Decisions Of The Workers' Compensation Court Of Appeals
Machuca v. Reynaldo Lopez, Uninsured, File No. WC05-311, Served and Filed July 11, 2006. This case involved multiple defendants, some insured and some uninsured. The employee fell off a balcony injuring his right knee. A dispute arose between the various defendants as to: whether the injured worker was an employee or independent contractor at the time of the accident; if an employee, the identity of the employer; whether the identified employer was insured; which party was liable for workers' compensation benefits. Compensation Judge Vallant dismissed some of the parties based on documentary evidence, deposition testimony, and oral and written arguments of the parties following a pretrial conference. No evidentiary hearing was conducted. The Special Compensation Fund appealed. The WCCA (Judges Rykken, Johnson and Stofferahn) remanded and held that resolution of the factual issues regarding the compensation judge's decision required an evidentiary hearing. The judge made no findings to support his decision, and the WCCA was unable to perform its function until a record was created and factual findings were made. The case was remanded for factual findings on the employment issues.
Sorby v. Soil Testing Service of Minnesota, File No. WC06-118, Served and Filed August 2, 2006. The employee sustained his first work-related injury, in Minnesota, in 1981. He subsequently moved to Texas where he sustained and additional work-related injury in 1991. By 1994 he had undergone five low back surgeries. In the mid-1990s the employee returned to Minnesota. He then sustained a work-related injury in October 2000, and subsequently had addition low back surgery. The issues at hearing before Compensation Judge Patterson included equitable apportionment of liability between the 1981 and 2000 Minnesota injuries. The compensation judge apportioned liability 10% to the 1981 injury, 65% to the Texas injuries, and 25% to the 2000 injury. He further found that the 2000 injury was responsible for the 65% apportioned to the Texas injuries, making the 2000 injury 90% responsible for wage loss and medical benefits. The judge's theory was that the 2000 injury took the employee as it found him. The WCCA (Judges Wilson, Rykken and Stofferahn) reversed and remanded the equitable apportionment. The WCCA noted that equitable apportionment can only be applied to injuries for which one party may be liable. Therefore, "no purpose was served by including the Texas injury in the equitable apportionment determination." The WCCA found no basis for holding either employer/insurer solely responsible for the effects of the Texas injury. The WCCA held that the judge, on remand, should look at this matter as a straight forward issue of apportionment between the 1981 and 2000 injuries.
Adams v. Hyman Freightways, File No. WC06-146, Served and Filed October 16, 2006. This is an interesting procedural decision which demonstrates the problems that may arise when the paying agent insurer is no longer responsible for the payment of benefits in a multi-party case, but the employee is entitled to ongoing benefits from the other employers and insurers. The employee sustained three work related hernias from three different employers and insurers on November 11, 1993, December 28, 1998 and September 9, 2002. He had been awarded temporary partial disability benefits in an earlier proceeding. The compensation judge apportioned the benefits 50 percent to Hyman Freightways/Liberty Mutual for the first injury, and 25 percent to each of the other employers and insurers, and ordered Liberty to be the paying agent. Liberty subsequently filed a NOID seeking discontinuance of its obligation to pay continuing TPD based on the 450 week cap. Minn. Stat. § 176.101, subd. 2(b). Liberty pointed out that the 450 week period for the 1993 injury expired on June 6, 2002. Compensation Judge LeClair-Sommer found that the employee had proven his entitlement to ongoing TPD against the other parties. The burden was on Liberty to seek an allocation of liability among the other employers and insurers and to apply applicable law. As paying agent, Liberty was responsible for the payment of benefits and had not proven, by reasonable grounds, its entitlement to discontinue same. The WCCA (Judges Stofferahn, Wilson and Pederson) affirmed on procedural grounds. Since the hearing arose out of Liberty's NOID, not all parties were present. The employee's benefits were now being delayed by Liberty's actions. The WCCA did not go so far as to say that Liberty was precluded from asserting the statute as a basis for its discontinuance. The WCCA did require Liberty to continue payment to avoid a gap in benefits to the employee, citing Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989). The WCCA remanded for a hearing before the compensation judge and ordered joinder of the other two employers and insurers for allocation of liability, in order to determine the appropriate paying party, and to make findings regarding the amounts to be paid to the employee.
Williams v. Grand Rapids Baptist Church, File No. WC06-140, Served and Filed September 12, 2006. The employee is a minister who worked at two churches that were 12 miles apart. His duties included conducting Sunday and Wednesday services at each church, and other duties that included calling on members. On his first day of work, he was required to officiate at services at the Grand Rapids church, and later chose to attend evening service at the other church, although he was not required to attend that service. While returning from the evening service, he was involved in a motor vehicle accident and sustained various injuries. Compensation Judge Bonovetz denied the claim. The WCCA (Judges Johnson, Rykken and Pederson) affirmed the finding that the injury did not arise out of and in the course of employment. According to the WCCA, injuries commuting to and from work are not compensable. While some case law supports the proposition that "commuting" injuries may be compensable, the WCCA was not convinced that the use of a vehicle was necessary "for use during the working day," and the use of a vehicle was not an integral part of the performance of his pastoral duties. See Wenda; Vu. This case was summarily affirmed by the Supreme Court on January 24, 2007.
Bryant v. University of Minnesota, File No. WC06-197, Served and Filed December 21, 2006. The employee claimed injuries occurring on November 8, 2003 and December 10, 2003, which were denied by the employer and insurer. An Employee's Claim Petition was filed in January of 2004. The matter came on for a hearing on October 13, 2005. At the hearing, the parties stipulated that the employee had returned to work without restrictions as of March 14, 2004. The compensation judge found that the employee had sustained injuries on the days alleged and had also found that the employee had been paid full wage continuation during the time that she was off work. Following the hearing the employee's attorney filed a Statement of Attorney Fees, alleging an entitlement to $6,440.00 in attorney fees. There were no other exhibits and no testimony at the hearing. Compensation Judge Hall awarded fees in the amount of $5,000.00, citing the Supreme Court's decision in Irwin. The WCCA (Judges Stofferahn, Wilson and Pederson) reversed. They found that, in order to award the so called Irwin fees, it must be determined that the contingency fee from benefits recovered is inadequate to reasonably compensate the employee's attorney. An additional fee paid by the employer and insurer is assessed only if the employee's attorney establishes that the contingent fee is inadequate. In this case, the WCCA ruled that there was "simply no evidence as to what benefits were recovered for the employee." Therefore, they vacated the decision of Compensation Judge Hall. They indicated that "It is the obligation of the employee's attorney to present evidence which supports his claim for fees and in this case he has failed to do so. We recognize there is a certain inherent awkwardness in attorney fee disputes with the possibility of counsel having to testify and be cross examined. We are not holding that testimony is necessary in every case, but there must be an evidentiary basis for a compensation judge's determination and there must be a record for this court to review. Determination of an attorney fee dispute should be made with the same care as other disputed claims." Since there was no record which supported an award of Irwin fees, the compensation judge's decision was vacated.
In a footnote, the WCCA also addressed the issue of Subdivision 7 attorney fees. Apparently, the employee's attorney had waived a claim for a potential award to the employee under Minn. Stat. Sec. 176.081, Subd. 7. The WCCA indicated that "An award under Subdivision 7 is mandatory in cases involving contingency fees, Roraff fees and Heaton fees. Any waiver of the employee's claims to these fees should be scrutinized carefully by the compensation judge. When the sole dispute at hearing is attorney fees, it is difficult to see what rationale there might be in waiving the employee's claim."
COMMENT: This case stands for two important principles. The first is that the employee's attorney must put forth evidence and documentation in order to support a claim for attorney fees. Simply putting in a billing statement is inadequate for the award of fees. Secondly, it appears that the WCCA is taking a very rigid stand with regard to payment of Subdivision 7 partial reimbursement of attorney fees. It has been somewhat commonplace for employee's attorneys to waive such reimbursement of fees. The WCCA is indicating, however, that such a waiver is to be viewed with disdain. Therefore, we can certainly see an increase in claims for subdivision 7 partial reimbursement of attorney fees.
Schmitt v. Hanefeld Brothers, File No. WC06-132, Served and Filed August 15, 2006. The employee was injured while working as an over-the-road truck driver. He was paid on a weekly basis at a wage of $.28 cents per mile, along with a per diem allowance of $80.00 per night spent on the road away from home. The employee received the per diem regardless of his actual expenses and without needing to provide proof or documentation. Employees were given the option of receiving a higher wage or the per diem. Apparently, they could make more money by electing the per diem. Payroll taxes were withheld from the employee's pay checks, but not from the per diem payments. When the employee was injured, compensation benefits were calculated based upon his weekly earnings, excluding the per diem. The WCCA (Judges Pederson, Johnson and Wilson) affirmed Compensation Judge Kelly's determination that the employee's weekly wage should be calculated including all earnings, including the per diem. The WCCA rejected the employer's argument that the per diem payments were not part of the wage contract, and the argument that per diem payments are not treated as wages for tax purposes. The WCCA concluded that the per diem payments represented compensation for labor and services. The WCCA recited prior case law holding that a meal or other expense allowance provided to an employee regardless of actual expense incurred and without documentation is generally included in the employee's wages. See e.g. Illg.
Carlson, Danielle v. Ford Motor Company, File No. WC06-110, Served and Filed July 11, 2006. Following a work-related injury, the employee's average wage was calculated to include a $3,000.00signing bonus and a $600.00 Christmas bonus. The employer/insurer subsequently sought to exclude these lump-sum bonuses from the wage calculation, and sought reduction of benefits based upon an overpayment. The employer/insurer also sought to exclude wages during two pay periods in which the employee earned less than normal. At hearing, Compensation Judge Culnane determined that two lower earning weeks should be included in the wage calculation and that the Christmas bonus should be included also in the wage calculation. The employee appealed and the employer cross-appealed. The WCCA (Judges Pederson, Johnson and Stofferahn) affirmed the compensation judge's determination that two lower earning periods of wages should be included in the wage calculations based on evidence, in that the wages during that time frame were a reasonable estimation of the employee's earnings. Regarding the issue of the signing bonus and the Christmas bonus, the WCCA focused on the nature of the bonuses as they related to the employee's job performance or efforts. The WCCA affirmed the exclusion of the signing bonus on the basis that it was paid related to the ratification of a union agreement. The WCCA also affirmed the inclusion of the Christmas bonus because the employee was required to show up for work to receive the bonus and, therefore, this was a part of her job performance efforts.
Tomford v. Mark's Welding, Inc., File No. WC06-165, Served and Filed December 4, 2006. Compensation Judge Cannon found that the employee's average weekly wage at the time of an injury of June 2, 2005, was $401.56 and, in so doing, accepted the calculations of the employer and insurer made by using the statutory calculation provided in Minn. Stat. § 176.011, subd. 18. That is the calculation to be used for the wage rate of an employee who worked irregular hours. The employee appealed the finding of Judge Cannon, asserting that, although the statutory calculation method was appropriate to use, the calculation must be modified to reflect the employee's hourly wage increase, three months prior to the injury, from $11.00 per hour to $12.00 per hour. The WCCA (Judges Rykken, Johnson, and Stofferahn) affirmed the finding of Compensation Judge Cannon. They reviewed the fact that the employee's work hours prior to the injury varied greatly. They concluded, therefore, that the statutory calculation should be used. The WCCA rejected the employee's assertion that the wage calculation should reflect his hourly wage increase which occurred three months prior to the date of injury. They indicated that, in this case, "The employee's wage increase occurred approximately three months before the injury and therefore is included in the statutory calculation. The employee is not a seasonal employee and there is no basis for not following the statutory calculation." The WCCA, therefore, affirmed the finding of Compensation Judge Cannon.
Causal Connection
Hoffman v. L & D Masonry, File No. WC06-183, Served and Filed September 19, 2006. The employee worked as a brick and block layer since 1979. He sustained an admitted low back injury on October 1, 1990, while employed by L & D Masonry. He continued to have symptoms and periodic chiropractic treatment after his injury. He alleged another low back injury on April 30, 2003, while moving heavier than usual block, which employer Opus Northwest Corporation denied. Opus' denial was based, in part, on the employee's medical record which reported an onset of pain while golfing the weekend before the alleged work injury. Finding that the medical record was "vague" and the employee was credible, Compensation Judge Behounek found liability for the April 30, 2003 injury. The WCCA (Judges Wilson, Pederson and Rykken) vacated the findings and remanded. It disagreed with the judge's characterization of the medical record as "vague." It further indicated that while the employee had testified on direct examination that he had not injured his back while golfing, he conceded on cross examination that golfing may have worsened his symptoms and that he told his doctor that his onset of pain was while golfing.
Simons v. Ridgeview Medical Clinic, File No. WC06-211, Served and Filed December 1, 2006. The employer and insurer appealed a finding of Compensation Judge Cannon that the employee sustained a permanent aggravation of a pre-existing knee condition as a result of an incident that occurred at work on June 3, 2003. The WCCA (Judges Stofferahn, Wilson, and Pederson) affirmed. The employee, a 68-year-old individual, was employed as a medical lab technician for the employer when, on June 3, 2003, she tripped, but did not fall, when a patient from whom she was drawing blood extended his leg. At the time of the incident, she experienced a feeling of snapping and popping in the knees. The employee had a history of prior knee injuries and treatment. She had, however, worked for at least seven years without restrictions associated with her knees. The employee subsequently underwent bilateral knee replacement surgery. The employee brought a claim for disability and medical expenses associated with her bilateral total knee replacement surgery. Compensation Judge Cannon found that the employee's injury of June 3, 2003 was a substantial contributing factor to the permanent aggravation of her bilateral knee conditions. On appeal, the employer and insurer argued that the medical evidence relied upon by the compensation judge lacked adequate foundation. The employer and insurer pointed to the fact that the medical report relied on by the compensation judge indicated that the incident of June 3, 2003 involved her having fallen on flexed knees. The employee testified, however, that she did not actually fall on her knees, but instead caught herself on the blood drawing table, after her knees twisted and she began to fall. The WCCA indicated that the competency of a witness to provide expert medical testimony depends both upon the degree of the witness's scientific knowledge and the extent of the witness's practical experience with the matter, which is the subject of the offered testimony. In this case, the WCCA found that the employee's doctor had a sufficient level of knowledge to establish his competence to render an expert opinion. In addition, the WCCA found that the doctor had sufficient foundation for the opinions rendered herein. They indicated that the doctor's records supported the fact that he been, in fact, corrected by the employee about the mechanism of the injury. In spite of the change in the history that he was asked to assume, he held to the view that the employee's work injury caused a significant aggravation of her pre-existing knee condition. Based upon that, the WCCA indicated that the compensation judge could, by reasonable inferences from the evidence, determine that the errors noticed in the doctor's records did not represent a mistake of material fact sufficient to undermine the foundation of his opinion. The WCCA also viewed as significant the fact that the compensation judge relied in large part on the circumstance that the employee's knees had been asymptomatic and needed no medical treatment for more than seven years leading up to the incident of June of 2003. Following that incident, she experienced the onset of symptoms in conjunction with the injury which have continued in an undiminished fashion thereafter. The WCCA cited the fact that a compensation judge is permitted to use the fact that a condition did not exist prior to a work injury to support a finding of causation. The WCCA, therefore, affirmed the decision of Compensation Judge Cannon.
Exclusive Remedy
Guess v. Priore, Case No. A05-2467, Filed August 29, 2006. This lawsuit arose out of the plane crash which killed Senator Wellstone on October 25, 2002. Conry was the pilot-in-command and Guess was the second-in-command. Both were employed by Aviation Charter, Inc., which had a policy that the pilot-in-command was responsible for operating the flight during the approach and landing, and the second-in-command was responsible for communications. The NTSB determined that the probable cause of the crash was the flight crew's failure to maintain adequate air speed, which led to an aerodynamic stall from which they did not recover. Guess' heirs sued Conry's estate for gross negligence. They also sued Aviation Charter for indemnity under Minn. Stat. §181.970 and they sued Beech Transportation, as the owner of the aircraft, for vicarious liability under Minn. Stat. § 360.0216. The St. Louis County District Court granted summary judgment on behalf of Aviation Charter and Beech Transportation, holding that Guess' exclusive remedy was under the Workers' Compensation Act. The court also held that there was still an issue regarding the potential gross negligence of Conry, so that part of the action was not dismissed.
The Minnesota Court of Appeals (Judge Hudson) affirmed. Guess argued that it was suing Conry under the gross negligence standard set forth in Minn. Stat. § 176.061, subd. 5(c), and that since Conry was acting within the course of his duties for Aviation Charter, the latter has a duty to indemnify Conry's estate for damages due to Conry's gross negligence. Pursuant to Stringer v. Vikings Football Club, LLC, 705 N.W.2d 746 (Minn. 2005), Guess would not have an action under gross negligence against Conry, as Conry was acting within the scope of his employment at the time of the accident. In turn, Aviation Charter is also immune from liability. This applies to both a direct action against Aviation Charter, as well as the action for indemnity pursuant to Minn. Stat. § 181.970. Beech Transportation is also not vicariously liable under Minn. Stat. § 360.0216. Although an owner of the aircraft is subject to statutory vicarious liability for the negligence of the operator of the aircraft, where there is no liability on the operator, there can be no vicarious liability to the owner of the aircraft. Guess' sole remedy is under the workers' compensation statute.
Rocheford v. Velocity Express, File No. WC06-160, Served and Filed September 12, 2006. The employee entered into an independent contractor agreement with the employer prior to the work injury. Following the injury, he sought various workers' compensation benefits, which were denied by Compensation Judge Kelly. The WCCA (Judges Wilson, Johnson and Rykken) reversed. According to the WCCA, the employee's relationship with the employer changed during the course of his employment. The WCCA held that the judge failed to make findings about the employee's relationship with the employer at the time of the injury. On remand, the compensation judge was instructed to review that relationship at the time of the injury and make appropriate findings.
Independent Medical Examination
Abdelrazig v. American Bottling Company, File No. WC06-166, Served and Filed November 16, 2006. The WCCA (Judges Rykken, Wilson and Johnson) affirmed a determination of Compensation Judge Schultz, which allowed the admission of an independent medical examination report. The employee had objected to the admission of the report, arguing that it was filed more than 120 days following the service of the Employee's Claim Petition. Therefore, the employee argued, it violated the provisions of Minn. Stat. § 176.155, subd. 1. The 120-day deadline was February 23, 2005. The employer and insurer notified the employee on February 28, 2005 that an examination had been scheduled. The employer and insurer moved for an extension on March 7, 2005, indicating that the examination had been scheduled for May 26, 2005. An extension was granted, over objection from the employee, to May 20, 2005. The employee attended the examination and the report was served on June 13, 2005. The WCCA indicated that there was no indication of prejudice on the part of the employee by the delay in the examination, since the hearing was not held until January 30, 2006. In addition, the employee attended the scheduled examination and the issue of admissibility of the report was not raised at the Pretrial Conference. Under these circumstances, the WCCA ruled that the compensation judge did not err by allowing the report into evidence.
Ball v. Pear One, Inc., File No. WC06-150, Served and Filed September 18, 2006. The employee's ex-wife brought a dependency claim on behalf of the employee's young children alleging that the employee's death arose out of and in the course of employment. The employee was hired as a chef for the employer's restaurant which was under construction. The employee was a passenger killed in a motor vehicle accident on October 21, 2003, in which his girlfriend was driving. Expert testimony indicated that both the employee and his girlfriend tested positive for alcohol and cocaine in their systems at the time of death. Compensation Judge LeClair-Sommer found that the accident arose out of the course of employment, finding evidence supported the allegation that the employee was being driven to the airport to travel to Seattle to receive training on a pizza oven for the new restaurant. The judge also found that the employer had not met the burden of showing that the employee was intoxicated, nor that the employee's intoxication was the proximate cause of the injury. The WCCA (Judges Wilson, Pederson and Stofferahn) affirmed. The employer's main argument on appeal was that the death was caused by the employee's own intoxication, which prevented him from appreciating the danger of riding in a car with someone who was intoxicated. The WCCA was unpersuaded that there was evidence of the employee's intoxication (there were no witnesses as to the employee's behavior and appearance.) Since the employee was a passenger in the vehicle, even if there was proof of the employee's intoxication, the WCCA held it was not the proximate cause of the accident. This case was summarily affirmed by the Supreme Court on January 24, 2007.
Haldeman v. Next Innovations, Ltd., File No. WC06-189, Served and Filed October 12, 2006. The employee was hired to work the graveyard shift. Following his injury, the employer offered a suitable job, within restrictions; however, it would require the employee to work the day shift. The WCCA (Judges Wilson, Rykken and Johnson) affirmed Compensation Judge Cannon's determination that the employee reasonably refused the job offer, and therefore, that TTD benefits should not cease. The employee took the position working the graveyard shift so that he would be free to remodel a property during the day that he was converting into a restaurant. The WCCA held that reasons for refusing job offers are not restricted to childcare, familial or marital considerations. See Begin v. Thermo Serv. Co. (employee reasonable refused offer so that he could continue college attendance during the day.) The WCCA held that "an injured worker need not dramatically alter a reasonable and responsible pattern of living in order to maintain eligibility for workers' compensation benefits."
Hahn v. Graco, Inc., File No. WC06-108, Served and Filed August 17, 2006. In this case, the WCCA (Judges Wilson, Johnson and Pederson), reversed a determination of Compensation Judge LeClair-Sommer that the employee reached maximum medical improvement as of April 5, 2004. The employee sustained a compensable injury to his low back on December 16, 2003. He ultimately came under the care of Dr. Paul Crowe who released the employee to return to work without restrictions, as of February 25, 2004. On April 5, 2004, Dr. Crowe completed a Health Care Provider Report, indicating that the employee had reached maximum medical improvement as of April 3, 2004. The employee did receive some subsequent treatment from Dr. Crowe in July and August of 2004, including an epidural steroid injection. The employee was subsequently terminated by the employer on December 8, 2004. He returned to see Dr. Crowe on January 31, 2005, complaining of increased symptoms. Dr. Crowe concluded later in 2005 that the employee required surgery on his low back. Prior to the hearing in this matter on November 16, 2005, Dr. Crowe indicated, in a letter to the employee's attorney, that the employee had not reached MMI, but would reach it once he recovered from surgery. Compensation Judge LeClair-Sommer found that the employee had reached MMI on April 5, 2004 and had determined that the employee was terminated from his employment for reasons unrelated to his work injury. Since the termination occurred more than 90 days following MMI, the employee was not entitled to temporary total disability benefits. Further, the compensation judge found that the employee was not medically unable to continue working. The WCCA determined that the compensation judge's finding as to MMI was "premature." The compensation judge's determination was reversed. The WCCA cited the case of Wilson v. Decker Lumber Company, 46 W.C.D. 319 (WCCA 1991) for the proposition that proposed surgery may be a factor to consider in determining MMI. As indicated previously, the WCCA reversed Compensation Judge LeClair-Sommer's determination that the employee had reached MMI. This case was summarily affirmed by the Supreme Court on December 28, 2006.
COMMENT: This case represents the difficulty that the courts have had with the "recommencement" provisions found in Minn. Stat. 176.101. One of those provisions, Minn. Stat. Sec. 176.101, Subd. 1 (e) (2), provides that temporary total disability benefits may be recommenced if the employee is "medically unable" to continue working due to the injury. The statute provides that, in order to be able to obtain recommenced temporary total disability benefits under that clause, the employee must be "actively employed" when the employee becomes medically unable to work. In this case, the employee had been terminated for cause and was not "actively employed" when he arguably became "medically unable" to continue working. Rather than address that issue head on, the compensation judge found that the employee reached maximum medial improvement.
Tomford v. Mark's Welding, Inc., File No. WC06-165, Served and Filed December 4, 2006. The employee sustained an injury to his right foot on June 2, 2005. Following the injury, the employee underwent an IME at the request of the employer and insurer, by Dr. Richard Strand. Dr. Strand concluded that the employee sustained a contusion to his right foot and that he had reached MMI from that right foot injury. The employee asserted claims for various benefits and the matter came on for a hearing before Compensation Judge Cannon. The compensation judge concluded that the employee reached MMI following his injury, and as of November 30, 2005, the date of Dr. Strand's report. The WCCA (Judges Rykken, Johnson and Stofferahn) reversed. The WCCA acknowledged that MMI is an issue of ultimate fact, to be determined by the compensation judge after considering medical records, medical opinions and other relevant evidence. In this case, however, the WCCA indicated that the compensation judge's reliance on Dr. Strand's opinion concerning MMI seemed to be internally inconsistent with his other findings related to the employee's injury. The compensation judge had rejected Dr. Strand's opinion that the employee's low back injury on June 2, 2005, represented, at most, a brief exacerbation of his pre-existing condition and did not substantially contribute to his ongoing low back complaints. The WCCA acknowledged that a fact finder generally may accept all or a part of any witness's testimony. However, the WCCA concluded that the compensation judge's reliance on Dr. Strand's opinion concerning MMI, along with his rejection of Dr. Strand's related conclusions, had formed the doctor's basis for his MMI condition and rendered the compensation judge's conclusions internally consistent. The WCCA, therefore, concluded that, "under the circumstances of this case", and based upon the evidence in the record, a finding of MMI may be premature. Therefore, they vacated the compensation judge's finding that the employee had reached MMI and remanded the matter back to the compensation judge for reconsideration of the issue, "based upon the totality of the existing record."
Rushmeyer v. Lyngblomsten Care Center, File No. WC06-177, Served and Filed December 20, 2006. At issue in this case, was whether the employee's use of certain prescription medications was reasonable and necessary to cure and relive the effects of a low back injury, was allowed by the treatment parameters; or satisfied the requirements of a "rare case" exception. Compensation Judge Olson awarded the prescription medication, and the WCCA (Judges Pederson, Rykken and Johnson) affirmed. The employee sustained an injury to her low back on June 13, 1987, following which she entered into a full, final and complete closeout of all claims, with the exception of medical treatment expenses. She subsequently underwent fusion surgery by Dr. Manuel Pinto on August 7, 2002, which was found to be related to the effects of that injury. After a short time, the employee's symptoms returned and she was prescribed significant medications for treatment of her symptoms, including the narcotic Vicodin. The employer and insurer denied the claims for treatment expenses and Compensation Judge Olson found that the prescription expenses were reasonable and necessary and related to the employee's low back injury. Although she found that the use of Vicodin was beyond the allowed duration under the treatment parameters, she found that departure from the parameters was necessary, as a "rare case" exception, in order for the employee to obtain proper treatment. The WCCA found that the treatment was reasonable and necessary, based upon the medical records of the employee's treating physicians, as well as the employee's testimony regarding her symptoms. The WCCA then went on to discuss the "rare case" exception. They cited the Supreme Court's decision in Jacka v. Coca Cola Bottling Company, 580 N.W.2d, 58 W.C.D. 395 (Minn. 1998). They indicated that the treatment parameter at issue, Minn. Rule 5221.6200, Subp. 10, allows for the use of scheduled narcotics in the treatment of severe acute pain, but only during the first two weeks of treatment. They indicated that they "carefully reviewed the record in this case and had previously affirmed the judge's determination that the employee's regimen of prescription medication, including her use of Vicodin on an as needed basis, was reasonable and necessary." They went on to state: "While we might agree that the facts of this case are not particularly rare or unique, the compensation judge was clearly persuaded that the employee is experiencing intractable pain. We also note that the disputed treatment is not invasive, is carefully monitored by the employee's physicians, is not being abused and allows the employee to function somewhat normally. It is evident also that a cost/benefit analysis supports the judge's decision." The WCCA went on to state that "We nevertheless conclude that a judge's ultimate decision, to depart from the parameters to allow the employee to obtain proper medical treatment, is supported by substantial evidence in the record. Accordingly, under the facts presented here, especially the minimal cost involved, the judge's finding of a rare case exception to the treatment parameters is affirmed."
COMMENT: This case appears to expand the doctrine of the "rare case" exception that had been established by the Supreme Court in the Jacka case cited above. In this case, the WCCA seemed to rely heavily on the fact that the treatment that was the subject of the "rare case" exception was not significantly expensive.
Wald v. Walgreens Corporation, File No. WC06-188, Served and Filed November 8, 2006. The WCCA (Judges Wilson, Rykken and Pederson) affirmed a finding of Compensation Judge Rieke that the employee gave timely notice of the injury in this matter. The employee worked for Walgreens from August of 1997 until August of 2004. She began missing time from work because of neck symptoms in March of 2002. She came under the care of Dr. Andrew Smith. Her attorney wrote to Dr. Smith regarding her neck condition and whether it was related to work. In February of 2005, Dr. Smith indicated that the work activity was a substantial contributing factor in the employee's neck condition. Subsequently, the employee's attorney, on behalf of the employee, filed an Employee's Claim Petition, alleging a Gillette-type injuries occurring in March of 2002, February of 2003 and August of 2004. At the hearing, the primary issue was whether proper notice was given. The employee testified, for the first time at hearing, that she provided notice to her assistant manager within 180 days of the claimed injury. In addition, the employee indicated that she did not know that she had a basis for an injury until she had received the Claim Petition, which included the report from Dr. Smith, connecting her condition to her work activities. The compensation judge found that the employee had given proper notice when she reportedly notified her assistant manager. The compensation judge also found that the employee could not have reasonably concluded that her condition was work related, until the receipt of the report of Dr. Smith. The WCCA reversed the determination that the employee provided notice to the assistant manager. However, they affirmed the decision that the employee gave proper notice upon receiving the report of Dr. Smith. They cited to the fact that "A determination of whether an employer had timely notice of an employee's claimed injury is a question of fact." The WCCA concluded that it was "not unreasonable for the compensation judge to conclude that, prior to the receipt of Dr. Smith's February 28, 2005 report, a reasonable person in the employee's circumstances would not have had adequate knowledge that her condition was work related, so as to trigger the commencement of the notice period." The WCCA also noted that "The notice period does not ordinarily begin from the time an employee receives a medical opinion on causation, but rather from the time the employee has adequate knowledge as to the work-related nature of her condition from any source."
Permanent Partial Disability
Price v. City of Minneapolis, File No. WC06-139, Served and Filed October 2, 2006. The employee injured his left knee. Dr. Richard Strand performed a diagnostic arthroscopy during which a meniscectomy was performed and up to 50% of the lateral and medial menisci were removed. The employee was rated by Dr. Strand with a 4% whole body impairment under Minn. R. 5223.0510, subpart 3B(3). Two years later Dr. Strand performed a total knee replacement. He rated the employee's impairment at 8% of the body as a whole under Minn. R. 5223.0510, subpart 3C(2) for a total condylar arthroplasty. The employer initially paid an additional 3% permanency and later paid an additional 1%, for a total impairment of 8%. The employee argued that he was entitled to combine Dr. Strand's ratings for a total of 11.84%. Compensation Judge Vallant concluded that the categories were not combinable and that the 8% impairment for the total knee constituted the entire functional impairment. The WCCA (Judges Pederson, Rykken and Wilson) followed its decision in Majerle v. Forest Lake Chrysler (WCCA June 25, 2004) in deciding that functional impairment "was not increased because more than one surgical procedure was required." The WCCA held that selection of both categories claimed by the employee would over-compensate him for his condition and that the determination by the compensation judge that a meniscectomy is a lesser included category of a total knee arthroplasty was not unreasonable. The WCCA went on to say: "While we agree with the employee that he is entitled to a rating for each mutually exclusive impairing condition, the only impairing condition at issue here is the employee's total knee arthroplasty."
Pratley v. Moniterm Corporation, File No. WC06-204, Served and Filed November 21, 2006. The WCCA (Judges Johnson, Wilson and Stofferahn) affirmed the decision of Compensation Judge Eckersen, awarding an additional 10% PPD referable to the eye. The employee sustained an injury to her right eye on February 7, 1989, following which, the employer and insurer paid 24% whole body impairment for complete loss of vision in the right eye, pursuant to Minn. Rule 5223.0030, Subp. 1. Subsequently, the employee's treating physician rated the employee as having a 10% whole body impairment, referable to cosmetic disfigurement. This was based upon his contention that the residual portion of the iris sits inferiorly, causing a 90% defect. The rating of PPD was based upon cosmetic disfigurement that does not have a section that pertains specifically to the disfigurement that the employee has in her right eye. The employer and insurer appealed the finding of the compensation judge, contending that, where a detailed, specific rating is provided in the schedules, a Weber rating is not permitted. The WCCA rejected the argument of the employer and insurer. They cited Minn. Stat. § 176.105 (1) (c), which states that "If an injury for which there is objective evidence is not rated by the permanent partial disability schedule, the unrated injury must be assigned and compensated for at the rating for the most similar condition that is rated." They indicated that the 24 percent whole body impairment rating that had been paid by the employer and insurer was specifically for loss of vision in the right eye. The WCCA also indicated that Minn. Rule 5223.0650 provides for ratings of permanent partial disability for cosmetic disfigurement. That rating, however, was limited to disfigurement on the face, head, neck or dorsum of the hands. As stated by the WCCA, the issue was "whether the physical appearance of the employee's right eye may be rated under Weber and Minn. Stat. § 176.105 (1) (c)." The WCCA indicated that there was no dispute that the employee had a physical scar through the cornea of her right eye with significant damage to the iris, causing an abnormal shape and increased size. The WCCA cited prior case law which indicated that a "cosmetic disfigurement was anything that disfigures or defaces." The WCCA concluded, therefore, that the employee did, in fact, have a cosmetic disfigurement. The WCCA went on to rule that, had the employee's cosmetic disfigurement occurred on any other portion of her face, head or neck, she would be entitled to permanent partial disability under Minn. Rule 5223.0650. They concluded that "We find no logical reason to award benefits for a cosmetic disfigurement to the face, but deny the benefit for a cosmetic disfigurement of the eye. The rationale for awarding permanent partial disability benefits for a cosmetic disfigurement of the face applies equally to the cosmetic disfigurement of the eye. The WCCA ruled that the additional PPD was for a separate and distinct impairing condition, that of cosmetic disfigurement.
Saba v. Independent School District #279, File No. WC06-126, Served and Filed August 28, 2006. The employee sustained an injury and later sought payment for a foot surgery pursuant to a Medical Request. The Medical Request was properly served on the employer, but was sent to a wrong address for the insurer. A hearing was scheduled and the Office of Administrative Hearings sent the notice to the correct address for the employer, but not the insurer. No appearance on behalf of the employer and insurer was made at the hearing, and Compensation Judge Kelly found that the proposed surgery was reasonable and necessary. The WCCA (Judges Johnson, Wilson and Rykken) found that Minn. Stat. § 176.341 required all interested parties to receive notice of the hearing. Because the insurer never received proper notice under the statute, it was not afforded an opportunity to be heard and was granted a new hearing.
Sanchez v. McLane Minnesota, File No. WC05-282, Served and Filed October 11, 2006. The employee sustained an admitted hernia injury on October 7, 2002. He underwent surgery, returned to work, but continued to have symptoms. He changed jobs, starting work for Gear & Broach in August 2003. He underwent a second surgery on April 19, 2004. McLane paid for the surgery under a temporary order. McLane filed a petition for contribution and reimbursement seeking payment from Gear & Broach and Virginia Surety (which McLane thought was the insurer.) A hearing was held before Compensation Judge Hall. Only the employee and McLane appeared at the hearing. The judge found that Gear & Broach and Virginia Surety were given adequate notice and that the employee had substantially aggravated his pre-existing condition while working at Gear & Broach. Gear & Broach appealed. While the appeal was pending, the parties discovered that during the time the employee worked for Gear & Broach, that company was insured by American Compensation Insurance Company (RTW), which had never been given notice. The WCCA (Judges Rykken, Pederson, and Johnson) vacated the findings, holding that the correct insurer was never properly served and the hearing should not have taken place in the absence of the correct insurer.
Allen v. Fastenal, File No. WC06-229, Served and Filed December 1, 2006. The employer and insurer appealed from the finding of Compensation Judge Behr that the employee had not engaged in a prohibited act that would bar him from receiving workers' compensation benefits. The WCCA (Judges Johnson, Wilson and Stofferahn) affirmed. The employee sustained an injury on August 4, 2005, when he fell approximately twelve feet to the ground, from a picker. The employer and insurer admitted that an injury took place but denied compensation, based upon the fact that the employee had failed to use a safety harness. They pointed to the fact that on June 15, 2005, the employer instituted a new safety requirement prohibiting employees from using the picker machine unless the operator was wearing a safety harness, which was attached to the picker. The machine was posted with a notice that indicated that "No Fastenal personnel will operate either picker at a height greater than the beam with the location label, without properly wearing the attached safety harness." Compensation Judge Behr awarded benefits to the employee. He found that the employee's injury did not result from the performance of a prohibited act. The compensation judge concluded that the employee's operation of the lift without a safety harness was not inherently dangerous and that the employee's failure to use the safety harness was reasonably foreseeable. The WCCA affirmed. They cited prior case law which indicated that "Whether the employee's performance of a prohibited act takes the employee outside of the sphere of employment depends, in part, on the nature of the act or conduct which is prohibited. Not every safety rule limits the scope of the employment. The less hazardous the conduct prohibited by the safety rule, the more likely the rule proscribes conduct within the scope of employment. Furthermore, the more routine or minor the prohibited conduct, the more foreseeable it is an employee will violate the rule." The WCCA ruled that there were reasonable inferences to be drawn from the evidence which would allow the compensation judge to conclude that the employee's violation of the employer's safety policy was reasonably foreseeable and not inherently dangerous. Therefore, the WCCA affirmed the ruling of Compensation Judge Behr.
COMMENT: This case points out the difficulty that employers and insurers have in succeeding on the "prohibited act" defense. Simply because a particular conduct is "prohibited" in and of itself will not give rise to a successful defense.
Hanegmon v. U.S. Steel Corporation, File No. WC06-111, Served and Filed August 10, 2006. The employee worked for the employer from 1973 until his retirement on January 31, 2003. During his employment he sustained several work-related injuries. Pursuant to the employment contract with the employer, the employee qualified for a retirement pension upon reaching 30 years of service. In August 2002 the employee met with the employer's benefit administrator and requested information about his 30-year retirement pension. The employer noted that it also offered a disability retirement pension, but that this was not discussed during the meeting with the benefit administrator. The employee worked through the end of December 2002 and then took accumulated vacation leave up until his retirement date. In September 2004, 18 months after his retirement, the employee filed a Claim Petition for PTD benefits. Compensation Judge Arnold found that the employee's acceptance of a pension was not a voluntary withdrawal form the labor market. He determined that, after February 14, 2004, job search would have been futile, and awarded PTD benefits from and after that date. The WCCA (Judges Johnson, Stofferahn and Pederson) affirmed. The WCCA rejected the employer/insurer's argument that the employee's disability status was established at the time of retirement, when he was able to work, and therefore, that he could not claim PTD without attempting to re-enter the labor market. The WCCA concluded, instead, that "the critical factor is not the employee's disability status at retirement, but the employee's intent in withdrawing from the labor market, that is whether the retirement or withdrawal was voluntary or involuntary." Retirement, the WCCA held, is not the dispositive question, but rather, whether the employee withdrew from the labor market is a question of fact. The WCCA noted that this determination includes various factors, including: the employee's expressed intent to retire or continue working; an application for SSA or SSDI benefits; evidence of a financial need for income; whether the employee or the employer initiated the discussion of retirement; whether the employee sought rehabilitation assistance; and whether the employee actively sought alternative employment or was in fact working. The WCCA rejected the employer's argument that the facts in this matter showed that the employee voluntarily retired, and instead, accepted the employee's testimony that his job aggravated his physical condition and that he retired because "everything was bothering" him. In addition, it was noted that the employee did apply for SSDI benefits a few days prior to his retirement. The WCCA found these facts "minimally adequate" to support the compensation judge's determination, and therefore affirmed.
Hallam v. Potlatch Corp., File No. WC05-279, Served and Filed August 18, 2006. The W.C.C.A. (Judges Stofferahn, Pederson, and Johnson) affirmed Judge Bonovetz's award of retraining. The employee sustained admitted work injuries in 1998 and 1999, which resulted in permanent restrictions. The employee first began receiving statutory rehabilitation services in 2001, which ultimately resulted in his return to work with the date-of-injury employer. In early 2002, the date-of-injury employer terminated the employee and he then began job search under the direction of his QRC. In April 2002, the employee retained an attorney. In his notice of appearance, the attorney included language providing that "[t]he employee hereby makes a request for retraining...because of the employee's injury and resulting disability and restrictions, it is believed that retraining is proper and should be awarded...to the extent required by statute or by the rules of the commission, employee requests and demands an administrative conference on the issue of retraining....this notice is intended to comply with the 104 or 152 week limit to request retraining, whether by rule or statute." The employee's attorney also simultaneously filed a request for certification of dispute seeking a change of QRC and "retraining or at least immediate consideration of retraining equal with other options." In a decision relative to the resulting administrative conference, the employee's request to change the rehabilitation plan to include exploration of retraining was approved and the request to change QRC's was denied. A subsequent rehabilitation request was filed in August 2002, renewing the request to change QRC's on the basis that the QRC was still not developing a retraining plan for the employee. The employer argued that consideration of retraining was premature because the employee had just completed a functional capacity evaluation. The requested change of QRC was denied. The employee thereafter secured full-time work at Home Depot and the rehabilitation plan was closed in April 2003. The employee was thereafter terminated by Home Depot in October 2003 and the employee requested provision of rehabilitation services. The employer denied the requested services and, in December 2003, the employee commenced an HVAC program through Hibbing Community College. In March 2005, the QRC filed a rehabilitation plan, seeking retroactive certification of retraining for the HVAC program. The employer denied the requested services on the basis that the request for retraining was time-barred, as it was filed in 2005, nearly two years after 104 weeks of temporary total and temporary partial benefits were paid to the employee (Note: Minn. Stat. § 176.102, subd. 11(c) was amended in 2000 to increase the time period for filing a retraining request to 156 weeks). Compensation Judge Bonovetz awarded the proposed retraining program and the WCCA affirmed.
The employer argued that Minn. Stat. § 176.102, subd. 11 (c) requires an employee to file a proposed "retraining plan" which complies with Minn. R. 5220.085 (2) within the relevant time period. That rule requires, among other things, that the plan identify the specific program, the school, costs, starting and completion dates, and a recent labor market survey. The WCCA observed that Minn. Stat. § 176.102, subd. 11 (c) literally refers to "any request for retraining" rather than the filing of a "rehabilitation plan" or "retraining plan". The WCCA held that the legislature did not intend to require employees to file a formal "rehabilitation plan" or "retraining plan" in order to comply with the time requirements for requesting retraining, given that the legislature used the phrase "any request for retraining". The WCCA noted that had the legislature intended to require the filing of a "rehabilitation plan" or "rehabilitation request" in order to timely request retraining under the statute, it would have expressly stated that. The WCCA also noted that the argument advanced by the employer would have the practical effect of eliminating the majority of retraining claims. The WCCA noted that while it is not impossible to file a formal rehabilitation plan in 104 or 156 weeks, it is difficult to do so... "we do not believe the legislature intended to eliminate claims that have not accrued at the end of the time period."
In this case, the employee filed a number of rehabilitation requests which sought to include retraining in his rehabilitation plan and all of those filings were made before the end of the relevant statutory time period, resulting in a number of contested administrative conferences before the Department of labor and Industry. The WCCA held that, accordingly, there was a bona fide controversy between the parties over retraining that was initiated by the filings of the employee within the time period set by statute. The WCCA held that based upon those facts, the purpose of the statute had been met and the retraining claim was not barred by Minn. Stat. § 176.102, subd 11(c).
Tomford v. Mark's Welding, Inc., File No. WC06-165, Served and Filed December 4, 2006. Among the various issues decided in the case, was a determination as to whether the employee was entitled to temporary total disability benefits after August 1, 2005, when the employee's employment had been terminated. The employee sustained an injury to his right foot on June 2, 2005. The employee sought temporary total disability benefits as of August 1, 2005, but Compensation Judge Cannon denied the claim, based upon the fact that the employee made a reasonable and diligent effort to seek alternative employment within his restrictions. The WCCA (Judges Rykken, Johnson and Stofferahn) affirmed. The WCCA cited prior case law holding that whether an employee's job search is diligent is a question of fact for the compensation judge. They also indicated that prior case law established that whether the inability to obtain full-time employment is the result of the personal injury is a general question of fact for the compensation judge and any relevant evidence may be considered, including the nature and extent of the employee's job search. Although rehabilitation assistance is an element to be considered in evaluating the diligence of a job search, it does not relieve the employee of the burden of proving a diligent job search. In the instant case, the employee had not provided any written documentation of job search. In fact, the employee conceded that he completed no applications and had no interviews for any positions after August 1, 2005. Under these circumstances, the WCCA concluded that they could not say that the compensation judge's findings that the employee did not conduct a reasonable and diligent job search were "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."
Enstad v. Granite Falls Municipal Hospital, File No. WC06-122, Served and Filed October 5, 2006. The employee claimed a work related injury to her cervical spine on April 30, 2001. The employer denied liability for the injury. The parties entered into a full, final and complete settlement, including future medical expenses, for a lump sum settlement of $13,000 on April 19, 2002. In December 2002 the employee began working for a new employer. She had a flare up of her neck pain radiating into her right arm. In August 2003 she underwent an anterior cervical fusion at C5-6 and C6-7. She returned to work in November 2003 with the same new employer. On November 28, 2004, she claimed to have sustained a new injury with the new employer. She had surgery in April 2005 for a posterior spinal fusion with cable fixation C5 to C7. In September 2005 she underwent anterior spinal fusion at L4-5 with a fusion and fixation. The employee filed a claim petition alleging the injury to her back and neck with the new employer on November 28, 2004. That employer denied liability. The employee then filed a petition to vacate the Stipulation and Award with the previous employer. The WCCA (Judges Johnson, Wilson and Stofferahn) dismissed the petition to vacate without prejudice, indicating that it was premature. The employee had litigation pending with her new employer in which she alleged a new injury to her cervical and lumbar spine. The WCCA followed the holding in Johnson v. Tech Group, Inc., 491 N.W. 2d 287, 47 W.C.D. 367 (Minn. 1992), stating that the second employer and insurer would be liable for full payment of the benefits due the employee, if the injury was found to be compensable. The WCCA went on to say that the employee could bring a new petition to vacate if she were unsuccessful in establishing liability for the November 28, 2004 injury.
Dille v. HealthEast/St. Joseph's Hospital, File No. WC06-171, Served and Filed November 21, 2006. The WCCA (Judges Stofferahn, Wilson and Pederson) denied a Petition to Vacate based on a claimed unanticipated substantial change in her medical condition since the time of the Award. The employee sustained an injury to her low back on February 3, 1988. Following the injury, the employee underwent a lumbar fusion at the L5-S1 level. The employee entered into a settlement and an Award on Stipulation was issued on December 2, 1992, approving a settlement that provided payment of $35,000.00 to the employee, in exchange for a full, final and complete closeout of all claims, with the exception of medical expenses. In the Stipulation, the parties stipulated that the employee had been permanently and totally disabled since December 30, 1988. Following the settlement, the employee continued to experience low back pain. She ultimately underwent further surgery on June 5, 2002. She brought a claim for payment of the medical expenses. In the course of that litigation, she was seen by Dr. Daniel Randa, who concluded that the surgery was appropriate, but it was related to degenerative lumbar spondlylosis, rather than to the injuries in this matter. The employee subsequently filed a Petition to Vacate the Award from 1992. As indicated above, the WCCA denied the Petition. In so doing, they cited the "Fodness" factors found in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). That case identified the factors that should be considered when determining whether or not there had been a "substantial change" in a medical condition. Those factors include a change in diagnosis, a change in the employee's ability to work, additional permanent partial disability, a necessity for more costly and extensive care than previously anticipated, and a causal relationship between the injury covered by the settlement and the covered condition. The WCCA ruled that, although those factors may be useful, the primary purpose of allowing a vacation of an Award is to assure compensation proportionate to the degree and duration of disability. The WCCA noted that, at the time of the settlement, the parties specifically agreed in the Stipulation that the employee was permanently and totally disabled since December 30, 1988. The WCCA went on to say that "We are aware that this type of language is often inserted into a Stipulation so that the receipt of the settlement proceeds does not reduce Social Security benefits. However, the fact remains that the employee asserted to the court in 1992 that she was incapable of employment. Further, we note that the employee had rejected a light duty job from the employer in 1991, because she believed she was not physically able to perform the job. The employee has not returned to work since the time of the Award. We do not find a change in her ability to work." The WCCA went on to state that there was no change in the PPD rating. Finally, the WCCA concluded that the employee's symptoms were essentially the same now as they were before the settlement.
Wellness Program/Minn. Stat. § 176.021, Subd. 9
Yusuf v. Hilton Hotel, File No. WC06-187, Served and Filed December 4, 2006. Compensation Judge Cannon denied the employee's claim, concluding that Minn. Stat. § 176.021, subd. 9, barred her claims, since the injury occurred during a voluntary recreational activity. The WCCA (Judges Stofferahn, Johnson and Rykken) reversed. The employee was employed by the employer as a housekeeper. She was injured at an event that was referred to as "Housekeeping Olympics." The employee testified that it was her understanding she was required to attend the event. Five present employees of the Hilton testified and indicated that the employee could have chosen to punch out and go home, rather than attend the event. As indicated above, Compensation Judge Cannon denied the claims, citing the statute. The WCCA indicated that the statute created a two-step analysis to be applied: "First, the activity or event must be a voluntary recreational program. Second, it must be shown that the employee was not ordered or assigned to participate in the program." The WCCA first considered whether the employer's "Housekeeping Olympics" were a "recreational activity under the statute." The WCCA did not fully analyze this activity, but ultimately concluded that the event was not voluntary. They note, however, that "Simply labeling a work event as an 'Olympics' or as a 'Fun Day' does not automatically transform work into recreation and thereby bring that event under Minn. Stat. Sec. 176.021, Subd. 9." The WCCA concluded that the attendance was not voluntary. The employee testified that she was told by a supervisor that her attendance at the event was required. The supervisor was not called as a witness to contradict the evidence and there was no evidence that the conversation between the employee and that supervisor did not take place. The WCCA therefore, concluded that the only evidence of any communication with the employee about her attendance was that of the employee's conversation with her supervisor. This case was summarily affirmed by the Supreme Court on March 30, 2007.