DANIEL GEHRT, Employee/Appellant, v. GENETIPORC USA, LLC, and RISK ENTER. MGMT., LTD., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 23, 2009
REHABILITATION - ELIGIBILITY. While the record supported the compensation judge’s decision allowing discontinuance of placement services, the compensation judge erred in concluding that the employer and insurer were entitled to discontinue all rehabilitation assistance, where expert opinion indicated that the employee would benefit from additional services.
Affirmed in part, reversed in part, and remanded.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Jennifer Patterson
Attorneys: DeAnna McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. Kyle T. Kustermann, Erstad & Riemer, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s finding that the employee is not eligible for rehabilitation services. We affirm in part, reverse in part, and remand on the issue of change of QRC.
The employee was working for Genitiporc USA, LLC [the employer], on November 8, 2003, when he sustained a work-related injury to his low back. His average weekly wage at that time was $592.72. The employee lived in Herman, Minnesota, a town of approximately 300 people. The closest bigger cities within 50 miles of Herman include Fergus Falls, Alexandria, and Morris.
The employee underwent a two-level lumbar fusion to treat his work injuries in February of 2005. A few months later, he was released to return to work with permanent restrictions, which limited him to light work, sitting for no more than 30 minutes before stretching or changing position, standing and walking for no more than one hour before stretching or resting, carrying and lifting no more than 20 pounds, bending and lifting no more than 5 pounds with his back straight and no twisting, and pushing or pulling no more than 20 pounds or 50 pounds on wheels, without bending.
QRC Ione Tollefson performed a rehabilitation consultation on May 4, 2004, and has been the employee’s QRC since that time. Job placement services were instituted in July of 2005 by Brent Larson, a job placement vendor.
In January of 2006, QRC Tollefson recommended exploration of retraining. The employee then took some adult basic education classes to improve his reading and math scores. Meanwhile, on January 30, 2006, the employee found full-time work with Sturdevant Motors, earning $7.90 per hour. The QRC recommended that rehabilitation assistance continue because the employee was working at a substantial wage loss. In April of 2006, the employee sustained injuries in a non-work related automobile accident that caused him to be off work for about six months. When he was able to return to work again, his job with Sturdevant Motors was no longer available.
In the fall of 2006, the employee again worked with Mr. Larson on job placement, and, at the end of October 2006, the employee began working part time as a bartender at the Herman Municipal Liquor store for $7.10 per hour, plus tips. He later found a job at a Marks C Store, where he worked as a clerk and cashier, three to five days per week for $8.50 per hour. Between the two part-time jobs, the employee worked 35-40 hours a week, but he still had a substantial wage loss, and placement efforts were continued.
A retraining request was filed by QRC Tollefson in July of 2007, calling for the employee to complete a two-year course of study in sales and marketing. A hearing was held in October of 2007, and, in a findings and order filed on November 19, 2007, the compensation judge found that the proposed retraining plan was academically suitable. However, finding also that the employee had not exhausted job placement possibilities and that the proposed retraining plan was not appropriate given the employee’s narrow focus on outside food sales and his past reluctance to consider work paid in whole or in part by commission, the judge denied the employee’s claim for retraining.
Following the October 2007 hearing, the employee continued to live in Herman, and his hours at the Marks C Store increased from about 10 hours to between 32 and 40 hours a week, on average, and up to 45 hours. His hourly wage also increased, from $8.50 to $8.75. The work was consistent with his restrictions. The employee resigned from his Herman Municipal Liquor Store job due to differences with a new manager.
The employee also continued to work with QRC Tollefson and job placement vendor Larson. The goal of rehabilitation was to find the employee a better paying job with a new employer. Once the employee began to work between 32 and 45 hours per week at Marks C Store, he spent about 5 to 10 hours per week on job search. In addition to working with his QRC and vendor, the employee found job leads on his own by looking in newspapers, using a computer, and asking for job leads from people he knew. The placement vendor found no leads for physically appropriate work for the employee in St. Cloud that would pay more than he was earning in Herman.
On May 19, 2008, the employer and insurer filed a rehabilitation request, seeking to discontinue the employee’s rehabilitation plan based on the employee’s alleged failure to cooperate. The rehabilitation request proceeded to an administrative conference, and, after the issuance of the decision and order pursuant to Minn. Stat. § 176.106, the employee filed a request for formal hearing.
The request for formal hearing came on for hearing on November 4, 2008. In findings filed on December 4, 2008, the compensation judge found, in unappealed findings, that, while St. Cloud had more job opportunities, the employee was unlikely to make more than the $8.75 per hour that he currently earns; that it was reasonable for the employee to limit his job search to communities within 50 miles of Herman; and that the employee had cooperated with rehabilitation assistance between October 18, 2007, and July 28, 2008. The judge also found that, until the employee’s personal circumstances change or the job market within 50 miles of Herman improves, further job search would likely be futile; and that the employer had carried the burden of proving that, as of July 28, 2008, it was appropriate to discontinue rehabilitation assistance because further rehabilitation services were unlikely to increase the employee’s earnings at Marks C Store in Herman. The employee appeals.
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 (2008). 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 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).
The employee contends that the judge erred in concluding that the employee is no longer eligible for rehabilitation services. We agree.
We note initially that, at hearing, the judge identified the issue as “a request to stop rehabilitation services at this point because the employee has not been cooperating with efforts to rehabilitate himself and has yet to make a diligent search for work.” In unappealed findings, the compensation judge found that it was reasonable for the employee to limit his job search, from and after November 2007, to communities within 50 miles of Herman, and that the employee had cooperated with rehabilitation between October 18, 2007, and July 28, 2008.
However, in her findings and order, the judge identified the issue as “was the employee qualified for ongoing rehabilitation services within the meaning of Minnesota Rule 5220.0100, subp. 22?” We have some question as to whether this specific issue was properly before the compensation judge, but the employee’s vocational expert addressed the issue in her testimony, and the employee addressed the issue in her brief on appeal. We will, therefore, also address the issue.
Minn. R. 5220.0100, subp. 22, defines an employee who is qualified for rehabilitation services as follows:
“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:
- 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; and
- cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and
- 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 her memorandum, the compensation judge noted that there “is no question the employee is permanently precluded from returning to his 2004 job and cannot reasonably be expected to return to suitable gainful employment with his date-of-injury employer.” The question then is whether the employee can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services. The only expert opinion in this regard was that of QRC Tollefson, who testified that, through the provision of vocational rehabilitation services, the employee would be able to return to suitable gainful employment. Ms. Tollefson testified that she would “want to refocus our efforts in assisting him to obtain more marketable skills,” perhaps including retraining.
Clearly it was appropriate for the compensation judge to find that grounds existed to terminate the rehabilitation plan that called for job placement services to assist the employee in finding higher paying employment in and around Herman. In fact, the employee conceded at oral argument that job placement is not necessary at this time.
Rehabilitation, however, encompasses more than job placement. See, e.g., Peterson v. Camilia Rose Convalescent Ctr., 63 W.C.D. 386 (W.C.C.A. 2003); Minn. R. 5220.0100, subp. 29. In the instant case, the employee is working in a job that pays significantly less than his weekly wage on the date of injury. The QRC and vendor agree that the employee’s present job is the best job the employee is likely to obtain within a 50-mile radius of Herman, given his age, education, present skill level, and restrictions. The QRC has opined that, with further rehabilitation services, the employee would be able to obtain suitable gainful employment, and Mr. Larson opined that the employee needs more marketable skills in order to find work that is physically and economically suitable. We find no evidence that would support the judge’s finding that the employee is not eligible for any rehabilitation services.
To the extent that the findings and order allow termination of job placement services, we affirm. We reverse, however, the judge’s finding that the employee is not entitled to any rehabilitation services at this time, and we remand the matter to the compensation judge for a determination on the issue of whether the employee should be required to change QRCs.
 Much of the background information was taken from an earlier decision by this court. See fn. 2, infra.
 The employee appealed, and, in a decision filed on May 7, 2008, this court affirmed the compensation judge’s denial of the request for retraining in sales and marketing. Gehrt v. Genetiporc USA, No. WC08-283 (W.C.C.A. May 7, 2007).
 The employer and insurer indicated that the employee had failed to cooperate with the rehabilitation plan by failing to conduct a job search in St. Cloud, in addition to the following:
1. Employee failed to follow-up on job leads (e.g. commission sales jobs),
2. Employee ruled out broad categories of jobs (e.g. factory jobs), and
3. Employee failed to cooperate for long periods of time.
 The QRC stopped providing rehabilitation services on this date because the employer and insurer stopped paying for services.
 The second issue, not decided by the compensation judge, was whether the employee should be required to change QRCs.
 While the employer and insurer contend in their brief that the employee did not meet the first requirement for eligibility, the employer and insurer did not appeal and are therefore barred from raising this issue. Minn. R. 9800.0900, subp.1.