TODD HOLT, Employee, v. FORD MOTOR CO., SELF-INSURED, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 21, 2007
REHABILITATION - ELIGIBILITY. Substantial evidence, including the employee=s testimony and the report of a medical provider, supports the compensation judge=s decision that the employee is eligible for rehabilitation services as a Aqualified employee.@
Determined by: Wilson, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Janice M. Culnane
Attorneys: Kirsten M. Tate and Joseph J. Osterbauer, Osterbauer Law Firm, Minneapolis, MN, for the Respondent. Kathryn Hipp Carlson, Miller & Carlson, Minneapolis, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the judge=s finding that the employee is a qualified employee for rehabilitation purposes. We affirm.
The right-handed employee began work for Ford Motor Company [the employer] in 1992. He worked on the assembly line, primarily on the motor line. On March 2, 1995, and on July 27, 2004, the employee sustained work-related injuries to his right shoulder. At the time of the 2004 injury, the employee was working on the assembly line, installing brake calipers. The self-insured employer had notice of the injuries.
The employee had surgery following the first injury and again on October 18, 2005. Dr. Daniel Buss performed the second surgery. The employee returned to work twelve days after that surgery to a light-duty job cleaning grime off of poles in the plant. He performed that job for four weeks before he was laid off due to lack of available work.
The employee began a work conditioning program on or about June 19, 2006. At that time, he was working with QRC Patricia Bassing. He was asked to compile a list of jobs at the employer that he thought he could do that would be lighter in nature. The QRC spoke with Dr. Buss on July 19, 2006, and reported that Dr. Buss felt that the employee would Anot be the same due to having two surgeries on the shoulder.@ The doctor also stated that he believed that the employee would be able to return to some of the light-duty jobs at the employer Afor the duration of the plant being open.@ At that time, the employee was given work restrictions that included Aworking four-hour work days and increasing one hour every two weeks, 15 pounds tabletop to shoulder, 5 pounds above the shoulder, no repetitive use above the shoulder and no repetitive outstretched reaching.@ The QRC reviewed the light-duty positions at the employer, and the employee returned on August 31, 2006, to a clutch installation job.
On October 30, 2006, the employee filed a rehabilitation request, seeking to change QRCs to John Richardson. The employer filed a response indicating that the employee was working at full wage and was not in need of rehabilitation services.
The employee was seen by physician assistant Vinh Dang on November 8, 2006. At that time, the employee reported that he had discomfort in his shoulder after six hours of work. He also stated that most of the time he worked beyond his work restrictions and that he was not rotating jobs but was in one specific job all of the time. Mr. Dang imposed restrictions of no more than five pounds lifting above the shoulder, with no repetitive use above the shoulder and no repetitive outstretched reaching. Mr. Dang also requested that the employee be rotated through jobs on an every-other-day basis. The employee was still restricted to six hours per day at that time, but he was allowed to continue to add one hour per day with each passing week. Mr. Dang predicted that Amost likely these are going to be his permanent work restrictions as long as he can rotate through different jobs.@ Despite Mr. Dang=s recommendation, the employee continued performing only the clutch installation job.
On November 27, 2006, the employee signed a special termination of employment program application, taking a buyout in anticipation of the employer=s eventual closing of the St. Paul plant. The employee signed the agreement on November 27, 2006, and his last day of work was December 14, 2006. As of that last day, the employee was working the light-duty clutch installation job for nine hours a shift. In March of 2007, the employee began work as a car salesman at Apple Valley Ford/Lincoln/Mercury, earning substantially less than his weekly wage at the time of the 2004 injury.
A hearing on the rehabilitation request was held on May 3, 2007. The issue at that time was whether the employee was a Aqualified employee@ for rehabilitation purposes. The parties stipulated that the employee still had restrictions and agreed that, if the employee was entitled to rehabilitation services, he could change QRCs to Mr. Richardson. The compensation judge, in findings and order filed on May 16, 2007, found, in part, that, because of the effects of his work-related injuries, the employee was likely to be permanently precluded from engaging in his usual and customary occupation, that the employee could not reasonably be expected to return to suitable gainful employment with the employer, and that the employee was a qualified employee and entitled to ongoing rehabilitation services. The employer appeals from these findings.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, "unless 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).
An employee must be a Aqualified employee@ in order to be entitled to statutory rehabilitation services. Minn. R. 5220.0100, subp. 22, defines a qualified employee as one who, because of the effects of a work related injury,
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 that 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.
The employer appealed from the judge=s finding that the employee is likely to be permanently precluded from engaging in the employee=s usual and customary occupation but did not appeal from the finding that the employee is likely to be permanently precluded from engaging in the job the employee held at the time of the injury. Because the rule is an Aeither-or@ rule, and no one disputes that the employee is unable to return to the job he held at the time of injury, the issue of whether he is likely to be permanently precluded from engaging in his usual and customary occupation need not be addressed.
The employer also appealed from the judge=s finding that the employee cannot reasonably be expected to return to suitable gainful employment with the date of injury employer. The employer contends that, while the employee is precluded from returning to work with the employer, Athe sole reason is because he took a buyout package and voluntarily terminated his employment and not because of the effects of his work injury.@ We are not persuaded.
At the time of his termination from the employer, the employee was working at a light-duty job installing clutches. The employee testified that the job was outside of his physical restrictions, that he had to take medication in the afternoon to get through the day, and that he informed his QRC of his problems. The employee further testified that, when he talked to his supervisor to see if he could be trained on another job to break up the repetition of the clutch installation job, the supervisor Akind of laughed@ and said that was not going to happen because it created too much of a scheduling problem and because they were starting to run leaner shifts. The employer provided no evidence to contradict this testimony. In fact, at oral argument, counsel for the employer stated, Afrom what we can tell he [the employee] approached one supervisor who said this isn=t going to work.@
In addition, on November 8, 2006, physician assistant Dang requested in writing that the employee be rotated through jobs on an every-other-day basis. While the employee continued to work at the employer until December 14, 2006, no modification was ever made.
The judge noted in her memorandum that the employee could not have maintained the clutch installation job at the employer on a continued or permanent basis. While the employer contends on appeal that the employee could have been accommodated and would have been accommodated had the employee not taken the buyout, the employer submitted no evidence to support that contention. The QRC did not testify at the hearing, and nothing in her reports indicates that the employer could or would accommodate the physician assistant=s request that the employee rotate jobs.
In Erickson v. City of St. Paul, No. WC06-258 (W.C.C.A. Apr. 16, 2007), this court held that Awhether an employee is employed, voluntarily terminates his employment, retires, or relocates does not terminate his or her entitlement to rehabilitation services.@ And in Hugill v. Benton County, slip op. (W.C.C.A. Mar. 10, 2004), we reiterated that refusal of employment provides no grounds to deny rehabilitation assistance. At oral argument, counsel for the employer contended that an employee who accepts a buyout should be treated differently than an employee who terminates employment or is terminated for misconduct. However, we see no reason to distinguish between these types of termination.
It is undisputed that the employee continues to have restrictions affecting the use of his right arm and that he cannot return to the job he was performing at the time of his injury. The light-duty job to which the employee returned was not consistent with his restrictions. The report of Mr. Vang, the rehabilitation records, and the testimony of the employee support the judge=s finding that the employee cannot reasonably be expected to return to suitable gainful employment with the date of injury employer because of the effects of his work injury. We therefore affirm the judge=s finding that the employee is a qualified employee for rehabilitation purposes.
 Employees at that time were scheduled for ten hours a day, four days a week.
 At oral argument, counsel for the employer argued that the employee never Apushed the request for rotating jobs,@ suggesting that the employee had an obligation to do more than approach one supervisor.
 At hearing, counsel for the employer discussed the projected date for closing of the St. Paul plant, representing that 1000 people are still employed there and that 20% of those workers have work restrictions. No evidence, however, was submitted to substantiate those statements.
 There appears to be no dispute that the employee can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services.