MICHAEL R. GOERDT, Employee/Appellant, v. DWAYNE YOUNG, INC., and CNA/NAT’L FIRE INS. CO. OF HARTFORD f/k/a TRANSCONTINENTAL INS. CO., Employer-Insurer, and MINUTE-OGLE CO., INC., and ZURICH N. AM. INS. CO., Employer-Insurer, and DULUTH BLDG. TRADES HEALTH & WELFARE FUND, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 25, 2010
PRACTICE & PROCEDURE - DISMISSAL; STATUTES CONSTRUED - MINN. STAT. § 176.291. Where the employee supplied no support for his claims against an employer, it was not error for the compensation judge to dismiss the employer as a party.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: John J. Horvei, Shoreview, MN, for the Appellant. Jeffrey A. Magnus, Edina, MN, for Respondents Dwayne Young/CNA. Jay T. Hartman and Elizabeth Chambers-Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for Respondents, Minute-Ogle/Zurich.
DAVID A. STOFFERAHN, Judge
The employee appeals from a compensation judge’s order dismissing an employer as a party. We affirm.
The employee filed a claim petition in July 2008, alleging entitlement to various workers’ compensation benefits arising out of a work injury sustained on July 19, 2005, when he was employed by Minute-Ogle Company, Inc. Minute-Ogle Company and its insurer, Zurich Insurance Company, filed an answer denying primary liability for the claimed injury.
In April 2009, the employer and insurer filed a motion to dismiss the employee’s claim petition. They asserted that the employer and the employee’s union were members of a collective bargaining agreement under Minn. Stat. § 176.1812 and requested referral of the employee’s claim to the Union Construction Workers’ Compensation Program established pursuant to that statute.
Before the motion was considered by a compensation judge, the employee filed an amended claim petition in June 2009, claiming an injury sustained on March 4, 1997, while employed by Dwayne Young, Inc., then insured by Transcontinental Insurance Company. Dwayne Young and its insurer admitted that the employee had sustained lacerations to the fingers of the left hand while working on March 4, 1997, and that approximately $300.00 in medical expenses had been paid. They denied that the 1997 work injury was a substantial contributing factor in the employee’s claimed disability and need for medical treatment.
Dwayne Young and its insurer filed a motion to dismiss the amended claim petition filed against them, contending that the employee had failed to provide medical support for his claim as required by Minn. Stat. § 176.291. The motion was denied in an order issued by a compensation judge on September 22, 2009, but the employee was ordered to produce medical support for the claim by October 15, 2009.
On October 14, 2009, the employee’s attorney faxed a letter to the compensation judge with an attached letter from Family Nurse Practitioner Vicki Andrews of the Lake Superior Community Health Center, dated October 9, 2009. On October 29, 2009, the compensation judge dismissed Dwayne Young, Inc., and its insurer as parties to the employee’s claim. In her memorandum, the compensation judge stated, “the documents received on October 14, 2009, are considered insufficient to support employee’s claim, in view of the length of time since injury, lack of medical treatment, and lack of restrictions or documented disability related to that injury.” The employee appealed.
A claim petition must include “copies of written medical reports or other information in support of the claim.” Minn. Stat. § 176.291. The report provided by the employee to support his claim against Dwayne Young, Inc., states, in pertinent part, “advised patient that given the remote timeline of initial complaint (10/05/09) in relation to the injury itself and the limited timeline available (requesting document be forwarded to his attorney in the Twin Cities by Monday morning 10/12/09), I am unable to assess within the confines of my primary care practice whether or not he indeed has some type of nerve injury to his left hand.”
On appeal, the employee does not argue that this report constitutes “support” for his claim that the 1997 work injury is a substantial contributing factor in the disability and medical expenses he seeks in his amended claim petition. Instead he contends, first, that medical support is not always necessary for a claim and that an employee’s testimony alone may provide the evidentiary basis for an award of benefits. The employee refers to this court’s decision in Hiller v. Parker Hannifin, No. WC04-198 (W.C.C.A. Dec. 14, 2004).
The employee is correct in noting that a medical report is not an absolute necessity in proving an employee’s claim. Further, this court has held that the “support” called for by the statute to be attached to the claim petition is not the same as the evidence “sufficient to sustain the employee’s burden of proof.” Balma v. Anoka-Hennepin Indep. Sch. Dist. #11, 59 W.C.D. 126 (W.C.C.A. 1999). Nevertheless, the statute clearly requires support for a claim to be attached to the claim petition. We need not consider the parameters of that requirement in this decision because the employee has provided no support with his amended claim petition which would connect the 1997 work injury with his present claim for medical expenses, permanent partial disability, and wage loss benefits after August 2005. We conclude the compensation judge did not err in finding that the employee failed to comply with the requirements of Minn. Stat. § 176.291.
The employee also argues that the compensation judge’s order deprives him of a hearing before a compensation judge on all of his claims from both injuries. At least part of the employee’s argument arises out of his displeasure of having his 2005 injury claims heard under Minn. Stat. § 176.1812. That concern, however, has no bearing on the issue before this court. We would also note that the order from which the appeal has been taken did not dismiss the amended claim petition with prejudice. Accordingly, the employee has not been deprived of his day in court for claims connected to his 1997 work injury.
The order of the compensation judge is affirmed.