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