ERIK STEVER, Employee/Appellant, v. FORD MOTOR CO., SELF-INSURED, Employer/Cross-Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 19, 2008
REHABILITATION - DISCONTINUANCE. Substantial evidence supports the compensation judge=s finding that the employee was not likely to benefit from rehabilitation services at the time of the hearing.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Jennifer Patterson
Attorneys: James M. Gallagher, James Michael Gallagher & Assocs., Minneapolis, MN, for the Appellant. D. Jeffrey Pricco, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Cross-Appellant.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s discontinuance of rehabilitation services. The self-insured employer cross-appeals the compensation judge=s finding that the employee=s resignation from his job does not permanently preclude him from being eligible for rehabilitation benefits. We affirm.
Erik Stever, the employee, worked full time for Ford Motor Company, the employer, which was self-insured for workers= compensation liability, between March 13, 2000, and December 31, 2006. He worked at various assignments on the vehicle assembly line at the assembly plant in St. Paul, Minnesota. In addition, for a number of years before the end of 2006, the employee had worked full-time during the day while attending night classes on a part-time basis in a law enforcement program.
In December 2005, the employee was assigned to installing windows in truck doors, which involved lifting glass windows, placing them into truck doors, and twisting them in place. By at least January 2006, the employee developed shooting pain in his arms as a result of this repetitive work. He reported his symptoms to his group leader and his supervisor, who referred him to a staff nurse in the employer=s in-house medical department. The nurse assigned work restrictions and referred him to Dr. Richard Hirt, one of the employer=s in-house physicians. Dr. Hirt in turn referred the employee to Dr. David Falconer, an orthopedist, who diagnosed bilateral medial epicondylitis and bilateral carpal tunnel syndrome and assigned work restrictions that ruled out repetitive arm use. According to the employee=s testimony, Dr. Falconer has treated him conservatively and has not yet recommended surgery.
The self-insured employer admitted primary liability for an injury date of January 12, 2006. After that date, the employer assigned the employee to light duty work; he performed no more assembly work during the remainder of his work with the employer. On November 21, 2006, in anticipation of the employer=s eventual closing of the St. Paul assembly plant, the employee voluntarily agreed to enter a termination of employment program offered by the employer. The buyout program included a lump sum payment of $100,000.00, in exchange for termination of employment, termination of the employee=s seniority rights, and termination of other employment benefits. He remained employed through December 31, 2006.
After entering the termination of employment program, the employee registered as a full-time day student for the 2007 spring semester. During that semester, he worked one evening each week, delivering pizzas. Since January 1, 2007, he also has volunteered for and performed some work for the Minnesota National Guard. As of July 2007, the employee had one semester remaining in his degree program.
The evidentiary record does not contain rehabilitation records but, according to testimony provided by the employee and his qualified rehabilitation consultant (QRC), Julie McDonough, he earlier had been provided a rehabilitation consultation and, since August 28, 2006, had received rehabilitation services. In January 2007, after the employee had terminated his employment with the employer, Dr. Falconer recommended that the employee undergo a functional capacities evaluation (FCE) to assess his employment potential; the employee requested approval from the employer for payment of expenses related to the FCE.
The employer initially denied its approval for the FCE, and also filed a rehabilitation request to terminate the rehabilitation services that had been provided since August 2006. The basis for the employer=s rehabilitation request was the employee=s voluntary termination of employment at the end of 2006; the employer contended that:
The Employee=s current lack of employment is not due to the effects of a work-related condition, but rather, the Employee=s decision to voluntarily resign his employment for reasons unrelated to a work injury. The Employee was working without wage loss until he voluntarily terminated his position with the Employer, Ford Motor Company. Therefore, the Employee should not be entitled to vocational Rehabilitation benefits.
The employee objected. An administrative conference was held on March 28, 2007. In a decision and order issued following the conference, the presiding mediator/arbitrator determined that the employee was eligible for and qualified for rehabilitation services, ordered the employer to pay the reasonable cost of additional rehabilitation services, and concluded that the functional capacity evaluation recommended by Dr. Falconer was necessary to help assess the employee=s employment potential. The employer appealed, requesting a formal hearing to address the rehabilitation issue.
The employer eventually approved payment for the recommended functional capacities evaluation, which the employee completed on June 1, 2007. Dr. Falconer reviewed the FCE and determined that the employee could not perform factory work with his restrictions. Although the QRC recommended job placement assistance for the employee, and held an initial meeting with a placement specialist in late May 2007, the same was not approved by the employer.
An evidentiary hearing was held on July 18, 2007, to address the employer=s request to terminate rehabilitation services. In her findings and order served and filed on August 1, 2007, the compensation judge found that the employee had withdrawn from the labor market from January 1, 2007, through July 18, 2007, and had not looked for full-time work during that time. The compensation judge concluded that the employee was not eligible for ongoing rehabilitation services during that period of time, because he had voluntarily withdrawn from the labor market to become a full-time student, was unavailable to seek or accept full-time work, and was Anot likely to benefit from rehabilitation services at this time.@ She therefore granted the employer=s request to terminate rehabilitation services. The employee appealed. The self-insured employer cross-appealed the compensation judge=s finding that the employee=s resignation from his job does not permanently preclude him from being eligible for rehabilitation benefits.
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, "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).
A voluntary termination from employment for reasons not connected to the work injury does not preclude eligibility for workers= compensation benefits. See Marsolek v. Geo. A. Hormel Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989); Johnson v. State, Dep=t of Veterans Affairs, 400 N.W.2d 729, 39 W.C.D. 367 (Minn. 1987); Mayer v. Hormel Foods Corp., slip op. (W.C.C.A. Apr. 18, 2001). In cases of voluntary termination or termination for misconduct, an employee=s right to temporary disability benefits is suspended until Ait has become demonstrable that the employee=s work-related disability is the cause of the employee=s inability to find or hold new employment.@ Marsolek, 438 N.W.2d at 924, 41 W.C.D. at 968. There is no basis for distinguishing an employee=s voluntary termination from work after accepting an incentive package from other voluntary termination situations. See Boutto v. U. S. Steel Corp., slip op., No. WC06-288 (W.C.C.A. July 18, 2007). In Erickson v. City of St. Paul, slip op., 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.@ See also Holt v. Ford Motor Co., slip op., No. WC07-181 (W.C.C.A. Dec. 21, 2007) (acceptance of a buyout is not distinguished from other voluntary termination situations).
Since the employee was already receiving rehabilitation services, the issue is not whether the employee remained eligible for rehabilitation services, but whether the rehabilitation services could properly be terminated in this case. Minn. Stat. ' 176.102, subd. 8, provides in part that a rehabilitation plan may be suspended, terminated, or altered upon request by the employer upon a showing of good cause. Good cause is defined as:
(a) a physical impairment that does not allow the employee to pursue the rehabilitation plan;
(b) the employee=s performance level indicates the plan will not be successfully completed;
(c) an employee does not cooperate with a plan;
(d) that the plan or its administration is substantially inadequate to achieve the rehabilitation plan objectives;
(e) that the employee is not likely to benefit from further rehabilitation services.
Minn. Stat. ' 176.102, subd. 8.
The compensation judge found that the employee had withdrawn from the labor market after January 1, 2007, when he became a full-time student, and had not conducted an adequate job search between that date and July 18, 2007, the date of the evidentiary hearing. The employee appeals these findings, asserting that he looked for full-time work while attending school full time. Although the employee submitted no job logs into evidence, he testified that while he was attending school during daytime hours, he looked for work he could perform at night, listing security positions and employment with Regions Hospital as two examples of the type of work he sought. Based upon the record as a whole, however, including testimony provided by the employee and his QRC, Ms. McDonough, the compensation judge could reasonably conclude that the employee had voluntarily withdrawn from the labor market when he became a full-time student and that he had not conducted an adequate job search between January 1 and July 18, 2007, including the period of time when he was attending school on a full-time basis. Substantial evidence supports those findings.
Based upon these findings, the compensation judge determined that because the employee was not available to look for or accept full-time employment, he was not likely to benefit from rehabilitation services. The compensation judge also indicated that the employee could be entitled to reinstatement of rehabilitation services if his circumstances change in the future. Substantial evidence supports the compensation judge=s findings concerning the employee=s entitlement to rehabilitation services for the period of time in dispute. Accordingly, we affirm the compensation judge=s grant of the employer=s request to terminate rehabilitation services.
 The self-insured employer did not address this issue in its brief, and therefore it is waived. Issues raised in a notice of appeal but not addressed in the party=s brief are deemed waived and are not decided by this court. Minn. R. 9800.0900, subp. 1.