JAMES A. PALMI, Employee/Appellant, v. INTER CITY OIL, and WESTERN NAT'L MUTUAL GROUP, Employer-Insurer/Cross-Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 9, 2004
PRACTICE AND PROCEDURE - REMAND. Where the findings and order do not contain findings on an issue that was specifically listed at hearing, the matter is remanded to the compensation judge for reconsideration of that issue.
Determined by: Rykken, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Patrick M. Spott and Jeremy M. Hurd, Orman, Nord & Spott Law Office, Duluth, MN, for the Appellant. Kathleen S. Bray, Hanft Fride, Duluth, MN, for the Cross-Appellants.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s grant of the employer and insurer=s request for a change of QRC and from the compensation judge=s finding that, at the present time, the employer and insurer are not liable for rehabilitation services related to new job placement or retraining research. The employer and insurer cross-appeal from the award of limited rehabilitation services, contending that the findings and order did not dispose of all questions of fact and law submitted at hearing. We remand for reconsideration.
Mr. James Palmi, the employee, sustained an admitted injury to his cervical spine on February 22, 1999. At the time, he was employed by Inter City Oil, the employer, as an owner-operator hauling and delivering fuel oil, and earned a weekly wage of $1,027.76. As a result of his injury, the employee remained off work until December 1999, except for two brief periods in May and July 1999, when he attempted to return to work but experienced a flare-up of symptoms. The employee was paid temporary total disability benefits and was provided with rehabilitation assistance by the employer and its insurer, Western National Mutual Group. He was initially referred for disability case management, and since 1999 has been provided rehabilitation services through Greg Kestly, qualified rehabilitation consultant (QRC). Since December 1999, the employee has worked as a truck driver and also in a truck sales position, and has periodically changed his employment, securing part-time and full-time trucking positions as he has held throughout his career. He testified that after his work injury, he periodically changed employment with a goal of finding better paying work to replace his pre-injury weekly wage. Although the employee has received intermittent medical treatment for his neck and upper back symptoms since his injury, including physical therapy, he acknowledged that his physical restrictions did not always enter into decisions about jobs. Instead, he often changed jobs when the particular work or project ended.
In November 2002, while the employee was working in a sales position for Lake Superior Mack Sales, the employee=s QRC prepared a rehabilitation plan amendment, an R-3 form, requesting AVocational Guidance/Testing.@ The QRC=s rationale, as stated on the R-3 form, was that the employee=s current job was unsuitable based on the employee=s pre-injury wage and that Avocational planning is necessary toward locating a more suitable job.@ The employer and insurer objected to the plan amendment, contending that they had not been provided adequate information required to evaluate the employee=s need for a vocational assessment or for any ongoing rehabilitation services. The employer and insurer also requested a change of QRC, contending that the QRC=s actions demonstrated a lack of neutrality on the part of the QRC. The rehabilitation issues initially were addressed at an administrative conference and later were set on for a hearing de novo to address the employer and insurer=s request for formal hearing.
In her findings and order, served and filed June 3, 2003, the compensation judge denied the employee=s claim for vocational assessment to research retraining, and awarded the employer and insurer=s request for a change in QRC. The compensation judge, however, awarded specific rehabilitation services to facilitate the employee=s return to the sales position that remained available to him with Lake Superior Mack Sales, including services designed to facilitate communications between the employee and his former supervisors and to improve his computer and sales skills.
The employee appeals from the denial of the requested vocational assessment and from the order for a change in QRC. The employer and insurer cross-appeal, contending that the compensation judge erred in limiting her findings to the suitability of the Lake Superior Mack Sales employment, rather than addressing the larger issue presented by the request for formal hearing, that is, whether the employee=s 1999 work injury is the cause of any loss of earning capacity and need for the proposed vocational services.
The employer and insurer asserted in their cross-appeal that the findings and order did not dispose of all questions of fact and law submitted at hearing as required by Minn. Stat.
At the hearing, the compensation judge outlined the issues as follows:
The issues presented in today=s case are set out in the Request for Formal Hearing filed by the employer/insurer and essentially they are two. First of all the employer/insurer challenges the employee=s ongoing entitlement to rehabilitation benefits taking the position that any reduction in earning capacity at this point in time that the employee may have is not a result of the work injury of February 22, 1999. The employer/insurer also takes the position that in the event that Court should find that there is a reduction in earning capacity associated with the February 22, 1999 work injury at the present time that the current QRC should be changed due to a lack of neutrality in handling the employee=s claim.
Counsel for the parties indicated that they concurred with that itemization of the issues. In her findings and order, the compensation judge outlined the following issues:
1. Is a change in QRC in the best interests of the parties? (The employer/insurer asserts the present QRC has not been neutral and, as a result, has compromised his effectiveness.)
2. Is the February 21, 2003 rehabilitation plan prepared by QRC Kestly reasonable and necessary?
a) Is it appropriate to pursue vocational counseling, testing, job development and retraining research when the employee has the opportunity to work at Lake Superior Mack Sales?
b) Is the position available to the employee at Lake Superior Mack Sales Asuitable gainful employment?@
In her findings, the compensation judge addressed the issues listed in the findings and order. However, she did not specifically address the issue of whether the employee=s 1999 work injury is the cause of any loss of earning capacity and need for the proposed vocational services. The compensation judge approved a change in QRC, denied the employee=s request for vocational counseling, and determined that the employee=s position at Lake Superior Mack Sales was suitable gainful employment. Even though the compensation judge denied vocational testing, she granted a limited type of rehabilitation services to facilitate the employee=s return to work at Mack Sales.
At hearing, the parties= arguments and questions posed to the witnesses primarily focused on the vocational and rehabilitation issues listed in the compensation judge=s findings and order, and peripherally addressed the underlying issue of whether the employee=s 1999 work injury is the cause of any loss of earning capacity and need for the proposed vocational services. However, the findings and order do not contain specific findings on that underlying issue. Although the award of limited rehabilitation services might imply a determination by the judge that the employee=s 1999 injury is the cause of any loss of earning capacity and need for vocational services, there is no finding directly addressing this issue. On appeal, the employer and insurer argue that the compensation judge erred by limiting her findings to the suitability of the Mack Sales position rather than addressing the larger causation issue. We agree.
Minn. Stat. ' 176.371 requires that A[a]ll questions of fact and law submitted to a compensation judge at the hearing shall be disposed of@ and that the Acompensation judge=s decision shall include a determination of all contested issues of fact and law . . . .@ In this case, the findings and order contain no finding on the issue, as outlined in the request for formal hearing, as to whether the employee=s 1999 work injury is the cause of any loss of earning capacity and need for the proposed vocational services. We therefore remand this matter to the compensation judge for reconsideration and findings on that issue. The judge shall make those findings on the existing record.
It is further ordered that the matter then be returned to this court for consideration of the remaining issues, if necessary, depending on the compensation judge=s determination on remand. Either party may appeal from the compensation judge=s findings on remand; that appeal will be considered with any remaining issues outlined in the initial appeal.