MIGUEL T. NAJARRO, Employee, v. MINNESOTA MINERALS & AGGREGATES, INC., and FEDERATED MUT. INS. CO., Employer-Insurer/Cross-Appellants, and PAR, INC., Intervenor/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 21, 2009
CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee sustained a permanent injury on July 7, 2006, and that his injury was a substantial contributing cause of his need for rehabilitation services after his May 2007 surgery.
REHABILITATION – ELIGIBILITY; STATUTES CONSTRUED – MINN. STAT. § 176.104, SUBD. 1. Where an employer has denied primary liability by arguing that the employee’s injury was temporary and had resolved, the employee is not barred from receiving rehabilitation services from a private vendor under Minn. Stat. § 176.104, subd. 1.
REHABILITATION – FEES & EXPENSES. The compensation judge did not err by denying reimbursement to a rehabilitation firm for job placement service expenses related to job development in general and which were not prorated to the employee nor specifically designed for the employee based upon his skills, training, education, and physical abilities.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
Attorneys: Mark J. Freeman, Fitch, Johnson, Larson and Held, Minneapolis, MN, for the Cross-Appellants. Bernard J. Robichaud, Jr., Robichaud and Anderson, Minneapolis, MN, for the Appellant.
MIRIAM P. RYKKEN, Judge
The intervenor, PAR, Inc., appeals from the denial of a portion of expenses incurred for placement development services its staff provided to the employee. The employer and insurer cross-appeal from the compensation judge’s determination that the employee was qualified for rehabilitation services and from the award for a portion of the rehabilitation and placement expenses incurred by PAR, Inc. We affirm.
On July 7, 2006, the employee sustained an admitted injury to his left shoulder, while employed by Minnesota Minerals & Aggregate, Inc. On that date, the employee worked full time as a concrete laborer, earning a weekly wage of $760.00. The employer and its insurer, Federated Mutual Group, initially admitted primary liability for the injury and paid medical expenses on behalf of the employee, but disputed the nature and extent of the injury. Following his injury, the employee continued to work, and sought treatment from his family physician, who in turn referred him to Dr. Randall Chadwick, Jr., an orthopedic surgeon. Dr. Chadwick’s preliminary diagnosis was rotator cuff tendinosis. At Dr. Chadwick’s referral, the employee underwent an MRI scan in October 2006 which showed, in summary, AC joint arthrosis, narrowing of the acromiohumeral space, supraspinatus and infraspinatus tendinosis, subscapularis tendinopathy and mild fraying of the superior labrum. Dr. Chadwick recommended work restrictions, physical therapy and a cortisone injection for symptomatic relief. By December 2006, Dr. Chadwick released the employee to return to regular job duties, recommending that he return for care in the event of the recurrence of his symptoms. The employee later testified that once he resumed his regular job in late December 2006, his shoulder pain worsened.
In January 2007, the employee traveled to El Salvador, due to a family medical emergency and a death in his family. He remained out of the country for approximately three weeks and, upon his return to Minnesota in February, learned that the employer had not held his job for him and therefore had discharged him from employment. In February, due to the loss of his job, the employee was referred by his attorney to PAR, Inc., [PAR] for rehabilitation services. On March 22, 2007, a qualified rehabilitation consultant intern [QRC] with PAR conducted a rehabilitation consultation, and determined that the employee was qualified for rehabilitation services.
According to the employee’s testimony, his symptoms never fully resolved after his injury. On March 27, 2007, he consulted Dr. Chadwick again, reporting continued shoulder pain. Dr. Chadwick recommended surgery to address an impingement syndrome and to relieve the employee’s left shoulder pain.
The employee filed a claim petition in March 2007, seeking payment of temporary total disability, payment of medical expenses, provision of rehabilitation services, permanent partial disability benefits, and authorization for the proposed surgery. The employer and insurer denied liability for the claims, contending that the employee’s injury had resolved and that they had paid all benefits due as a result of the employee’s July 7, 2006, injury.
In late March, PAR began providing medical management and job placement services to the employee. The QRC prepared an R-2 rehabilitation plan, and, by April 5, 2007, met with the employee and a placement specialist to review placement services. On April 11, 2007, the employer and insurer filed a rehabilitation request, objecting to the proposed rehabilitation plan that had been submitted by the QRC, and contending that the employee had been released to return to work without restrictions as of December 18, 2006, that his work injury had resolved, and that the employee was not entitled to rehabilitation services. The QRC continued to provide rehabilitation services to the employee, however, even though the claim was in litigation and even though the insurer had denied the employee’s entitlement to rehabilitation services.
On May 7, 2007, PAR filed a motion to intervene in the employee’s claim. The employer and insurer objected to that motion on the grounds that rehabilitation services were not reasonable or necessary, that they were excessive, and that the services that were being provided to the employee at the request of his attorney and were “in the nature of expert testimony rather than statutory rehabilitation services.” The employer and insurer also contended that their denial of liability precluded the employee from rehabilitation services through a private rehabilitation firm, but that the employee would be entitled to rehabilitation services through the Department of Labor and Industry’s Vocational Rehabilitation Unit.
The employer and insurer also denied authorization for the employee’s claim for the surgery recommended by Dr. Chadwick, contending that the employee’s need for surgery was not causally related to his 2006 injury. The employee proceeded with the surgery in May 2007, with his surgical expenses being covered by private medical insurance. At the time of the surgery, Dr. Chadwick detected and corrected a partial thickness rotator cuff tear, a condition that had not been demonstrated by the MRI scan. He also performed an acromioplasty and a distal clavicle resection.
On July 3, 2007, the employee was examined by Dr. Jack Drogt, at the request of the employer and insurer. At the examination, the employee reported more pain than he had experienced before his shoulder surgery. Dr. Drogt concluded that the employee had an incompletely rehabilitated left shoulder status post surgery, with continued pain, and with continued need for rehabilitation under the care of his orthopedic surgeon. Dr. Drogt concluded that the employee’s injury of July 7, 2006, appeared to be temporary in nature, resolving with very few, if any, symptoms by December 2006. Dr. Drogt stated that the employee legitimately had increased discomfort when he returned to work, but did not seek medical care at that time, December 2006, and that “it is possible he re-injured his shoulder” at that point. Dr. Drogt concluded that the employee initially had reached maximum medical improvement [MMI] from his injury of July 7, 2006, upon his return to work in December 2006, but at the time of his examination in July 2007, the employee had not yet reached MMI from his overall left shoulder condition because he had not fully recovered from surgery. Dr. Drogt advised that the employee could work at clerical sedentary work, that the need for his restrictions did not result from his July 7, 2006, injury, and that he required vigorous physical therapy to resume normal range of motion in his left shoulder. In Dr. Drogt’s opinion, the employee’s need for additional medical treatment would be related either to an injury that may have occurred upon his return to work in December 2006 or January 2007, or any other injury that may have occurred after the employee left the employ of Minnesota Minerals. Dr. Drogt also stated that the employee’s medical treatment had been reasonable and necessary, regardless of the issue of causation.
By August 13, 2007, Dr. Chadwick released the employee to work within restrictions, including no overhead lifting. On October 11, 2007, PAR filed a rehabilitation request, seeking payment for rehabilitation and placement services it had provided to the employee, a claim already pending due to the claim petition. The employer and insurer again denied that the employee was entitled to rehabilitation services.
By February 14, 2008, Dr. Chadwick concluded that the employee had reached MMI from his injury and surgery, and released the employee to unrestricted work. The parties ultimately resolved the employee’s claim on a full, final, and complete basis, closing out the employee’s claims entirely against the employer and insurer, including a close-out of claims for medical expenses and rehabilitation expenses. The Award on Stipulation, served and filed on October 21, 2008, resolved the employee’s claim petition and the employer and insurer’s rehabilitation request. The stipulation for settlement did not, however, resolve the intervention claim of PAR, but instead provided that PAR could proceed with its claim by requesting a hearing. See Parker/Lindberg v. Friendship Village, 395 N.W.2d 713 (Minn. 1986). (Er. Ex. 2, Stipulation for Settlement.)
The employee began working in a temporary assembly position for Aerotech/Brady, earning $11.70 per hour compared to his pre-injury wage of approximately $19.00 per hour. He continued to search for a higher-paying position. Work was available at Aerotech during various weeks in 2007; the employee later obtained work through a temporary employment agency, and by the time of the hearing he was earning $13.00 per hour.
At PAR’s request, a hearing was held on March 31, 2009, to address its entitlement to reimbursement for rehabilitation and placement services. At issue was PAR’s claim for payment of approximately $15,500.00 in services provided between February 21, 2007, and May 31, 2008. Of that amount, $10,080.92 related to placement services and expenses, with the remainder related to QRC services. (Petitioner’s Exhibit A.) In his Findings and Order served and filed May 22, 2009, the compensation judge concluded that the employee had been entitled to rehabilitation services because he had sustained a permanent injury which prevented him from engaging in his usual and customary occupation. He also concluded that the employee was not reasonably expected to return to work with the employer, and that he could reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services. The compensation judge, however, denied payment for certain portions of the rehabilitation services, finding that certain fees were duplicative, unreasonable and unnecessary; certain fees were charged in excess of amounts allowed under the Minnesota Rules, Chapter 5220; and the itemized bills did not demonstrate that certain charges had been prorated appropriately among multiple clients. He also denied payment for placement development charges totaling $5,036.90. Of the total amount billed by PAR for rehabilitation services, placement services, and expenses between March 21, 2007, and May 31, 2008, the compensation judge awarded payment for $7,828.35 for services and expenses.
PAR appeals from the compensation judge’s decision; the employer and insurer cross appeal.
1. Nature and Extent of Injury
The compensation judge found that the employee’s work-related injury on July 7, 2006, was permanent in nature, and that his injury contributed to his need for surgery in May of 2007. The employer and insurer appeal, contending that the employee’s injury was temporary in nature, and that it had resolved prior to the QRC’s initial rehabilitation consultation. Accordingly, they argue that the employee was not entitled to rehabilitation services because he had recovered from his injury before any need had arisen for rehabilitation services.
The employer and insurer initially admitted primary liability for the employee’s work injury, and paid for medical expenses he incurred for the treatment of his left shoulder. They contend, however, that the employee continued to work for the employer following his injury, working at his regular job, that he attended physical therapy, and that because his MRI scan in October 2006 did not document the later-detected rotator cuff tear, his current condition likely resulted from circumstances other than his 2006 work injury. The employer and insurer argue that because the employee’s injury was only temporary in nature, he was not entitled to provision of rehabilitation services. Their argument is based, in part, on Dr. Drogt’s conclusion that the partial thickness tear of the employee’s left rotator cuff, detected during surgery, was unrelated to the employee’s 2006 injury. They contend that there is no explanation for how that rotator cuff tear developed when it was not detected on the October 2006 MRI scan. The employer and insurer also argue that, by December 2006, Dr. Chadwick had released the employee to return to work full time, at full duty. The employee admittedly returned to his regular-duty work, but he testified that his shoulder symptoms continued, that his symptoms increased when he resumed his full duties, and that his symptoms never fully resolved following his 2006 injury.
The compensation judge concluded that the employee was a credible witness, and relied upon his testimony that his symptoms returned after he resumed his normal job duties in December 2006. The compensation judge noted that the employee continued to work for the employer, but because of a family illness and death, he later was out of the country for a few weeks to attend to family matters. The employee did not have an opportunity to consult Dr. Chadwick before departing to El Salvador, but scheduled an appointment with him soon after he returned. The compensation judge concluded that the comment by Dr. Drogt, that it was possible the employee re-injured his shoulder while out of the country, was speculative and found no evidence supporting that premise. The judge concluded that the evidence demonstrated that the employee had been able to perform a very physical job prior to his 2006 injury, that there was no evidence of another injury between the employee’s July 2006 injury and his surgery in May 2007, and that his July 2006 injury was a substantial contributing factor to the employee’s left shoulder condition. The judge also found that medical evidence supported the QRC’s conclusion that the employee was eligible for rehabilitation services. Based on our review of the file, including the medical records and the employee’s testimony, we conclude that substantial evidence supports the compensation judge’s finding concerning the nature of the employee’s injury, and we affirm his finding that the injury was permanent in nature.
2. Eligibility for Rehabilitation Services
At the hearing, the employer and insurer contended that, because of their denial of primary liability, the employee was precluded from receipt of rehabilitation services from a private rehabilitation firm and was eligible for services solely through the Department of Labor and Industry’s Vocational Rehabilitation Unit. The compensation judge found that the statute did not preclude the employee from services provided by a private firm. The employer and insurer appeal.
Minn. Stat. § 176.102, provides for rehabilitation services “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.” A “qualified employee” entitled to receive services is “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 considering the treating physician’s opinion of the employee’s work ability.
Minn. Rules 5220.0100, subp. 22. The QRC determined that the employee was qualified for rehabilitation services, and the compensation judge agreed with that determination.
Minn. Stat. § 176.104, subd. 1, provides that where there is a dispute as to whether the employee sustained a work-related injury, rehabilitation services may still be available. The statute states as follows:
If there exists a dispute regarding medical causation or whether an injury arose out of and in the course and scope of employment and an employee is otherwise eligible for rehabilitation services under section 176.102 prior to determination of liability, the employee shall be referred by the commissioner to the department’s Vocational Rehabilitation Unit which shall provide rehabilitation consultation if appropriate.
Citing to the above statutory provision, the employer and insurer contend that in a case such as this, where primary liability has been denied, an employee may only receive rehabilitation services directly through the vocational rehabilitation unit at the Department of Labor and Industry, and not through a private rehabilitation firm.
The compensation judge did not accept that argument, nor do we. The compensation judge found that Minn. Stat. § 176.104 “does not preclude a private QRC from providing rehabilitation services to an injured worker, however the QRC bears the risk of an adverse finding with respect to primary liability.” In his memorandum, the judge explained:
Counsel for the employer and insurer argue that [Minn. Stat. § 176.104] is intended to provide the exclusive remedy for an injured worker seeking rehabilitation services where primary liability is in dispute. I cannot agree. Rather, it seems clear that § 176.104 is intended to provide a safety net, assuring that rehabilitation services are not delayed by pending litigation. In Parker v. Univ. of Minn., slip op. (W.C.C.A. Sept. 16, 2003) the WCCA held that a QRC who provides services during the pendency of a dispute over eligibility runs the risk of non-payment, but that if the employee prevails all appropriate services are payable. While Parker was not a case of disputed primary liability, the rationale would seem to be equally applicable to the facts herein. PAR, Inc., bears the risk of an adverse determination as to primary liability, however there is no clear basis under §176.104 for denying PAR’s right to payment for reasonable rehabilitation services if the employee is found to be qualified for services.
The employer and insurer contend that the Parker decision, as cited by the compensation judge, can be distinguished from the current case because Parker dealt with a dispute over continuation of rehabilitation services which had already been commenced. We disagree. The same underlying premise as was addressed in the Parker case applies here. A QRC who provides services during the pendency of a dispute over eligibility bears the risk of an adverse determination as to primary liability and the related risk of non-payment, but the statute does not restrict a private QRC from providing rehabilitation services when primary liability has been denied. We therefore affirm the compensation judge’s determination that Minn. Stat. §176.104 does not preclude a private QRC from providing rehabilitation services to an injured worker.
3. Job Development
The compensation judge’s findings and order specifically delineate certain rehabilitation services that the judge found to be reasonable and necessary, and others that he found to be excessive or duplicative. The only rehabilitation services that are disputed on appeal by the appellant, PAR, are those services for “job development,” billed by the placement specialist. The amount billed for those services totaled $5,036.09, for 76.7 hours of job development billed over an approximately 11-month period, from mid-March 2007 through mid-December 2007, and again from mid-March 2008 through mid-May 2008.
The compensation judge denied this portion of the intervenor’s claim, finding as follows:
Finding No. 15. The petitioner’s itemized bill includes charges in the amount of $5,036.09 for job development. The preponderance of the evidence demonstrated that this was a generalized canvassing effort by representatives of PAR which did not relate to any specific client. The petitioner failed to demonstrate whether these charges were prorated among its numerous clients and if so, the method of proration.
Finding No. 16. The record does not document the amount of time spent by PAR, Inc., pursuing job development on behalf of the employee herein in comparison to other clients. There was no evidence of specific job leads provided to the employee, no job search records and no evidence that the employee obtained work through leads furnished by PAR, Inc. Charges for job development were not shown to be reasonable and necessary rehabilitation services.
The intervenor, PAR, contends that the job development services provided by the placement vendor were reasonable and necessary, and that the job placement specialist provided the employee with a variety of job leads on a consistent basis, and that the direct testimony provided at the hearing by the QRC indicated that “job development services were being provided to the Employee and that those services had resulted in the Employee being interviewed and employed.” The intervenor also contends that the rehabilitation records and reports submitted into evidence refute the findings of the compensation judge, and corroborate the job leads provided to the employee and the multiple instances of job development services provided to the employee on a regular basis.
The employer and insurer do not dispute that the placement specialist provided some job leads to the employee. The employee’s testimony corroborates the receipt of job leads; he testified that he remembered receiving some documents resembling “work cards - it has information that you can use to look for work through the computer.” The employee also testified that although PAR filled out his employment application for Aerotech/Brady, the job lead was actually provided by a friend of the employee who worked there and who referred him to the supervisor. The employer and insurer argue, however, that there was no evidence submitted nor any testimony offered to show the quality or quantity of the job leads provided to the employee, or to support the argument that the job leads provided to the employee were meaningful and tailored to the employee’s experience, qualifications, and restrictions.
In rebuttal, PAR admits that the “voluminous job lead records” were not offered or admitted into evidence, but contends that the compensation judge could have considered them, “under the terms of the Stipulation for Settlement, insofar as they are part of the file of the Workers’ Compensation Division . . . .” PAR contends that the placement specialist provided at least 197 job leads for the employee between May 2, 2007, and May 9, 2008, and that this court should remand this matter to the compensation judge to allow documentation of these specific job leads to be considered on remand.
As we have indicated earlier, under the document imaging system adopted by the Department of Labor and Industry, no judgment roll is assembled, and it is not reasonable “to expect a compensation judge to wade through multiple imaged documents to find the parts of ‘the record’ relevant to the issues before him or her.” Beckwith v. Sun Country Airlines, slip op. (W.C.C.A. July 3, 2003) (footnote omitted); see also Parker v. University of Minn., slip op. (W.C.C.A. Sept. 16, 2003). The job lead records were not offered into evidence at the hearing before the compensation judge, and we decline to remand this matter solely to allow for submission of this additional evidence.
The compensation judge explained the basis for his denial of the placement development services, referring to the lack of documentation of specific job development activities for this specific client, and stating that:
[The] QRC testified that 2 to 3 hours per week were expended by unnamed employee’s [sic] of PAR, Inc., contacting employers and identifying potential jobs, which were then entered in PAR’s job bank. The bank could be accessed by, or on behalf of multiple clients. [The QRC intern] was not aware of whether the placement specialist’s itemization represented time spent on the employee’s file or multiple files. There was no evidence regarding the amount of placement time spent locating job leads matching the employee’s individual skills, training, education and physical abilities and none of the rehabilitation records identify specific leads developed for the employee herein. While [the placement specialist’s] records indicate that he regularly provided the employee with job leads, there was no listing or documentation of these leads.
The employee’s job logs were not offered in evidence. Although he did obtain three different jobs during the rehabilitation period, there was no evidence demonstrating that these were the result of job leads developed by [the] placement specialist . . . . The longest period of employment, with a company called Aerotec[h], appears to have been obtained through a lead furnished by a friend of the employee who already worked there.
(Memo, p. 12-13.)
The employer and insurer argue that the record supported the compensation judge’s conclusion that the placement services were not reasonable or necessary. We agree. The record contains insufficient evidence supporting the intervenor’s claim for payment of job development services. With no documentation of job leads in the record, and with the only information concerning the extent of job leads provided being that which is found in the itemized billing statement and the employee’s testimony, and the QRC’s testimony to some extent, the compensation judge could reasonably conclude that there was insufficient evidence to substantiate the placement services. The compensation judge did not err in denying payment for the services for job development, and we affirm that denial.