LINDA TIMMER, Employee, v. INDEPENDENT SCH. DIST. #482, SELF-INSURED/BERKLEY RISK ADM=RS, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 23, 2007
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s conclusion that the employee is permanently and totally disabled as the result of her work injury.
MEDICAL TREATMENT & EXPENSE - NURSING SERVICES. Where the services provided were limited to cleaning services not related to personal care of the employee, the services are not covered by workers= compensation.
Affirmed in part and reversed in part.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Harold W. Schultz II
Attorneys: Luke M. Seifert, Quinlivan & Hughes, St. Cloud, MN, for the Respondent. Leslie M. Altman and Joshua T. Brinkman, Littler Mendelson, Minneapolis, MN, for the Appellant.
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the compensation judge=s determination that the employee is permanently totally disabled as the result of her work injury and from the compensation judge=s award of housekeeping services. We affirm the finding of permanent total disability but reverse the award of housekeeping services.
Linda Timmer sustained multiple injuries in the course of her employment with Independent School District #482 on October 11, 2001. On the date of her injury, Ms. Timmer had been employed as a special education teacher for about 10 years. Before that she was a paraprofessional for the school district for 19 years. Ms. Timmer=s date of birth is December 3, 1947, making her 53 years old when she was injured. Ms. Timmer=s has a bachelor=s degree in secondary education and a master=s degree in special education.
On the date of the injury, the eighth graders at Ms. Timmer=s school, including Ms. Timmer=s special education students, went on a field trip to a private camp to engage in a number of confidence-building exercises. One of those exercises involved the use of a zip line. A student would be placed in a harness with a wheeled assembly on top that fit on a line spanning a ravine between two points. The student was pushed down the line and then caught by a teacher at the end of the line. Ms. Timmer was a catcher. One of the students coming down the line started to slide back and Ms. Timmer, trying to catch the student, fell into the ravine. She fell 20 to 30 feet into the ravine, landing feet first and sustaining multiple injuries.
Ms. Timmer was taken to Staples Hospital and then transferred to St. Cloud Hospital where she was hospitalized until November 8, 2001. While in the hospital, Ms. Timmer was treated for a fractured tibia and fibula with surgery which involved fixation with rods. The employee also had surgery to fix a fracture of the right calcaneus. Neurosurgery was performed with a corpectomy at L2 and L3 and a posterior fusion from L1 to L4 with placement of an interbody cage. The employee also had a fractured pelvis and a fractured right elbow which did not require surgery.
The employee was discharged to a nursing home for follow-up care. She was readmitted to the hospital on December 3, 2001, for removal of the pin in her right heel and remained in the hospital until December 28, 2001, receiving daily physical therapy.
After her discharge from the hospital, the employee saw Dr. Joseph Nessler, the physician who did her orthopedic surgeries, on a number of occasions. In the chart note of June 14, 2001, Dr. Nessler noted the employee was having difficulty with an abdominal hernia which had resulted from the Aanterior approach retroperitonally to her lumbar spine for her fusion.@ On January 10, 2003, Dr. Nessler rated the employee as having permanent partial disability for her lower extremity problems as being 9.5% under Minn. R. 5223.0500 and 5223.0520.
The employee=s spinal surgery was done by Dr. Jeffrey Gerdes, a neurosurgeon. The employee had a number of follow-up appointments with Dr. Gerdes after her hospitalization. Dr. Gerdes monitored the employee=s recovery from her spinal surgery and provided treatment in the form of physical therapy prescriptions. Dr. Gerdes determined the employee was at MMI from her spinal surgery in December 2002, and rated her permanent partial disability as being 37% of the whole body.
The overall care of the employee from the effects of her work injury was provided by Dr. Gregory Schlosser, a physical medicine and rehabilitation specialist. When Dr. Schlosser began seeing her on a regular outpatient basis in February 2002, the employee was living at home. Dr. Schlosser evaluated her medication needs, followed her therapy, and made recommendations for in-home therapy.
The employee had been receiving in-home services from Horizon Health Care in December 2001. The company provided personal services to the employee involving bathing, skin care, and assistance with dressing and also provided light-housekeeping services. The employee also received physical rehabilitation services aimed at assisting her in developing independence in her activities of daily living.
Liability for the employee=s work injury was accepted by the self-insured employer who began paying medical and temporary total disability benefits. The employer also provided statutory rehabilitation services and in November 2001, the employee began working with QRC Diane Wiczek. Ms. Wiczek remained the QRC until the rehabilitation file was closed in February 2004. The rehabilitation plan prepared by Ms. Wiczek in November 2001 established a goal of returning the employee Ato work same employer when medically stable. District willing to create light-duty work with hours as tolerated. Time of recovery uncertain at this time.@
In his chart note of April 5, 2002, Dr. Schlosser indicated his goal was to return the employee to her job as a special education teacher for the 2002-2003 school year. However, in his July 12, 2002, notes, Dr. Schlosser stated that the employee Awill not be able to tolerate full-time employment@ and mention was made of the employer creating a part-time position for the employee. Dr. Schlosser prescribed physical therapy two to three times per week, emphasizing aquatic therapy.
On or about July 19, 2002, Dr. Schlosser wrote an order discontinuing at least some of the services provided by Horizon Health Care. The services Dr. Schlosser meant to discontinue and which services were to be continued are disputed by the parties. The last home care visit record before Dr. Schlosser=s order indicates that the employee received personal care services of assistance with her shower, skin care and help with dressing. The same services were provided after Dr. Schlosser=s order. Services from Horizon Health Care appeared to have stopped in September 2002.
The employee returned to see Dr. Schlosser on September 30, 2002. At that time, she noticed increased discomfort in her left hip and difficulty sleeping at night because of the discomfort. Dr. Schlosser also considered the question of the employee=s return to work and stated,
I feel with her mobility and range of motion limitations she would have a very difficult time returning to the profession of a special ed teacher, and I fully support her pursuit of total disability.
The QRC issued a report dated October 2, 2002, in which she stated,
After several discussions with PERA/TRA, Mary Jo Morgan, Human Resources for ISD #482 Little Falls, her husband and son and her attorney Luke Seifert, Linda has decided to apply for social security disability. There is no question of her not being able to manage a classroom of junior high special education students full time. The school district would have created a part-time job doing IEPs for students. This could be done sitting but Linda doesn=t feel doing paperwork is comparable to doing her customary teaching occupation.
From reviewing the reports, it appears that at this time the parties agreed on a informal basis to put rehabilitation on hold while the employee=s various applications for disability and retirement benefits were processed.
In November 2002, Dr. Schlosser provided a Health Care Provider Report in which he stated the employee had reached MMI as of September 30, 2002, and had sustained a total permanent partial disability of the whole body of 55%. In his January 21, 2003, report, Dr. Schlosser indicated his continued care would be pain medication monitored by periodic follow-up exams.
On February 26, 2003, the employee was evaluated by Dr. John Steubs on behalf of the employer. Dr. Steubs= impression, as noted in his report, was of,
Residual disability secondary to multiple fractures sustained in a fall, including lumbar fractures, left peri-trochanteric hip fracture, segmental left tibia fracture, and open comminuted right calcaneus fracture. She is left with residual leg length inequality, limited range of motion of her left hip, limited range of motion of her lumbar spine, and residual deformity in her right calcaneus.
Dr. Steubs concluded that the employee had reached maximum medical improvement, and that she qualified for a 17% permanent partial disability of the whole body for her pelvis and lower extremity injuries. He also rated an additional 24% for the lumbar spine injuries. Finally, with regard to a return to work, Dr. Steubs stated,
The employee is capable of work. She can do light and sedentary activities, which do not require prolonged standing or walking and allow her to alternately sit and stand and to not have to walk extensive distances.
On May 6, 2003, an independent vocational evaluation was done for the employer by Tod Paulson, a QRC. Mr. Paulson reviewed medical records, took a history from the employee, and administered vocational testing. In his report, Mr. Paulson concluded that it was unlikely the employee would be able to return to her job as a special education teacher. He thought a modified position with the school district which only required drafting IEPs would be reasonable, and he also identified positions such as receptionist or appointment clerk as being jobs which the employee was vocationally suited. In his conclusions, Mr. Paulson accepted the work restrictions provided by Dr. Steubs.
Throughout 2003, the QRC kept her file open but provided no services aimed at returning the employee to work. It should be noted that at that point, Dr. Schlosser had not released the employee to return to any type of work. The reports also indicated that the QRC continued to monitor the employee=s medical care with Dr. Schlosser and other providers. There were also numerous references in those records to the rehabilitation effort being on an informal hold while the parties dealt with the employee=s applications for various disability benefits and while the parties discussed possible settlement.
The parties entered into a stipulation for settlement at the end of 2003 with an award issued on February 3, 2004. The parties settled all claims related to the October 11, 2001, injury. Left open was future medical treatment expense with some exceptions not relevant to this matter. Subsequent to the settlement, rehabilitation services were closed with a filing of an R8 by the QRC on February 12, 2004.
Sometime after Horizon Health Care discontinued home services, the employee contracted with Angie Ross, who does business as Angie=s First Class Cleaning. Ms. Ross testified at the hearing as to the services she and an employee, who was also her sister, provided. The services provided are house cleaning or housekeeping services. Ms. Ross and her sister vacuum, dust, clean the bathroom, mop floors and the like. Ms. Ross stated at the hearing that we Ado a spring clean every time.@ No personal services or rehabilitation services are provided to the employee. Ms. Ross charges $75.00 for each visit - - $55.00 for the cleaning and $20.00 for the driving time. About one hour is spent at the employee=s residence each time, and Ms. Ross visits twice a week generally.
The employer paid for these services for some time but discontinued payment in 2005, taking the position that the services provided by Ms. Ross were not covered under the Workers= Compensation Act. The parties= dispute on this issue was ultimately heard by Compensation Judge Harold Schultz II on March 3, 2006.
At the hearing, the parties agreed that the question of whether the employee was permanently totally disabled was an issue for the compensation judge to determine. While the employee was not eligible for permanent total disability benefits by reason of the settlement, the parties stated that the extent of nursing services to which the employee was entitled was dependent, at least in part, on whether the employee was permanently totally disabled.
The employee had been evaluated by Dr. Paul Wicklund on November 8, 2005. Dr. Wicklund provided a deposition on March 13, 2006. It was Dr. Wicklund=s opinion that the employee was able to return to work in employment which allowed frequent change of positions from sitting to standing and did not require significant bending or lifting. He believed the employee was able to lift up to 10 pounds occasionally. It was also Dr. Wicklund=s opinion that the housekeeping services provided did not meet the criteria for nursing services to be payable under workers= compensation based on a letter from the employer=s attorney setting out those criteria. Dr. Wicklund stated the services were not being provided by trained medical personnel and were not being done under the direction of a physician.
Tod Paulson conducted an updated vocational evaluation for the employer on February 7, 2006, and gave a deposition March 22, 2006. Mr. Paulson=s conclusion was that, based on an ability to work in a sedentary capacity as stated by Dr. Wicklund and Dr. Steubs, the employee had transferrable skills which would allow her to find employment in her local labor market. Mr. Paulson identified clerical jobs such as receptionist or information clerk as employment which would be appropriate for the employee. Mr. Paulson was also asked whether a position for the employee in the school district in which she would only prepare IEPs would be physically appropriate for the employee, and he responded that it would be. Mr. Paulson stated that, in his opinion, the employee was not permanently totally disabled.
Dr. Schlosser was deposed for the hearing on March 30, 2006. He diagnosed the employee=s current condition as being chronic pain from multiple trauma as well as a neuropathic injury affecting the employee=s bladder. Dr. Schlosser=s opinion was that the employee was permanently totally disabled, that a return to employement would exacerbate her pain symptoms. Dr. Schlosser disagreed with Dr. Wicklund=s opinion that the employee was capable of sedentary work activity. Dr. Schlosser stated such activity Awould further exacerbate her pain syndrome.@ Dr. Schlosser was asked about the housekeeping services provided to the employee and he restated his opinion which had been set out in his April 14, 2005 report. It was his conclusion that the employee was not able to perform the housekeeping duties done by Ms. Ross without exacerbating her pain from the work injuries.
Linda Graham, a registered nurse who develops Alife plans@ for injured people, primarily in litigation settings, testified at the hearing. She reviewed the services provided by Ms. Ross and identified them as Ahome-care services@ which she defined as Aservices that would assist somebody to stay at home rather than going to an assisted-living facility or a nursing home.@ The services provided by Ms. Ross would come within this definition, according to Ms. Graham.
The employee testified at the hearing as well. With regard to a possible job of preparing IEPs, the employee stated that such a job would be difficult to perform since a plan was not done in isolation but only after consultation with other teaching professionals and after testing of the student. The hours required to perform those functions were outside her abilities. The employee also expressed her concern about coordinating a return to work with her physical rehabilitation demands. It has been recommended that the employee engage in pool therapy as treatment for her residual symptoms. The employee testified that there is a limited period of time in the day when she can be at the pool because heavy use of the pool creates water surges and waves, which increase her pain and discomfort.
The compensation judge issued his Findings and Order on June 2, 2006, after review of proposed findings and legal memoranda submitted by the parties. The compensation judge found the employee to be permanently totally disabled and also determined the housekeeping services received by the employee to be reasonable and necessary medical treatment to be paid by the employer. The employer appeals.
Permanent Total Disability
The compensation judge determined the employee to be permanently totally disabled as the result of her work injury. The employer argues on appeal that the compensation judge erred in doing so. It is the employer=s position that the employee is capable of employment on a sedentary basis and that the employee has conducted no job search and has voluntarily withdrawn from the labor market. We are not convinced.
At the hearing, the employer argued that the employee was not permanently totally disabled because she was capable of performing a number of jobs which were identified by the IVE, Tod Paulson. Mr. Paulson relied on the opinions of Dr. Steubs and Dr. Wicklund, both of whom were of the belief that the employee could work full time with restrictions that would limit her to sedentary work. However, Dr. Schlosser, the treating physician, disagreed with those restricitons and testified that the employee would not be able to work at that level because of the increased symptoms which would result. His conclusions were supported by the testimony of the employee who discussed at some length her difficulty in performing the activities of daily living.
The compensation judge found the testimony of the employee to be Apersuasive@ and he specifically accepted the opinion of Dr. Schlosser over the opinions of the IME doctors. We conclude there is substantial evidence to support the compensation judge=s determination that the employee is not able to work full time, even at a sedentary level.
The employer also contends that the employee was not permanently totally disabled because she was capable of doing a job the school district was willing to offer, a job of preparing IEPs. It is true that this job possibility was mentioned numerous times in the medical and rehabilitation records and the employer indicated its willingness to make necessary modifications to the job. However, as the compensation judge noted, no such job was actually ever presented. It is not known on what schedule the job might have been done and whether that schedule was consistent with the employee=s restrictions and need for therapy. It is not known what the actual physical requirements of such a job would be and whether the employee=s treating doctor would release her to the job. The employee expressed concern about the necessary contact with special ed students, given her disability. In sum, this job possibility is simply too speculative for any conclusion about the employee=s ability to return to work to be drawn from it.
Finally, the employer argues that the employee cannot be found to be permanently totally disabled because the employee has withdrawn from the labor market and has not engaged in a diligent job search. A job search is not a prerequisite to a finding of permanent total disability. Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 47 W.C.D. 136 (Minn.1992). We find substantial evidence in the form of the employee=s testimony, the medical records, the reports of the QRC, and the deposition of testimony of Dr. Schlosser to support the determination of the compensation judge that the employee is permanently totally disabled.
On this issue, the decision of the compensation judge is affirmed.
An employer is required to provide an injured employee with medical care which is reasonable and necessary to cure and relieve from the effects of the injury. Minn. Stat. ' 176.135, subd. 1. Included in that care are nursing services. The question for this court is whether the housekeeping services provided by Angie Ross to the employee can be placed under the heading of nursing services.
Nursing services are not defined in the statute but previous decisions which awarded nursing services are illustrative. In Alexander v. Kenneth R. LaLonde Enters., 228 N.W.2d 18, 32 W.C.D. 312 (Minn. 1980), the employee=s wife assisted him in dressing and undressing, bathing, washing his hair, brushing and cleaning his dentures, serving him meals, adjusting his leg brace and hand splints, exercising his arm and leg, and assisting him in using the bathroom. Similar services were provided by the employee=s spouse in Novotny v. St. Paul United Methodist Church, 338 N.W.2d 266, 36 W.C.D. 156 (Minn. 1983), and it was also noted that the spouse had additional laundry to do because of the employee=s injury.
The leading case in this area from the Minnesota Supreme Court is Ross v. Northern States Power Co., 442 N.W.2d 296, 299, 42 W.C.D. 7, 13 (Minn. 1989). Mr. Ross received severe burns in a work incident and was temporarily totally disabled for a number of months. His wife provided care which involved changing bandages, bathing the employee, and applying lotion to his burns. She spent two to four hours a day providing this care.
The issue in the case was whether nursing services provided by a family member were compensable when the employee was not permanently totally disabled. The employer argued that such care was available only if the employee was permanently totally disabled, citing Minn. Stat. ' 176.135, subd. 1(a). The court rejected this argument, stating with respect to care provided by family members,
If the disability is permanent partial, temporary total, or temporary partial only, nursing care to cure and relieve the effects of the injury must be furnished; but if the disability is permanent total, a broader type of general nursing care is reimbursable.
The court went on to set criteria to be followed for determining whether nursing care provided by a family member is compensable when the employee is not permanently totally disabled.
The Abroader type of general nursing care@ has not been further defined by case law. This may be because determination of what constitutes nursing services and whether those services are reasonable are questions of fact. See Alexander, N.W.2d at 21, W.C.D. at 317. Factual questions are by their very nature not susceptible to precise definition.
Nursing services under Minn. Stat. '176.135, subd. 1(b) Ainclude not only medically-related and personal care services, but also housekeeping and home maintenance services if rendered necessary by the employee=s disability.@ Sorcan v. USX Corp., 59 W.C.D. 387, 399 (W.C.C.A. 1999); see also Gudmundson v. ISD #857, slip op. (W.C.C.A. Dec. 12, 2002). The present case involves only cleaning services with no evidence that the services include any personal care. We acknowledge performing these services herself may well exacerbate the employee=s pain. We note, however, that many permanently and totally disabled employees are unable to do numerous activities such as cleaning, yard work, grocery shopping and other daily life activities or are able to do so only with increased pain. This fact is insufficient to establish that the services are medically necessary due to the employee=s disability. We conclude that the housekeeping services provided here are not compensable under Minn. Stat. '176.135 and we reverse the compensation judge=s award.
 Minn. R. 5223.0390, subp. 2.B. - 14%; 5223.0390, subp. 4.E. - 10%; 5223.0390, subp. 4.E.(1) - 3%; and 5223.0390, subp. 5.B. - 10%.
 Minn. R. 5223.0390, subp. 2.B.(2) - 14%; 5223.0500, subp. 4.C.(3)(b) - 4%; 5223.0500, subp. 3.A.(2) - 3%; 5223.0500, subp. 2.B.(3) - 3%; 5223.0510, subp. 4.A.(1)(b) - 12%; 5223.0520, subp. 2.E. - 3%; 5223.0520, subp. 4.A.(3)(b) - 12%; and 5223.0520, subp. 4.B.(4)(c) - 4%.
 This section is codified in the current statute as Minn. Stat. ' 176.135, subd. 1(b).