BRIAN D. STUTELBERG, Employee/Appellant, v. KELLEHER CONSTR. INC., and ZURICH N. AM., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 17, 2009
REHABILITATION - CHANGE OF QRC. Whether a change of QRC is in the best interests of the parties is a question of fact, and substantial evidence supported the compensation judge’s denial of the employee’s request here. The fact that the employee’s current QRC is an employee of the insurer is irrelevant to the burden of proof.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Kathleen Behounek
Attorneys: David W. Blaeser, Woodbury, MN, for the Appellant. Kristin B. Maland, Drawe & Maland, Edina, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s denial of his request for a change of QRC. We affirm.
The employee sustained a work-related injury to his low back on June 11, 2007, and a work-related injury to his right upper extremity on July 11, 2007, while working for Kelleher Construction, Inc. [the employer], as a carpenter. The employer and its workers’ compensation insurer, Zurich North America, accepted liability for the work injuries and paid various benefits.
On August 20, 2007, the employee met with QRC Barbara Victorson, who is an employee of Zurich Services, a division of Zurich North America. QRC Victorson disclosed her relationship with Zurich North America to the employee on this date, and the employee signed a Rehabilitation Rights and Responsibilities of the Injured Worker form, which indicated that the employee had the right to choose his own QRC up to 60 days after the filing of a written rehabilitation plan. A rehabilitation plan was filed on that same date, with a goal of returning the employee to work with the same employer.
QRC Victorson attended several medical appointments with the employee both before and after the employee’s back surgery, which was performed on September 28, 2007, including appointments with Dr. Mark Thomas, Dr. Dennis Mollman, and Dr. Daniel Lussenhop. She helped to obtain restrictions and facilitated a return to work with the employer, which lasted approximately one month. The QRC subsequently referred the employee to Gary Novitsky for job placement services.
The employee filed a rehabilitation request on March 26, 2008, seeking to change QRCs. The employer and insurer responded that the request was untimely and that QRC Victorson was in the best position to provide rehabilitation services. Following an administrative conference, the employee filed a request for formal hearing, which came on for hearing on October 2, 2008. At hearing, the employee contended that it would be in the best interests of the parties to allow the employee to change QRCs, and he also argued that an inherent conflict of interest existed by virtue of Ms. Victorson’s status as an in-house QRC.
In her findings and order filed on November 3, 2008, the compensation judge found that QRC Victorson had provided appropriate rehabilitation services to the employee, that she had complied with the professional standards applicable to QRCs, and that the preponderance of evidence failed to establish that a change in QRC was in the best interests of the parties. 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).
Minn. Stat. § 176.102, subd. 4, provides,
(a) A rehabilitation consultation must be provided by the employer to an injured employee upon request of the employee, the employer, or the commissioner. . . . If a rehabilitation consultation is requested, the employer shall provide a qualified rehabilitation consultant. If the injured employee objects to the employer’s selection, the employee may select a qualified rehabilitation consultant of the employee’s own choosing within 60 days following the filing of a copy of the employee’s rehabilitation plan with the commissioner.
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(c) The qualified rehabilitation consultant shall disclose in writing at the first meeting or written communication with the employee any ownership interest or affiliation between the firm which employs the qualified rehabilitation consultant and the employer, insurer, adjusting or servicing company, including the nature and extent of the affiliation or interest.
(d) After the initial provision or selection of a qualified rehabilitation consultant as provided under paragraph (a), the employee may request a different qualified rehabilitation consultant which shall be granted or denied by the commissioner or compensation judge according to the best interests of the parties.
Minn. R. 5220.0710, subp. 3, provides that, if an employee requests a change of qualified rehabilitation consultant
more than 60 days after the rehabilitation plan was filed, the determination shall be made according to the best interest of the parties. The best interest of the parties shall be determined based on the goals of rehabilitation as provided in Minnesota Statutes, section 176.102, subdivision 1, paragraph (b).
The compensation judge found that QRC Victorson did disclose her affiliation with Zurich North America at the time of her rehabilitation consultation with the employee on August 20, 2007.
The employee’s primary argument on appeal is that, when an employee is assigned a QRC who works for the workers’ compensation insurer or its subsidiary, there is “an inherent conflict of interest” that places the employee at a disadvantage in the rehabilitation process. The employee therefore asks the court to “create a remedy of law,” in acknowledgement of the inherent conflict of interest, and “lower the burden upon the employee to show that it is in the best interest of the parties to allow the change of QRC.” We decline to do so.
As acknowledged in the employee’s brief, the legislature anticipated that in-house QRCs would sometimes be utilized in the rehabilitation process, and safeguards were put into place to protect employees in such situations, specifically, the requirement that the QRC disclose his or her affiliation and the provision allowing an employee to choose his or her own QRC within 60 days following the filing of the rehabilitation plan. In the instant case, QRC Victorson did disclose her affiliation, and the employee did not exercise his right to choose a different QRC within the 60-day period. In other words, the employee did not take advantage of the available remedy to correct any perceived disadvantage in the rehabilitation process, and, given the statutory safeguards, we are not persuaded of the need to create any new or different standards for evaluating cases such as this one. The fact that a QRC is an employee of the insurer is a factor that a compensation judge may consider, but the “best interests of the parties” remains the controlling consideration.
Because the employee’s request to change QRCs came later than the 60-day deadline, we are left to review the judge’s finding that a change of QRC is not in the best interests of the parties. The issue is one of fact, see Pigeon v. Marvin Windows, slip op. (W.C.C.A. Sept. 9, 1999), and we conclude that substantial evidence supports the judge’s finding in that regard.
The employee sustained work injuries to two body parts and has treated with numerous physicians. QRC Victorson has attended many doctors’ appointments with the employee and is very familiar with his conditions and restrictions. This QRC has worked with the employee for over a year and was successful in returning the employee to work with the employer, albeit only for a short time. The QRC has also identified that the employee has a need for computer skills, and she has arranged for the employee to attend computer classes. When the employee went off work with the employer, the QRC assigned a job placement specialist to assist with his job search, and that specialist is not affiliated with the workers’ compensation insurer. The employee had only been involved in job search for two months at the time of hearing.
The best interests of the parties are to be determined with reference to the goals of rehabilitation. Pursuant to Minn. Stat. §176.102, subd. 1(b), rehabilitation is intended to restore the injured employee so that the employee may return to a job related to the employee’s former employment or to a job in another work area that produces an economic status as close as possible to that the employee would have enjoyed without disability. The evidence establishes that the rehabilitation services provided by QRC Victorson were consistent with the stated goals of rehabilitation, and, while the employee tried to suggest that QRC Victorson is somehow biased against him, there is no clear evidence in that regard. As substantial evidence supports the judge’s decision denying a change of QRC, we affirm her findings in their entirety.
 The employee had already undergone surgery on his biceps tendon on August 10, 2007.
 While the employee appealed from that finding, the issue was not briefed on appeal and is therefore waived. Minn. R. 9800.0090, subp. 2.
 The employee testified that he did not think it was the QRC’s job to attend doctors’ appointments with him, but, on cross examination, he admitted that he now understands that this was appropriate. He also testified to having a “personality clash” with the QRC, but this testimony seemed to focus on inquiries by the QRC about the weight of grocery bags that the employee had been lifting and about whether he had gone snow tubing with his granddaughter. As we see it, it is hardly inappropriate for a rehabilitation provider to ask an employee questions about his physical activities and capabilities.