NANCY BUDKE, Employee/Appellant, v. ST. FRANCIS MED. CTR. and ALTERNATIVE INS. MGMT. SERVS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 23, 2007
REHABILITATION - RETRAINING. Substantial evidence, including expert vocational opinion, supported the finding that the employee=s proposed retraining plan was not reasonable or necessary.
REHABILITATION - FEES & EXPENSES. Substantial evidence supported the compensation judge=s determination as to the amounts the employee had proven that she paid for the skill enhancement seminars for which reimbursement was awarded.
EVIDENCE - ADMISSION. This court need not consider whether the compensation judge=s refusal to admit the employee=s proposed post-hearing exhibits was an abuse of discretion, where the admission of the exhibits would not have materially changed the results in the case.
INTERVENTION; STATUTES CONSTRUED - MINN. STAT. § 176.361. Where the employee=s training seminar expenses were partly paid by her and partly paid by a post-injury employer, but her contract with the post-injury employer did not require her to repay training seminar expenses it paid on her behalf, the post-injury employer did not have a right to intervene in the employee=s claim for reimbursement for those expenses.
Affirmed as modified.
Determined by: Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Peggy A. Brenden
Attorneys: DeAnna McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. Laura L. Myslis, Gislason & Hunter, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s denial of her retraining request, and from the denial of her claim for reimbursement of certain costs associated with seminars the employee attended in connection with her employment with her current employer. We affirm.
The employee, Nancy Budke, obtained a two-year nursing degree in 1983 and then began working afterwards as a registered nurse for the employer, St. Francis Medical Center, in Breckenridge, Minnesota. On November 14, 1996, the employee sustained a work injury to her cervical spine, thoracic spine, and left arm. Her weekly wage on that date was $651.38. As a result of the work injury, the employee developed chronic pain syndrome and reflex sympathetic dystrophy of her left upper extremity.
The employee continued to work for the employer in light duty jobs until April 30, 1998, when no further light duty work was available to her from the employer. She was then provided with vocational rehabilitation assistance and began part-time work in September 1998 as an independent contractor conducting insurance physicals at the homes of insurance applicants. Since this job provided only a modest income, rehabilitation efforts also continued with the goal of obtaining a nursing job for the employee. However, the employee=s QRC was unable to identify any available nursing jobs within the employee=s medical restrictions in her geographic labor market.
In October 1999, the employee engaged in job shadowing of the position of a charge nurse at Browns Valley Health Care Center, but she concluded this type of work would be beyond her restrictions as it included repetitive use of the hands for at least one-half hour per day to fill out patient charts, as well as occasional pushing of patients in wheelchairs, some reaching above shoulder level, and grasping and opening medication bottles. In August 2000, the employee started a second part-time job as a private duty nurse and case manager for a 5-month-old infant with cerebral palsy. This job ended when the child died.
The employee and her QRC considered retraining as a physician=s assistant or nurse practitioner. There were issues as to the availability of training in the employee=s geographic area, and the employee also failed to meet the prerequisites for the program, which required a four-year college degree. A labor market survey for nurse practitioner positions was done in early 2002 and the survey revealed that openings for nurse practitioners were few in the employee=s geographic labor market. On April 1, 2002, the employee=s QRC wrote that she was not recommending a retraining plan for the employee at that time. The employee continued to look for work as a registered nurse but found no further work within her restrictions.
By some time in 2004 the employee had started treating at the Center for Natural Healing Arts (ACNHA@), a naturopathic medicine clinic in Alexandria, Minnesota. CNHA=s director, Kristie Hughes, a naturopathic physician, offered the employee part time work for the center assisting with physical measurements and examinations, and performing blood draws at the clinic for the Douglas County Hospital. The job offer required that the employee eventually complete several courses in alternative medicine. The employee began working for CNHA in September 2004. She initially worked two days per week at $15.00 per hour. She was also paid $25.00 per blood draw. After three months the employee received a rate increase to $18.00 per hour. CNHA also paid the employee a $50.00 per week travel allowance to assist in her commuting expenses to and from work. The employee=s home is approximately 70 miles from Alexandria. The employee also received discounts on nutritional supplements and some treatments provided by CNHA.
The employee=s most recent medical restrictions were issued on October 13, 2005. The employee is limited to working five or six hours per day, and must avoid squatting, crawling, crouching, reaching over shoulder level. She is permitted only occasional stooping, bending, kneeling, pushing and pulling, and may lift five pounds occasionally and 20 pounds on rare occasions. The employee is further restricted from static positions and permitted only three hours standing, three hours sitting, and three to four hours walking in a work day. The employee testified at the hearing that her restrictions required her to have a rest day between work days, a requirement which essentially limited her to working 18 hours a week.
Shortly after beginning work with CNHA, the employee began attending various seminars and symposia recommended by CNHA for skill development in alternative medicine. CNHA paid for some of the employee=s expenses associated with these seminars and some were paid by the employee directly. As the employee became more proficient in alternative medicine modalities offered by CNHA, she was given increases in her hourly rate, and as of September 2005, began receiving $27.50 per hour. By the date of hearing the employee was working up to three days a week at CNHA at four to 10 hours per day. During the calendar year 2005, the employee worked about 881 hours and earned $26,886.52 from CNHA. In the 14-week period from January 1, 2006 through April 11, 2006, the employee earned $11,231.27 from CNHA, averaging slightly more than $800.00 per week.
In March 2006, the employee=s QRC prepared a retraining plan proposing that the employee be provided with four years of retraining to complete a B.S.N. degree and then obtain an M.S. degree in nursing. The goal was to qualify the employee to be a certified nurse practitioner. The plan contemplated that the employee attend classes at the Minnesota State University at Moorhead. Estimated costs of the plan were $74,149.00. The plan also contemplated that the employee would remain employed with CNHA after plan completion.
The employer and insurer objected to the retraining plan by filing a rehabilitation request dated March 31, 2006. A rehabilitation plan amendment filed on May 2, 2006, restated the request for retraining and also sought reimbursement for the costs of certain seminars the employee had completed for her work with CNHA. Following an administrative conference on May 9, 2006, approval for the retraining plan and reimbursement for the specified seminars were denied. The employee requested a formal hearing.
A hearing was held before Compensation Judge Peggy Brenden on September 13, 2006. The employee and her QRC testified in support of the employee=s claims. A vocational expert appeared on behalf of the employer. The employer and insurer objected to a labor market survey offered by the employee which had not been provided to them until the day before the hearing. The compensation judge admitted the exhibit but ordered that the record would remain open for 30 days post hearing to afford the employer and insurer an opportunity to respond to the exhibit. At the close of the hearing, the parties noted potential questions relating to the issue of reimbursement of the amounts CNHA paid toward the seminar expenses claimed by the employee. The judge ordered that CNHA be put on notice and given 60 days to intervene. The judge noted that CNHA=s petition would need to show a legal basis justifying reimbursement, as well as evidence of the sums it had paid.
CNHA filed a motion to intervene on October 11, 2006. Its intervention motion claimed payment of $3,463.10 in costs related to the employee=s attendance at alternative medicine seminars. CNHA also attached an itemized list showing expenses it had allegedly paid for 17 seminars, a copy of its written Aemployee agreement@ with the employee, and an assortment of receipts, accounting reports, and seminar brochures. The Aemployee agreement@ provided that ACNHA may choose to pay [professional education] expenses on behalf of [the employee] . . . to include hotel, meals, and travel expenses for seminars on a situational basis as approved by CNHA . . .@ No language in the agreement provided for repayment by the employee of such expenses paid on her behalf. However, in an attachment to its petition, CNHA asserted that it had entered into a Averbal agreement@ with the employee to advance expenses for seminars until the employee would be able to repay CNHA.
On November 9, 2006, the employee submitted a letter brief attaching proposed exhibits containing further summaries and receipts for a number of seminars, including seminars subsequent to those in her rehabilitation plan request. The employer and insurer objected to these proposed exhibits as untimely and prejudicial.
The compensation judge issued her findings and order on November 28, 2006. She refused to admit the post-hearing exhibits offered by the employee. The compensation judge accepted the attachments accompanying the intervention motion into evidence and reviewed them, but denied the motion for intervention on the basis that the motion failed to meet the requirements of Minn. Stat. § 176.361. On the employee=s claim, the compensation judge denied the proposed retraining plan but awarded reimbursement for expenses which were paid by the employee in connection with her attendance at eight seminars. The compensation judge denied reimbursement to the employee for the expenses which were paid by CNHA. The employer and insurer were also ordered to pay for a future seminar for which the employee had sought approval. The employee appeals.
In considering whether a proposed retraining plan is appropriate, this court has generally applied the Poole factors: (1) the reasonableness of retraining as compared to job placement activities or the employee=s return to work with the employer; (2) the likelihood that the employee has the abilities and interest to succeed in the proposed formal course of study; (3) the likelihood that retraining will result in reasonably obtainable employment; and (4) the likelihood that retraining will produce an economic status as close as possible to that which the employee would have enjoyed without the disability. Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989).
The compensation judge found that the proposed retraining plan failed to meet two of the Poole factors: the likelihood that retraining would result in reasonably obtainable employment, and the likelihood that retraining would produce an economic status any greater than the employee=s current employment at CNHA. The compensation judge accepted the opinion of the employer=s vocational expert, David Berdahl. Mr. Berdahl testified that the employee=s physical restrictions, in combination with her medical restriction to part-time work on alternating days, together with the rural nature of her local job market, essentially precluded her from employment in the field of a certified nurse practitioner. Further, the compensation judge relied on Mr. Berdahl=s testimony that the hourly compensation available to a new certified nurse practitioner in the employee=s labor market was about the same as that which the employee was receiving in her job at CNHA.
The employee argues that it was error for the compensation judge to rely on the opinion of Mr. Berdahl. According to the employee, Mr. Berdahl failed to take into account the value of fringe benefits in considering the loss of earning capacity in her present employment. At the time of her work injury, the employee had health insurance and other benefits and those benefits do not exist in her present employment. The employee argues that the value of the benefits should be included in computing the loss of earning capacity. In addition, the employee contends that Mr. Berdahl did not acknowledge the commuting cost the employee has in her present job. Those costs have the effect of reducing the employee=s present compensation and increasing her loss of earning capacity.
There is no question that the employee has a loss of earning capacity as the result of her work injury and no question that the loss of earning capacity has not been eliminated by her present job with CNHA. The question for the compensation judge, however, was not the suitability of her present employment but whether the retraining plan proposed by the QRC would be an improvement over her present status. In this regard, we should note that the retraining plan as filed by the QRC called for the employee to remain employed by CNHA as a certified nurse practitioner after retraining. There was no evidence that the lack of benefits and the commuting expense would be eliminated if the employee was working for CNHA in a different position. There was also some discussion about the employee working for a different employer as a certified nurse practitioner but there was no evidence that the commuting expense would be lessened or that another employer would provide fringe benefits to the employee.
More importantly, however, the compensation judge accepted the opinion of Mr. Berdahl that the employee would not be readily employable after retraining. That opinion was based on a labor market survey which indicated that the job of a certified nurse practitioner required physical activity beyond the restrictions of the employee and that employers were generally not interested in hiring a nurse practitioner for the 18 hours per week available by the employee and instead would want someone who could work full-time. Generally, this court will affirm a compensation judge=s findings that are based on a choice of expert opinion, unless the opinion relied upon was without adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). While we recognize that the employee does not agree with Mr. Berdahl=s opinion, we find that his opinion has adequate foundation and provides substantial evidence to support the decision of the compensation judge. We affirm the denial of the retraining plan.
In a related matter, the employee contends that the compensation judge erred in failing to address the question of whether the costs of a labor market survey prepared by the employee=s QRC in support of the proposed retraining plan should be awarded. While the compensation judge denied the retraining plan, the QRC is entitled to compensation for services related to rehabilitation services under the statute, including here, the labor market survey. Accordingly, we modify the decision to award the costs of the labor market survey to the QRC.
2. Denial of CNHA=s Motion to Intervene.
The compensation judge denied CNHA=s motion to intervene on the basis that CNHA had failed to show a legal interest sufficient to support intervention pursuant to Minn. Stat. § 176.361. Subdivision 1 of that statute affords a right to intervene solely to a person having Aan interest in any matter before the . . . compensation judge such that the person may either gain or lose by an order or decision.@ Subdivision 2 requires that the intervention motion Amust show how the applicant=s legal rights, duties or privileges may be determined or affected by the case.@
The compensation judge based her determination primarily on the fact that the employment agreement submitted by CNHA contained no provisions requiring that the employee repay seminar expenses paid by CNHA, instead providing only that CNHA might choose, at its sole discretion, whether to pay various expenses associated with the employee=s attendance at such seminars. In her memorandum, the compensation judge noted:
The employment agreement contained in Employer Exhibit 3 was thoughtfully crafted and remarkably detailed in its recitation of the rights and responsibilities of both the employee and CNHA. No where in that document is there any indication the employee has a legal, contractual responsibility to repay amounts paid by CNHA toward education expenses. Similarly, there is no indication in the document that CNHA has a duty to pay education expenses or a right to reimbursement of education expenses paid on the employee=s behalf. Indeed, the agreement indicates that the payment of expenses is strictly discretionary on the part of CNHA. In light of these facts, I have not been persuaded CNHA has established a right to reimbursement.
The employee argues that she testified at the hearing that there was an expectation that she would repay CNHA for its expenditures on her behalf. Similarly, CNHA=s motion attached an unverified statement asserting that it had entered into a Averbal agreement@ with the employee in which CNHA would advance expenses for seminars until the employee would be able to repay them. The employee also points to a single paycheck in evidence where $200 was deducted by CNHA without further documentation, and contends that this was in repayment for seminar expenses advanced by CNHA.
We conclude that the compensation judge did not err in giving greater weight to the written contract between the parties than to the employee=s testimony or the intervenor=s unverified statement. Absent proof that the employee had a legally enforceable agreement with CNHA in which payment by CNHA for seminar expenses was subject to reimbursement from any sums awarded for those expenses in the employee=s workers= compensation claim, there was no basis for any reimbursement to CNHA. We affirm the denial of the motion to intervene.
3. Reimbursement for Skill Enhancement Courses; Ruling on Proposed Post-Hearing Exhibits.
The attachments to the employee=s rehabilitation/retraining proposals filed in this matter itemized eight completed alternative medicine seminars and one forthcoming seminar for which the employee sought reimbursement. The compensation judge found that these seminars had increased and enhanced the employee=s skills and earnings in her post injury employment with CNHA and that they were reasonable and necessary components of her vocational rehabilitation. The compensation judge awarded the employee reimbursement for the expenses she had paid for the eight completed seminars, but denied reimbursement for the expenses paid on the employee=s behalf by CNHA. She also ordered the employer and insurer to pay for the forthcoming seminar.
The compensation judge considered all of the receipts, brochures, accounting sheets, and summaries offered by the employee at the hearing or contained in the exhibits to CNHA=s intervention motion. The evidence offered was inconsistent as to the specific amounts paid by the employee and by CNHA. In determining what the employee had paid, the judge discounted all items for which CNHA had demonstrated it had made payment, resolved disparities in amounts by favoring actual receipts over estimates, and where no receipts were available, awarded the lowest estimate for each specific expense item from among the various exhibits.
The employee argues that the compensation judge erred in failing to award her reimbursement for all of the expenses paid, whether paid by her or by CNHA. She further argues that the judge abused her discretion in failing to admit her proposed post hearing exhibits T and U, consisting of additional copies of receipts and brochures and updated summaries of expenses allegedly paid by the employee and CNHA.
We find no error in the compensation judge=s method of calculating the reimbursement ordered to the employee. The judge reasonably gave greater weight to those expense claims which were supported by receipts, and allocated the payments made by the employee or by CNHA based on a similar weighing of the evidence. We have already discussed the compensation judge=s finding that CNHA=s seminar expense payments were not advanced pursuant to an agreement by which the employee was obligated to repay CNHA for those expenses. Since that finding has substantial evidentiary support in the record, we consequently see no error in the denial of reimbursement for seminar expenses paid by CNHA.
Implicit in the employee=s argument is an objection to the denial of any expenses for several seminars which the employee attended subsequent to the preparation of the employee=s rehabilitation/retraining plan documentation. Specifically, the summaries contained in CNHA=s intervention motion and in the employee=s proposed post hearing exhibit U listed additional courses which the employee claimed to have completed after those seminars listed in the attachments to the retraining plan and in the rehabilitation exhibits. We conclude that the compensation judge did not err in limiting her consideration to those seminars actually at issue through the claims giving rise to the hearing.
Regarding the employee=s proposed post hearing exhibit T, we note, that this proposed exhibit was simply a copy of CNHA=s intervention motion and supporting documentation, which the compensation judge did, in fact, admit and consider in determining both the merits of the intervention motion and the expense reimbursement claim. Since this proposed exhibit was a duplicate of an exhibit already in evidence, we fail to see any error in its exclusion.
We have reviewed proposed post-hearing exhibit U in detail and note that virtually all of the documents in that exhibit were already in evidence in other, admitted, exhibits. While the exhibit does contain a few receipts which were not otherwise in evidence, it does not appear that anything in this exhibit would have substantially changed the results in the case.
A compensation judge must balance the potential for abuse or prejudice in a post hearing offer of exhibits with the importance of a full and complete disclosure of the true facts of the case. Our supreme court has noted that, in such a balancing, A. . . acceptance of all competent, relevant, and material evidence . . .@ generally should be favored. Scalf v. LaSalle Convalescent Home, 481 N.W.2d 364, 366, 45 W.C.D. 283, 286 (Minn. 1982). Here, however, in the light of the compensation judge=s rationale for deciding which expenses were reimbursable, admission of the post hearing exhibits would not materially have changed the results. We, therefore, decline to reverse the compensation judge=s exercise of discretion in denying these exhibits.
4. Error in Pay Rate.
The compensation judge expressly found that CNHA paid the employee $28.50 per hour at the time of hearing. The employee argues that this was based on a manifest clerical error in one document, and that the evidence overwhelmingly established the correct pay rate as $27.50. The employer and insurer do not argue that the compensation judge correctly found the rate to be $28.50, but simply contend that this issue on appeal does not affect the results of the other issues below. As it is clear from the record that the correct rate was, in fact, $27.50, we modify the compensation judge=s findings accordingly, in order to correct the record.
 Most of the receipts not otherwise in evidence were for the employee=s meals at the 2005 Frequency Specific Microcurrent Seminar. Although somewhat illegible, these appear to total $119.72. The compensation judge awarded the employee=s estimated meal expenses of $120.00 for this seminar, and the exclusion of these receipts accordingly did not significantly alter the results in the case. Other brochures and receipts not otherwise in evidence related to seminars subsequent to those at issue through the Apleadings@, and not considered by the compensation judge. Their admission similarly would not have affected the results.
 As we have modified the wage rate on the overwhelming weight of the evidence admitted in the case, we need not consider whether the compensation judge should have admitted the employee=s proposed post hearing exhibit S, consisting of a letter from CNHA regarding the employee=s correct hourly rate of pay.