LESLIE R. HOLLIDAY, Employee/Appellant, v. REM-MINNESOTA, INC./NORTHSTAR HOMES and ACE USA, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 14, 2003
REHABILITATION - ELIGIBILITY. Where the judge had reasonably found that the employee had returned to employment that was both physically suitable and economically gainful, the compensation judge=s conclusion that the employee was not a Aqualified employee@ for purposes of rehabilitation benefits was not clearly erroneous and unsupported by substantial evidence.
Determined by Pederson, J., Wilson, J., and Stofferahn, J.
Compensation Judge: Carol A. Eckersen.
WILLIAM R. PEDERSON, Judge
The employee appeals from the determination of the compensation judge that the employee is not a Aqualified employee@ for rehabilitation services as defined in Minn. R. 5220.0100, subp. 22. We affirm.
On August 29, 1999, Leslie Holliday [the employee] sustained a work-related injury to her right shoulder while transferring a resident from a bed to a wheelchair in the course of her work as a cook and personal caregiver for REM-Minnesota, Inc. [the employer], the successor to Northstar Homes. The employee had worked for the employer in this capacity for about eight or nine years, having spent most of her adult working life performing this type of work. On the date of her injury, the employee was forty-seven years old and was earning a weekly wage of $327.96, together with a benefit package that included health insurance, a pension plan, and personal leave benefits.
Following her injury, the employee sought treatment with her family doctor, Dr. Brian Livermore, who recommended physical therapy and limitations on her activities. Although noting improvement in her condition, she continued to have difficulties, and on January 21, 2000, she saw orthopedist Dr. Patrick Moriarty. Dr. Moriarty diagnosed Aimpingement, possible rotator cuff tear right shoulder with AC joint arthrosis.@ Ultimately, on April 17, 2000, the employee underwent a subacromial decompression with distal clavicle resection. She was off work for about four weeks and then released to return to work with restrictions.
On August 18, 2000, the employee returned to see Dr. Moriarty, complaining of right shoulder discomfort associated with her duties at work. She related that she had been working repetitively with the arm, lifting and assisting patients and working with their range of motion. Dr. Moriarty recommended that she resume physical therapy and limit herself to light use of her right arm, with no lifting over shoulder level and no forceful pushing, pulling, or lifting greater than twenty pounds. He also advised the employee against repetitive motion with the right arm Asuch as ROM with patients or sweeping or mopping.@ He indicated that these restrictions applied for two weeks and would gradually be lifted. About two months later, on October 9, 2000, Dr. Moriarty completed a Health Care Provider Report, in which he reported that the employee had reached maximum medical improvement with a 3% whole body impairment.
The employer terminated the employee on October 13, 2000, because she allegedly did not get along with her coworkers and had yelled at staff and clients. The employee contended that she may have spoken assertively to coworkers who were not following the clients= programs, but she denied yelling at anyone.
During the fall and winter of 2000-2001, the employee worked briefly with North Woods Interface Volunteer Caregivers, providing respite to families or individuals caring for relatives at home. She did not accept clients who needed lifting or transferring.
On February 8, 2001, the employee saw Dr. Moriarty in follow-up on her right shoulder. She reported to the doctor that she was quite happy with her surgery results but had Afound that she still has limits insofar as repetitive activities and endurance with the shoulder and has pain which will be gradually aggravated with repetitive activities.@ Dr. Moriarty recommended a Functional Capacities Evaluation [FCE] in an effort to get an objective measure on her capacities. In a letter to the employee=s attorney dated February 12, 2001, the doctor reiterated his conclusions regarding diagnosis and permanent partial disability, and he stated that the employee=s restrictions were Avery much comfort-driven, and on a case-by-case basis.@ In general, however, the doctor recommended that the employee avoid repetitive aggravating motions and repetitive away-from-body lifting and overhead lifting.
The employee was seen for an FCE at North Country Peak Performance on February 20 and 21, 2001. The therapist conducting the evaluation indicated that the employee had been cooperative throughout and had consistently worked to the maximum of her abilities. He noted that she had had some right shoulder weakness and pain that had increased with repetitious activities and had resulted in a decrease in her lifting capacities. He recommended that the employee Aavoid continuous overhead work as the repetitive motion of keeping her shoulder in flexion increases her pain.@ He also suggested that the employee carry or push items with her left rather than her right arm when possible, to help decrease stress on her right arm. No job description was available at the time of the evaluation, but the therapist indicated that when one did become available he would be happy to compare the FCE results to the critical demands of the job.
In May 2001, the employee obtained a job as a cook for the Pathways Summer Bible Camp. Each camping session lasted a week, and, depending on the week, the number of campers and staff attending a session ranged between 70 and 165 people. The employee prepared breakfast by herself, prepared lunches with a couple of other staff, and then would help to prepare dinner. She worked full time at this job until the end of July. In her later trial testimony, the employee testified that she had had difficulty with some of the lifting and cleaning activities associated with this job.
On September 7, 2001, the employee obtained a job as a cook and caregiver at Long Lake Loon Lodge Assisted Living, a job that she apparently continues to perform. Monday through Thursday she works eleven-hour days on a rotating schedule of two days on and two days off, and every other weekend she works Friday, Saturday, and Sunday. The employee earns $9.00 per hour at this job, but the job does not include health insurance, a pension plan, or personal leave days. The twelve residents of the home do not require nursing home care but do require supervision. The employee=s duties with this job include the preparing, serving, and clean-up for three meals. The employee also assists the residents with some of their personal needs and performs some light housework, including vacuuming, sweeping, and helping residents with their laundry.
On November 9, 2001, the employee was examined at the request of the employer and insurer by orthopedist Dr. John Dowdle. Dr. Dowdle diagnosed an impingement syndrome of the right shoulder, status post decompression, and concluded that the employee should not lift over twenty pounds. He also recommended that the employee avoid repetitive activities and any type of overhead work or overhead maneuvers.
QRC Elmer Nelson conducted a rehabilitation consultation on December 27, 2001, and concluded that the employee was a Aqualified employee@ for rehabilitation services under the criteria of Minn. R. 5220.0100, subp. 22. In a Rehabilitation Consultation Report dated December 28, 2001, Mr. Nelson reported that, although the employee had returned to work at essentially the same type of job as that she performed at the time of her injury, she had worked with a high degree of pain. He concluded the employee was not expected to return to suitable gainful employment with the employer and would benefit from rehabilitation services. In an attachment to a Rehabilitation Plan filed January 7, 2002, Mr. Nelson concluded that the employee=s FCE placed the employee=s capacity in the sedentary work category and that the employee=s employment as a human services technician at Long Lake Loon Lodge did not appear to be within her restrictions. Mr. Nelson identified as a vocational goal either modifying the employee=s current employment or, if that could not be accomplished, seeking employment elsewhere.
On January 14, 2002, the employer and insurer filed a Rehabilitation Request, objecting to the proposed rehabilitation plan and contending that the employee was not a Aqualified employee@ for the purpose of rehabilitation services. An administrative conference was held on February 28, 2002, and, on March 1, 2002, a mediator/arbitrator at the Department of Labor and Industry concluded that the employee was a Aqualified employee@ for rehabilitation services, and he approved the rehabilitation plan proposed by the QRC. On March 28, 2002, the insurer filed a Request for Formal Hearing.
The issue of whether the employee was qualified for rehabilitation services came on for hearing before a compensation judge on June 12, 2002. Evidence presented to the judge included the employee=s testimony at trial, the deposition testimony of Nancy Restemayer, the owner of Long Lake Loon Lodge Assisted Living, as well as the employee=s medical and rehabilitation records. At trial, the employee testified in detail as to the duties of her job at Long Lake Loon Lodge, including her cooking duties and her activities with the residents of the home. In her deposition testimony, Ms. Restemayer essentially testified that the employee=s job did not require any consistent overhead lifting or lifting in excess of twenty pounds. She testified that on occasion the employee may have to change bed linens but that this happens infrequently. She stated that A[a]ny lifting we get help for her because we are not quite sure what she can handle.@
In a Findings and Order issued July 12, 2002, the compensation judge concluded that the employee=s current employment at Long Lake Loon Lodge Assisted Living was both economically and physically suitable employment. Because the employee was currently working at that suitable job, the judge concluded that the employee was not likely to benefit from rehabilitation services. Accordingly, the judge determined that the employee was not a qualified employee for rehabilitation services under Minn. R. 5220.0100, subp. 22, and she denied the employee=s claim for rehabilitation benefits. The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
ARehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.@ Minn. Stat. ' 176.102, subd. 1(b); see also Jerde v. Adolfson & Peterson, 484 N.W.2d 793, 46 W.C.D. 620 (Minn. 1994). In order to be eligible for rehabilitation services, an injured employee must be deemed a Aqualified employee.@ See Minn. R. 5220.0130, subp. 1. AQualified employee@ is defined in Minn. R. 5220.0100, subp. 22, as follows:
Subp. 22. Qualified employee. AQualified employee@ means an employee who, because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability:
A. is permanently precluded or is likely to be permanently precluded from engaging in the employee=s usual and customary occupation or from engaging in the job the employee held at the time of injury;
B. cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and
C. can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician=s opinion of the employee=s work ability.
In evaluating the suitability of a job for purposes of rehabilitation, consideration must be given to Athe employee=s former employment and the employee=s qualifications, including, but not limited to, the employee=s age, education, previous work history, interests, and skills.@ Minn. R. 5220.0100, subp. 34.
On appeal, the employee contends that the judge=s factual finding that her job at Long Lake Loon Lodge is physically and economically suitable is clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted. The employee argues that her job at Long Lake Loon Lodge requires her to engage in work activities that essentially involve continuous repetitive motion of her dominant right upper extremity and clearly exceed the restrictions set forth by the FCE, Dr. Moriarty, and Dr. Dowdle. Although she has maintained this job since September 2001, she contends that she has done so out of necessity and with significant discomfort that has required the regular use of pain medication. We are not persuaded.
In concluding that the employee=s position at Long Lake Loon Lodge is physically suitable, the compensation judge had the opportunity to observe and to listen to detailed testimony of the employee as to her work duties. She also had opportunity to read the deposition testimony of lodge owner Nancy Restemayer regarding her assessment of the employee=s duties. In her memorandum, the judge noted that the employee is restricted from continuous repetitive movement of her right shoulder but is not restricted from all repetitive movement. She concluded that there are some repetitive duties associated with the employee=s job but that these duties do not exceed the limitations set forth by the FCE.
The issue before this court hinges on questions of fact. The judge listened to the employee=s testimony, reviewed that of the employer, and evaluated both in light of the FCE. She did not have access to any assessment of the job at Long Lake Loon Lodge by either the treating doctor or the therapist who conducted the FCE. The employee last saw Dr. Moriarty regarding her shoulder in February of 2001, and she has not missed any time from work since she began the job at Long Lake Loon Lodge in September of 2001. While there is certainly evidence in this case from which a different factfinder may have drawn a different conclusion, our obligation as a reviewing court is to determine whether there is substantial evidence in the record to support the findings of this factfinder. Based on the evidence submitted in this case, we cannot conclude that the compensation judge clearly erred in determining that the employee=s position with Long Lake Loon Lodge is physically suitable employment. Therefore, we will not reverse the judge=s decision on that basis.
The employee also contends that the judge simply dismissed the obvious economic disparities between her job with the employer and her position with Long Lake Loon Lodge. Although she is earning approximately fifty cents per hour more in her job with Long Lake Loon Lodge than she did in her date-of-injury job, the employee argues that her wage increase is minimal in light of the fact that the injury occurred in 1999. Moreover, she argues, and more importantly, the employee=s job with Long Lake Loon Lodge does not provide health insurance, a pension plan, or any personal leave days. The employee contends that this lack of a benefit package results in a significant disparity in light of which it certainly cannot be concluded that the job at Long Lake Loon Lodge has produced an economic status as close as possible to that the employee would have enjoyed without disability. Again, we are not persuaded.
At Finding 9, the compensation judge acknowledged that the job with Long Lake Loon Lodge does not duplicate the benefit package that the employee had with the date-of-injury employer. Nevertheless, the judge determined that the employee is earning slightly more per hour at Long Lake Loon Lodge. We must assume that the judge also considered the employee=s age, education, previous work history, interests, and skills. As noted by the compensation judge, the employee has worked as a cook or personal caregiver for most of her adult working life. We cannot conclude from the evidence presented in this case that the judge was unreasonable in her determination that the employee=s position at Long Lake Loon Lodge is economically suitable. Accordingly, we also affirm that determination.
Because the judge reasonably found that the employee has returned to employment that is both physically suitable and economically gainful, substantial evidence supports the compensation judge=s conclusion that the employee does not qualify for rehabilitation services. Therefore, we affirm that conclusion. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).