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08-9609
_____________________________________________________________________
IN THE
JOSHUA J. ISRAEL,
Petitioner,
v.
___________________________________________________________________
JOSHUA J. ISRAEL
Petitioner / Pro Se
P. O. Box XXX
SXXXXX, MX 5XXX
(952) XXX-XXXX
__________________________________________________________________
2
QUESTIONS PRESENTED
---------------------------------
JOSHUA J. ISRAEL:
The petitioner, in a worker’s compensation proceeding for a
work-related injury.
TABLE OF CONTENTS
Page(s)
Table of Authorities - - - - - 7
Jurisdiction - - - - - - 8
Reason ―B‖ - - - - - - - 21
Reason ―C‖ - - - - - - - 25
Conclusion - - - - - - - 28
Appendix - - - - - - - 29
INDEX TO APPENDIX
Appendix A –
The Opinion and Decision of the Minnesota, Worker’s Compensation Court of Appeals.
Appendix B –
The Order of Indefinite Duration to Extend IME Deadline.
Appendix C-
The Order of the Compensation Judge that did deprive the Petitioner of a pre-
deprivation process.
Appendix D –
The Findings and Order of the Compensation Judge in a worker’s compensation
proceeding.
Appendix E –
The Decision of the Minnesota Supreme Court.
Appendix F –
Order For Preparation of Indigent Transcript.
Appendix G –
Order Granting Leave to proceed in Forma Pauperis.
6
OPINIONS BELOW
The decision of the Worker’s Compensation Court of Appeals (WCCA) has been
designated for publication but has not yet been published.
The decision of the Minnesota Supreme Court has been designated for
publication but has not yet been published.
Brock v. Roadway Express Inc, (S. Ct. 1987) 481 U.S. 252, 261-262, 278.
Pages, 10, 15, 18, 19, 26, 27.
Hoff v. Kempton, (Minn. S. Ct. 1982) 317 N.W.2d 361. Page 17.
Kuenkamp v. Timesavers Inc., (Minn. S. Ct. 1988) 420 N.W.2d 891, 894.
Pages 19, 22.
Cleveland Bd. of Educ. v. Loudermill, (S. Ct. 1985) 470 U.S. 532, 541, 548, 552. Pages 11,
15, 21, 23, 26.
Beok v. Wong Hing, (M. S. Ct. 1930) 231, N.W.2d 233, 233-234. Page 22.
Meinstma v. Loram Maintenance of Way, (Minn. App. 2003) 672 N.W.2d 224, 229-231.
Page 22.
Hengemuhle v. Long Prairie Jaycees, (Minn. S. Ct. 1984) 358 N. W. 2d 54, 59-61.
Pages 19, 25.
Lingle v. Norge Div. of Magic Chef Inc., 108 S. Ct. 1877, 1882. Page 26.
Davis v. Alaska, (S. Ct. 1974) 415 U. S. 308, 316-318. Page 15.
Delaware v. Fensterer, (S. Ct. 1985) 474 U. S. 15, 19. Page 15.
Olden v. Kentucky, (S. Ct. 1988) 488 U. S. 227, 230-233. Page 15.
Local 167 of Teamsters Union v. United States, (S. Ct. 1934), 291 U. S. 293, 298.
Page, 15.
8
JURISDICTION
This Court has jurisdiction under Title 28 USC 1257(a), where the validity of a state
statute is drawn into question on the grounds of being constitutionally inadequate.
The date of the decision of the Minnesota Supreme Court is October 3, 2 008, and 90
days from this date to serve this Petition for Writ of Certiorari is January 2, 2009.
The U. S. Supreme Court has mandated that, the fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a meaningful manner,
that there must be some kind of a hearing to ensure that an effective ―initial check‖
against a mistaken decision is provided before the deprivation occurs, and that a prompt
opportunity for complete administrative and judicial review must also be available
Brock v. Roadway Express Inc, (S. Ct. 1987) 481 U.S. 252, 261-263, 278 (Justice White
concurring).
The U. S. Supreme Court has mandated that due process guarantees provide
certain substantive rights that cannot be deprived of a citizen without constitutionally
adequate procedures; and that the root requirement of due process is that a citizen be
given an opportunity for a hearing before he is deprived of any significant property
interest Cleveland Bd. of Educ. v. Loudermill, (S. Ct. 1985) 470 U.S. 532, 541.
11
the T-12 to L-2 region of his vertebrae resulting from a reckless driving incident
Petitioner believed that his back injury was an intentional act designed to deprive
Petitioner of employment opportunity, Petitioner did stay on the job, and continued to
perform his duties as a driver of a commercial motor vehicle. After a complaint was
sent to the Employer’s human resources department, the Employer did refuse to
Employer then changed the duties and expectations of the Petitioner; and required
Petitioner to do hard labor. When notice of injury was given, again, the Employer
refused to engage in the required [interactive process]; the Employer placed Petitioner
on medical leave; and then placed an employment lock-out upon Petitioner (Pre-Trial
The Petitioner then obtain the legal counsel of David H. Bailly, and Attorney
Bailly was required to demonstrate the denial of primary liability was frivolous, before
proceeding to make a claim for benefits. However, Attorney Bailly betrayed the
Petitioner, and sought to suppress the fraud and misrepresentation of the Employer and
Insurer (WCCA Decision, Appendix p. 38). Later, while Petitioner was locked-out and
16), and this matter was introduced as evidence of misrepresentation and concealment
(WCCA Decision, Appendix p. 38). Thereafter, legal counsel, David H. Bailly, did
withdraw because Petitioner did not destroy his own credibility by making the false
statements that Attorney Bailly instructed Petitioner to say, and Attorney Bailly did
betray Petitioner when he allowed the Respondent’s legal counsel to exceed the scope of
discovery, and obtain information for personal use (WCCA Decision, Appendix p. 33,
par. 1). Thereafter, Petitioner was unable to obtain other legal counsel because the
Respondent’s legal counsel did prejudice the legal system against the Petitioner. As a
thereafter, the Insurer and the Employer secured an Order of indefinite delay from an
―unknown‖ Judge, and this case was delayed for 18 months (Order of Indefinite Delay,
Appendix p. 39; WCCA Decision, Appendix p. 35, par. 4a). As a result, Petitioner is
deprived of the Legislative entitlement to worker’s compensation benefits that pay for
After this case was assigned to two other judges, the Petitioner was required to
attend pre-trial hearings before Compensation Judge, Patricia J. Milun, and to submit his
pre-trial statement, and his request for discovery. During pre-trial, and after Petitioner
demonstrated that failure of notice of injury was due to the fraud and the
misrepresentation of the Employer and the Insurer, the Compensation Judge proposed a
13
recommended that Respondent’s should now admit to notice of injury. Since this
compensable injury, under Chapter 176, Petitioner did file an objection, did petition for
a hearing on the denial of primary liability, and did request relief from actions
prejudicial to the administration of justice; because, the Compensation Court was being
protection of the Legislature, thereby (Petition For Summary Decision, p. 3, par. 11-
benefits (Appendix p. 40), and the compensation Judge did refuse to refer fraud and
hearing; did allow Respondent to admit to notice of injury (WCCA Decision, Appendix
injury, under 176.141, (Judges Findings, Appendix p. 46, par. 22); and Petitioner was
14
During the evidentiary hearing, the Petitioner did procure un-disputed evidence
that the Insurer’s denial of benefits was frivolous because the denial is based on an
inaccurate interpretation of the facts and the applicable law, and because the written
notice to deny benefits contains false and misleading statements (Closing Statement p. 2,
par. 2-3). Since this [suppressed] evidence remains undisputed, the worker’s
adequate procedure.
Furthermore, during the evidentiary hearing, Petitioner did refuse to enter into
evidence a written notice of injury that was faxed to the Employer (Transcript p. 201-
203) because the Employer admitted to notice of injury. However, the Compensation
Judge still used these matters [not entered into evidence] in her findings and conclusions
(Appendix p. 44-45, par. 7, par. 10). Thereafter, the Compensation Judge used the
(WCCA Decision, Appendix p. 35, par. 3); and at the close of the record, the
Compensation Judge’s Findings and Order did deny benefits to Petitioner, and claimed
that Petitioner’s asserted defenses are grievance matters that are not within the scope of
her Chapter 176 jurisdiction. Since the Compensation Judge deprived Petitioner of the
right to overall case preparation, in the first instance (Appendix p. 40), which left many
issues un-defined and un-resolved, the Compensation Judge did surprise and prejudice
Petitioner with her final judgment, which made-out an [apparent] intentional tort
exception and which [apparently] concluded that this tort-exception made the Insurer’s
15
46, par. 22). Since the Respondent failed to assert any intentional tort exception, the
Judge did define Petitioner’s entitlement to worker’s compensation benefits by her own
by the Legislature.
the Worker’s Compensation Court of Appeals (WCCA), the Petitioner brought forth that
that the Legislature did specify procedures to be followed to protect that entitlement
(WCCA Decision, Appendix p. 34). Petitioner also brought forth that his title to
justice (WCCA Decision, Appendix p. 35-36). However, the WCCA determined that it
had no authority to decide or determine the constitutional issues that this Court settled in
Cleveland Bd. of Educ. v. Loudermill, (S. Ct. 1985) 470 U.S. 532, 541, 548, 552; that this
Court settled in Brock v. Roadway Express Inc, (S. Ct. 1987) 481 U.S. 252, 261-262, 278;
that this Court settled in Davis v. Alaska, (S. Ct. 1974) 415 U. S. 308, 316-318; that this
Court settled in Delaware v. Fensterer, (S. Ct. 1985) 474 U. S. 15, 19; that this Court
settled in Olden v. Kentucky, (S. Ct. 1988) 488 U. S. 227, 230-233; and that this Court
settled in Local 167 of Teamsters Union v. United States, (S. Ct. 1934), 291 U. S. 293,
298. Thereafter, the WCCA dissected and re-arranged the evidence supporting these
16
constitutional issues, and their findings of fact and conclusions of law did create a
smoke-screen of confusion.
Furthermore, the WCCA refused to consider any of the evidence that was
excluded and suppressed by the Compensation Judge, and the WCCA limited its scope
of review to the pleadings, the transcript of evidence and exhibits, taken and admitted
into evidence by the Compensation Judge (WCCA Decision, p. 30). By doing so, the
WCCA deprived Petitioner of their standard of review, to view or to weigh, the entire
record of evidence, as a whole. In addition, the WCCA also determined that since the
Employer and the Insurer did admit to notice of injury; there is no dispute about the
notice of injury being timely, and that Petitioner is not prejudiced by this change in
tactics imposed during the evidentiary hearing. However, in contrary to the conclusions
of the lower courts, Minn. Stat. 176.141(1) clearly sets forth the following protections
was suppressed, and this Legislative entitlement was overruled, the WCCA additionally
concluded that the Workers Compensation Act, does not have a provision for a contested
hearing when the Insurer denies benefits and/or primary liability for an alleged injury.
However, at the same time, the WCCA holds that Petitioner is still responsible for
making a claim for benefits (Appendix P. 35). As a result of this contradiction, the
dispute, because this judicial lawmaking process has overruled Legislative procedure
17
that protects an entitlement to benefits, and has affirmed a judicial law making process
Legislature.
brought forth the M.S.Ct’s. own precedent that did disagree with the WCCA; that does
entitle Petitioner to a hearing on the issue of primary liability before a final decision on
an entitlement to benefits is made; and such hearing is for the primary purpose of
defining and resolving the issues in the case and for overall case preparation. In
addition, Petitioner also brought forth the Compensation Judges abuse of discretion that
did prejudice Petitioner’s right to a pre-deprivation process, for overall case preparation,
to foster an adequate opportunity to be heard and to defend; and that did refuse relief to
Petitioner on grounds of want of power to grant it, under the provisions of 176.141(1),
When preparing his brief and argument for the Minnesota Supreme Court, and
since the standard of review in the M.S.Ct. is by a manifestly contrary to the evidence
scope of review, Petitioner brought forth the abuse of discretion and the evidence that
was excluded, by the lower courts, and the constitutionally inadequate procedure which
deprived Petitioner of the equal protection of the Legislature. However, the M.S.Ct.
review; the M.S.Ct. did affirm the decision of the WCCA; and the M.S.Ct. decided that
the appeal of Petitioner has no precedential value, and does no more than to establish the
law of the case, citing Hoff v. Kempton, (Minn. S. Ct. 1982) 317 N.W.2d 361. However,
in Hoff, the M.S.Ct. still reversed and remanded the lower court ruling.
18
Reason A
IS PETITIONER DEPRIVED OF COMPLETE JUDICIAL REVIEW OF AN
INCOMPLETE ADMINISTRATIVE REVIEW, WHEN THE STATE COURT OF LAST
RESORT DOES AFFIRM THE ADMINISTRATIVE REVIEW, WITHOUT APPLYING
THEIR STANDARD OF REVIEW FOR A COMPLETE JUDICIAL REVIEW?
This Court has held that the fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner, that there must be
some kind of a hearing to ensure that an effective ―initial check‖ against a mistaken decision
is provided before any deprivation occurs, and that a prompt opportunity for complete
administrative and judicial review must also be available Brock v. Roadway Express Inc, (S.
duration, this Order was based on uncross-examined and untested evidence Brock v. Roadway
Express Inc, (S. Ct. 1987) 481 U.S. 252, 278 (Appendix p. 48), and this delay did destroy the
livelihood of Petitioner. Thereafter, when Petitioner tried to make a case for benefits and
requested a hearing to demonstrate the Insurer’s denial of primary liability was frivolous, the
Judge refused to grant relief to Petitioner on the grounds of want of power to grant it. Then
on appeal, the WCCA did appear to agree that some sort of hearing is required; however, the
WCCA declared that the State’s Worker’s Compensation Chapter does not have a provision
for a contested hearing when the Employer denies primary liability. Since the WCCA also
inadequate procedures brought forth on appeal, these constitutional issues were presented to
To sustain that Petitioner has a right to a hearing on the issue of primary liability
before decisions concerning an entitlement to benefits can be made, the Minnesota Supreme
Court made the following declaration, ―so long as a party has reasonable notice, we see
nothing constitutionally defective about considering the issue of primary liability, at a hearing
before a compensation judge, and that basic fairness requires the parties in a workers’
uphold its own precedent, and provide Petitioner with complete judicial review. To provide
complete judicial review of WCCA decisions, the M.S.Ct. decided that a manifestly contrary
to the evidence standard of review is the procedure in the Minnesota Supreme Court
Hengemuhle v. Long Prairie Jaycees, (Minn. S. Ct. 1984) 358 N. W. 2d 54, 60. Therefore, to
comply with the manifestly contrary to the evidence scope of review, Petitioner did prepare
his brief in compliance therewith; however, the M.S.Ct. deviated from its own standard of
review, for a complete judicial review, and did affirm the decision of the WCCA, without
opinion. As such, this case is completely void of the constitutional guarantee of an ―initial
check‖ against a mistaken decision; and this case is void of complete administrative and
judicial review of the constitutionally inadequate procedures that deprive Petitioner of the
equal protection of Legislative entitlements Brock v. Roadway Express Inc, (S. Ct. 1987) 481
20
U.S. 252, 261-262, without the procedure specified by the Legislature to protect that
entitlement.
21
Reason B
This Court has held that due process guarantees provide certain substantive rights
that the root requirement of due process is that a citizen be given an opportunity for a
hearing before he is deprived of any significant property interest Cleveland Bd. of Educ.
At the trial court level, when the Petitioner requested a hearing, by authority of Minn.
Rule 5221.6050(7)(C), to prove that his title to property is defeated by fraud and concealment,
and that his legal remedy is defeated by actions prejudicial to the administration of justice, the
the final evidentiary hearing, and this inadequate process left-open many legal and factual
issues that remain undefined and unresolved. Therefore, the constitutional guarantee of an
and this judicial lawmaking by the Compensation Judge demonstrates a reckless disregard for
the constitutional guarantee of due process. To justify the finding that a frivolous denial of
benefits is a moot issue, the Compensation Judge did change tactics, without notice and
conclude that Petitioner’s alleged injury is outside the course and scope of employment;
however, the evidence of record establishes a contrary finding. In the transcript of record,
John Steigerwald testified that no personal friendship or relationship does exist between
himself and Petitioner, and that no hatred or animosity is harbored against the Petitioner
22
(Transcript p. 253); therefore, any action of John Steigerwald that could have caused injury to
the Petitioner, would have been directed against the Petitioner, ―as an employee,‖ and not for
―reasons personal to the training engineer.‖ With evidence like this, the Minnesota Supreme
Court has consistently rejected the [apparent] intentional tort exception made-out by the
Compensation Judge, and the M.S.Ct. additionally holds that a corporate entity is by its nature
incapable of harboring the type of intent required for an intentional tort exception Beok v.
Wong Hing, (M. S. Ct. 1930) 231, N.W.2d 233, 233-234; Meinstma v. Loram Maintenance of
Upon appeal, the WCCA disregarded the precedent of the Minnesota Supreme Court
that grants Petitioner a pre-deprivation hearing, on the issue of primary liability, and declared
that the Worker’s Compensation Act does not have a provision for a contested hearing when
the Employer denies primary liability. As such, the WCCA also disregarded the following
Legislative entitlement:
Therefore, in accordance with past practice, the procedure to be followed that protects
an entitlement to benefits are initiated when the employer receives notice of injury, at this
time the employer is to commence payment of benefits within 14 days; thereafter, once the
Employer investigates, the Employer can petition for a hearing to discontinue worker’s
compensation benefits Kuenkamp v. Timesavers Inc., (Minn. S. Ct. 1988) 420 N.W.2d 891,
893. At such hearing, the Employer presents its evidence for a discontinuance of benefits,
and the employee will have the necessary medical evidence to dispute a discontinuance.
Since both the Employer and Insurer are actively concealing a compensable injury, in
this case, and since the Compensation Judge abused her discretion to override Legislative
23
protections for an entitlement to medical treatment and health care provider participation, the
Judge’s actions are contrary to the following procedure specified by the Legislature:
participation, the Judge’s abuse of discretion made sure that Petitioner would be incapable of
producing evidence of a compensable injury, and would be incapable of making a claim for
benefits, because Petitioner would be incapable of meeting his burden of proof. Since the
Findings and Order of the Compensation Judge is based on a lack of adequate healthcare
WCCA refused to certify these constitutional issues for review by this Court or by the
Minnesota Supreme Court; the WCCA also claimed they could not consider or
determine any of these constitutional issues; and the WCCA directed Petitioner to go
―elsewhere.‖ In essence, the WCCA decided that Petitioner is not entitled to the procedure
specified by the Legislature for the protection of benefits that are conferred by the Legislature,
and the WCCA has authorized its deprivation by a judicial lawmaking process designed for its
deprivation Cleveland Bd. of Educ. v. Loudermill, (S. Ct. 1985) 470 U.S. 532, 541. Since
the scope of judicial review includes a violation of constitutional provisions, and since
the appeal of Petitioner was as a matter of right, (afforded by Minn. Stat. 606.06), to the
adequate procedures, to all citizens, before being deprived of any significant property
interest. Therefore, a Writ of Certiorari should be granted so that this Court may preside over
the constitutionality of the judicial lawmaking process that deprives Petitioner of the equal
Reason C
System, first, the WCCA is to look at the evidence which does support and which does
oppose the Compensation Judge’s findings; and then, the WCCA is to determine its
substantiality; thus, viewing and weighing the entire record of evidence, as a whole.
Second, in the Minnesota Supreme Court, the limited scope of review of decisions made
by the WCCA is as follows: the facts are viewed in light most favorable to the findings
of the WCCA. These findings will not be disturbed unless they are manifestly contrary
to the evidence, or unless the evidence clearly requires reasonable minds to adopt a
contrary conclusion. In addition, when the Minnesota Supreme Court does apply their
manifestly contrary to the evidence scope of review, the Court is acting as the first, as
well as the final, reviewer of the findings Hengemuhle v. Long Prairie Jaycees, (Minn. S.
review, when Petitioner brought forth evidence that was excluded and suppressed by the
Compensation Judge, and the WCCA, the Minnesota Supreme Court was to intrude
when it is apparent that the findings of the WCCA are manifestly contrary to the
Therefore, upon the introduction of evidence that would require reasonable minds to
reach a contrary conclusion, a complete judicial review is not only necessary, but is the
26
constitutional mandate of this Court Brock v. Roadway Express Inc, (S. Ct. 1987) 481 U.S.
that the Insurer’s denial of primary liability is frivolous and is based on an inaccurate
interpretation of the facts and the applicable law. Petitioner also presented undisputed
evidence that the Employer refused to investigate the notice of injury; that the Employer
took retaliatory action against the Petitioner; that the failure of notice was due to the
fraud and misrepresentation of the Employer and Insurer; that the Compensation Judge
abused her discretion to propose and then allow an amendment that would prejudice the
defense of Petitioner, under Chapter 176; and that the Compensation Judge did override
Compensation Judge made no mention, in her Findings and Order, that Respondent did
admit to notice of injury; since the Compensation Judge used matters not entered into
evidence to sustain notice of injury; since the Compensation Judge disregarded the
liability is a moot issue; and since there is undisputed evidence that the Respondent took
retaliatory action against Petitioner by terminating his employment Lingle v. Norge Div.
of Magic Chef Inc., 108 S. Ct. 1877, 1882 (Pre-Trial Statement); the presentation of this
evidence does warrant a reversal of judgment, and worker’s compensation benefits, that
Cleveland Bd. of Educ. v. Loudermill, (S. Ct. 1985) 470 U.S. 532, 541, and in lieu of
27
complete judicial review Brock v. Roadway Express Inc, (S. Ct. 1987) 481 U.S. 252, 261-
262, 278.
28
CONCLUSION
To confer a significant interest in property to citizens of the United States, and then
procedures; and then on appeal, to deprive that citizen of complete administrative and
judicial review, does fly in the face of every constitutional mandate of the United States
Supreme Court. Therefore, this Court should preside over the disagreements, the
misinterpretations, and the judicial lawmaking that override the procedure specified by
By: __________________________________
JOSHUA J. ISRAEL / Petitioner Pro-Se
P. O. Box XXX
SXXXXXXX, MX 5XXXX
Phone: 9XX-2XX-0XXX
29
APPENDIX
30
STATE OF MINNESOTA
The employee’s appeal from Findings and Order of Compensation Judge, Patricia
J. Milun, served and filed November 6, 2007, was considered by Thomas L. Johnson,
Debra A. Wilson, and David A. Stofferahn, Judges of the Worker’s Compensation Court
of Appeals.
Based upon the pleadings in the case, the transcript of evidence taken before the
compensation judge, the exhibits admitted into evidence, and the briefs of the parties,
the court concludes the Findings and Order of the compensation judge are in accord with
the evidence and the law in the case, and are AFFIRMED.
BY THE COURT:
______________________________
THOMAS L. JOHNSON, Judge
31
OPINION
The pro-se employee appeals from the compensation judge’s determination that
the employee failed to prove he sustained a compensable injury to his back arising out -
of and in-the-course-of employment. We affirm.
BACKGROUND
Joshua J. Israel, the employee, applied for work as a truck driver with Schneider
National Carriers, the employer, in November 2004. He Completed three weeks of
required driver training in December 2004, at the Schneider Training Academy in Green
Bay, Wisconsin. On Monday, January 3, 2005, the employee began two weeks of over -
the-road instruction with training engineer, John Steigerwald, based in Minneapolis-St.
Paul. The employee drove or rode in a semi tractor-trailer with Mr. Steigerwald on eight
days, through Tuesday, January 11. During this time, the working relationship between
the employee and the training engineer deteriorated.
On January 12, 2005, the employee and Mr. Steigerwald were returning from Eau
Claire, Wisconsin, to Minnesota on Interstate 94. After crossing the border, they pulled
into the St. Croix weigh station. An inspection revealed defective brake lights and the
employee, who was driving, was given a out-of-service citation requiring repair of the
lights before proceeding. The employee believed Mr. Steigerwald intentionally replaced
a good fuse with a burned-out fuse while he was out of the truck, although he had no
proof. Mr. Steigerwald denied he had done so. The employee was upset about receiving
the citation and refused to drive the truck any further.
While waiting for a mechanic to arrive to repair the lights, Mr. Steigerwald
contacted the employer’s Green Bay operations center by phone and asked to be
replaced as the employee’s training engineer. The employer agreed, but required the
employee and Mr. Steigerwald to finish the day together. Mr. Steigerwald took over the
driving and the employee remained in the truck as a passenger.
Mr. Steigerwald drove the empty truck, by way of interstate highway, to St.
Cloud, Minnesota, where they picked up a loaded trailer. On the return trip to St. Paul,
Minnesota, they again traveled by freeway to Snelling Avenue going south. Mr.
Steigerwald testified it was rush hour, around 5 o’clock, and traffic on Snelling was
slow. From Snelling they drove to the St. Paul rail yard off Pierce Butler Route to drop
off the loaded trailer. After leaving the rail yard, they proceeded through St. Paul on
local streets and Interstate 35E to Eagan where the truck was normally parked.
The employee testified that at the St. Paul rail yard, while driving as a ―bobtail
unit‖- a tractor cab without a trailer – Mr. Steigerwald began to drive fast and
recklessly. The employee and Mr. Steigerwald agreed there were potholes and bumps in
the driving surface at the rail yard, and agreed there was an air-ride shock absorbent seat
32
on the driver’s side and a stationary seat on the passenger side. The employee describes
the events leading to his claimed injury, stating:
The tractor, as a tractor only, has a very stiff and rigid suspension…So,
when he’s not pulling a trailer, the ride is very rough in a semi bobtail unit. Now,
in the St. Paul rail yards, there’s potholes everywhere. And when he drove fast
on the rail yard that’s when he began to throw me around inside the truck. After
he left the rail yards as a bobtail unit…he drove around on the streets of St. Paul.
And when he ran over those potholes and bumps, he was throwing me around
inside the truck. I mean I was airborne…It was a traumatic situation for me,
because I knew he was doing this because he had given me previous instructions
not to drive this way (Transcript at 57-59).
The employee testified Mr. Steigerwald deliberately tried to hurt him or scare
him. Mr. Steigerwald denied he was speeding or drove recklessly, and testified he had
no reason to drive in a dangerous fashion, and was not trying to injure the employee.
Two days after this incident, the employee drove to the Green Bay operating
center where he took and passed the skills qualification test. The employee was
assigned a semi tractor by the employer and began driving his own loads. He reported
the incident to his service team leader, Eric Shack. ―I told him I had back pain.‖ (T. at
61). Eric Shack denied the employee had reported an injury to him and had no
recollection of the employee telling him anything about being injured in John
Steigerwald’s semi tractor.
The employee was seen by Dr. Daniel F. Florey, a family practice doctor, on May
25, 2005. Dr. Florey testified the employee complained of back pain, and told Dr.
Florey he made the appointment because he declined a job that would require heavy
lifting. The employee gave a history of a back injury that January with ongoing back
pain since that time. The doctor testified the employee told him his back began hurting
after riding in a truck with a very hard seat after a day when the truck ride had been
particularly rough. On examination, Dr. Florey found limited flexion on the le ft side
and somewhat limited backward extension that was possibly within normal limits for the
employee. The employee had full forward flexion and a normal neurological
examination, the doctor diagnosed low back pain and referred the employee to Dr.
Charlotte L. Roehr, a physical medicine and rehabilitation specialist. Dr. Florey
completed a report of workability, indicating the injury was work-related and providing
33
By letter dated May 31, 2005, the insurer, Liberty Mutual Insurance Companies,
denied liability for worker’s compensation benefits on the basis the employee failed to
give timely notice. The employee then obtained counsel and filed a claim petition on
June 10, 2005, alleging an injury to the low back on January 12, 2005, and seeking
temporary total benefits from and after May 25, 2005, permanent partial disability,
payment of medical bills and rehabilitation assistance. The employer and insurer denied
the employee sustained a work-related injury, denied an injury to the low back while
working for the employer, denied the employee was temporarily and tatally disabled.
The employee was seen by Dr. Roehr on June 24, 2005, and in follow-up on July
8. The history taken by the doctor indicated that the employee was training for a new
job as a semi driver. During the training, he was required to sit on a passenger seat with
no air suspension for several weeks. The first week he stated that his back just felt
unusual. During the second week, he had a particularly rough ride with lots of potholes.
The employee stated he experienced significant back pain and a feeling his back was
dislodged. He was able to drive home, but vomited and had some hot flashes and cold
chills for greater than 24 hours. Dr. Roehr’s clinical note states the employee described
non-radiating, aching and burning back pain in a band just above the belt line, pointing
to the L4-5 level, midline in the spine. The doctor noted no sign of radiculopathy or
mylopathy and diagnosed Myofascial pain and chronic muscle strain. Noting the
employee’s disability was primarily his difficulty returning to work with restrictions.
On July 22, 2005, Dr. Roehr noted legal proceedings were pending and work-hardening
was not approved. She had nothing further to offer at that point and the employee was
to return as needed.
DECISION:
however, view the employee’s prior employment and litigation history necessary to a
determination of this appeal, and we have not considered the history objected to by th e
appellant in reaching our decision.
The employer and insurer in this case provided written notice to the employee in
May 2005 denying liability. The employee then obtained counsel, and a claim petition
was filed on June, 2005. In its answer, the employer and insurer denied primary
liability - - that is, denied the employee’s back pain arose out-of or resulted from his
work activities or employment with Schneider National. Having denied liability for the
claimed injury, the employer and insurer were not obligated to commence payment of
wage loss benefits or pay for medical treatment or rehabilitation assistance, including
maximum medical improvement or return to work planning.
5:00 p.m. to allow examination of the doctor via speaker phone. Dr. Florey saw the
employee only once, and the Report of Workability competed by Dr. Florey was
admitted into evidence. The doctor testified under oath, describing the history provided
to him by the employee, his examination, his diagnosis, and his recommendations. The
employee had an opportunity to question Dr. Florey about his causation opinion and the
actions taken, or not taken, by him. There is nothing in the record requiring a reversal
or remand on these facts.
c. Fraud and Medical Malpractice. The employee first argues he was harmed by
Dr. Roehr’s refusal to request a determination from the commissioner, pursuant to Minn.
R. 5221.6050, subp. 7.C. Under this rule, an employee or a provider may file a medical
request seeking a determination from he commissioner if authorization or payment for
medical treatment is denied. The rule does not require a doctor to file a medical request.
Moreover, in this case, the employee already had filed a claim petition when he was
seen by Dr. Roehr and before the insurer denied authorization for work -hardening.
The employee further argues the decision was procured by fraud and medical
malpractice that concealed the nature and extent of his injury. He asserts Dr. Roe hr
stated his pain and back problems were located at L4-5 midline in the spine, but
maintains his pain is located at the thoracic T-12 to lumbar L-2. He also contends Dr.
Roehr diagnosed Myofascial pain and chronic muscle strain, but he, in fact experienced
radicular pain and muscle spasms in his abdomen ten months after the diagnosis. The
employee’s claim petition alleged an injury to the low back consistent with Dr. Roehr’s
diagnosis. The doctor’s medical records for employees were submitted at the hea ring.
We see no evidence establishing fraud on the part of the respondent’s with respect to the
medical evidence. To the extent the employee may be alleging Dr. Roehr committed
malpractice, this court has no jurisdiction to consider such a claim.
d. Judicial bias. The employee contends that judicial bias is shown by the
compensation judge’s coercing him to give u his right to temporary total compensation
and plead for temporary partial benefits. Eligibility for temporary total disability
benefits ceases when an employee returns to work – for any employer – and has an
income. If the employee is working and earning less than his wage at the time of the
injury, the employee may be eligible for temporary partial disability benefits. Minn.
Stat. 176.101. It became apparent at the hearing the employee was working and had
earnings during at least a portion of the time for which he claimed temporary total
disability benefits. The compensation Judge held the record open to permit the
employee to submit his earnings records post-hearing. There is nothing to suggest bias
on the part of the compensation judge under these circumstances.
evidence in the record, as a whole to support the decision of the compensation judge.
Minn. Stat, 176.421, sub., 1. This court must give due weight to the compensation
judges opportunity to judge the credibility of witnesses, and where there is conflicting
evidence or where more than one conclusion could reasonably be drawn from the
evidence, this court must uphold the findings of the compensation judge. Hengemuhle v.
Long Prairie Jaycees, 358 N.W.2d 54, 59; W.C.D. 235, 239 (Minn. 1984); Redgate v.
Sroga’s Standard Service, 421 N.W.2d 729; 40 W.C.D. 948 (Minn. 1988).
In this case, the determinative issue – causation- involves questions of fact. It is
the responsibility of the compensation judge to resolve factual disputes. Felton v. Anton
Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The employee had the
burden of proving, by a preponderance of the evidence, a casual relationship between his
employment and his claimed injury and disability. Fisher v. Saga Corp., 463 N.W.2d
501, 43 W.C.D. 819 (1990). The compensation judge having heard the testimony of the
witnesses and reviewing the documentary evidence submitted, concluded the employee
failed in his proof.
The employee maintains the compensation judge’s finding’s are not in
conformity with the medical evidence. He contends the judge improperly relied upon
the preliminary examination of Dr. Florey and disregarded the un-contradicted and
unopposed medical testimony of Dr. Roehr. The employee argues that because he was
referred to Dr. Roehr for further evaluation, and Dr. Florey made no functional capacity
assessment and no determination of maximum medical improvement, the judge
improperly relied on Dr. Florey’s incomplete examination to find that the employee has
not sustained an injury. The employee asserts he was denied medical treatment,
maximum medical improvement and functional capacity assessment and return to work
planning required by the worker’s compensation act, and the un-contradicted testimony
of dr. Roehr establishes the employee’s medical evaluation and treatment was interfered
with and remains incomplete.
As discussed previously, the employer and insurer properly denied liability for
the injury claimed by the employee and had no obligation to pay for medical treatment
or rehabilitation assistance in absence of a decision or award on stipulation ordering
them to pay benefits.
The compensation judge was required to make a decision on the record before
her. The evidence included the workability report and testimony of Dr. Florey along
with the medical records and responses to written interrogatories of Dr. Roehr. Both Dr.
Florey’s and Dr. Roehr’s records confirm the history of the incident conveyed by the
employee. In his workability report Dr. Florey checked a box indicating the employee’s
disability was work-related. At the hearing, however, Dr. Florey testified he had no way
of knowing whether there was a work injury in January, 2005 other than the employee’s
statement to him. The doctor agreed he did not reach any conclusion as to what caused
the employee’s back pain and the etiology of the condition was undetermined after his
examination of the employee. Dr. Florey additionally testified that a back injury as a
result of minor trauma would generally involve repeated exposure to the trauma over
long period of time. Dr. Roehr, in her responses to the employee’s written
interrogatories, stated it was ―unknown‖ as to whether minor trauma caused by a rigid
seat in a semi-tractor bobtail-unit could cause injury to the spine, when driven recklessly
over bumps and potholes.
38
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
SETTLEMENT DIVISION
100 WASHINGTON SQUARE, SUITE 1306
MINNEAPOLIS, MN 55401
File: 319-60-1713
DOI: 01/12/05
__________________________________________________________________
Joshua J. Israel,
Employee,
vs. ORDER EXTENDING IME DEADLINE
WHEREAS, Schneider National Carriers, Inc., and Liberty Mutual Group have
moved for an Order extending the time within to file the report of an independent
medical examination;
STATE OF MINNESOTA
OFFICE OF AMINIISTRATIVE HEARINGS
100 Washington Square, Suite 1700
100 Washington Ave South
Minneapolis, MN 55401-2138
_______
Telephone (612) 341-7600
TTY: (612) 341-7346
[ Served & Filed ]
March 8, 2007 [ Mar. 9, 2007 ]
The Petition for Summary Decision will be addressed at trial. Thank you for
your cooperation.
_________________________
PATRICIA J. MILUN
Workers Compensation Judge
Telephone: (612) 341-7633
PJM:mo
41
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
WORKERS COMPENSATION DIVISION
(612) 341-7600
Joshua J. Israel
Employee,
v. FINDINGS AND ORDER
STATEMENT OF ISSUES
6. The Compensation Judge must determine whether the medical treatment at St.
Francis Hospital is reasonable, necessary and casually related to cure and/or relieve the
effects of the alleged January 12, 2005 injury.
STIPULATIONS
Based upon all the files, records, and proceedings herein, the Compensation
judge makes the following:
43
FINDINGS
2. Any claims for any grievance filed by the employee in any form and made
part of the record by testimony or exhibit were not considered by this Court in making
its determination of liability.²
____________________
²Neither the parties nor the Worker’s Compensation Act confer jurisdiction to a Worker’s Compensation
Judge beyond what is contained in Minn. Stat. Chapter 176. Accordingly, these Findings and Order are
limited to the provisions contained in Minn. Stat. Chapter 176.
____________________
4. The employee and the training engineer began a two week training course that
lasted eight days. During these eight days of training the working relationship between
the employee and the training engineer deteriorated. On the morning of January 12,
2005, the employee received a citation for inoperable brake lights while the company
semi tractor-trailer truck with the training engineer. The employee testified that the
training engineer has sabotaged the truck by changing the fuse when the employee was
not looking. The employee further testified that he had no proof for this accusation.
The training engineer denied the charge.
5. After a citation incident, the training engineer contacted the employer’s Green
Bay operating center and suggested the remaining on-the-road driving instruction be
completed by another training engineer. The employer agreed. The timing of the
request and the location of the parties required the employee and the training engineer to
finish out the day together. All of the parties agreed. The training engineer took over
the driving duties and the employee remained in the tractor-trailer truck as a passenger.
6. Based on the evidence presented at hearing, the facts do not establish that the
program entitled ―Career Training for the Professional Truck Driver‖ at Schneider
Training Academy was a apprenticeship program as that term is defined in Minnesota
Statutes and case law.
_____________________
44
4 SeeMinn. Stat. 176.101(6) and Minn. Stat. 178.06. See also, Judd v. Sanatorium Comm’n of Hennepin
Co. 35 N.W.2d 430, 15 W.C.D. 385 (Minn. 1948); Rundberg v. Hirschbach Motor Lines, (W.C.C.A.)
April 7, 1994.
______________________
7. The employee testifies that on January 12, 2005, he sustained a work -related
injury as the result of intentional aggressive and reckless driving of the training engineer
after the employee had received a citation for an inoperable brake light.
__________________
The employee was upset at the training engineer for what he believed to be a deliberate set -up and scare
tactic. The employee stated in his deposition, ―Now I wanted to hit him. I wanted to hurt him; however,
my stomach began to hurt. I began to get this awful stomachache, and I was wondering why. And so at
this point—when something is wrong with me, I’m not frisky, I’m not ready to get into a fight with
anybody. And that was the only thing that kept a physical altercation from o ccurring between me and
him in that small cab.‖ (Respondent’s Exhibit 1): Deposition of Joshua Israel dated September 1, 2005,
pp. 110-111.
___________________
8. The employee asserts that the employer had knowledge and notice of a work
injury and the events which caused the work injury on three separate occasions. First,
the employee stated the training engineer warned him that ―he may suffer a back injury
if he returned for the second week of over-the-road training.‖ 6 That statement, if made,
does not establish that the training engineer was given or had knowledge that the
employee had sustained a work injury. Therefore, it does not constitute notice of injury,
under Minn. Stat. 176.141.
____________________
6
See Amended Claim Petition filed October 25, 2006.
______________________
9. The employee testified that the employer had knowledge and notice of a work
injury because the employee told his Service Team Leader (hereinafter) STL, Eric
Shack, on January 20, 2005, that he had sustained a work-related injury during the eight
day training course and as the direct result of intentional aggressive and reckless driving
of the training engineer. Eric Shack testified that he did not receive verbal notice from
the employee of the occurrence of injury. The testimony of the employee and the
testimony of Mr. Shack did not establish that notice was given in a manner that would
alert Mr. Shack that the employee was advising Mr. Shack that he had his back on the
job. Based on the evidence submitted, the Compensation Judge finds Mr. Shack did not
receive notice or have actual knowledge that the employee has sustained a work related
injury.
_______________________
Military
Training. There is no evidence to support a conclusion that this witness withheld information or
participated in selective memory loss to further the employer’s interest.
________________________
10. The employee contends that the employer had knowledge and due notice of a
work injury when he gave written notice by fax on March 7, 2005. On March 7, 2005
45
the employee faxed a written report to the Human Resources department of the
employer. The report is labeled Disparity and Discrimination in Reprisal for Reporting
Health and Safety Concerns. It States in part,
―On date 1/14/05, this driver did raise a safety issue with Debbie Knaus
because the training engineer assigned to this driver contradicted many policies,
practices, and procedures. In addition, on date 1/20/05 this driver did report to
STL, Eric Shack, that this incident did give lower back pain to this driver.
Furthermore, this lower back pain is still and issue (A. 2-3)‖
11. The Compensation Judge finds that the Human Resources Department of the
employer was placed on notice that the employee claimed to have suffered lower back
pain as a result of the lack of proper driving by the training engineer. Based on the
evidence submitted, the Compensation Judge finds the fax of March 7, 2005, constitutes
notice of the alleged injury on January 12, 2005.
12. Based on the evidence submitted, the employer was placed on notice of the
occurrence of a work injury on March 7, 2005.
13. From January 12, 2005 to March 7, 2005, the employee did not seek any
medical treatment for the pain in his lower back.
14. From March 7, 2005 to May 24, the employee did not seek any medical
treatment for the pain in his lower back.
15. On or about May 23, 2005, the employer directed the employee to file a
worker’s compensation claim and be seen by a medical examiner. The employee sought
treatment on May 25, 2005.
16. The employee was seen for a medical examination by Dr. Florey on May 25,
2005. Dr. Florey found the employee’s flexion and backward extension on examination
were limited. At the hearing, Dr. Florey testified that there were a variety of reasons
that cause a limitation in flexion, some of which are unrelated to an injury. Dr. Florey
further testified that his findings on backward extension were within normal limits.
17. On may 25, 2005, Dr Florey found the employee’s neurological examination
to be normal. Dr. Florey referred the employee to a specialist based on the employees
reported symptoms and not based on his findings on examination. Dr. Florey provided
work restrictions based on the employee’s reported symptoms and not based on his
findings on examination.
18. At the hearing, Doctor Florey testified that he did not have a complete
history of the origin of the complaints or the etiology of the complaints. Dr. Florey
further testified that the etiology was undetermined so he made no comclusion regarding
the cause of the employee’s back pain.
____________________
46
8 On cross examination, Dr. Florey testified that most people with this type of injury seek medical care
closer to a time of the injury.
_____________________
19. Dr. Florey issued a report of workability on May 25, 2005, in which h e
opined that the employee’s low back pain was work related. The Compensation Judge
finds that this opinion was based solely on the employees representation to the doctor
that the employee’s back pain was caused by work activities in January of 2005. The
doctor’s opinions contained in this report 9 are not based on an independent evaluation of
the etiology of the employee’s back pain.
______________________
9
Petitioner’s Exhibit E.
______________________
20. The employee believes he sustained a work-related injury during the eight
day training course and as the direct result of the intentional aggressive and reckless
driving of the training engineer after the employee had received a citation for an
inoperable brake light. The evidence submitted does not establish that it is more likely
than not that the cause of the back pain was related to the work activities. The evidence
submitted does not establish that it was more likely than not that the employee suffered
a work-related disability. The evidence submitted does not establish that it is more
likely than not that any work-related injury limits the employee’s ability to work or
diminishes the employee’s earning capacity.
22. The entitlement to a payment for penalties under Minn. Stat. 176.225 is
based on a percentage of compensation awarded. Since the award of benefits is zero,
any award of penalties as a percentage of those benefits would also be zero. Therefore,
the question of whether the insurer engaged in a frivolous denial is moot.
23. Based on the foregoing Findings, the Compensation Judge makes the
following:
ORDER
_______________________
Dated at Minneapolis, MN PATRICIA J. MILUN
This 5th day of November, 2007 COMPENSATION JUDGE
PJM/mo (612) 341-7600
Digitally Recorded TDD: (612) 341-7346
MEMORANDUM
The Compensation Judge has carefully considered the entire record in thi s matter,
including the testimony at trial, documentary evidence submitted and also the arguments
presented by counsel for each of the parties. She has concluded that the evidence
supports her findings as to the issues in the present proceedings.
P.J.M.
48
STATE OF MINNESOTA
A08-1013
Joshua J. Israel,
Realtor,
[ Office of ]
vs. [ Appellate Courts ]
Oct. 3, 2008
Schneider National Carriers, and FILED
Liberty Mutual Insurance Companies,
Respondents,
and
Intervenors.
_____________________________________
Janet Monson, Aafedt, Forde, Gray, Monson, & Hager, P.A., Minneapolis, Minnesota
for respondent.
______________________________________
ORDER
Court of Appeal’s filed May 29, 2008, be, and the same is, affirmed without opinion.
See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn. 1982) (explaining that ―[s]summary
49
affirmances have no precedential value because they do not commit the court to any
particular point of view,‖ doing no more that establishing the law of the case). We
BY THE COURT:
_________________________
Christopher J. Dietzen
Associate Justice
50
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
WORKERS’ COMPENSATION DIVISION
(651) 361-7900
____________________________________
WILLIAM R. JOHNSON
Assistant Chief Administrative Law Judge
Dated at Minneapolis, Minnesota (651) 361-7900
This 20th day of November, 2007 TDD: (651) 361-7878
WRJ/lms
For: RAYMOND R. KRAUSE
Chief Administrative Law Judge
51
STATE OF MINNESOTA
A08-1013
and,
ORDER
Relator has moved under Minn. R. Civ. App. P. 109.04 for leave to proceed in
forma pauperis in this appeal from the Minnesota Worker’s Compensation Court of
Appeals (WCCA). Realtor qualifies for in forma pauperis status under Minn. Stat. §
counsel, and no affidavit of service of the conformed copy of the writ of certiorari of the
WCCA have been filed. Review of decisions of the WCCA is governed by Minn. Stat. §
176.471 (2006), which requires service of the conformed copy of writ of certiorari
issued by the Clerk of Appellate Courts on the WCCA within 30 days of the WCCA’s
decision. Id, subd, 3 2006. *roof of Adequate Service on opposing counsel and th e
(1) the motion of realtor, Joshua J. Israel, for leave to proceed in forma pauperis
(2) the filing fee required by Minn. R. Civ. App. P. 116.03, subd. 3, and the cost
(3) to reduce the costs of briefing, relator’s brief and appendix (and reply brief, if
any) need not be bound, and realtor is authorized to file only one copy of each with the
(4) relator shall serve the conformed copy of the writ of certiorari issued by the
Clerk of Appellate Courts on the WCCA no later that June 30, 2008; and
(5) within 14 days of this order, relator shall file with the Clerk of Appellate
Courts an affidavit demonstrating service of the motion for leave to proceed in forma
conformed copy of the writ of certiorari on the WCCA, or the appeal will be dismissed.
BY THE COURT:
_________________________________
Eric J. Magnuson
Chief Justice