ANN C. GOMBOLD, Employee/Appellant, v. METAL CRAFT MACH. & ENG=G and FEDERATED MUT. GROUP, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 11, 2007
REHABILITATION - CHANGE OF QRC. Where the employee=s QRC failed to provide the employer and insurer with relevant information concerning the employee=s unpaid work activities, it was reasonable for the judge to conclude that the employer and insurer had lost confidence in the QRC=s neutrality, justifying a change of QRCs in the Abest interest of the parties.@
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Nancy Olson
Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Appellant. Mark J. Freeman, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge=s decision granting the employer and insurer=s request to change QRCs. We affirm.
On May 31, 2005, the employee sustained an admitted bilateral wrist injury while working for Metal Craft Machine & Engineering [the employer]. She subsequently began working with QRC Albert McCaffrey, on July 29, 2005, as arranged by her attorney. QRC McCaffrey developed a rehabilitation plan calling for medical management, with the ultimate goal of returning the employee to work with the employer or some other employer that could accommodate the employee=s restrictions.
On May 12, 2006, the employee was examined by independent medical examiner Dr. David Falconer. Based on his report, the employer and its workers= compensation insurer filed a notice of intention to discontinue temporary total disability benefits effective June 13, 2006, and, on June 15, 2006, filed a rehabilitation request seeking termination of the rehabilitation plan. Although he was not being paid, the QRC continued to provide minimal services.
During the summer of 2006, the employee was also dealing with legal proceedings connected to a DUI violation from December of 2005. Ultimately, she was sentenced to eight days in jail and 200 hours of community service. The employee wanted to try working at Goodwill Industries to fulfill her community service requirement, and she discussed this possibility with Dr. Frank Wei on June 19, 2006. QRC McCaffrey attended that medical appointment with the employee and Dr. Wei. According to Dr. Wei=s office note, the employee was restricted to sedentary duty, four hours a day, and was to avoid repetitive wrist motions as well as repetitive pushing, pulling, and carrying.
In his report of June 30, 2006, QRC McCaffrey stated that Dr. Wei had released the employee for a trial of work activities and outlined the restrictions. That report also indicated that the QRC had spoken with the insurer=s claims advisor on June 21, 2006, Afor overall updated rehabilitation information/planning purposes.@ The report did not mention the DUI or the possibility of the employee fulfilling her community service requirements by working at Goodwill.
On July 17, 2006, the employee began working at Goodwill, in an unpaid capacity, to fulfill her community service requirement. QRC McCaffrey learned that the employee was working at Goodwill when he attended the employee=s July 31, 2006, appointment with Dr. Wei. In his office note of that date, Dr. Wei reported that the employee had started working at Goodwill
as a clerk, five hours a day. He also reported that the employee seemed to be tolerating the work fairly well. In his report of August 15, 2006, QRC McCaffrey did not disclose the employee=s work at Goodwill. Rather, he indicated, AI will also look for advisements by all parties regarding assisting client with facilitation and coordination of selective/limited job search activities.@
On September 18, 2006, the attorney for the employer and insurer filed a complaint with the Commissioner of Labor & Industry, alleging unethical and unprofessional conduct by QRC McCaffrey based on his failure to notify the employer and insurer of the employee=s work with Goodwill. On September 25, 2006, the employer and insurer filed a rehabilitation request, seeking to change the employee=s QRC from Mr. McCaffrey to a QRC with Stubbe & Associates. The employee=s attorney responded on September 28, 2006, stating that it was not in the best interest of all the parties to change to another QRC.
The rehabilitation request proceeded to an administrative conference, after which the employer and insurer filed a request for formal hearing. That hearing took place on January 31, 2007. In findings and order filed on February 27, 2007, the compensation judge found that the QRC had no intent to mislead the employer and insurer and was unclear regarding his reporting requirements given that the insurer was not paying for and had not approved provision of rehabilitation services. However, the judge went on to find that the employer and insurer had lost confidence in the neutrality of the QRC and that it was reasonable to require the employee to change QRCs. The employee appeals.
STANDARD OF REVIEW
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 (2006). 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, 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
Any party may propose a change of QRC once an employee has exhausted her right to choose pursuant to Minn. R. 5220.0710, subp. 1, and Minn. R. 5220.0710, subp. 3. If the parties are unable to agree to a change, the dispute shall be resolved by a determination of the commissioner or a compensation judge. Id. The determination shall be made according to the best interest of the parties. Id. See also Palmi v. Inter City Oil, WC04-191 (W.C.C.A. Nov. 24, 2004).
In unappealed findings, the compensation judge found that QRC McCaffrey had not mentioned the possibility of the Goodwill job in his June 30, 2006, report but had admitted that, in retrospect, he probably should have mentioned it. The compensation judge also found that, while QRC McCaffrey=s August 15, 2006, report gave the impression that the employee was not working, QRC McCaffrey had become aware that the employee was performing unpaid work at Goodwill on July 31, 2006. Again, the compensation judge found that the QRC had indicated that, in retrospect, he probably should have mentioned that the employee was working. In conclusion, the judge found that QRC McCaffrey=s failure to include this information in his reports had given the employer and insurer reasonable cause to question the QRC=s neutrality, and the judge ordered the employee to select a new QRC.
The employee contends on appeal that the compensation judge used the wrong standard in evaluating whether a change of QRC was warranted. Specifically, the employee argues that QRC McCaffrey was doing the things necessary to facilitate the employee=s medical and vocational recovery, that the goals of rehabilitation were being met, and that the best interests of the parties would therefore be served by having QRC McCaffrey continue on this case. We are not convinced.
The best interest of the parties is to be determined based on the Agoals of rehabilitation@ as provided in Minn. Stat. '176.102, subd. 1(b). Minn. R. 5220.0710, subp. 3. The goal of rehabilitation is to return the injured employee Ato 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).
The compensation judge clearly stated in her memorandum that she had applied Athe best interests of the parties@ standard to this case, concluding, AIt is in the best interests of the parties that both the employee and the employer and insurer trust that the QRC working on the case will be forthright in providing all information relevant to the employee=s rehabilitation to all parties.@
The record reasonably supports the judge=s decision requiring the employee to change QRCs. Michael Quinn, QRC, testified at the hearing on behalf of the employer and insurer. He had been given a set of hypothetical facts based on the employee=s rehabilitation file. It was his opinion that QRC McCaffrey=s reports, as described in the hypothetical, were Alacking in content about specifics related to rehabilitation issues that deal with return to work.@ He also testified that, when an employee is released to return to work, Ausual and customary QRC practice and procedure would be then to begin notifying parties of the availability for work and adjusting the Rehabilitation Plan accordingly.@ It was further his opinion that the employee=s return to work in an unpaid community service position affected the employee=s availability for the labor market and thus affected her return to suitable gainful employment. QRC Quinn also opined that QRC McCaffrey had lost his perspective on neutrality and that a change of QRC would be in the best interests of the parties. This evidence supports the judge=s finding that it was in the best interests of the parties that the employee choose a different QRC. The findings and order are therefore affirmed.
 According to an unappealed finding.
 The judge allowed the employee to select her new QRC.
 Minn. Stat. ' 176.102, subd. 4, provides that an employee has a right to choose a QRC once during the period beginning before the rehabilitation consultation and ending 60 days after filing of the rehabilitation plan.
 QRC Quinn also testified that the filing of a petition to discontinue workers= compensation benefits and a rehabilitation request to terminate rehabilitation services should not influence a decision to disclose or not disclose employment information.
 The employee also contends that is there is no evidence in the record to support the judge=s finding that the employer and insurer have lost confidence in QRC McCaffrey. We note, however, that the record establishes that the employer and insurer filed a complaint of unethical and unprofessional conduct by QRC McCaffrey for his failure to disclose the employee=s return to work. The employee=s argument that the Aallegations are vigorously disputed by the employee and the QRC@ does nothing to address the employer and insurer=s lack of confidence based on their reasonable perception of the facts.