JEFFREY HALLAM, Employee, v. POTLATCH CORP., and COMPCOST, Employer-Insurer/Appellants, and MN DEP=T OF LABOR AND INDUS./VRU, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 18, 2006
REHABILITATION - RETRAINING; PRACTICE & PROCEDURE - STATUTE OF LIMITATIONS; STATUTES CONSTRUED - MINN. STAT. ' 176.102, SUBD. 11(c). Where the employee made a number of filings which raised the issue of retraining and which resulted in contested administrative conferences, the employee made a request for retraining which tolled the limitation period set out in the statute.
Determined by: Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Robert C. Falsani, Falsani, Balmer, Peterson, Quinn and Beyer, Duluth, MN, for the Respondent. James R. Waldhauser, Cousineau McGuire, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The compensation judge awarded the employee=s requested retraining plan. The employer and insurer appeal, contending that the employee=s request was untimely under Minn. Stat. ' 176.102, subd. 11(c), and that the employee was not eligible for retraining because he had previously returned to suitable employment. We affirm.
Jeffrey Hallam began working for Potlatch Corporation in August 1998. On October 2, 1998, the employee struck his left elbow on a beam while pulling on a log. On August 13, 1999, the employee suffered another injury to his left elbow when a log he was attempting to move struck him. The employee began losing time from work and sought medical attention for his condition. The employer and insurer admitted liability and paid the employee benefits based on the 1998 injury.
The employee=s condition was diagnosed as left elbow lateral epicondylitis and ultimately, in March 2001, the employee=s physician performed a left lateral epicondylectomy. The employee had symptoms and restrictions after the surgery which prevented him from returning to his pre-injury job. The employee=s treating doctor limited the employee to work at the light to medium exertional level. The extent of the employee=s restrictions and his ability to work were not issues at the hearing.
After his injuries, the employee generally worked at Potlatch on a light-duty basis except for the time when he was off work following surgery. The employee first began receiving statutory rehabilitation services in April 2001. The rehabilitation plan prepared by the QRC at that time called for the employee to return to work at Potlatch. The employee was terminated from his employment at Potlatch in early 2002, after a dispute over whether the employee had adequately reported his restrictions. After his termination, the employee began a job search under the direction of his QRC.
The employee retained legal counsel in April 2002, and his attorney filed a notice of appearance with the Department of Labor and Industry. The notice contained the following language:
Employee hereby makes a request for retraining. Because of employee=s injury and resulting disability and restrictions, it is believed that retraining is proper and should be awarded. To the extent required by statute or by the rules of the commission, employee hereby requests and demands an administrative conference on the issue of retraining. This notice is intended to comply with the 104 or 152 week time limit to request retraining, whether by rule or statute.
The attorney also filed a request for certification of dispute at the same time, seeking a change of QRC and Aretraining, or at least immediate consideration of retraining equal with other options, in accordance with Rule 5220.0750 (1), and impending 104 week limit to request retraining and or TTD.@
An administrative conference pursuant to Minn. Stat. ' 176.106, was held on June 19, 2002. The issues addressed at the conference were the change of QRC and whether Athe employee should be given the opportunity to investigate retraining alternatives.@ In the decision and order, the change of QRC was denied and Athe employee=s request to change the rehabilitation plan to include exploration of retraining is approved.@ No request for formal hearing on these issues was filed by any party.
The employee=s attorney filed a subsequent rehabilitation request on August 19, 2002, which resulted in an administrative conference on September 12, 2002. The request to change QRC was renewed with the argument being made that the QRC still was not developing a retraining plan for the employee. The response of the employer and insurer was that consideration of retraining was premature since the employee had just completed a functional capacity evaluation. The request to change the QRC was denied in a decision and order filed September 17, 2002. The employee did not appeal.
On October 28, 2002, the employee began working part-time at a Home Depot store at an hourly wage of $9.50. In February 2003, the employee began working full-time and in October 2003, he received a raise to $9.88 an hour. The QRC closed her file and filed an R-8, Rehabilitation Plan Closure, in April 2003. The employee was terminated by Home Depot on October 24, 2003, apparently as the result of a dispute over working weekend hours. After the employee=s termination from Home Depot, his attorney contacted the insurer regarding the provision of rehabilitation services. The insurer refused to provide rehabilitation.
In December 2003, the employee applied to Hibbing Community College and was accepted into the HVAC program. Also in December 2003, the employee contacted the Vocational Rehabilitation Unit of the Department of Labor and Industry in Hibbing, where he met with QRC Helen Thran. In March 2005, Ms. Thran filed a rehabilitation plan with the Department seeking retroactive certification of retraining for the program begun at Hibbing Community College. The employer and insurer disputed the appropriateness of retraining. The dispute was consolidated for hearing with a claim petition previously filed by the employee=s attorney.
This matter was heard by Compensation Judge Gregory Bonovetz on June 21, 2005. At the hearing, the employee testified that he had completed the program at Hibbing Community College in May 2005, and less than a month later had found employment in the HVAC field at an hourly wage of $13.00 with an anticipated increase to $15.00 to $18.00 per hour after 90 days. The compensation judge determined the retraining program to be appropriate and ordered the employer and insurer to pay the costs and benefits associated with the program. The employer and insurer appeal.
Application of Minn. Stat. ' 176.102, subd. 11(c).
At the hearing and now on appeal, the employer and insurer argue that the the employee=s claim for retraining was not timely under Minn. Stat. ' 176.102, subd. 11(c). That section provided, in relevant part, at the time of the employee=s injury in 1998 that, Aany request for retraining shall be filed with the commissioner before 104 weeks of any combination of temporary total or temporary partial compensation have been paid. Retraining shall not be available after 104 weeks of any combination of temporary total or temporary partial compensation benefits have been paid unless the request for the retraining has been filed with the commissioner prior to the time the 104 weeks of compensation have been paid.@ The employer and insurer state, and the employee does not dispute, that 104 weeks of temporary total and temporary partial disability benefits were paid to the employee by June 18, 2003. The employer and insurer argue that since the request for approval of the retraining plan was not filed until 2005, the employee=s retraining claim is barred by the statute. We do not agree.
Generally, once primary liability is admitted or judicially established, the statute of limitations found in Minn. Stat. ' 176.151 is tolled and a claim for benefits may be brought at any time thereafter. Livgard v Cornelius Co., 308 Minn. 467, 243 N.W.2d 309, 38 W.C.D. 413 (1976); Reich v F&S Constr., WC04 -133 (W.C.C.A. 2004). A claim for payment of medical expenses, for example, may be brought years after the injury. It is not unusual to find in such a situation that the insurer has closed its file because benefits have not been paid for some time and is not able to respond quickly to the claim. Before the provision at issue was added to the statute in 1995, a claim for retraining could also be brought at any time. Minn. Stat. ' 176.102, subd. 11(c) is the only statutory provision which limits the time for filing a claim on an admitted or established injury. One may presume that the statutory provision was added so that employers and insurers would not face the significant financial exposure of a retraining claim on a Astale@ file.
The employer and insurer argue that to effectuate this purpose the employee must be required to file a proposed retraining plan which complies with Minn. R. 5220.0850(2) within the relevant time period. That rule requires, among other items, that the plan identify the specific program, the school, costs, starting and completion dates, and a recent labor market survey.
We disagree with this argument. First, the statute refers to Aany request for retraining@ rather than to filing of a rehabilitation plan or retraining plan. Those phrases are used elsewhere in the statute and we believe that the legislature would have used one of those phrases if it had meant to adopt the restrictive meaning urged by the employer and insurer.
Second, the argument advanced by the employer and insurer would have the practical effect of eliminating the majority of retraining claims. The present case is illustrative of the time table in many retraining cases. A retraining claim is not made immediately after an injury but usually after appropriate medical care, including surgery, is completed. Then it must be determined if the employee has long term restrictions which will prevent a return to the pre-injury job. Even if the employee is not able to return to the pre-injury job, the employee usually attempts to return to a modified job with a pre-injury employer or engages in a job search. Even when retraining is finally considered, the employee generally needs testing to make sure that the employee is able to succeed in retraining academically. Schools and programs need to be investigated to identify a particular program and a labor market survey is generally done to make sure that jobs will exist after the program is completed. The QRC is involved in all of these steps but is not compensated for those activities unless the insurer agrees to consideration of a rehabilitation plan. If the insurer does not agree, the parties will have to litigate the issue of developing a retraining program, a process which can take several months. While it is not impossible to file a formal rehabilitation plan in 104 or 156 weeks, it is difficult to do so. We do not believe the legislature intended to eliminate claims that have not accrued at the end of the time period.
In Davidson v. Northshore Manufacturing, 60 W.C.D. 69 (W.C.C.A. 1999), this court held that it was premature to consider whether the limitation period in the statute was tolled when the evidence did not establish the existence of an actual controversy over retraining. In Schug v City of Hibbing, 63 W.C.D. 440 (W.C.C.A. 2003) this court held that the employee=s claim for retraining was not timely under the statute where the evidence was that the employee=s first request for retraining was the filing of a rehabilitation request seeking approval of a specific retraining program and where this filing was made after the expiration of the 104-week period set out in the statute.
In the present case, the employee filed a number of rehabilitation requests which sought to include retraining in his rehabilitation plan. Those filings were made before the end of the relevant time period and resulted in contested administrative conferences at the Department. Accordingly, there was a bona fide controversy between the parties over retraining that was initiated by filings of the employee within the time period set by statute. We conclude that, on these facts, the purpose of the statute has been met and we agree with the compensation judge=s determination that the retraining claim is not barred by Minn. Stat. ' 176.102, subd. 11(c).
The determination of the compensation judge on this issue is affirmed.
The employer and insurer argue that the employee returned to suitable employment when he went to work at Home Depot and that he is precluded from retraining as a result.
We find no language in the statute which precludes a retraining as a matter of law if the employee has returned to employment. Instead the question of the employee=s ability to return to work and the wage potential of that employment is one of the factors to be considered by the compensation judge in determining whether retraining is reasonable. Poole v. Farmstead Food, 42 W.C.D. 970 (W.C.C.A. 1989).
The compensation judge applied Poole in considering this case and we find substantial evidence to support his decision.
 In an unappealed finding, the compensation judge determined that the employee=s wage on October 2, 1998, was $537.17 and his wage on August 13, 1999, was $531.22.
 The statute was amended in 2000 to increase the time period for filing a request to 156 weeks.
 See Minn. Stat. 176.102, subd. 4 and subd. 11(a) and (b).
 At oral argument, counsel for the employee argued that a letter to the employer and insurer requesting consideration of retraining should suffice to toll the statute, noting that a letter from the insurer was sufficient for purposes of Minn. Stat. ' 176.102, subd. 11(d). Given the evidence in this matter, we do not reach this issue.