Ernesto Herradora-Briones v. Building Resources Corp., No. WC17-6121 (W.C.C.A. July 2, 2018)


The Employee worked as a school janitor and both parties agreed his job duties were physical in nature. The Employee claimed a specific injury on June 23, 2015 from moving a heavy piece of furniture, as well as Gillette-type injuries to his left shoulder, left upper extremity, neck, and mid and low back culminating on September 9 and 12, 2015, as a result of lifting and moving heavy items at work during the summer of 2015.


The Employee had a history of two prior motor vehicle accidents with injuries to his neck and back, and had another motor vehicle accident in September 2016, which resulted in an injury to his back.


The Employee’s treating provider prepared a narrative report opining the Employee had suffered a permanent injury to his cervical, thoracic, and lumbar spine as a result of both the June 23, 2015, injury and the non-work-related 2016 motor vehicle accident.


An independent medical examiner opined the Employee did not sustain a work-related injury on June 23, 2015, September 9, 2015, or September 12, 2015. He concluded that findings on an MRI from 2015 were nearly identical to the findings on an MRI in 2009 following the Employee’s motor vehicle accident. He similarly concluded that the Employee’s current symptomology was nearly identical to the symptomology noted in the Employee’s treatment records from 2009 to 2014.


The compensation judge concluded that the Employee did not meet his burden of proof to establish that a work injury occurred or that he was entitled to workers’ compensation benefits.


This conclusion was based primarily on a finding that the Employee was not credible, and on the acceptance of the opinion of the independent medical examiner over those of the Employee’s treating physician. The Employee appealed.


Citing Even v. Kraft, Inc., the WCCA noted that the assessment of witness credibility is the responsibility and unique function of the compensation judge as the trier of fact. Substantial evidence supported the compensation judge’s finding that the Employee was not credible, including the fact that the Employee denied any prior motor vehicle accidents when deposed by the Employer and Insurer.


The compensation judge’s denial was also based upon the adoption of the report of the Employer and Insurer’s independent medical examiner’s opinions.  The WCCA will uphold a compensation judge’s choice between conflicting expert medical opinions so long as the accepted opinions are adequately founded. Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn. 1985). The independent medical examiner examined the Employee, interviewed the Employee and reviewed the Employee’s medical records. Therefore, the judge’s reliance on the IME opinion was appropriate and the denial of the Employee’s claims was affirmed.


Summary by: Emily L. Johnson



Jason Ebensteiner v. Klaphake Feed Mill and Westfield Grp., No. WC18-6131 (W.C.C.A. June 29, 2018)


The Employee sustained an admitted work-related injury to his neck and low back in August 2015. The Employer and Insurer paid various workers’ compensation benefits, including the services of a QRC. The QRC was engaged in June 2016 and the Employee had anterior cervical fusion in November 2016.


In February 2017, the Employee filed a request to change QRCs. The request was denied, and the Employee filed a request for a formal hearing. Notice was sent on June 12, 2017, advising that the hearing was set for July 14, 2017. Employer and Insurer filed a petition to discontinue benefits on June 15 alleging failure to cooperate with rehabilitation.


The Employee’s deposition was set for July 7, but he did not attend stating that he was unable to travel due to back pain. The Employee also did not attend the hearing on July 14. The Employee’s attorney spoke with him via telephone and told the court and opposing counsel the Employee’s “condition got to the point where he just physically didn’t feel like he could continue the journey.” The hearing was reset for a location closer to his home as he lived in Sauk Rapids.


The deposition of the Employee eventually occurred on August 3, 2017. At the deposition, he stated he left his house for the hearing on July 14 before 8:00 am but could not continue after driving to St. Cloud due to back pain. He stated at his deposition that he did not mow his yard or do similar tasks and that he paid someone to mow his lawn.


Surveillance of the Employee on July 14 and 15 showed the Employee sitting on his front steps at his house all morning on July 14. He did not leave his house or travel to St. Cloud. On July 15, the Employee was filmed mowing his yard with a riding mower. The video was provided to the Employee’s attorney on August 8. The Employer and Insurer then filed a motion for sanctions pursuant to Minn. Stat. § 176.081, Subd. 12 and Minn. R. 1420.3700. The Employee objected.


The Compensation Judge consolidated the motion for sanctions, QRC change request, and petition to discontinue benefits for a single hearing on September 14. The Employee withdrew the QRC change request at hearing, rehabilitation benefits were agreed to be suspended, and the Employer and Insurer withdrew the petition to discontinue.


Thus, the only issue at hearing was on the motion for sanctions. The Employee evaded answering questions about the validity of his deposition testimony stating his memory was cloudy due to pain. He then stated he could not recall if he drove to St. Cloud on July 14, but also agreed with his attorney that he had not been completely honest about driving to St. Cloud that day.


In his December 7, 2017, Findings and Order, the Compensation Judge determined the Employee acted in bad faith by not attending the July 14 hearing and he had misrepresented to the court through his attorney that he tried to attend. The Employee was also found to have given false testimony at his deposition while under oath. Sanctions of $2,344.30 were ordered against the Employee to be deducted from future benefits. The Employee appealed.


The WCCA affirmed the decision of the Compensation Judge stating that substantial evidence supports the Compensation Judge’s award of sanctions as the Employee gave false testimony at his deposition and acted in bad faith by failing to appear at the July 14 hearing. The Employee had raised additional issues in his appeal and brief. The WCCA stated that per Minn. R. 9800.0900, Subp. 1, issues appealed in the Notice of Appeal but not addressed in a party’s brief are deemed waived; similarly, issues not raised in the Notice of Appeal but addressed in a brief will not be considered.


Summary by: Scott G. Ferriss




Kristine Markham v. Minn. Dep’t of Resources, No. WC18-6130 (W.C.C.A. June 22, 2018)


The Employee was in the final years of study for a Bachelor’s Degree in Aquatic Biology when employed as a seasonal naturalist through the DNR. The job was described as an intern position, was full-time, and was expected to last May 15, 2014 through October 2014. Shortly after being hired, she sustained a right ankle injury. She underwent two surgeries and eventually was diagnosed with Chronic Regional Pain Syndrome (“CRPS”) as a result of the injury.


She completed her degree in December 2014 and planned to find work as a fisheries specialist with the DNR, with an average salary range between $771.60 and $1,119.20 per week. Having worked as a seasonal fisheries specialist, she knew the physical activity required and testified that her restrictions rendered her physically unable to perform the tasks required by the intended job. Due to her CRPS, she had difficulty standing on uneven surfaces and she would no longer be able to lift more than 15 pounds.


She began a job search and provided extensive job logs documenting her job search. She ultimately found two jobs. The first was an educational assistant, which she could physically handle but was terminated three months later because it was not a good fit. Her second job was a part-time front desk attendant at a hotel.


In July 2016, the QRC began looking into retraining and ultimately proposed a plan to retrain the Employee in the field of medical administration. The retraining plan contemplated the Employee attending Hennepin Technical College for four semesters to obtain an A.A.S degree. Employer and Insurer retained an independent vocational expert, who opined that the Employee’s claim for retraining was not reasonable or necessary. She opined that the Employee could easily achieve her preinjury wage of $480.00 through full-time work as a hotel clerk.


The matter was heard regarding the retraining claim as well as payment for medical expenses. The judge found the Employee’s medical expenses were reasonable and necessary and that she was entitled to proposed retraining plan. Employer and Insurer appealed the finding that she was entitled to retraining.


Employer and Insurer argue that the compensation judge erred as a matter of law in awarding retraining benefits contending that he based the award on providing the employee with a speculative earning capacity based on what she might have been able to earn in a field for which she was studying, but in which she had never worked. Employer and Insurer maintain that the judge should have considered the $480.00 wage the Employee earned as an intern, not potential future earnings as a fisheries specialist.


The WCCA relied upon the Supreme Court’s analysis in Stilman v. Partridge River, Inc., 523 N.W.2d 491, 51 W.C.D. 282 (Minn. 1994). The Court in Stilman noted that retraining may be necessary if it “will be likely to restore impaired capacity to earn a livelihood; and earning capacity may be impaired if the employee’s injury prevents him or her from returning to the former employment or securing advancement in that employment.” The Court in Stilman also cited Minn. Stat. §176.102, Subd. 1, which provides that rehabilitation “to a job with a higher economic status than would have occurred without disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of employment. Economic status is to be measure not only by opportunity for immediate income but also by opportunity for future income.”


The WCCA noted that in determining eligibility for retraining they look to the Poole factors: (1) reasonableness of retraining compared to returning the employee with the employer or through job placement activities; (2) the likelihood of employee succeeding in formal course of study given the employee’s abilities and interests; (3) the likelihood that retraining would result in reasonably attainable employment; and (4) likelihood that retraining would produce an economic status as close as possible to that which the employee would have enjoyed without disability.” The WCCA agreed that the judge failed to specifically outline each of the Poole factors but noted that the factors were thoroughly addressed through vocational testimony, rehab reports, and medical records in the hearing record. The record as a whole supports the compensation judge’s determination in light of the factors.


The Employer and Insurer also argued that the Employee had several degrees that should be able to secure a job at the wage on the date of injury without retraining. The QRC noted that the education was specific to jobs which are mostly outside of her physical restrictions. Based upon the rehab reports and other vocational evidence and testimony, substantial evidence supports the compensation judge’s determination that the Employee is eligible for retraining.


Summary by: Bryan M. Wachter



Wayne Gerhardt v. Enzymology Research Ctr., Inc., No. WC18-6127 (W.C.C.A. June 19, 2018)


The Employee sustained injuries to his neck, low back, and both knees while working in the maintenance department of the Employer. The matter went to hearing, and the compensation judge found the Employee’s work injury caused temporary aggravations of his pre-existing neck and low back conditions and a permanent aggravation of his bilateral knee condition. That Findings and Order was not appealed. The Employee has ongoing restrictions for his knee condition. He continued to work for the Employer, and his work hours had been reduced to 25 hours per week in March 2016, but this was not related to his knee condition. In January 2017, he began working in a more administrative position.


Prior to his employment, the Employee had a myocardial infarction which resulted in surgeries for stents and a pacemaker. On May 22, 2017, he underwent additional heart surgery. On June 22, 2017, he was released to return to work with restrictions related to his heart surgery as of July 12, 2017. Cardiac restrictions were removed as of August 14, 2017, but his knees restrictions continued.


On August 28, 2017, he was offered a production floor position, which he declined because it exceeded his knees restrictions. He underwent an FCE, and based on those results no further employment was offered. Employee applied for unemployment and began a job search.


Employee claimed temporary partial disability benefits from April 2016 through May 2017 and temporary total disability from July 12, 2017 through the date of the hearing. After hearing, the compensation judge denied the temporary partial disability claim and awarded temporary total disability from and after September 20, 2017. The judge did not specifically address the claim for temporary total disability from July 12 and September 20, 2017, which the Employee appeals.


After hearing, Employer and Insurer gave MN DEED notice of its right to intervene. On October 26, 2017, MN DEED filed a motion to intervene. Employer and Insurer objected to the motion to intervene and requested clarification of the Findings and Order to include an offset for the Employee’s unemployment benefits. The compensation judge added the requested offset in an Amended Findings and Order after the Employee appealed the Findings and Order.


Employee argues that the judge erred by not addressing his arguments regarding his work restrictions between July 12 and September 20, 2017. Employer and Insurer argue that by not addressing the temporary total disability claim between July 12 and September 20, 2017, the judge denied the claim. WCCA determined that the judge’s findings are not adequately specific to ascertain the basis for temporary total benefits not being awarded from July 12 to September 20, 2017. Therefore, the Court vacated the portion of the Findings stating that the Employee’s entitlement to temporary total benefits commenced on September 20, 2017 and remanded for further consideration.

Regarding jurisdiction for the Amended Findings and Order, the Court held that the compensation judge did not have jurisdiction to issue the Amended Findings and Order. Generally, a compensation judge retains jurisdiction of a case for 30 days after issuance of a findings and order or until a notice of appeal is filed. The Employee filed his appeal prior to the compensation judge served and filed the Amended Findings and Order. Therefore, the Amended Findings and Order is null and of no effect.


Summary by: Bryan M. Wachter



Kurt Caswell v. N. Country Sheet Metal, LLC, No. WC18-6148 (W.C.C.A. June 18, 2018)


Employee Caswell was involved in an admitted auto injury of December of 2013. Representing the Employee, Attorney Aaron Ferguson requested that Dr. Ana Groeschel provide a permanent partial disability (“PPD”) rating in April of 2017. Dr. Groeschel provided this rating in a March 22, 2017 Health Care Provider Report (“Report”). The report was then sent by Attorney Ferguson to the Insurer on May 1, 2017, and PPD payment was issued by the Insurer on or about May 18, 2017. Attorney fees were withheld.


Attorney Ferguson was then discharged and subsequent representation retained by the Employee. Attorney Ferguson filed a Statement of Attorney Fees in September 2017 in the amount withheld of $10,753.16. The compensation judge found that no genuine dispute had existed and denied Attorney Ferguson’s claims. Attorney Ferguson appealed.


The relevant statute is Minn. Stat. § 176.081 Subd. 1(c), which states that: “In no case shall fees be calculated upon the basis of any undisputed portion of compensation awards. Allowable fees under this chapter shall be based solely upon genuinely disputed claims or portions of claims…” The Insurer had paid the PPD benefits within three weeks of receiving the Report.


On appeal, Attorney Ferguson argued that there was an undue delay, since the severity of the Employee’s injuries were so severe that the Insurer should have known that substantial PPD benefits would be owed, and that its delay in determining such rating was the same as a denial for the related benefits. Further, Attorney Ferguson argued that the Insurer had the same medical records that he did and that a PPD payment could have been made using these records. However, these records were not in the evidentiary record.


The record showed that the Insurer had made a March payment of 10.76% PPD, withholding attorney fees. However, the basis of this payment and Attorney Ferguson’s related involvement are not in the record.


In Dr. Groeschel’s Report, she had found a PPD rating and had also placed the Employee at maximum medical improvement (“MMI”). There was no evidence that the Employee had been placed at MMI prior to Dr. Groeschel’s Report. Typically, PPD is determined after MMI is found. Turek. V. Northfield Freezings, 652 N.W.2d 265, 269, 62 W.C.D. 622, 626 (Minn. 2002). Because the Insurer had made payments within three months of the MMI, the WCCA noted there was no delay that would equate to a denial.


Attorney Ferguson argued that in Engren v. Majestic Oaks Golf Club, 76 W.C.D. 403 (W.C.C.A. 2016), the court had found that a four-month delay in payments had allowed for attorney fees. However, that claim had also been brought in a contested hearing and the employee had prevailed.


Although Attorney Ferguson had assisted the Employee in obtaining PPD payments, the statute clearly did not allow for attorney fees in the absence of a genuine dispute over such benefits. Weatherly v. Hormel Foods Corp., 77 W.C.D. 445 (W.C.C.S. 2017). Because there was no genuine dispute over the PPD payments, the WCCA affirmed.


Summary by: Megan M. Oliver



William Johnson v. Darchuks Fabrication, Inc., No. WC17-6114 (W.C.C.A. June 13, 2018)


Employee Johnson was injured at work in September 2002 when he rolled his ankle. His injury included an avulsion fracture of the talus. After being taken off work and undergoing treatment, his condition did not improve. He was found to have symptoms consistent with sympathetic dystrophy in March 2003.  By that June, he was diagnosed with complex regional pain syndrome (“CRPS”) and hammer toes. In August, it was noted that there were two extremes the Employee was dealing with: extreme pain and the side-effects of the opioid medication he was using.


An IME conducted in June 2004 diagnosed reflex sympathetic dystrophy (“RSD”). Amputation was suggested, and open sympathectomy was suggested as an alternative to addressing the Employee’s symptoms. The Employee began treating with Dr. Sperle in 2005, who continued the pharmacological treatment – including opioid medication – to address the Employee’s symptoms.


A February 2009 medical record review found that the Employee’s treatment, including opioid medication, was reasonable and necessary and causally related to the condition caused by his work injury.


A May 2016 IME found that the subjective complaints did not align with the objective findings, and it was recommended that the Employee be weaned off opioids. Following this, the Employer and Insurer requested that the Dr. Sperle comply with Minn. R. 5221.6110. Dr. Sperle continued to prescribe opioids, although he also supported a referral to a pain clinic as an alternative to continuing the medications.


The Employee filed a medical request for payment for his medications. The Employer and Insurer responded that treatment was not reasonable or necessary and that the treatment parameters were not being followed. After hearing testimony of the Employee’s symptoms and medication usage, the compensation judge found that the CRPS condition had not resolved, that the mediations were reasonable and necessary, and that the treatment parameters did not apply. The judge relied on Minn. R. 5221.6020 Subp. 2 to determine the issue of the treatment parameters, and found that the parameters were not applicable after the Insurer denied liability. Employee’s claims and payment to an intervenor were awarded, and the Employer and Insurer appealed.


On appeal, the WCCA found that the Employer and Insurer had denied liability by virtue of arguing that the Employee’s CRPS condition had resolved. Had they prevailed at the prior hearings on that matter, the result would have been a denial of liability for the medications at issue. Because they had essentially denied liability, the treatment parameters would not apply after liability had been established, pursuant to Minn. R. 5221.6020 Subp. 2. The WCCA affirmed.


Summary by: Megan M. Oliver