employee’s work injuries did not substantially aggravate the employee’s right great toe condition.  The compensation judge adopted Dr. Kansara’s opinion and denied Employee’s claim. The decision was affirmed because the WCCA will not second-guess a compensation judge’s choice between competing well-founded medical opinions.

 

 

Thompson v. Target Corp. Office, No. WC19-6297 (W.C.C.A. November 20, 2019)

ISSUE: Substantial Evidence for Gillette injury

 

In this case, Employee was hired by Target in 2015 when she was 65 years old, working approximately 16-20 hours per week. in the 1990s, the Employee injured her bilateral wrists while employed with Abbott Northwestern Hospital and underwent surgeries. In 2011, Employee was treated for hand pain.  There was no evidence of ongoing medical treatment, however, for this complaint. In 2012, while employed at the MSBA, Employee saw a doctor on one occasion for pain at the right thumb.  She was advised to use a different mouse at her workstation, to ice her thumb, and to wear a thumb splint.  Employee made no further claims and required no follow-up care. substantial evidence, including medical records, the Employee’s testimony, and expert medical opinion, supported the compensation judge’s finding that the Employee sustained a work-related Gillette injury to her bilateral thumbs culminating on September 1, 2017 while employed for Target.

 

The self-insured Employer appealed, urging that the compensation judge should have given more consideration to particular facts.  Those included the employee’s pre-existing arthritis, her age at the time she began working for Target, and the prior medical care rendered to her CMC joints.  The self-insured Employer asserts that the Employee’s two prior judicially-established work injuries were to her CMC joints, and that those Employers should be responsible for the Employee’s current claims.

 

This case was affirmed because the WCCA found there was substantial evidence to support the compensation judge’s findings that the employee suffered a work-related Gillette injury to her bilateral CMC joints requiring surgery.

 

Summaries provided by Andrew Carballo

 

Minnesota Expands Scope of Authorized Medical Cannabis Usage

Minnesota’s Health Commissioner recently authorized a significant expansion of medical cannabis usage in the state of Minnesota to include those with “chronic pain.” Currently, the most common qualifying condition to be eligible for medical cannabis is a diagnosis of “intractable pain.” Minn. Stat. 152.125 defines intractable pain as pain that “cannot be removed or otherwise treated” and that “no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts.” The narrow nature of this definition limits the number of patients who can become qualified for medical cannabis under this category.

 

On the other hand, chronic pain is a much broader category than intractable pain, which is more generally defined as intolerable pain that cannot be addressed with other remedies or medications. Chronic pain includes many more conditions that may be caused by work injuries than “intractable pain” does. The change will take effect in August 2020.

 

Minnesota is currently one of 33 states that has legalized medical cannabis. Patients are still required to become certified by medical providers to receive cannabis from one of two licensed manufacturers – Leafline Labs or Minnesota Medical Solutions. The Minnesota Legislature voted to increase the number of storefronts to 16 – with new locations of both manufacturers planned throughout the state of Minnesota. Medical cannabis in Minnesota is currently permissible in inhaled and pill forms. However, it will also soon become available in water-soluble powders and sprinkles as well as in dissolvable lozenges and mints.

 

To note, this expansion will also include those suffering from age-related macular degeneration for eyesight. However, the expansion still does not authorize medical cannabis usage for those with anxiety, insomnia, or a traumatic brain injury – as there is a lack of scientific evidence to support these. The full Minnesota Department of Health Press Release is found below.

 

https://www.health.state.mn.us/news/pressrel/2019/cannabis120219.html

 

Summary by: Parker T. Olson

October 2019 WCCA Decisions

Erickson v. Qwest Corp., No. WC19-6276 (W.C.C.A. October 24, 2019)

ISSUES: Medical Treatment and Expenses; Expert Medical Opinion

In this case, Employee had a history of low back and neck pain prior to his employment with employer as a result of a car accident in the 1980s. In August of 2000, Employee was hired by the employer and began working primarily as an outdoor maintenance technician. In December 2004, Employee began to complain of left foot pain and was diagnosed with neuroma. On January 31, 2005, Employee’s left foot neuroma was successfully removed, and he returned to work. Employee returned two months later and again complained of foot pain. He continued to treat for 10 years and was prescribed increasing doses of narcotics. A court appointed physician stated that Employee’s current narcotic use in 2018 was eight times the recommended dose according to federal guidelines.

 

Employee eventually filed a claim and ultimately alleged a Gillette-type injury to his left foot. Employee underwent several independent medical examinations, which opined that the pain either predated his employment or was aggravated by his high dosage of narcotic use. The compensation judge found Employee’s neuroma resolved during an office visit following his surgery in 2005. On appeal, Employee argued that the opinions relied upon by the compensation judge lacked foundation, however he offered no objection at the hearing and thus it was unable to be revived on appeal. In addition, the Workers’ Compensation Court of Appeals found that the compensation judge’s inferences made about the evidence were reasonable and based on substantial evidence in the record. The decision was affirmed.

 

 

Mucker v. Metro Transit, No. WC19-6286 (W.C.C.A. October 24, 2019)

ISSUE: Causation – Substantial Evidence

This case was handled by our own Attorney Thomas Coleman of Cousineau, Waldhauser, & Kieselbach, P.A. In the case, Employee was involved in a work-related motor vehicle accident in 2004 resulting in multi-level degenerative changes and severe spinal stenosis. He underwent a cervical decompression, discectomy and fusion at the C4-5 level in September of 2004 and was deemed to have reached maximum medical improvement in August of 2005. He was given a 12.5% PPD rating. However throughout 2006 and 2007, Employee continued to complain of increasing discomfort in his cervical spine. Then in 2013 and 2017, Employee sustained additional work-related injuries, and was ultimately released without restrictions on both occasions. Employee continued to receive ongoing treatment for his spine. In 2013, he underwent an MRI, which revealed that the stenosis appeared worse than previous scans, at which point steroid injections were recommended. Employee underwent an anterior cervical decompression and fusion in August of 2018. His surgeon opined it was possible that the 2013 injury accelerated the Employee’s symptoms, but conceded that it was equally likely to be a result of natural degeneration. The independent medical examiner from the Employee’s 2004 injury opined that the Employee was suffering solely from natural degeneration.

 

Employee eventually a Claim Petition in May of 2018 seeking medical, wage loss, and rehabilitation benefits resulting from the 2013 and 2017 work-related injuries. The compensation judge found that the 2018 decompression and fusion surgery were not related to the 2013 or 2017 work injuries. The main issue on appeal is whether the two injuries were substantial contributing factors to the Employee’s current condition and need for medical treatment. The WCCA found that the compensation judge, as the trier of fact, could reasonably reject the surgeon’s hypothesis that the 2013 injury contributed to the Employee’s condition and instead accept the 2004 independent medical examiner’s updated opinion which stated that Employee’s current condition was a result of natural degeneration. As a result, the case was affirmed and Employee’s claims were denied.

 

 

Brandia v. Keystone Automotive, No. WC19-6268 (W.C.C.A. October 25, 2019)

ISSUE: Medical Treatment & Expense – Reasonable and Necessary

In this case, Employee sustained an admitted work injury at which point she began treating with MAPS to address her chronic regional pain syndrome (CRPS). She received a spinal cord stimulator. Employer and Insurer denied payment for the procedure and Employee filed a Medical Request seeking payment for medical expenses, at which point MAPS intervened. The case proceeded to a Hearing, and the compensation judge ruled that Employee did not have CRPS and denied the payment on that basis.

 

Following this decision, but prior to the appeal, the Minnesota Supreme Court issued its decision in Johnson v. Darchuks Fabrication, Inc., 926 N.W.2d 414, 79 W.C.D. 291 (Minn. 2019), which reversed the general rule that treatment parameters do not apply in cases in which an employer and insurer admit primary liability but deny payment for medical treatment. Id. at 420-421, 79 W.C.D. at 301-302. The Minnesota Supreme Court determined that the treatment parameters will generally apply to a given injury once primary liability is established. Id. At 422, 79 W.C.D. at 304-305.

 

In the Brandia case, primary liability had been admitted, but there was no finding of whether the medical treatment was reasonable and necessary. Since the injury was admitted, the case therefore calls under the Johnson decision, and a finding of whether the medical treatment is reasonable and necessary is required under the treatment parameters. The WCCA therefore remanded the case to the compensation judge to make such a finding.

State of Minnesota Moves to Adopt Treatment Parameters for Posttraumatic Stress Disorder (PTSD)

The State of Minnesota Department of Labor & Industry has proposed expedited rules governing the treatment of posttraumatic stress disorder (PTSD), known formally as treatment parameters. This action was compelled by the legislative amendments in Minn. Stat. §176.83, Subd. 5(b)(8). The proposed treatment parameters were published in the State Register on November 12, 2019 and are currently open for public comment. The period for public comment ends December 12, 2019.

 

As with all treatment parameters, these rules only apply when there is not a primary liability dispute. If primary liability is denied, the Employer and Insurer cannot use the treatment parameters as either a sword or a shield regarding the Employee’s treatment.

 

The proposed treatment parameters are rather straightforward. The Employee must undergo an initial evaluation by a qualified mental health provider. Said evaluation must take account of various factors, including family history, functional status, potential comorbidities or contraindications, etc. The provider must then establish a treatment plan, including the proposed frequency of treatment, the goals of treatment, and a proposed timeline for treatment. Importantly, the treatment plan must specifically address the Employee’s return to work, including any restrictions necessary for return to work.

 

The proposed rules also require that the provider use a peer-review validated tool when making assessments regarding the Employee’s PTSD, the symptoms related to the same, and the severity thereof. Several examples are provided.

 

The proposed rules specifically establish the following modalities as appropriate for treatment of PTSD, whether singularly or concurrently:

 

  1. Cognitive behavioral therapy (CBT);
  2. Cognitive processing therapy (CPT);
  3. Cognitive therapy (CT);
  4. Prolonged exposure therapy (PE);
  5. Brief electric psychotherapy (BEP);
  6. Eye-movement desensitization and reprocessing (EMDR); and
  7. Narrative exposure therapy (NET).

 

The proposed rules further indicate that the Employee may be provided “any other treatment modality recommended by the treating mental health care provider that is an evidence-based, trauma-focused psychotherapy treatment modality, subject to [prior notification].”

 

Under the proposed rules, all treatment must be rendered by a mental health care provider with specific up-to-date training on the treatment of PTSD. The provider must, at least once every two weeks, do the following: reassess the severity of the Employee’s symptoms, adjust the treatment plan as necessary, and complete and submit to the Employee a report of work ability.

 

The proposed rules also address the duration of treatment. Generally, said treatment is limited to a period of 16 weeks. However, treatment may be extended additional periods, each 16 weeks long, under certain circumstances, including:

  • if treatment was interrupted;
  • if treatment is working (i.e., the Employee’s symptoms are decreasing, functional status is increasing, and this pattern is expected to continue with further treatment);
  • the Employee has returned to work and experienced an exacerbation of PTSD symptoms as a result thereof, such that additional treatment is necessary; or
  • upon the order of the commissioner or a compensation judge in “rare case with exceptional circumstances.”

 

Under the proposed rules, the provider must provide prior notification to the payer (i.e., the Insurer) of each additional 16-week period of treatment. Prior notification must specify what modalities are to be used during the next period and the proposed duration of treatment. Prior notification must be provided, either orally or in writing, to the payer at least 7 working days prior to the planned commencement of the new treatment period. The payer then has to respond within 7 working days. The payer can either approve the treatment, deny the treatment, schedule an independent medical examination, or request additional information. If the payer does not respond in one of these ways within 7 working days, it is deemed to have authorized the proposed treatment.

 

The proposed rules also place restrictions on the Employee’s ability to change providers. These are akin to the rules generally governing change of providers.

 

The use of medications for the treatment of PTSD are also addressed in the proposed rules. Of note, the proposed rules require a provider to first consider psychotherapy treatment before prescribing medication (i.e., if the Employee is not receiving psychotherapy treatment, the provider must consider whether it would benefit the Employee before prescribing any medication). The proposed rules indicate that the following medications are indicated for the initial treatment of PTSD:

 

  1. Selective serotonin reuptake inhibitors (SSRIs);
  2. Selective norepinephrine reuptake inhibitors (SNRIs); and
  3. Antihypertensive medication.

 

If the above-listed medications are contraindicated, produce undesirable side effects, or fails to decrease the severity of the Employee’s PTSD symptoms, the proposed rules indicate that the following medications are indicated:

 

  1. Serotonin antagonist and reuptake inhibitors (SARIs); and
  2. Other medications prescribed by or in consultation with a psychiatrist or a psychiatric mental health advanced practice registered nurse (PMH-APRN).

 

Any medications prescribed for the treatment of PTSD must be prescribed at the lowest clinically effective does, for the shortest duration needed, and limited to one period of three months and refills of no more than six months. The use of generic medications is indicated.

 

Under the proposed rules, the use of benzodiazepines is not appropriate for treatment of PTSD.

 

With regard to enforcement, under the proposed rules, any Employee treating for PTSD when the rules go into effect, as well as the Employee’s provider(s), must be provided written notice of the rules before the payer can issue any denial on the basis of the rules. No denials can be issued on the basis of the rules until 90 days after notice of the rules is provided by the payer.

 

Please contact Michael R. Johnson with any questions regarding the proposed rules or any other questions you may have regarding PTSD claims.

 

The proposed rules (i.e., treatment parameters) can be found here:

https://www.dli.mn.gov/sites/default/files/pdf/5221_6700_rules_draft.pdf

September 2019 WCCA Decisions

Wilson v. Holiday Stationstore, No. WC19-6269 (W.C.C.A. Sep. 4, 2019)

Employee injured her right knee with non-displaced fracture of the right patella. Her treating doctor provided a health care provider report in March 2015 stating she reached MMI without PPD. Almost a year later, she demonstrated no welling, full extension, and flexion of 145 degrees. X-rays suggested complete healing of the right knee. She followed up and showed full right knee extension, but a meniscus tear was suspected. MRI of the right knee showed a meniscus tear.

 

She was later referred to a chiropractor for evaluation and was given a 12% PPD rating and a Weber rating. She was seen by Dr. Paskoff who agreed with her treating doctor and assigned 0% PPD rating. She was evaluated by Dr. Prochaska who assigned her a 12% PPD rating. Dr. Prochaska later submitted a follow up letter retracting a 2% Weber rating.

 

The compensation judge found the employee was entitled to a Weber rating of 2% and an additional 12% PPD.

 

Employer and Insurer appealed the award of PPD and objected to admission of Dr. Stember and Dr. Prochaska’s reports on lack of foundation, that they were duplicative, and violated Minn. Stat. §176.155. WCCA upheld the admissibility of the reports as it was within the discretion of the compensation judge.

 

Employer and Insurer argued the compensation judge erred as a matter of law in awarding the 2% Weber rating and the 12% PPD rating was not supported by substantial evidence. Because the rules clearly set out a rating for the fracture, the compensation judge erred in awarding benefits for Weber rating. The Weber rating is not intended for use where a particular body part is rated in the schedules but Employee’s objective findings do not satisfy the requirements of the schedule. Substantial evidence supported the judge’s finding for 12% PPD.

 

Also on appeal was the issue of intervenors and medical mileage. Substantial evidence supported the award of the intervenors, aside from an award to CDI, as there was no evidence that CDI intervened. Mileage was also awarded with the associated intervention interests.

 

 

Jensen v. Donnelly Custom Manufacturing, No. WC19-6266 (W.C.C.A. Sep. 10, 2019)

Employee was injured after a trip and fall. The claim was admitted for right hand sprain and forehead contusion. She later filed a claim petition seeking benefits related to injuries to her head, both hands, wrists, arms, and consequential CRPS.

 

A compensation judge found she sustained a minor forehead contusion and right hand sprain/strain injury. The judge found that she had not proven that she sustained a left upper extremity injury or CRPS. Neither party appealed that decision.

 

She sought additional treatment for CRPS and was given a 44.25% PPD rating. She filed a new claim petition for PTD benefits.

 

A compensation judge denied Employee’s claims, finding that her right hand injury resolved, did not sustain a low back injury, and that the issue of CRPS was decided in the previous decision.

 

Employee appealed a denial of a consequential injury of complex regional pain syndrome and claim for permanent total disability benefits. Employer and Insurer argued that her claim was barred by res judicata and collateral estoppel.

 

WCCA held that res judicata does not bar the employee from claiming benefits for a time period after the first decision. Collateral estoppel may apply. The compensation judge did not consider whether the employee’s condition had changed or worsened, or whether new material facts had emerged since the prior hearing. The matter was remanded for determination of whether the employee’s condition has changed or worsened, or whether new material facts had emerged.

 

 

Rhyner v. Mattress Giant Holding Corp., No. WC18-6241 (W.C.C.A Sep. 20, 2019)

Employee injured her low back and sought benefits, including surgery, chiropractic care, and SI joint injections. A compensation judge found that she sustained a L5-S1 disc herniation and approved the recommended treatment. That decision was not appealed.

 

Employee underwent surgery but continued to be symptomatic. She sought SI joint injections, which were denied. Employer and Insurer asserted that the findings and order established the nature and extent of the injury was limited to the L5-S1 disc herniation and not L4-5, the SI joints or low back generally. They claimed res judicata barred the claim for treatment of the SI joints.

 

A compensation judge found that res judicata did not apply and ordered payment of the SI joint injections.

 

Employer and Insurer appealed the approval of SI joint injections based on res judicata, and that they are not reasonable and necessary.

 

WCCA disagreed with the Employer and Insurer that res judicata applied after careful review of the prior order. The judge awarded not only the recommended L5-S1 surgery, but also all medical treatment to low back regardless of vertebral level, including chiropractic care and SI joint injections. Substantial evidence supported the compensation judge’s determination that the SI joint injections were reasonable and necessary.

 

Also at issue was payment to intervenors. Because intervenors were not properly served notice of the appeal, this issue was not addressed.