GILBERT KUHNAU, Employee/Appellant, v. MANPOWER, INC., and CNA INS. COS., Employer-Insurer/Cross-Appellants.

DECEMBER 16, 2013

No. WC13-5592


MEDICAL TREATMENT & EXPENSE - EXAMINATIONS; MEDICAL TREATMENT & EXPENSE - MEDICAL MILEAGE.  Where the employee was not capable of driving himself to necessary medical appointments due to the effects of his work injury, and the employee’s wife drove him to appointments for that reason, the employee’s wife was entitled to reasonable compensation for her assistance.

EVIDENCE - RES JUDICATA.  The compensation judge did not err in concluding that the employee’s current claim for compensation for his wife’s time to drive him to medical appointments was not barred, on grounds of collateral estoppel, by a 1995 decision denying “double mileage” for travel in which the employee’s spouse drove the employee to medical appointments to treat his work injury.

Reversed and remanded.

Determined by:  Wilson, J., Hall, J., and Milun, C.J.
Compensation JudgePenny D. Johnson

Attorneys:  DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant.  Kenneth Nelson, Law Office of Jeffrey A. Magnus, Bloomington, MN, for the Cross-Appellants.




The employee appeals from the compensation judge’s denial of the employee’s claim for payment for the time his wife spent driving him to his medical appointments.  The employer and insurer cross appeal from the judge’s award of expenses for the wife’s meals during that travel.  We reverse and remand the matter for reconsideration and new findings consistent with this decision.


The employee sustained a work-related injury to his low back on December 21, 1988, while employed at a 3M plant in Alexandria, Minnesota, through Manpower, Inc. [the employer].  He was 47 years old at the time.  The employer and insurer admitted liability and paid certain benefits.  In December of 1989, the employee entered into a stipulation for settlement, settling past and future claims for indemnity benefits but leaving open reasonable, necessary, and causally related medical expenses.

In the years following the settlement agreement, the parties litigated the employee’s claims for medical expenses on several occasions.  In a 1995 decision pertinent to the current dispute, Compensation Judge Danny Kelly awarded mileage, lodging, and meals associated with the employee’s travel from Alexandria to the Twin Cities for medical treatment, including meal expenses for the employee’s spouse.  The judge awarded mileage at $.27 a mile for “the employee’s spouse’s transportation services” but denied “the employee’s mileage claim for personal mileage for the [same] period.” In his memorandum, Judge Kelly explained,

The employee is entitled pursuant to the Minnesota Workers’ Compensation Act to reimbursement of reasonable medical mileage expense.  However, in the instant case, the employee is not making a claim for reasonable medical mileage expense.  The employee is claiming double payment for medical mileage expense.  The employee is claiming individually $.27 per mile and for his spouse $.27 per mile for trips that they travel together in the same motor vehicle.  It is determined that the reasonable transportation expense for the employee to and from his medical appointments is $.27 per mile.  The employee’s reliance upon Sorcan v. U.S. Steel Corp., . . . is misplaced.  See, Avenson v. State of Minnesota, 43 W.C.D. 660 (1990).

Neither party appealed from this decision.

The employee eventually sought authorization for multi-level fusion surgery, and the matter came on for hearing before Compensation Judge Penny Johnson.  In a decision issued on April 19, 2012, Judge Johnson granted the employee’s request for approval of the recommended procedure, which was to be performed by a physician at Twin Cities Spine Center.  Again, no appeal was taken from this decision.  The employee subsequently had pre-surgery testing and evaluations related to the proposed surgery, and he was also prescribed a full-body brace to mimic the effects of fusion in order to evaluate his probable response to the operation.  The employee’s surgeon, Dr. Manuel Pinto, wrote on July 24, 2012, that the employee “will require his wife to accompany him to [medical] appointments to provide assistance with transportation as well as psychological support and assistance with [activities of daily living].”

The employee eventually claimed entitlement to payment, on an hourly basis, for his wife’s time caring for him and driving him to medical appointments in September and October of 2012, as well as her meal expenses for the trips taken for medical care during this period.  The employer and insurer at one point agreed to pay for the employee’s transportation to the Twin Cities for appointments, proposing to utilize a service called Optimal Care Transportation & Translation to “avoid the mileage, meal, and issues relating to [the employee’s] wife.”  Counsel for the employee responded to this offer by requesting “complete information” about the transportation service, including “a business organization plan and the extent of training of each and every driver and medical assistant providing the service,” including “the  name, training background and years of experience of any person who will be providing transportation services” or “medical services.”  The company declined to provide the information, and the service was never utilized.

The matter came on for hearing before Judge Johnson again on May 2, 2013, for resolution of several issues, including the employee’s claim for his wife’s assistance in transporting him for treatment in September and October of 2012, calculated using the hourly rate his wife had earned in her job prior to her retirement.[1]  The employer and insurer argued, in part, that Judge Kelly’s 1995 decision was res judicata as to that issue and also that case law did not support the employee’s claim.  At hearing, the employee testified that he was unable to drive himself to appointments because of the effects of the narcotics he took for his work injury.

In her decision issued on May 22, 2013, the compensation judge awarded mileage and also the employee’s wife’s meal expenses incurred during the travel at issue, but she denied the employee’s claim for his spouse’s time for those trips.  Both parties appeal.


On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1 (2012).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).


1.  Res Judicata/Collateral Estoppel

The employer and insurer contend that the employee’s claim at the most recent hearing before Judge Johnson was the same as the claim denied by Judge Kelly in 1995 - - that is, a claim for “compensation in excess of the standard mileage.”  Therefore, the employer and insurer allege, Judge Johnson should have found the employee’s current claim for his wife’s transportation services barred by the doctrine of collateral estoppel.  We are not persuaded.

The doctrine of res judicata precludes litigation of issues and claims that were in fact decided in an earlier proceeding.  Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993); Westendorf v. Campbell Soup Co., 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976).  Collateral estoppel is a related doctrine, whereby a previous judgment is conclusive in a subsequent action between the same parties as to issues finally decided in the earlier proceeding.  Travelers Ins. Co. v. Thompson, 281 Minn. 547, 163 N.W.2d 289 (1968).  Application of collateral estoppel may be appropriate when

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Nelson v. American Family Ins. Group, 651 N.W.2d 499, 511 (Minn. 2002) (quoting Williams v. Commissioner of Public Safety, 333 N.W.2d 619, 621 (Minn. 1983)).  The principles of res judicata and, by extension, collateral estoppel, are applicable in workers’ compensation disputes.

We acknowledge that some relevant circumstances have not changed since the hearing before Judge Kelly.  Specifically, the employee needed and still needs assistance driving from his home in Alexandria to his medical appointments in the Twin Cities, and he needs that assistance due to the effects of his work injury.  However, other pertinent facts and circumstances have in fact changed.  The employee is currently seeking payment for his wife’s transportation help for a period not at issue before Judge Kelly, and the employee has indicated that his condition worsened considerably after that earlier hearing 18 years ago.  The employee’s current claim also encompasses services purportedly qualifying more as actual nursing services, such as the extra assistance the employee allegedly needed while in a full body brace, whereas the claim at the hearing before Judge Kelly appears to have been primarily for transportation alone.  Finally, the employee in the earlier proceeding was asking to be reimbursed twice for the identical expense:  medical mileage.  Now, in contrast, the employee is seeking payment for the time his wife expended driving him to required medical care.  Under all these circumstances, we agree with the compensation judge that the employee’s current claim is not foreclosed by the doctrines of res judicata or collateral estoppel.

2.  Transportation Expenses

It is generally undisputed that an employee is entitled to what is characterized as “medical mileage” when the employee travels by car for necessary medical care.  See, e.g., Sorcan v. U.S. Steel Corp., slip op. (W.C.C.A. May 9, 1988); Minn. R. 5221.0500, subp. 2E.[2]  The employer and insurer in the present case do not dispute the employee’s right to medical mileage payments here.  It is also generally understood that an employer and insurer are liable for the cost of professional medical transportation if such services are reasonably required to convey the employee for treatment necessitated by his or her work injury.  See 5 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 94.03[2][a] (2013) (“Transportation costs necessarily incurred in connection with medical treatment are compensable”).  The employer and insurer here in fact offered at one point to pay for such a service if the employee would notify them of his appointments.  What is less clear is what, if any, compensation, other than mileage, is available when an injured employee has a friend or relative drive him to necessary medical treatment because the employee is unable to drive himself.

In the Sorcan case, the Workers’ Compensation Court of Appeals affirmed a determination by the Medical Services Review Board that the employee’s daughter was entitled to $.26 per mile for driving the employee to medical appointments, in part because the employee needed help with dressing and services related to his colostomy.  The court also indicated that both the employee and his daughter were entitled to meal expenses associated with those trips.  Sorcan v. U.S. Steel Corp., slip op. (W.C.C.A. May 9, 1988).  Language in the court’s decision further appears to suggest that the employee himself was entitled to “medical mileage” at the same rate for the same trips.  Id. at 2.  Subsequently, however, in Avenson v. State, Aw-Gwah-Ching Nursing Home, 43 W.C.D. 660 (W.C.C.A. 1990), the Workers’ Compensation Court of Appeals affirmed a compensation judge’s denial of “double mileage” based in part on the fact that the employee in Avenson required less assistance than the employee in Sorcan.[3]  A few years later, the Workers’ Compensation Court of Appeals reversed an award of expenses for the employee’s wife’s time attending medical appointments because the employee was transported by ambulance or medical transport and there was no evidence that the employee’s wife’s attendance was necessary under those circumstances.  Williams v. John A. Dalsin & Sons, slip op. (W.C.C.A. May 3, 1993).  However, the implication in Williams that the wife’s time might have been compensable but for the medical transport arguably hinged on the fact that the employee in that case was permanently and totally disabled, which changes the analysis.[4]  Then, in Lindberg v. Prairie Correctional Facility, 68 W.C.D. 386 (W.C.C.A. 2008), the court considered whether hourly compensation for a friend who drove the employee to appointments might be payable, but the court in the end affirmed the compensation judge’s denial of the claim on grounds that the employee had not submitted proof of what he had paid the driver.

In the present case, the employee characterized his claim for transportation by his spouse as a nursing expense compensable pursuant to Ross v. Northern States Power Co., 442 N.W.2d 296, 299, 42 W.C.D. 7, 13 (Minn. 1989).  The compensation judge, however, concluded that the purported “nursing” services performed by the employee’s wife, such as helping the employee out of the car and helping him with his brace, were not medically necessary.[5]  That decision was not unreasonable on this record.  That, however, is not the end of the analysis.

An employer has a responsibility to provide medical treatment that is reasonable and necessary to cure and relieve the employee from the effects of a work injury.  Minn. Stat. § 176.135.  To that end, the employer and insurer’s liability in this regard includes the responsibility to provide whatever transportation assistance is reasonably required to allow the employee to obtain proper treatment.  In cases such as this one, where the employee is not able to drive himself, the employee’s spouse is not providing nursing services, pursuant to Ross, in driving the employee to required appointments.  Rather, the spouse is simply providing a service incidental to the required medical treatment itself, and, if an employer would be liable for the cost of medical or other transport without such help, there is no basis for denying a reasonable fee to the spouse.  In fact, the help of family or friends in cases such as this one is likely to be less expensive than other forms of transportation.  As such, compensating family and friends for an employee’s necessary transportation to medical treatment is likely to reduce overall costs to the system.  See Ross, 442 N.W.2d at 300, 42 W.C.D. at 15.

We would also note that per mile reimbursement for travel is just that - - reimbursement to cover the costs of fuel and wear and tear on the vehicle used to get the employee to the doctor.  If the employee’s own vehicle is used for such purposes, he may be entitled to medical mileage payments on top of whatever fee may be reasonable to compensate the driver for his or her help.  On the other hand, if the driver furnishes the vehicle, reasonable mileage and meal expenses may be factored into the decision as to what constitutes reasonable compensation for the driver’s assistance.

The compensation judge concluded that the employee’s wife’s services were “necessary for transportation” to medical appointments, and there is no contention that the employee was physically capable of driving himself.  Absent the spouse’s help, the employer and insurer would have been liable for the cost of some other kind of transportation.  We therefore reverse the judge’s decision and remand for a decision and award of reasonable compensation for the employee’s wife’s assistance driving the employee to necessary medical appointments.[6]  The time involved is one factor for the judge to consider in making this decision.  The judge may also award payment for meals and mileage separately, or she may include those expenses in her decision as to what constitutes a reasonable transportation expense overall.  The judge may in her discretion request additional evidence or arguments from the parties to aid her in deciding the issue.

[1] There was also a dispute about prescription expenses, which was ultimately resolved in the employee’s favor and which is not relevant to the issues on appeal here.

[2] Pursuant to Minn. R. 5221.0500, subp. 2E, “Travel expenses incurred by an employee for compensable medical services shall be paid at the rate equal to the rate paid by the employer for ordinary business travel expenses, or the rate paid by the state of Minnesota under the commissioner’s plan . . . whichever is lower.”

[3] The Workers’ Compensation Court of Appeals also indicated in Avenson that there was no award of “double mileage” in Sorcan.  This is debatable.

[4] A broader range of services by family members is compensable in cases of permanent total disability.  See Ross v. Northern States Power Co., 442 N.W.2d 296, 42 W.C.D. 7 (Minn. 1989).  There has been no determination of permanent total disability in the present case, and those benefits have been closed out by the settlement agreement.

[5] Certainly the services described were not the kind ordinarily performed by trained medical personnel.  See Ross, 442 N.W.2d at 300, 42 W.C.D. at 15.  Because the employee has not been found permanently and totally disabled, nursing care provided by a family member is not compensable unless it meets this requirement, among others.  Id.

[6] We wish to make clear that our holding is limited to transportation for medical treatment.  Other necessary driving may be compensable, pursuant to Ross, if the employee is permanently and totally disabled.