MARK PRICE, Employee/Appellant, v. LISTUL ERECTION CORP. and BERKLEY RISK ADMIN. CO., LLC, Employer-Insurer/Respondents, and ESSENTIA HEALTH, Intervenor.

MAY 7, 2021
No. WC21-6394

APPEALS - NOTICE OF APPEAL.  An employee’s appeal must be dismissed if it is not filed within the 30-day statutory limit for perfecting an appeal, but where the final day for filing falls on a Saturday, Sunday, or legal holiday, Minn. Stat. § 645.151 extends the period for perfecting the appeal to the next eligible day.

EVIDENCE - BURDEN OF PROOF.  Substantial evidence supports the compensation judge’s determination that the employee failed to meet his burden of proof regarding a claimed miscalculation of his average weekly wage.

    Determined by:
  1. Gary M. Hall, Judge
  2. Patricia J. Milun, Chief Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge:  Kristina B. Lund

Attorneys: Mark Price, pro se, Superior, Wisconsin, for the Appellant. William J. Warren, Fitch, Johnson, Larson & Held, Roseville, Minnesota, for the Respondents.




The employee appeals the compensation judge’s dismissal of his claims and the finding that the employee was not permanently and totally disabled.  Listul Erection Corporation, insured by Berkley Risk Administrators Company, LLC (employer and insurer) moved to dismiss the appeal as not timely filed.  Because substantial evidence supports the compensation judge’s decision and there is no error of law in the determination regarding permanent total disability, we affirm the findings and order.  As the appeal filing is timely under the statutes governing the calculation of time, the motion to dismiss is denied.


The employee, Mark Price, was a journeyman ironworker.  On August 27, 1999, he was working for the employer, Listul Erection Corp., when he fell from approximately 15 feet, landing upright.  The employee suffered a comminuted calcaneal fracture of his left heel from the impact.  The employee was 40 years old at the time of his injury.  He underwent surgery, including the installation of hardware, to address the fracture.  The employee received 104 weeks of temporary total disability (TTD) benefits following the August 27, 1999, work injury.

The employee did not return to ironwork following the admitted work injury.  He worked for a few months as a telemarketer.  Following that work, he pursued a job search for four months resulting in one interview and no job offers.  Due to the lack of success in his job search, the employee opted for retraining.  In 2001, he enrolled in classes at the Wisconsin Industrial and Technical College and the University of Wisconsin, Superior, as part of a structural engineering program.

In 2001, the employee underwent an independent medical examination (IME) conducted by Jack Drogt, M.D., on behalf of the employer and insurer.  Dr. Drogt opined that the employee reached maximum medical improvement (MMI) by July 10, 2000.  Dr. Drogt concluded that the employee was disabled from ironwork and should be limited to sedentary or light-duty work in a non-construction position.  In 2001, one of the employee’s treating physicians, Dr. Kaylor, rated the employee with a 10 percent permanent partial disability (PPD) for the employee’s foot and ankle.  Also in 2001, Dr. Hindle, another treating physician, rated the employee with a 2.5 percent PPD for a nerve condition.  Dr. Drogt’s supplement to his 2001 opinion indicated that he had no disagreement with those PPD ratings.

In May 2003, the employee suffered a fall from a ladder while at home, suffering bilateral wrist fractures.  He underwent surgical repair of both wrists.  The employee maintained that the fall resulted from the effects of the 1999 work injury.

On October 13, 2003, the employee suffered a fractured jaw in a bicycle accident.  The employee sought benefits from the employer and insurer, contending that the bicycle accident resulted from wrist weakness which could be traced, through the May 2003 fall from a ladder, back to the 1999 work injury.  In 2005, the employee’s claim was tried before a compensation judge, who denied the claim as not arising from a demonstrated consequential injury.  That decision was not appealed.

In 2010, the employee underwent an IME conducted by Richard Strand, M.D., on behalf of the employer and insurer.  Dr. Strand opined that the employee’s August 27, 1999, work injury resulted in an injury to the employee’s left heel but did not result in injury to his left ankle, leg, knee, or lumbar spine.  The employee was, in Dr. Strand’s opinion, restricted from working at heights and limited from working on rough ground.  Dr. Strand concluded the employee was not permanently and totally disabled and had not been temporarily totally disabled since 2002.  Dr. Strand found no ratable PPD to the employee’s left ankle or lumbar spine.  Dr. Strand opined that the employee reached MMI with respect to the left heel injury by August 27, 2000.

In 2010, the employee discontinued his educational program.  He has not sought employment since ending his studies.

On May 23, 2011, the employee underwent a vocational evaluation by L. David Russell, QRC, at the request of the employer and insurer.  The employee was described as disinterested and agitated and the testing was terminated due to the employee’s behavior.  QRC Russell concluded that the employee was not permanently or totally disabled and that the employee had voluntarily removed himself from the labor market.

On June 11, 2011, Thomas Kaiser, M.D., examined the employee as he sought a PPD rating for his bilateral wrists.  Dr. Kaiser rated the employee’s wrists at 0 percent PPD because the employee had good function in both wrists, with no limitations on motion, a lack of degenerative changes, and good grip.

In 2019, the employee was diagnosed with stage 4 lung cancer and chemotherapy was initiated.  As a result of his chemotherapy, the employee is now diabetic and insulin dependent.

On July 13, 2020, the employee underwent an IME with Gary Wyard, M.D., on behalf of the employer and insurer.  Dr. Wyard agreed with the existing 12.5 percent PPD rating for the employee.  Dr. Wyard indicated no additional disability rating was appropriate.  He concluded that the employee had no work restrictions from the 1999 work injury beyond those associated with the left heel (no working at heights, limited work on rough ground).

On July 15, 2020, a vocational assessment of the employee was begun by Jan Lowe, M.S., QRC, at the request of the employer and insurer.  Testing was not performed, due to the employee’s nonparticipation.  QRC Lowe concluded that the employee was physically capable of work under the restrictions from his 1999 work injury, but he was not capable of employment due to his cancer diagnosis and treatment.

In August 2020, Anne Birch of Rehabilitation Counselors, Inc., prepared a labor market survey showing that a variety of positions within the employee’s restrictions were available in the Duluth/Superior area.  The survey also identified positions which required tasks outside of the employee’s restrictions.

The employee, through his attorney, filed a claim petition seeking PTD benefits from August 27, 1999, to the present and continuing.  On August 20, 2020, the matter came on for hearing before a compensation judge.  Three issues were identified: 1) whether the intervention interest of Essential Health was reasonable, necessary, and causally related to the work injury; 2) what was the employee’s average weekly wage (AWW) as of the date of injury; and 3) whether the employee was permanently and totally disabled from the work injury.  The employee, proceeding pro se, offered no exhibits.  The judge denied the employee’s claims.  The employee appeals.


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(3).  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), summarily aff’d (Minn. June 3, 1993).



            Timeliness of Appeal

The findings and order from which the employee appealed was served and filed on September 24, 2020.  The employee filed his notice of appeal on October 26, 2020.  The employer and insurer contend that as the filing occurred on the 32nd day after the findings and order, the notice of appeal does not meet the statutory 30-day appeal requirement and this court lacks jurisdiction to hear the appeal.  We disagree.

Under Minn. Stat. § 176.421, subd. 1, a notice of appeal must be filed no later than 30 days after the service and filing of the appealed order.  As the findings and order from which the employee appealed was served and filed on September 24, 2020, the 30th day falls on October 24, 2020, a Saturday.  Minn. Stat. § 645.151 provides that where a filing is to be made with a state agency, and the prescribed date falls on a Saturday, Sunday, or legal holiday, the filing is timely when made on the next eligible day.  In this case, the next eligible day was Monday, October 26, 2020.  As the employee’s notice of appeal was received on October 26, 2020, the appeal was timely and the motion to dismiss is denied.

            Average Weekly Wage

In a claim for benefits, the employee bears the burden of proof.  See, e.g.Fischer v. Saga Corp., 463 N.W.2d 501, 501, 43 W.C.D. 559, 560 (Minn. 1990).  Regarding the wage issue, the employee offered only his own testimony to support his claim that TTD benefits had been underpaid.  His testimony did not provide a sufficient description of his earnings to support calculating an AWW using the standards set out in Minn. Stat. § 176.011, subd. 18.  While the employee has suggested to this court that one of his co-workers can corroborate the employee’s wage claims, no such testimony was offered at hearing.  This court is limited to the record before the compensation judge.  See Minn. Stat. § 176.421, subd. 1 (“in view of the entire record as submitted”); Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986); Glasgow v. Franciscan Health Cmty., No. WC04-434 (W.C.C.A. May 2, 2005).  The compensation judge did not err in denying the employee’s claim on this issue.

            Permanent Total Disability

The employee suffered his work injury at age 40.  By operation of Minn. Stat. § 176.101, subd. 5, he must demonstrate a permanent partial disability rating of 17 percent or higher to qualify for PTD benefits.  The employee offered no medical evidence of a PPD rating above 12.5 percent which could reach the required threshold for PTD benefits.  The compensation judge did not err in denying the employee’s claim on this issue.[1]

For the foregoing reasons, the Findings and Order, served and filed September 24, 2020, is affirmed.

[1] The employee did not discuss the denial of the intervenor’s claim in his appeal brief.  Any issue raised in the notice of appeal but not addressed in the appellate brief is deemed waived and will not be decided by the court.  Minn. R. 9800.0900, subp. 1.