RAYMOND R. BURR, Employee, v. O’REILLY’S AUTO PARTS and ACE USA/GALLAGHER BASSETT SERVS., Employer-Insurer/Appellants, and ST. PAUL RADIOLOGY, HEALTHPARTNERS, INC., ST. CROIX ORTHOPAEDICS, P.A., STILLWATER MED. GROUP, and LAKEVIEW MEM’L HOSP., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 28, 2008
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence, including expert medical opinion, supports the compensation judge’s opinion that the employee’s work injuries of June 12 and July 7, 2006, represent substantial contributing factors in his current disability and need for medical treatment.
REHABILITATION - ELIGIBILITY. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee is qualified for rehabilitation assistance.
TERMINATION OF EMPLOYMENT - MISCONDUCT; TEMPORARY TOTAL DISABILITY; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 1(e)(1). Minn. Stat. § 176.101, subd. 1(e)(1) (as amended in 1995), does not apply in this case to bar the employee’s receipt of temporary total disability benefits based on termination of his job due to alleged misconduct, as it is a recommencement provision and the employee had not yet returned to work following his work injury at the time his employment was terminated.
WAGES - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s conclusion that the employee’s wages were not irregular or difficult to determine and therefore that the employee’s daily wage was $80.00 and his weekly wage was $400.00 based upon 8 hours per day and 5 days per week.
Determined by: Rykken, J., Wilson, J., and Stofferahn, J.
Compensation Judge: Janice M. Culnane
Attorneys: Gerald W. Bosch, Bosch Law Firm, Minneapolis, MN, for the Respondent. Gregg A. Johnson and Tracy M. Borash, Heacox, Hartman, Koshmrl, Cosgriff, & Johnson, St. Paul, MN, for the Appellants. Kris Wittwer, Roseville, MN, for the Intervenors.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge’s findings that as a result of his injuries on June 12 and July 7, 2006, the employee has been temporarily and totally disabled from employment since July 14, 2006; the employee is in need of surgery to his right elbow as well as physical therapy for his right knee; the employee is entitled to payment for his claimed medical expenses incurred since his injuries as they were reasonable, necessary and causally-related to his work injuries; the employee is entitled to a rehabilitation consultation; and the employee did not commit misconduct leading to the termination of his employment, such that he would be barred from receipt of temporary total disability benefits. We affirm.
This claim arises from two work-related injuries that Raymond Burr [employee], sustained on June 12 and July 7, 2006, while working for O’Reilly’s Bumper to Bumper [employer]. A native of Florida, the employee resided in Florida where he worked primarily in the areas of freight handling, shipping, receiving, inventory, and packing. He also performed some security work, and worked as a dark room technician, a laboratory aid and a tester of air conditioning units on a production line. In 2000, the employee moved to Minnesota, and began working for O’Reilly’s in March 2006, where he was assigned to work in inventory control.
The employee’s medical history includes various injuries, as documented by extensive medical and workers’ compensation records in evidence. At age four, he was involved in a motor vehicle accident and required 25 stitches to the back of his head. At age 14, the employee was injured while playing football, fracturing the inside of his right elbow and his collar bone. In 1984, the employee was involved in a motorcycle accident, and was thrown from his cycle when hit by a car. He struck his head on a fire hydrant, and, as a result of that injury, injured his left leg, right ring finger, neck, ribs and head. The employee testified that he has had double vision problems since that accident.
On August 25, 1989, while working as a truck driver in Florida, the employee was injured when his delivery van was struck from behind by another vehicle. The employee was diagnosed with a low back strain, and for many years following this injury he reported neck, thoracic and low back pain as well as headaches. The employee remained off work for an extended period of time following this injury.
On September 24, 1992, the employee sustained a work-related injury to his right knee, when his knee was struck by the steel leg of a conveyor belt. The employee remained off work for approximately one year following this injury, and underwent surgery to his right knee. According to his then treating physician, the employee reached maximum medical improvement from that injury by April 1993, and was assigned a four percent permanent partial disability rating relative to his right knee.
According to the employee, he experienced constant neck pain between 1994 and June 2006. He moved to Minnesota on July 3, 2000, and has received follow-up medical treatment in Minnesota for his earlier injuries. His medical records reflect that in July and August 2002, he sought medical treatment after hitting his right elbow on a shed door. He also sought emergency medical treatment at Regions Hospital in January 2003, after he slipped as he stepped out of the bathtub and hit his right elbow and back. In January 2004, the employee underwent emergency room treatment for chest pain, and was diagnosed as having sustained a heart attack, and obtained follow-up medical treatment for that condition. In 2005, the employee noted bilateral knee pain while working for an earlier employer. In January 2006, he was seen at Lakeview Hospital for right knee pain, reporting that he had slipped on ice two days earlier. In April 2006, the employee consulted Dr. Charles Boback, reporting bilateral knee pain. He was again seen at Lakeview Hospital after he jarred his back when he slipped and caught himself as he descended some stairs.
On June 12, 2006, while working for O’Reilly’s, the employee struck his right elbow on a steel beam as he carried a box of filters. He immediately noticed pain in his elbow and numbness and tingling in his right hand. He sought emergency medical treatment at St. John’s Hospital, reporting right elbow pain and difficulty flexing and extending his elbow. He remained off work for two weeks, and obtained follow-up medical treatment from Dr. Terry Domino at Multicare Associates, who released him to return to work within restrictions. The employee attempted to return to work on June 26, performing one-armed, light duty inventory work, but worked only a partial day due to his elbow pain. He again remained off work for a few days, and returned to work the following week. On June 30, 2006, Dr. Domino diagnosed the employee with an acute contusion and bursitis of the right elbow, prescribed medication and referred him to physical therapy.
Following his June 2006 injury, the employee underwent a mandatory drug test as required by the employer following work-related injuries. The employee tested positive for the pain medication he was prescribed for his low back symptoms. The employee spoke with the employer about the need to resolve the test results, and coordinated the exchange of medical records and information between his pharmacy/hospital and the testing laboratory about the medication that caused his positive test results. The issue was resolved at that time.
On Friday, July 7, the employee sustained another work-related injury when he fell down a flight of stairs. He apparently lost his balance while on top of a flight of stairs, perhaps due to an episode of syncope, and fell down the stairs; he could not recall specifically what caused him to fall, but recalled awakening as he was lying on the ground at the base of the stairs. The employee was taken by ambulance to Regions Hospital where he complained of problems with his right knee, right elbow, neck and lower back. He underwent diagnostic studies, and was hospitalized overnight to undergo cardiac-related testing and observation. The employee was provided with morphine for pain management, and was discharged from the hospital with a prescription for Percocet.
On July 12, 2006, the employee underwent another mandatory drug test as required by the employer following work-related injuries; according to the employee, this test was done at his suggestion or prompting. Because he had been given an injection of morphine at the hospital following his most recent injury and had taken Vicodin and Darvocet following his hospital stay, the post-injury drug test had positive results. The employee spoke to the employer’s human resources supervisor about the need to resolve the test results, and took the same steps he had taken after his other positive drug tests, to coordinate the exchange of information between the hospital and the testing laboratory. Evidently the issue was not timely resolved, and, on August 4, 2006, the employee’s position with the employer was terminated on the basis that he had failed to follow the employer’s substance abuse policy. In particular, the employer contended that the employee had failed to follow through with the hospital, testing laboratory and employer, to ensure that the adequate information was provided to explain the medical reason for the positive drug test results.
On July 17, 2006, the employee received additional medical treatment from his primary treating physician, Dr. Charles Boback, for his right elbow and right knee injuries. Dr. Boback had initially examined the employee in September 2002, relative to his complaints of neck and low back pain attributable to his 1998 motorcycle accident. Dr. Boback provided the employee with restrictions in standing, walking and stair climbing, and prescribed physical therapy for his right knee condition.
On September 8, 2006, the employee filed a claim petition, seeking payment of temporary total disability benefits continuing from July 14, 2006, payment of medical expenses, and provision of a rehabilitation consultation. The parties stipulated that the employee sustained a right elbow injury on June 12, 2006, and an injury to his right knee and cervical spine on July 7, 2006, arising out of and in the course and scope of his employment. The employer and insurer, however, disputed the nature and duration of the employee’s injuries and the employee’s wage rate at the time of his July 7, 2006, injury, and denied liability for the claimed expenses. The employer and insurer asserted that the injuries were temporary in nature, that the employee had been released to return to work within a week of his July 7 work injury, that the employee’s position with the employer was terminated due to the employee’s misconduct thereby barring him from receipt of any further temporary total disability benefits, and that the employee’s current condition was related to earlier injuries and his pre-existing medical condition.
The employee has continued to treat with Dr. Boback since his 2006 injuries. By September 26, 2006, Dr. Boback restricted the employee entirely from work, and since then has assigned restrictions which either partially or totally restricted the employee from work. Dr. Boback also referred the employee for orthopedic care with Dr. Andrea Saterbak, who examined the employee on October 13, 2006. She diagnosed the employee as having right elbow olecranon exostosis (a bony growth on the right elbow) with secondary impingement, and recommended right elbow surgery to excise the growth. Dr. Saterbak also recommended that the employee participate in physical therapy to treat his right knee injury. Dr. Boback agreed with both treatment recommendations.
On December 15, 2006, Dr. Paul Wicklund conducted an independent medical examination of the employee at the request of the employer and insurer. He diagnosed the employee with right knee pain without objective findings, degenerative cervical disk disease, right olecranon spur and status-post right and left knee arthroscopies. Dr. Wicklund expressed his opinion that the employee’s June 12, 2006, injury resulted in only a temporary right elbow contusion that was superimposed on a chronic olecranon spur, and found that the spur had been present on x-rays taken of the employee’s right elbow prior to June 12, 2006. He concluded that the effects of the right elbow injury lasted six weeks. He also concluded that the employee’s July 7, 2006, injury resulted in a temporary contusion to his right knee and a cervical strain. He believed that the cervical strain was superimposed on the employee’s pre-existing degenerative cervical disk disease, but that the July 7, 2006, injury did not worsen his cervical condition. Dr. Wicklund concluded that the effects of the employee’s July 7, 2006, injury lasted no longer than three months, and advised that the employee required no work restrictions as a result of either work injury.
On January 31, 2007, upon referral from Dr. Boback, Dr. Peter Daly examined the employee for right knee pain. The employee reported knee pain since he fell at work on July 7, 2006. Dr. Daly noted that an MRI performed in August 2006 showed evidence of the partial lateral meniscectomy of the right knee performed in 1992, along with degenerative changes. He diagnosed “right knee vastus medialis tendinitis with other objective abnormalities,” and recommended nonsurgical care, including exercises and anti-inflammatory medication.
In a report dated April 10, 2007, issued following his review of additional medical records and deposition transcripts provided to him by counsel for the employer and insurer, Dr. Wicklund confirmed his opinion that the employee’s 2006 work injuries were temporary in nature and caused no permanent injuries.
In a report dated April 14, 2007, Dr. Boback referred to the employee’s July 7, 2006, work injury, and provided his opinion that the employee’s right elbow and knee pain,
although not totally related to his work injury, were definitely significantly worsened by it. His pain complaints and frequency of visits to the clinic for pain related to these areas increased greatly following these injuries at work.
Dr. Boback advised that the employee would have some permanent but controllable pain in his knee, and that his elbow would improve with surgical intervention. He also recommended physical therapy for his right knee. In terms of work restrictions, Dr. Boback stated that the employee had been restricted since his injuries, and that the difficulty he had with extending his right elbow “would make lifting and doing repetitive work with his arm difficult. The pain in his knee has limited his ability to stand or walk for any prolonged period of time.”
A hearing was held on April 19, 2007, following which the compensation judge issued her findings and order on June 22, 2007. The compensation judge found that the employee was rendered temporarily totally disabled from July 14, 2006, to the present and continuing as a substantial result of his June 12, 2006, right elbow injury and his right knee, cervical spine and head injuries on July 7, 2006. The compensation judge found that as a result of his 2006 work injuries, the employee required right elbow surgery and physical therapy for the right knee, as recommended by Dr. Saterbak. The compensation judge ordered payment of claimed medical expenses and associated medical mileage, and determined that the employee was entitled to a rehabilitation consultation. As to the disputed wage rate, the compensation judge concluded that the employee earned a weekly wage of $400.00 at the time of his injuries. The employer and insurer appeal from all awards for benefits.
Temporary Total Disability Benefits
The employer and its insurer appeal the award of temporary total disability, arguing that he was justifiably discharged from employment for misconduct and therefore barred from receipt of temporary total disability benefits; that his 2006 injuries were temporary in nature and therefore his current medical condition and disability are unrelated to his work injuries, and that the compensation judge erred in relying on the medical opinion of Dr. Boback when reaching her conclusions concerning the employee’s condition and entitlement to benefits.
The employer and insurer appeal from the compensation judge’s finding that neither the employee’s actions following his positive drug test in July 2006, nor his related termination from employment for failure to comply with the employer’s substance abuse policy, constituted misconduct that would bar him from receiving temporary total disability benefits. Citing to Minn. Stat. § 176.101, subd. 1(e)(1), the employer and insurer argue that the employee failed to timely provide explanatory information to the employer about his medications following a positive drug test, and that such actions represented misconduct as they showed a substantial disregard of his duties and obligations to the employer.
For injuries that occurred prior to October 1, 1995, a justifiable discharge for misconduct suspended an injured employee's right to wage loss benefits until the employee could show that the employee's work-related disability was the cause of the employee's inability to find or hold new employment. Marsolek v. George A. Hormel Co., 438 N.W.2d 922, 924, 41 W.C.D. 964, 966-67 (Minn. 1989). Minn. Stat. §176.101, subd. 1(e)(1), was added to the statute in 1995 to provide that, where an employee’s temporary total disability compensation has ceased because the employee has returned to work and the employee’s employment is later terminated for misconduct, the right to receive temporary total disability benefits following termination is forfeited.
The term “misconduct” is not defined in chapter 176 of the Minnesota Statutes. In Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1998), this court adopted a definition of misconduct set forth by the Minnesota Supreme Court in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973), and held that, for purposes of Minn. Stat. § 176.101, subd. 1(e)(1), misconduct,
is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of [the] employer's interest or of the employee's duties and obligations to the employer.
Id. at 3, citing Tilseth, 295 Minn. at 374-75, 204 N.W.2d at 646 (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)).
Determining whether the employee's actions constituted misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). In this case, the compensation judge found that the employer had terminated the employee’s employment on August 4, 2006, but “not as the result of any employee misconduct.” (Finding No. 5.) In her memorandum, she explained the circumstances surrounding the termination, which was based on the employee’s alleged failure to timely provide medical records or prescription information to the employer that would explain why the employee’s July 2006 drug test results had been positive.
The employee asserts that there is no statutory basis for a discontinuance of benefits based on alleged misconduct. Citing to Griffin v. Abcon, Inc., slip op. (W.C.C.A. July 20, 1999), the employee argues that Minn. Stat. § 176.101, subd. 1(e)(1), is a recommencement provision. For the misconduct provision in the statute to apply, he argues, the employee must have already returned to work and then be subsequently terminated from employment. Here, the employee had not returned to work following his July 7, 2006, injury before he was fired from his job. Instead, he had received one week of temporary total disability benefits, from July 7 through 13, 2006, remained off work, and later was advised that his position with the employer was terminated.
We agree that the plain language of Minn. Stat. § 176.101, subd. 1(e)(1), does not preclude commencement of temporary total disability benefits where an employee has been terminated for misconduct but that it only precludes recommencement of benefits after an employee has returned to work and was subsequently terminated for misconduct. Therefore, we conclude that Minn. Stat. § 176.101, subd. 1, does not apply to this case, as the employee’s position was terminated before he had returned to work following his latest injury.
The employer and insurer also argue that the employee’s disability, if any, since July 14, 2006, did not result from his 2006 work injuries. They claim that the employee’s medical records clearly show that the employee’s significant right knee, right elbow and neck symptoms predated his 2006 injuries, that the June and July 2006 injuries were temporary in nature and that his post-injury symptoms were merely a continuation of his pre-existing symptoms. The employer and insurer assert two bases for their defense: (1) that the judge erroneously relied on Dr. Boback and rejected Dr. Wicklund’s opinions, and (2) that the judge erroneously relied on the employee’s testimony in reaching his conclusion, as the employee’s testimony lacked credibility.
Questions of causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). In addition to medical opinions, a judge may base his or her conclusions on other reliable evidence in the record. See Reimer v. Minnit Tool/M.I.T. Tool Corp., 520 N.W.2d 397, 51 W.C.D. 153 (Minn. 1994). In this case, the compensation judge referred to the employee’s earlier injuries and medical treatment, as reflected in the employee’s medical records, earlier workers’ compensation records and the employee’s testimony. She concluded, however, that the employee’s 2006 injuries caused the employee’s current disability, stating that “there is no evidence which would suggest earlier problems were persistent or disabling at the time of his work-related injury.” The compensation judge accepted the opinion of Dr. Boback in reaching her conclusions, and rejected that of Dr. Wicklund, explaining as follows:
When the employee sustained his elbow and knee injuries at work, he continued to treat with Dr. Boback and Dr. Boback consistently noted ongoing problems associated with the work-related injury. Dr. Boback carefully outlined the symptomatology and repeatedly noted the mechanics of the work-related injuries and opined regarding the work-related causal relationship of these injuries. The Court accepts Dr. Boback’s explanation when concluding the employee was temporarily and totally disabled from July 14, 2006, through the date of the hearing and continuing, as a result of his work-related injuries at the employer. Specifically, the Court rejects the opinion of Dr. Wicklund with respect to the temporary nature of the injuries and the role of pre-existing problems in this employee’s claimed disability.
(Memo. at 8.)
The employer and insurer argue that Dr. Boback had inadequate foundation for his opinions since there is no indication that Dr. Boback was aware of the full extent of the employee’s pre-existing problems with his neck, right knee or right elbow, and that he based his opinions about the extent of the employee’s 2006 work injuries on the employee’s subjective complaints and medical treatment following his 2006 injuries. Their objection to Dr. Boback’s opinion as being supportive of the judge’s opinion rests in their contention that the employee has a history of exaggerating his symptoms and had not been truthful when reporting the nature, duration or origination of his various symptoms.
As to the employer and insurer’s argument regarding the foundational basis for Dr. Boback’s opinion, the competency of a medical expert to provide an expert opinion depends upon both the extent of the scientific knowledge of the expert and the expert’s practical experience with the matter that is the subject of the expert opinion. Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983). Dr. Boback has treated the employee since 2002, and throughout that time has obtained information from the employee about past treatment, obtained histories from the employee concerning his current symptoms, performed physical examinations of the employee, referred him to specialists for second opinions, and reviewed various outside medical records. As a general rule, this level of knowledge is sufficient to afford foundation for the opinion of a medical expert. See, e.g., Caizzo v. McDonald’s, 65 W.C.D. 378 (W.C.C.A. 2005). The fact that Dr. Boback did not specifically refer to the employee’s previous medical treatment with various providers does not render his opinions without foundation. See, e.g., Stuhr v. Northwestern Travel Serv., Inc., 57 W.C.D. 352 (W.C.C.A. 1997).
The employer and insurer also argue that by rejecting Dr. Wicklund’s medical opinion, the compensation judge demonstrated that she found the employee to be credible when he testified about his continued symptoms. In their appellate brief, the employer and insurer point to a reference in a 1990 medical report that the employee had “pronounced tendencies toward symptom magnification and somatization,” and a 1991 report that indicated the employee was physically unable to care for himself because of the effects of earlier work injuries. They contend that the employee “later tried to downplay and discount” that earlier information when speaking with his more recent health care providers. The employer and insurer also outline other instances which, in their opinion, demonstrate that the employee has a history of being untruthful. They contend that Dr. Boback’s medical opinion is based entirely on the employee’s subjective complaints, and, as such, cannot serve as a reliable basis for the compensation judge’s decision.
The judge did not specifically express her opinion on the credibility of the employee’s testimony, although she did refer to the employee’s earlier medical and Florida workers’ compensation records, as well as his testimony, as reflecting his pre-existing conditions, and outlined the treatment he received shortly before and since his 2006 work injuries. The compensation found Dr. Boback’s opinion to be convincing and was unpersuaded by Dr. Wicklund’s explanation for his opinions on causation. It is the role of the compensation judge to consider the competing medical opinions and to determine which opinion is most persuasive. A compensation judge’s decision based on that choice is generally upheld. Kelsey v. Lovegreen Industrial Services, No. WC07-159 (W.C.C.A. Dec. 12, 2007), citing to Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003); Maricle v. Farmstead Foods, No. WC06-289 (W.C.C.A. June 14, 2007); and Johnson v. SICO, Inc., No. WC05-226 (W.C.C.A. Jan. 20, 2006).
It is the role of this court to 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. 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). The compensation judge’s factual conclusions concerning the nature of the employee’s 2006 injuries, and whether those injuries remain substantial contributing factors to the employee’s current condition, were not clearly erroneous as a matter of law, nor were they factually unreasonable, given the medical evidence of record. In this case, substantial evidence, including the employee’s testimony and his medical records, supports the compensation judge’s findings that the employee’s 2006 work injuries were causally related to his disability since July 14, 2006.
Claim for Medical Expenses
An employer must furnish such medical and surgical treatment for a work-related injury “as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.” Minn. Stat. § 176.135, subd. 1(a). The employer and insurer argue that the substantial evidence does not support the compensation judge’s finding that the employee’s need for the claimed medical expenses was causally related to his 2006 injuries and was not solely due to his previous injuries and pre-existing condition. They rely on the expert medical opinion of Dr. Wicklund and the employee’s pre-existing medical records in asserting that the effects of the 2006 injuries were temporary in nature and therefore only those expenses incurred within the duration of the injuries (six weeks for the right elbow and three months for the neck and right knee injuries, based on Dr. Wicklund’s opinion) are compensable.
In her findings and order, the compensation judge thoroughly outlined the medical expenses already incurred by the employee with various medical providers, as well as the physical therapy and surgical treatment recommended by Drs. Boback and Saterbak, and explained her conclusions why those expenses are for treatment that has been, and would be, reasonable and necessary to cure or relieve the effects of the employee’s 2006 work injuries. The compensation judge was well aware of the employee’s pre-existing condition and injuries, noted in the extensive medical records placed into evidence. And, as this court has repeatedly stated, an employee need not prove that the employment as the sole cause, only a substantial contributing cause of the disability or need for medical treatment for which benefits are sought. Swanson v. Medtronics, Inc., 443 N.W. 2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989). As reflected above, we have affirmed the compensation judge’s determination that the employee’s 2006 work injuries represent substantial contributing factors in the employee’s ongoing disability, medical condition and need for medical treatment. We therefore also affirm the awards of claimed medical expenses and authorization for physical therapy and right elbow surgery.
The employer and insurer appeal from the compensation judge’s finding that the employee is qualified for rehabilitation assistance and from the related order for a rehabilitation consultation. “Rehabilitation is intended to restore the injured employee so the employee may return to 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). In order to be eligible for rehabilitation assistance, an injured employee must satisfy the requirements of Minn. R. 5220.0100, subp. 22, which provides as follows:
Subp. 22. Qualified employee. “Qualified employee” means an employee who, because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability:
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 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.
In this case, the compensation judge concluded that the employee’s treating physician continued to assign work restrictions for the employee that limit his ability to return to the type of work he performed at the time of his 2006 injuries. The compensation judge explained that:
Although appropriate therapy and surgery may modify these restrictions, the restrictions currently do not allow this employee to engage in inventory control and handling materials in a warehouse setting, given his current restrictions. In addition, the employee cannot reasonably be expected to return to work at the employer and the provision of rehabilitation services is necessary to expect this employee to return to suitable gainful employment. For this reason the employee is a qualified employee pursuant to Minn. Rule 5220.0100, subd. 22, and a rehabilitation consultation is appropriate and ordered.
Because the judge’s conclusions concerning the employee’s current condition, work restrictions, and disability are supported by substantial evidence of record, we affirm the award of a rehabilitation consultation.
The employer and insurer appeal the compensation judge’s finding that the employee’s daily wage was $80.00 and that his weekly wage was $400.00. Minn. Stat. § 176.011, subd. 3, defines daily wage as “the daily wage of the employee in the employment engaged in at the time of injury.” “[W]eekly wage” is determined “by multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved.” Minn. Stat. § 176.011, subd. 18. Where the amount of the daily wage received or to be received by the employee in the employment engaged in at the time of injury was irregular or difficult to determine, the daily wage is calculated by:
dividing the total amount of wages, vacation pay and holiday pay the employee actually earned in such employment in the last 26 weeks, by the total number of days in which such wages, vacation pay, and holiday pay was earned, provided further, that in the case of the construction industry, mining industry, or other industry where the hours of work are affected by seasonal conditions, the weekly wage shall not be less than five times the daily wage.
Minn. Stat. § 176.011, subd. 3. The employer and insurer argue that the statutory calculation should be used to determine that the employee’s weekly wage is $374.38 based upon the employee’s earnings, excluding overtime, for the twelve weeks before his June 12, 2006, injury. Including overtime and a holiday gift results in a $384.16 weekly wage calculation.
The statutory calculation, however, is only required in cases where the daily wage received or to be received by the employee in the employment engaged in at the time of injury was irregular or difficult to determine. The compensation judge found that the employee was hired to work 8 hours per day, 5 days per week, and that the fluctuations in the employee’s hours during the 12 weeks prior to the injury were not sufficient to characterize the employee’s wages as irregular or difficult to determine. The employee testified that he was hired to work 8 hours per day, 5 days per week. The employer’s human resources supervisor testified at the hearing that while the employer did not guarantee overtime, it was hiring “full time averaging forty hours per week.” Substantial evidence supports the compensation judge’s conclusion that the employee’s wages were not irregular or difficult to determine and therefore that the employee’s daily wage was $80.00 and his weekly wage was $400.00 based upon 8 hours per day and 5 days per week. Accordingly, we affirm.
 The employee later amended his claim to include authorization for right elbow surgery.
 The added provision, effective for injuries occurring on or after October 1, 1995, states in part that
If temporary total disability compensation ceased because the employee returned to work, it may be recommenced if the employee is laid off or terminated for reasons other than misconduct within one year after returning to work if the layoff or termination occurs prior to 90 days after the employee has reached maximum medical improvement.
Minn. Stat. § 176.101, subd. 1(e)(1).