No. 08-9609

_____________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2008

__________________________________________________________________

JOSHUA J. ISRAEL,

Petitioner,

v.

SCHNEIDER NATIONAL CARRIERS, and

LIBERTY MUTUAL INSURANCE,

Respondents.

__________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

___________________________________________________________________

JOSHUA J. ISRAEL

Petitioner / Pro Se

P. O. Box XXX

SXXXXX, MX 5XXX

(952) XXX-XXXX

__________________________________________________________________

2

QUESTIONS PRESENTED

Is Petitioner deprived of complete judicial review of an incomplete

administrative review, when the Minnesota Supreme Court does affirm this incomplete

review, without applying their standard of review for a complete judicial review?

---------------------------------

Is Petitioner entitled to complete judicial review of an incomplete administrative

review, when the agency determined it had no authority to consider or determine the

constitutional issues on appeal?

-----------------------------------

Does an abuse of discretion by an administrative agency, which overrides the

procedure to be followed to protect a legislative entitlement, require a complete judicial

review by the Minnesota Supreme Court?

-----------------------------------

3

PARTIES TO THE PROCEEDING

JOSHUA J. ISRAEL:

The petitioner, in a worker’s compensation proceeding for a

work-related injury.

SCHNEIDER NATIONAL CARRIERS:

The employer, who refused to investigate the notice of injury;

who falsely claimed that Petitioner was receiving worker’s

compensation benefits; and who performed an employment lock-

out upon Petitioner and then terminated the employment of

Petitioner.

LIBERTY MUTUAL INSURANCE COMPANY:

The insurer, who denied payment for medical treatment, and

healthcare provider participation, so as to prevent Petitioner from

obtaining medical evidence of a compensable injury.

JUDGE, PATRICIA J. MILUN:

The Compensation Judge, who proposed and then accepted the

Respondent’s amended answer that would prejudice the defense of

Petitioner; who did override the procedure specified by the

legislature, and who based her decision on a lack of adequate

medical evidence, and on the lack of health care provider

participation.

The WORKER’S COMPENSATION COURT OF APPEALS:

The Administrative Court of Appeals who declared it had no

authority to determine or consider the constitutional issues on

appeal.

The MINNESOTA SUPREME COURT:

The State Court of last resort who deprived Petitioner of

complete judicial review of an incomplete administrative review.

4

TABLE OF CONTENTS

Page(s)

Table of Authorities - - - - - 7

Jurisdiction - - - - - - 8

State Statutes Involved - - - - 9

Constitutional Provisions Involved - - 10

Statement of the Case - - - - - 11

Reasons For Granting Writ - - - 18

Reason ―B‖ - - - - - - - 21

Reason ―C‖ - - - - - - - 25

Conclusion - - - - - - - 28

Appendix - - - - - - - 29

Opinion of Administrative Court of Appeals - - 29

Order of Indefinite delay - - - - - - 39

Order to deny a pre-deprivation hearing - - - 40

Findings and Order of Compensation Judge - - 41

Decision of Minnesota Supreme Court - - - 48

Order for preparation of Indigent Transcript - - 50

Order Granting Leave to Proceed in Forma Pauperis 51

5

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.

Notice to Attorney General, Lori Swanson, was made demonstrating the

constitutionality of a statute is drawn into question.

7

TABLE OF AUTHORITIES CITED

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, 2008, and 90

days from this date to serve this Petition for Writ of Certiorari is January 2, 2009.

No petition for rehearing in the Minnesota Supreme Court was requested.

9

STATE STATUTES & RULES INVOLVED

Minn. Stat. 176.141(1)

*** If notice is given or knowledge is obtained within the time limitation, and if the

employee shows that failure was due to fraud, misrepresentation, or deceit of the Employer or

agent thereof, then compensation may be allowed. Page 16.

Minn. Stat. 176.221(1)

Within 14 days of notice or knowledge by the employer of an injury compensable

under this chapter, the payment of temporary total compensation shall commence.

Page 22.

Minn. Stat. 606.06

A writ of certiorari for review of an administrative decision pursuant to chapter 14 is as a

matter of right. Page 23.

Minn. Rule 5221.0420(1)

(1) *** a health care provider must participate cooperatively in the planning of an injured

employee’s return to work by communicating with the employee, the employer, the insurer,

the rehabilitation providers, and the commissioner in accordance with this part. Page 23.

Minn. Rule 5221.6050(7)(C)

(7)(C) If the insurer denies authorization or payment for treatment governed by parts

5221.6050 to 5221.6600, the health care provider or the employee may request a

determination from the commissioner or the compensation judge by filing a medical request

or petition under chapter 5220 and Minnesota Statutes, sections 176.305. Page 13.

10

CONSTITUTIONAL PROVISIONS INVOLVED

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

STATEMENT OF THE CASE

The Petitioner, JOSHUA J. ISRAEL, suffered an alleged work-related injury to

the T-12 to L-2 region of his vertebrae resulting from a reckless driving incident

committed by John Steigerwald, a training instructor, of the Employer, SCHNEIDER

NATIONAL CARRIERS (Closing Statement of Petitioner & Exhibits 3-14). Since

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

investigate the notice of injury; an internal office-reorganization was initiated; the

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

Statement, p. 10-11). In response to Petitioner’s worker’s compensation claim, the

Insurer, LIBERTY MUTAL INSURANCE COMPANIES, denied primary liability for

the report of injury, based on the report being untimely.

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

collecting unemployment benefits, the employer terminated the employment of

12

Petitioner. Upon investigation by the Unemployment Division of Minnesota, the

Employer made misrepresentations to the Unemployment Investigator and claimed that

Petitioner was receiving worker’s compensation benefits (Pre-Trial Statement p. 11, p.

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

consequence, Petitioner was compelled to proceed as a pro-se litigant. Immediately

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

healthcare provider participation in return to work planning, medical treatment, and

maximum medical improvement.

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

change to the Respondent’s previous Answer, and the Compensation Judge

recommended that Respondent’s should now admit to notice of injury. Since this

amended answer would prejudice Petitioner’s Legislative entitlement, and would

suppress Petitioner’s defense against misrepresentation and concealment of a

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

used as an instrument of injustice, and Petitioner is being deprived of the equal

protection of the Legislature, thereby (Petition For Summary Decision, p. 3, par. 11-

12); (WCCA Decision, Appendix p. 34).

However, the Compensation Judge refused to comply with any legislative

procedure specified for the protection of an entitlement to worker’s compensation

benefits (Appendix p. 40), and the compensation Judge did refuse to refer fraud and

misrepresentation matters to the Workers Compensation Fraud Unit. As a result,

Petitioner’s right to a hearing is established by the following Legislative procedure

specified to protect an entitlement conferred by the Minnesota Legislature:

Minn. Rule 5221.6050(7)(C)

(7)(C) If the insurer denies authorization or payment for treatment governed by

parts 5221.6050 to 5221.6600, *** the employee may request a determination from *** the

compensation judge by filing a *** petition under *** Minnesota Statutes, sections 176.305.

Thereafter, on 8/7/07, the Compensation Judge did proceeding to her evidentiary

hearing; did allow Respondent to admit to notice of injury (WCCA Decision, Appendix

p. 34, par. 3) did suppress Petitioner’s defense against concealment of a compensable

injury, under 176.141, (Judges Findings, Appendix p. 46, par. 22); and Petitioner was

14

deprived of discovery for effective cross-examination of John Steigerwald, and effective

examination of Dr. Florey (WCCA Decision, Appendix p. 34).

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

compensation benefits conferred to Petitioner are in default, in lieu of constitutionally

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

Respondent’s admission to notice of injury to exclude Petitioner’s 176.141(1) defense

(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

frivolous denial of liability a moot issue (Compensation Judges Findings, Appendix p.

46, par. 22). Since the Respondent failed to assert any intentional tort exception, the

Compensation Judge’s [apparent] intentional tort exception is another surprise, without

giving Petitioner an opportunity to respond. As a result of this ruling, the Compensation

Judge did define Petitioner’s entitlement to worker’s compensation benefits by her own

judicial lawmaking process designed to defeat Petitioner’s entitlement that is conferred

by the Legislature.

After raising constitutionally inadequate procedures [in the Notice of Appeal], to

the Worker’s Compensation Court of Appeals (WCCA), the Petitioner brought forth that

the Minnesota Legislature conferred worker’s compensation benefits to Petitioner, and

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

compensation benefits are defeated by active concealment and misrepresentation, and

that Petitioner’s legal remedy is defeated by actions prejudicial to the administration of

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

for an entitlement to benefits that is conferred by the Minnesota Legislature:

Minn. Stat. 176.141(1)

*** If notice is given or knowledge is obtained within the time limitation, and if

the employee shows that failure was due to fraud, misrepresentation, or deceit of the Employer

or agent thereof, then compensation may be allowed.

Since the evidence of misrepresentation and concealment of a compensable injury

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

constitutionality of the Minnesota Worker’s Compensation Act is now brought into

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

that deprives Petitioner of the equal protection of procedures specified by the

Legislature.

Upon Certiorari to the Minnesota Supreme Court (M.S.Ct.), the Petitioner

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),

of the Worker’s Compensation Act.

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.

deprived Petitioner of complete judicial review of an incomplete administrative WCCA

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

REASONS FOR GRANTING WRIT

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.

Ct. 1987) 481 U.S. 252, 261-263, 278.

In the first instance, when an ―unknown judge‖ granted an Order of indefinite

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

Compensation Judge refused a hearing, at a meaning time and in a meaningful manner, so as

to ensure that an effective ―initial-check‖ against a mistaken denial of benefits is provided, to

Petitioner, before proceeding to deprive Petitioner of benefits. Thereafter, the Compensation

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

determined that it had no authority to consider or determine any of the constitutionally

19

inadequate procedures brought forth on appeal, these constitutional issues were presented to

the Minnesota Supreme Court.

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’

compensation proceeding be afforded reasonable notice and opportunity to be heard before

decisions concerning an entitlement to benefits can be made Kuenkamp v. Timesavers Inc.,

(Minn. S. Ct. 1988) 420 N.W.2d 891, 894.‖

Since Kuenkamp does entitle Petitioner to a pre-deprivation hearing to dispute a denial

of primary liability in a worker’s compensation proceeding, the M.S.Ct. had an obligation to

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

IS PETITIONER ENTITLED TO COMPLETE JUDICIAL REVIEW OF AN

INCOMPLETE ADMINISTRATIVE REVIEW, WHEN THE AGENCY DETERMINED

THAT IT HAD NO AUTHORITY TO CONSIDER OR DETERMINE THE

CONSTITUTIONAL ISSUES?

This Court has held 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.

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

Compensation Judge deprived Petitioner of a decision on these issues, before proceeding to

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

effective ―initial-check‖ against a mistaken denial of benefits is made a mockery, herewith,

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

opportunity to respond, and apparently has made-out an intentional tort exception, so as to

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

Way, (Minn. App. 2003) 672 N.W.2d 224, 229-231.

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:

Minn. Stat. 176.221(1)

Within 14 days of notice or knowledge by the employer of an injury compensable

under this chapter, the payment of temporary total compensation shall commence.

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:

Minn. Rule 5221.0420(1)

(1) *** a health care provider must participate cooperatively in the planning of an injured

employee’s return to work by communicating with the employee, the employer, the insurer, the

rehabilitation providers, and the commissioner in accordance with this part.

After the Compensation Judge deprived Petitioner of all healthcare provider

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

provider participation, Petitioner’s entitlement to worker’s compensation benefits is defeated

by judicial lawmaking that disregards the guarantee of constitutionally adequate procedure.

When constitutionally inadequate procedures were brought forth on appeal, the

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

M.S.Ct., Petitioner is in compliance to seek complete judicial review of this

constitutionally inadequate administrative adjudication. Now that a complete judicial

24

review is denied, to Petitioner, the mandate of this Court is to guarantee constitutionally

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

protection of a Legislative entitlement.

25

Reason C

DOES AN ABUSE OF DISCRETION, BY AN ADMINISTRATIVE AGENCY,

WHICH OVERRIDES THE PROCEDURE TO BE FOLLOWED TO PROTECT A

LEGISLATIVE ENTITLEMENT, AND WHICH SUPPRESSES SUBSTANTIAL

EVIDENCE, REQUIRE A COMPLETE JUDICIAL REVIEW?

For complete administrative and judicial review in the Minnesota Appellate

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.

Ct. 1984) 358 N. W. 2d 54, 60.

As a result of Minnesota’s concept of complete administrative and judicial

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

evidence, or if it is clear that reasonable minds would adopt a contrary conclusion.

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.

252, 261-262, 278.

To sustain the reversal of judgment, the Petitioner presented undisputed evidence

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

the procedure to be followed that is specified by the Minnesota Legislature to protect an

entitlement conferred by the Legislature. In addition to this evidence, since the

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

procedure specified by the legislature to find that Respondent’s frivolous denial of

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

are available to Petitioner, are in default, in lieu of constitutionally adequate procedure

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

to deprive any citizen of that property interest without constitutionally adequate

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

the Legislature to protect an entitlement conferred by the Legislature, which does

establish unconstitutional procedure as a precedence for other courts to follow; because,

the Compensation Judges decision is in want of adequate medical evidence, and is in

want of adequate healthcare provider participation.

By: __________________________________

JOSHUA J. ISRAEL / Petitioner Pro-Se

P. O. Box XXX

SXXXXXXX, MX 5XXXX

Phone: 9XX-2XX-0XXX

29

APPENDIX

30

STATE OF MINNESOTA

WORKERS’S COMPENSATION COURT OF APPEALS

File No. WC07-271

[ Served & Filed ]

[ May 29, 2008 ] JOSHUA J. ISRAEL, Pro-Se

Appellant,

v.

Schneider National Carriers, and Aafedt, Forde, Gray,

Liberty Mutual Insurance Co., Monson &Hager, P.A.

Respondents, 150 South 5th

Street

Suite #2600,

and, Minneapolis, MN 55402

St. Francis Hospital, Kris Wittwer

MN Department of Employment 2277 Hwy 36 West

And Economic Development, Roseville, MN 55113

Intervenors.

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

THOMAS L. JOHNSON, Judge

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.

On March 7, 2005, the employee faxed a written complaint to the employers

Human Resources department stating, in part, that he had previously raised safety

concerns with the regional loss prevention manager, on January 14, 2005, due to the

training engineer’s violation of policies and procedures, and had reported to Eric shack

that the incident gave him low back pain. The employee continued to work as an over-

the-road driver for the employer. In May 2005, the employer directed the employee to

file a first report of injury and obtain a physical examination. The employee had not

sought medical treatment for his back following the claimed January 12, 2005 incident.

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

temporary work restrictions through June 25, including no lifting, carrying or

pushing/pulling over 20 pounds occasionally.

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.

The employee’s attorney subsequently withdrew and the employee proceeded

pro-se. The case was heard by a compensation judge at the Office of Administrative

Hearings, on August 7, 2007. At the employee’s request, the record remain open until

September 7, 2007, to allow submission of written interrogatories from Dr. Roehr and

the employee’s post-injury wage records. In a Finding and Order, served and filed on

November 6, 2007, the compensation judge found the employee failed to prove he

sustained a compensable injury, arising out of and in the course of employment, and

failed to establish, by a preponderance of the evidence, that his back pain was casually

related to his work activities. The employee appeals.

DECISION:

1. Motion to Strike Respondents Statement of Facts

The appellant has moved to strike the respondent’s statement of facts on the basis

the statement includes scandalous information about the appellant not relevant to the

issues on appeal and intended to prejudice the court against appellant. The Minnesota

Rules of Civil Appellate Procedure, cited by the employee, do not govern procedure in

this court, and we decline to strike the respondents statement of facts. We do not,

34

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 the

appellant in reaching our decision.

2. Petition for Summary Decision

The employee objects to the compensation judge’s denial of his petition for

summary decision, under Minn. Stat. §176.305. With one exception, the Minnesota

Worker’s Compensation Act does not provide for ―summary judgment‖ without an

evidentiary hearing. Minn. Stat. 176.322 permits determination of a case without a

hearing only if the parties agree to a stipulated set of facts and only legal issues remain.

Zuehlke by Zuehlke v. Penrose Oil Co., slip op. (W.C.C.A. Jan. 24, 2001). The parties

did not agree to a stipulated set of facts, and the compensation judge properly denied the

petition on the basis that unresolved factual disputes remained. Compare, e.g.; Clay v.

American Residential Mortgage Corp. 56 W.C.D. 37 (W.C.C.A. 1996); Cannata v.

Borchert-Ingersoll, Inc., slip op. (W.C.C.A. Mar 8, 2004); Knapp v. Bud Meyer Truck

Lines, slip op. (Apr. 4, 1995).

3. Notice of Injury; Commencement of Benefits

The employee argues the legislature enacted a ―pre-deprivation process‖

requiring the employer, in worker’s compensation cases, to first commence payment of

compensation, within 14 days after notice of injury, and then initiate a petition to

discontinue benefits, after investigation and after medical evaluation is complete, citing

Minn. Stat. §176.021, 176.141, and 176.221. The employee contends the employer and

insurer fraudulently failed to investigate the claim, failed to timely pay compensation,

and failed to pay for medical care so medical information was complete, including

maximum medical improvement and return to work planning.

Under Minn. Stat. §176.141, no compensation is due until notice of injury is

given by the employee or actual knowledge is obtained by the employer. If no tice is not

given or obtained within 180 days of the claimed injury, the employee’s claim is barred

for lack of timely notice. The compensation judge found the employee provided written

notice to the employer in March, 2005, within 180 days of the claimed injury, and the

employer and the insurer admitted notice at the hearing. As there is no dispute that

notice was timely given, there is no prejudice to the employee. Nor is there any

evidence in the record of fraud on the part of the employer and insurer or the court

below in this respect.

Minn. Stat. §176.021 provides ―[e]very employer … is liable to pay

compensation in every case of personal injury… of an employee arising out -of and in-

the-course-of employment…. The burden of proof of these facts is upon the employee.‖

Under Minn. Stat. §176.221, ―[l]iability for compensation under this chapter may be by

the employer and insurer by giving the employee written notice of the denial of

liability.‖ If primary liability is denied, it is the employee’s responsibility to make a

claim for benefits, and the employee has the burden of proving a compensable injury

occurred. An employer and insurer are not required to commence payment of benefits

when there is a dispute as to whether the employee sustained an injury ―arising out-of

and in-the-course-of employment.‖

35

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.

4. Procedure of Evidentiary Issues

The employee contends the compensation judge’s decision was procured by

misconduct, fraud, and procedural errors, and is clearly erroneous.

a. Independent Medical Evaluation. The employee complains the respondents

cancelled an independent medical evaluation (IME) causing prejudice to the employee

by an indefinite delay of the examination. Upon the filing of a claim petition, an

employer and insurer may schedule a medical evaluation ―if an examination by the

employer’s physician or health care provider is necessary to evaluate benefits claimed.‖

Minn. §Stat. 176.155, sub 1. In this case, an employee’s attorney withdrew. The IME

was cancelled pending involvement of new counsel, and the employer and insurer

moved for an extension of time, as permitted by Minn. Stat. 176.155, sub. 1. The

motion was supported by sworn affidavit of counsel for the employer and insurer. The

compensation judge, on these facts, properly issued an order extending the time in which

to file an IME report. See, e.g., Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 46;

W.C.D. 198 (Minn. 1992); Newberg v. Walgreens, No. WC05-195 (W.C.C.A. Oct. 5,

2005). There is no statutory mandate requiring an IME, and the employer and insurer’s

subsequent election to forego an IME was neither prejudicial nor improper.

b. Examination of witnesses. The employee argues the compensation judge and

the respondents prevented effective cross-examination of witnesses by evading the

production requested by the employee. Since the respondents withheld and concealed

evidence, the employee asserts, he could not prove his case by the preponderance of the

evidence.

In his pre-trial statement, the employee requested production of records including

Department of Transportation accident and safety violation records for John

Steigerwald. Mr. Steigerwald was a witness at the hearing and the employee has an

opportunity to cross-examine him under oath. The compensation judge permitted the

employee to ask Mr. Steigerwald about accidents or citations on his driving record over

the employer and insurer’s objection. On these facts, we see no error or prejudice to the

employee that would require reversal of the judge’s decision.¹

_________________________ ¹A compensation judge is not bound by common law or statutory rules of evidence. Minn. Stat .

176.141, sub., 1. To warrant reversal, a compensation judge’s evidentiary ruling must be prejudicial as

well as erroneous. See, Villella v. Ford Motor Co., No. WC07-236 (W.C.C.A. Mar. 25, 2008) cases cited

therein.

_________________________

The Employee also subpoenaed Dr. Florey to appear at the hearing, and to bring

the employee’s examination file. Although the doctor did not appear, the employee

agreed to take Dr. Florey’s evidence by phone, and the compensation judge waited until

36

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 petit ion 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. Roehr

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.

5. Primary Liability- Substantial Evidence

The employee claims he sustained a work-related injury on January 12, 2005, as a

result of the intentional aggressive and reckless driving of training engineer, John

Steigerwald. On appeal the employee asserts the compensation judge’s finding that the

employee failed to establish he sustained an injury to his back arising out -of and in-the-

course-of his employment is not supported by the evidence and is clearly erroneous.

This court’s authority to review a compensation Judge’s decision on appeal is

established by statute and by the Minnesota Supreme Court. The role of this court,

when reviewing contested questions of fact, is to determine whether there is substantial

37

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

The competency of a medical witness to provide expert testimony depends upon

both the degree of the witness’s medical/scientific knowledge and the extent of the

witnesses practical experience with the matter. No one disputed Dr. Florey’s or Dr.

Roehr’s qualifications as physicians. Both doctors took a history from the employee and

performed a physical examination. We have on many occasions stated this level of

experience provides sufficient foundation for expert testimony. Drews v. Kohl’s, 55

W.C.D. 33 (W.C.C.A. 1996). The decision concerning the weight to be given to

evidence submitted at the hearing, and whether to accept or reject a doctor’s opinion is

for the compensation judge, not this court. See Nord v. City of Cook, 360 N.W.2d 337;

37 W.C.D. 364 (Minn. 1985). We see no basis, on this record for reversal of the

compensation judges findings that the employee to prove he suffered a work-related

disability to his back.

Ultimately, the decision in this case rests on credibility. There was conflicting

testimony from the employee and the employer and insurer witnesses regarding the

events leading to the employee’s claimed injury, and medical evidence supporting the

employee’s claim of a work-related disability was equivocal, essentially resting on the

history provided by the employee. The court must give deference to the compensation

judge with respect to the assessment of witness credibility. Tolzman v. McCombs

Knutson Assocs., 447 N.W.2d 196, 42 W.C.D. 421 (Minn. 1989). Having carefully

reviewed the record, we cannot conclude that the compensation judge’s findings that the

employee failed to prove he sustained a compensable injury arising out of and in the

course of employment is supported by substantial evidence or clearly erroneous. We

must, therefore affirm.

6. Constitutional Claims and Other Issues

The employee additionally argues he was denied due process and equal

protection guarantees in violation of the United States Constitution. This court has no

authority to consider or determine constitutional issues. Weber v. Inner Grove Heights.,

461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990). Nor does this court have jurisdiction to

address the employee’s allegation the respondents made false statements to the

Unemployment Division of Minnesota or the claim his former counsel engaged in

actions prejudicial to the administration of justice. These issues must be addressed

elsewhere.

39

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

Schneider National Carriers, Inc., [ Served & Filed ]

Employer, [ Oct. 11, 2005 ]

and,

Liberty Mutual Insurance Group,

Insurer.

__________________________________________________________________

WHEREAS, it appears that in order to arrive at a just determination of the issues

in the above-captioned matter; and

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;

NOW, THEREFORE, IT IS HEREBY ORDERED that Schneider National

Carriers, Inc., and Liberty Mutual Group may have an indefinite extension of time to

obtain and file an independent medical evaluation report.

Dated: 10/10/05 _________________________________

Compensation Judge

40

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 ]

Joshua Israel Janet Monson

P. O. Box 535 Aafedt, Forde, Gray

Shakopee, MN 55379 100 South 5th

Street

Minneapolis, MN 55402

Re: Joshua J. Israel v. Schneider National Carriers;

File No. 319-60-XXXX; DOI 1/12/05

Dear Mr. Israel and Ms. Monson:

The Petition for Summary Decision will be addressed at trial. Thank you for

your cooperation.

Yours Very Truly,

WORKER’S COMPENSATION SECTION

_________________________

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

Mailing Address: Office Address:

443 Lafayette Road North P. O. Box 64620

St. Paul, MN 55155 St. Paul, MN 55164-0620

File No. 319-60-1713

DOI 1/12/05

Joshua J. Israel

Employee,

v. FINDINGS AND ORDER

Schneider National Carriers,

Employer,

and [ Served & Filed ]

Liberty Mutual Insurance Companies, [ Nov. 6 2007 ]

Insurer,

and,

St. Francis Hospital,

MN Dept. of Employment & Economic Development

Intervenors.

The above-entitled matter came on for a hearing, pursuant to notice, before

Patricia J. Milun, a Compensation Judge of the Office of Administrative Hearings, on

August 7, 2007, in Minneapolis Minnesota.

Employee, Joshua J. Irsael, P. O. Box 535, Shakopee, MN 55379 appeared pro

se. Janet Monson, Attorney at Law, 150 South Fifth Street, Suite 2600, Minneapolis,

MN 55402, appeared on behalf of the employer and insurer.

A Claim Petition filed on June 10, 2005, initiated this proceeding.

The record in this matter closed on September 7, 2007, at 4:30 pm.¹

__________________ ¹The employee requested additional time to obtain and file statements from Dr. Roehr as well as wage

records. The employer and insurer objected. The Motion to leave the record open for thirty days is

granted. The record closed on September 7, 2007, at 4:30 p.m.

__________________

Notice is hereby given that any party aggrieved by the decision herein may

appeal the decision, or any portion thereof, to the Worker’s Compensation Court of

Appeals. An appeal must be filed with the Chief Administrative Law Judge at P. O. Box

64620, St. Paul, Minnesota, 55164-0620, no later than 30 days following service of this

order; it must contain the information required by Minn. Stat. §176.421, sub. 4.

42

STATEMENT OF ISSUES

1. The Compensation Judge must determine whether the employee sustained a

personal injury on January 12, 2005, that arose out-of and was in-the-course and the

scope of his employment with Schneider National Carriers.

2. If so, what was the nature and extent of injury.

3. The compensation Judge must determine whether the employee is entitled to

temporary total disability benefits from May 25, 2005 through December 18, 2005, and

from December 21, 2006 through March 12, 2007.

4. The Compensation Judge must determine whether the employee is entitled to

temporary partial disability benefits from December 19, 2005 through December 20,

2006, and March 13, 2007 through May 7, 2007.

5. The Compensation Judge must determine whether the employee was an

apprentice on the claimed date of injury.

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.

7. The Compensation Judge must determine whether the insurer’s denial of

liability was a frivolous denial; and if so, what if any penalty is the employee entitled to

receive under Minn. Stat. §176.225.

The parties agreed to the following stipulations at the hearing:

STIPULATIONS

1. The payment information contained in the Motion to intervene filed by the

Minnesota Department of Employment and Economic Development on March 8, 2007,

is accurate. If liability is found, the insurer shall offset the unemployment benefit paid

to the employee for the same week and reimburse the Minnesota Department of

Employment and Economic Development.

2. The itemization of medical services contained in the Motion to intervene by St.

Francis Hospital on December 4, 2006 is accurate.

Based upon all the files, records, and proceedings herein, the Compensation

judge makes the following:

43

FINDINGS

1. The employee is an articulated and intelligent witness.

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.

____________________

3. The employee was hired by the employer on December 24, 2004. As a

condition of employment, Mr Israel was required to complete a training program at

Schneider Training Academy. The program was ―designed to meet the needs individuals

with various backgrounds and experience, ensuring each graduate has the skills

necessary to successfully enter a career as a professional truck driver‖ Petitioners

Exhibit C. The program included on-the-road driving instruction.³

___________________ ³On-the-road driving instruction required the employee to drive with a training engineer and perform the

job duties required of a truck driver. The employee was assigned John Steigerwald as his training

engineer.

____________________

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

4See Minn. 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.

____________________ 6See 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

8On 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 he

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 report9 are not based on an independent evaluation of

the etiology of the employee’s back pain.

______________________ 9Petitioner’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.

21. The employee has the burden of proving, by a preponderance of evidence,

that he sustained a compensable injury that arose out of and in the course and the scope

of his employment with Schneider National Carriers. The employee has not met his

burden of proof by the evidence presented.

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

1. NOW, THEREFORE, IT IS HEREBY ORDERED that the employee’s claim

for temporary total disability benefits from May 25, 2005 through December 18, 2005

and from December 21, 2006 through May 7, 2007 is denied.

2. IT IS FURTHER ORDERED that the employee claim for temporary partial

disability benefits from December 19, 2005 through December 20, 2006, and from

March 13, through May 7, 2007 is denied.

47

3. IT IS FURTHER ORDERED that the claim for medical expenses incurred at

St. Francis Medical Center is denied.

4. IT IS FURTHER ORDERED that the claim for reimbursement of benefits

from the Minnesota Department of Employment and Economic Development is denied.

5. IT IS FURTHER ORDERED that the employee’s claim for penalties is

denied.

6. IT IS FURTHER ORDERED the Claim Petition filed on June 10, 2005, is

dismissed.

_______________________

Dated at Minneapolis, MN PATRICIA J. MILUN This 5

th 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 this 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

IN THE SUPREME COURT

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

St. Francis Hospital,

MN Department of Employment

and Economic Development,

Intervenors.

_____________________________________

Joshua J. Israel, Pro Se.

Janet Monson, Aafedt, Forde, Gray, Monson, & Hager, P.A., Minneapolis, Minnesota

for respondent.

______________________________________

Considered and decided by the court without oral argument.

ORDER

Based on all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Worker’s Compensation

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

further conclude the realtor’s constitutional claims lack merit.

Dated: October 3, 2008

BY THE COURT:

_________________________

Christopher J. Dietzen

Associate Justice

50

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

WORKERS’ COMPENSATION DIVISION

(651) 361-7900

Mailing Address: Office Address:

443 Lafayette Road, North P. O. Box 64620

St. Paul, MN 55155 St. Paul, MN 55164-0620

Joshua J. Israel, [ Served & Filed ]

Employee, [ Nov. 21, 2007 ]

vs.

Schneider National Carriers, ORDER FOR PREPARATION

Employer, OF INDIGENT TRANSCRIPT

and,

Liberty Mutual Insurance Companies,

Insurer.

Pursuant to the provisions of Minn. Stat. § 176.421, sub. 4, Joshua Israel,

employee, has appealed the decision of Compensation Judge, Patricia J. Milun, and has

requested the Chief Administrative Law Judge to prepare a transcript of the hearing at

no cost to the appellant. Having reviewed the request and documentation in support

thereof:

IT IS HEREBY ORDERED that a transcript of the hearing held on August 7,

2007, before the Compensation Judge in the above-referenced matter shall be prepared

at no cost to the appellant.

IT IS FURTHER ORDERED that upon completion of the preparation of the

transcript, appellant shall be provided with an invoice showing the cost of the transcript

and that in the event the appellant is successful in the appeal, the appellant shall request

the Court of Appeals to order that the cost of the transcript ahall be paid to the Office of

Administrative Hearings by the respondent.

____________________________________

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

IN THE SUPREME COURT

A08-1013

Joshua J. Israel, [ OFFICE OF ]

Relator, [ APPELLATE COURTS ]

[ June 24, 2008 ]

vs. [ FILED ]

Schneider National Carriers, and

Liberty Mutual Insurance Companies,

Respondents

and,

St. Francis Hospital,

MN Department of Employment

and Economic Development,

Intervenors.

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. §

563.01, subd. 3 (2006). However, no affidavit of service of the motion on opposing

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 the

WCCA must be filed before this matter will be considered.

Based upon all the files, records, and proceedings herein,

52

(1) the motion of realtor, Joshua J. Israel, for leave to proceed in forma pauperis

in the appeal be, and the same is, granted;

(2) the filing fee required by Minn. R. Civ. App. P. 116.03, subd. 3, and the cost

bond required by Minn. R. Civ. App. P. 107.01 are waived;

(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

Clerk of Appellate Courts;

(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

pauperis on opposing counsel and an affidavit demonstrating timely service of the

conformed copy of the writ of certiorari on the WCCA, or the appeal will be dismissed.

Dated June 24, 2008

BY THE COURT:

_________________________________

Eric J. Magnuson

Chief Justice