MARK W. HODGIN, Employee, v. XCEL ENERGY, SELF-INSURED/CCMSI, Employer/Appellant, and EMPLOYEE DEVELOPMENT CORP., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 5, 2010
TEMPORARY TOTAL DISABILITY; JOB OFFER - REFUSAL. The compensation judge’s determination that the employee, who was medically restricted from driving, reasonably refused the employer’s job offer due to lack of reasonable transportation alternatives, and her consequent denial of the employer’s request to discontinue temporary total disability benefits, were not manifestly contrary to the evidence.
MEDICAL TREATMENT & EXPENSE - NURSING SERVICES. Where the care provided to the employee was not provided by a family member, the four-factor test of Ross v. Northern States Power Co., 442 N.W.2d 296, 42 W.C.D. 7 (Minn. 1989) does not apply. Substantial evidence supports the compensation judge’s determination that home health aide services provided to the employee following his rotator cuff surgery were “nursing” services and were compensable.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. The evidence of record was insufficient to support the compensation judge’s application of the “rare case” exception and her award of payment for a mechanical lift chair where payment for such durable medical equipment for home use is precluded by the treatment parameters, and the evidence failed to establish the lift chair was necessary to obtain proper treatment or maintain vocational functioning.
REHABILITATION - CHANGE OF QRC. Where there was no evidence that rehabilitation services were delayed, the QRC’s failure to timely file the employee’s rehabilitation plan does not require a change of QRC. The compensation judge did not unreasonably conclude the QRC’s failure to thoroughly explore all public transportation alternatives did not rise to a level of conduct that justified replacing her as the employee’s QRC.
Affirmed in part and reversed in part.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Patricia J. Milun
Attorneys: Benjamin J. Heimerl, Germscheid, Heimerl & Lammers, Maplewood, MN, for the Respondent. Timothy S. Crom and Matthew P. Bandt, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals from the compensation judge’s award of temporary total disability benefits, home health care services, and a mechanical lift chair, and the compensation judge’s denial of its request to change the employee’s qualified rehabilitation consultant. We affirm in part and reverse in part.
Mark W. Hodgin, the employee, sustained a personal injury on September 4, 2008, arising out of his employment with Xcel Energy, the employer. The employer admitted liability for the employee’s injury.
The employee saw Dr. Steven Hallstrom on September 5, 2008, and gave a history of tripping at work and falling onto a concrete floor onto his right knee and right shoulder. The doctor noted a prior medical history of hypertension, morbid obesity, type II diabetes, dyslipidemia, proteinuria, and depression. On examination, Dr. Hallstrom noted abrasions on the employee’s right knee and right shoulder and found the employee was unable to raise his right arm above his shoulder. The doctor took the employee off work and referred him for a consultation with an orthopedic surgeon.
The employee saw Dr. William Park, an orthopedic surgeon, on September 18, 2008. The doctor stated the employee was five feet seven inches tall and weighed in excess of 350 pounds. Following an examination, the doctor diagnosed right knee pain with severe swelling and right shoulder pain. The doctor took the employee off work and ordered MRI scans of the knee and shoulder. The employee returned in October 2008 and Dr. Park stated the MRI scan of the knee showed an old meniscal tear and an old ACL tear with underlying degenerative joint disease of Grade II-III. The MRI scan of the right shoulder showed a large full-thickness supraspinatus tendon tear, a full-thickness subscapularus tendon tear, and a dislocation of the biceps tendon. Dr. Park recommended open rotator cuff repair which he performed on November 4, 2008. Dr. Park then ordered physical therapy for six weeks and kept the employee off work. On December 30, 2008, Dr. Park instructed the employee to continue physical therapy and advised the employee not to drive for six weeks. Dr. Park stated that if a job was available, a one-armed job was recommended.
The day after his injury, the employee began receiving home health care services from Lorie Walker, a certified nursing assistant. Ms. Walker has a two-year degree as a certified nursing assistant and worked at the Veteran’s Administration (V.A.) Medical Center providing personal care services to injured veterans. Ms. Walker provided care for the employee from September 5, 2008, through April 20, 2009. Following the employee’s release from surgery, Ms. Walker provided the employee 24 hour care for three days which she billed at $225.00 per day. Thereafter, Ms. Walker provided five hours of care per day for 95 days which she billed at $25.00 per hour. During the daily five hour visits, Ms. Walker estimated she spent 40 minutes bathing the employee, 40 minutes assisting the employee with grooming, 30 minutes to clean and change surgical dressings, 40 minutes for dressing and undressing, and 60 minutes for toileting/medications performed 6 times per day for 10 minutes at a time. In addition, Ms. Walker provided assistance with ambulation and general mobility.
Following his right shoulder surgery, the employee purchased a mechanical lift chair to assist him in getting in and out of a seated position. The employee testified he was unable, after surgery, to comfortably lie in bed or sit up, so he used the lift chair. The employee testified the chair was recommended by his care providers.
Jessica Maldonado, a qualified rehabilitation consultant (QRC), conducted a rehabilitation consultation with the employee in September 2008. Ms. Maldonado drafted a Rehabilitation Plan in October 2008 with a goal of a return to work with the employer. On January 6, 2009, the employer offered the employee a full-time job to begin on January 12, 2009. The parties stipulated the offered job was within the employee’s physical restrictions. The employee was then, however, restricted from driving by Dr. Park. The employee testified he checked going to work using a taxi cab but determined it was too expensive. He further testified he had no friends or family able to give him a ride to work. The employee then asked Ms. Maldonado to check into available transportation. Ms. Maldonado spoke with Jean Benda, a disability specialist with the employer, inquiring whether transportation would be provided for the employee or whether a carpool was available. The QRC testified Ms. Benda told her the employer would not pay for transportation and told her there were no other employees living near the employee with whom he could carpool. Ms. Maldonado testified she did an internet search of Metro Transit to find public transportation but found no public bus that went to the employee’s home or the employer’s plant, so she ruled out public transportation. The employee then refused the offered job because he stated he was unable to get to and from work.
Ms. Benda testified that she discussed transportation for the employee with Ms. Maldonado. Thereafter, Ms. Benda stated she called Metro Mobility and was told the employee needed to make contact with them about transportation. Ms. Benda testified she told Ms. Maldonado about Metro Mobility and DARTS and told Ms. Maldonado the employee could take a bus to downtown St. Paul and a cab from downtown St. Paul to the High Bridge plant located on Shepard Road, which is approximately 1½ miles from the Xcel Energy Center. Metro Transit provides bus service from North St. Paul to downtown St. Paul. (Resp. Ex. 8.)
The employer sought to discontinue temporary total disability benefits based on the employee’s refusal of the job offer and sought to change the employee’s QRC. The employee sought payment to Ms. Walker for the nursing services provided to the employee and payment for the lift chair. Following a hearing, the compensation judge found the employee’s refusal of the offered job was not unreasonable because he could not drive to work and the public transportation available was not reasonable alternative transportation. The compensation judge found the QRC was working in the best interests of both parties and denied the request to change to a different QRC. The judge awarded Ms. Walker $10.00 an hour for nursing services from October 4, 2008, through March 30, 2009. Finally, the compensation judge found that a lift chair was durable medical equipment specifically prohibited under the treatment parameters and found the requirements of a departure from the treatment parameters were not established. The judge found, however, the lift chair was medically necessary and found a departure from the treatment parameters was appropriate in this rare case to allow the employee to obtain necessary treatment. The self-insured employer appeals.
1. Temporary Total Disability Benefits- Refusal of Job Offer
The employer appeals from the compensation judge’s denial of its request to discontinue temporary total disability benefits based on the employee’s refusal of its job offer. Minn. Stat. § 176.101, subd. 1.(i), provides that temporary total disability benefits shall cease if the employee refuses an offer of work consistent with a plan of rehabilitation filed with the commissioner or if the employee refuses an offer of suitable employment that the employee can do in his physical condition. The appellant employer contends the compensation judge mistakenly concluded public transportation was not a reasonable option due to the employee’s physical disabilities. The employer maintains public transportation was available and there is no medical or testimonial evidence the employee was precluded from using it. Accordingly, the appellant contends the employee’s refusal of the job was not reasonable and the award of temporary total disability benefits should be reversed.
The employee’s ability to provide or obtain transportation to and from the employer’s premises is a factor to be considered in determining whether the employee reasonably refused a job offer. Peterson v. Willows Convalescent Ctr., slip op. (W.C.C.A. May 26, 1987); Eggersgluss v. Golden Valley Microwave Foods, Inc., slip op. (W.C.C.A. Sept. 7, 1988). The employee testified that after receiving the job offer he checked on the price of a taxicab and found it would cost $50.00 each way to and from work. The employee concluded this was too expensive, and that was not an unreasonable determination. The employee testified he asked his QRC to look into alternative transportation. Ms. Maldonado then discussed with Ms. Benda whether the employer would pay for transportation or whether a carpool was available. After being told neither was an option, Ms. Maldonado did an internet search to find public transportation but was unable to locate anything from the employee’s home to the plant. The QRC testified she was not able to find a bus stop near the employee’s home and stated the bus did not go to the employer’s plant. Accordingly, Ms. Maldonado concluded there was no public transportation or carpooling options available for the employee so he would not be able to accept the job offer.
The appellant contends the Metro Transit bus schedule, Respondent’s Exhibit 8, documents a bus stop within 7 or 8 blocks of the employee’s home that traveled to a downtown St. Paul location within one-half mile of the employer’s plant, and argues the employee could have taken a taxi from downtown to the plant. We find no evidence in the record to support this assertion. Based on Respondent’s Exhibit 8, a Metro Transit bus schedule and system transit map, there is a Metro Transit bus route from North St. Paul to downtown St. Paul. Neither the exhibit nor the testimony, however, contains any evidence of the distance from the employee’s home to the bus stop or the distance from downtown St. Paul to the employer’s plant. Whether a public bus was reasonably accessible to the employee from his home is unknown. The appellant apparently concedes the distance from downtown St. Paul to the plant is great enough that the employee would have had to take a taxicab from downtown St. Paul to the plant. We find no evidence as to the availability or cost of a taxicab from downtown St. Paul to the employer’s plant. Thus, whether public transportation was a feasible option for the employee is unclear from the record. The employee’s QRC told him his only transportation option was a taxi and there is no evidence the employee was aware of any other reasonably available means of transportation to and from work.
At the time the employer made a job offer, the employee was precluded from driving due to the effects of his personal injury. The compensation judge determined public transportation was not a reasonable option for the employee and we cannot conclude this decision was manifestly contrary to the evidence. Accordingly, the compensation judge’s conclusion that the employee did not unreasonably refuse the job offer is affirmed.
2. Nursing Services
The compensation judge awarded payment of nursing services from October 4, 2008, through March 30, 2009. The appellant asserts the compensation judge’s award was based on a misinterpretation of the four-factor test outlined in Ross v. Northern States Power Co., 442 N.W.2d 296, 42 W.C.D. 7 (Minn. 1989). The appellant argues the award of nursing services fails the Ross test because the employer did not know of the employee’s need for nursing services until they received a letter from Dr. Bogel dated January 30, 2009; there is no evidence the nursing services were provided under the direction and control of a physician; and the majority of the services provided by Ms. Walker were assistance with activities of daily living. Accordingly, the appellant contends the award of nursing services must be reversed. We disagree.
In the Ross case, the supreme court interpreted the scope of Minn. Stat. § 176.135 with respect to the employer’s liability for home health care services provided by a member of the employee’s family. In this case, it is undisputed Ms. Walker is not a member of the employee’s family. While she has been described as a “friend” or “girlfriend,” there is no evidence she was related to the employee by blood or marriage. Accordingly, the Ross test is inapplicable here. Thomas v. Eveleth Mines, 42 W.C.D. 437 (W.C.C.A. 1989). The issue is whether the services performed constitute nursing services and whether they were reasonably required to cure or relieve the employee from the effects of his injury.
The appellant contends the services provided by Ms. Walker were not nursing services within the meaning of Minn. Stat. § 176.135, subd. 1.(a). Rather, the appellant contends the employee received assistance with general activities of daily living, services not typically provided by a medical professional. The appellant argues such services are not compensable and asserts the compensation judge’s award of nursing services must be reversed. We disagree.
Minn. Stat. § 176.135, subd. 1.(a), does not define the word “nursing.” Since the employee is not permanently and totally disabled, the definition of nursing services is not as broad as the definition under subdivision 1.(b) of the statute. The question of whether specific services qualify as compensable medical expenses is primarily a question of fact for the compensation judge. Meyer v. The Travel Co., 49 W.C.D. 583 (W.C.C.A. 1993).
Ms. Walker has a degree as a certified nursing assistant and works at the V.A. Medical Center. She described her duties at the V.A. Medical Center as personal care typically provided by trained medical personnel including bathing, feeding, dressing wounds, and providing medication under the direction of a registered nurse. Ms. Walker testified the services she provided to the employee were the same kind of nursing care she provided at the V.A. Medical Center. The employee testified that without Ms. Walker’s services, he would not have been able to attend to his hygiene needs due to limited mobility. None of the services for which Ms. Walker sought payment involved general cleaning, housework, or house or lawn maintenance, services which this court has in the past disallowed.
Dr. Bogel prescribed a home health aide for the employee based upon his diagnosis of a rotator cuff tear of the right shoulder. By report dated January 30, 2009, Dr. Bogel wrote,
This is a letter of support regarding home health aide services received by Mark Hodgin, for which I wrote a prescription on October 15, 2008. I believe these services, as well as toilet tongs and lift chair, are reasonable and necessary, because of Mark’s injury to his right shoulder and knee that occurred at work on September 4, 2008. Mark’s right shoulder rotator cuff tear, in particular, has made activities of daily living very difficult. It required surgical repair on November 4, 2008. The combination of his injuries, combined with his obesity, made caring for himself extremely challenging.
The doctor went on to state that if the employee had not “received services from her [Ms. Walker] or another home health aide, he probably would have needed care in a transitional care facility. The care she provided was done under my supervision, as well as that of Mark’s orthopedic surgeon.” (Pet. Ex. A.)
There is evidence in this case that the services provided by Ms. Walker were nursing services and were reasonably required to cure and relieve the employee from the effects of his personal injury. Given this evidence, we cannot conclude the compensation judge erred in awarding the requested medical services.
3. Mechanical Lift Chair
The compensation judge awarded payment for the mechanical lift chair purchased by the employee. The judge found the chair was durable medical equipment the purchase of which was precluded by the treatment parameters, Minn. R. 5221.6300, subp. 8.D. The judge further found there was no basis for a departure under Minn. R. 5221.6050, subp. 8. The judge, nonetheless, ordered payment for the chair as a “rare case” exception citing Asti v. Northwest Airlines, 588 N.W.2d 737, 59 W.C.D. 53 (Minn. 1999). The appellant contends substantial evidence does not support a finding that the lift chair qualifies as a rare case exception. Accordingly, the employer asks this court to reverse the compensation judge’s award.
The “rare case” exception was first enunciated by the supreme court in Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1988) and subsequently applied by the court in Asti v. Northwest Airlines, 588 N.W. 2d 737, 59 W.C.D. 53 (Minn. 1999). In the Jacka case, the court stated that since the treatment parameters cannot anticipate every exceptional circumstance, “a compensation judge may depart from the rules in those rare instances in which departure is necessary to obtain proper treatment.” Jacka, 580 N.W.2d at 35, 58 W.C.D. at 408. Whether the “rare case” exception is applicable is generally a question of fact. Martin v. Xerox Corp., 59 W.C.D. 509 (W.C.C.A. 1999).
In this case, the compensation judge found:
The employee credibly testified that without the lift chair he would have been incapacitated and thus a candidate for nursing services outside his home. The employee’s post-surgical limitations from non-work related conditions in concert with the work-related disability from surgery, reveal that the employee could not regain a functional status without the assistance of a lift chair.
(Findings & Order, 17.)
We have carefully reviewed the record and do not find that the employee testified he would have been incapacitated without a lift chair. Nor is there evidence the employee would have not been able to live at home without a lift chair. The employee testified he purchased a lift chair “very shortly” after his November 4, 2008, surgery because “I couldn’t lay in bed comfortably and I couldn’t sit up comfortably. Even we tried several different options and that seemed to be the only thing that would work for me.” He acknowledged he did not have a prescription for the chair from Dr. Park or Dr. Bogel at the time of purchase. (T. at 37-38.) Ms. Maldonado noted in a vocational report that the employee called her on November 6, 2008, and stated he was having difficulty sleeping because he could not get comfortable in a lying down position and was having difficulty getting in and out of bed. On November 13, the employee told Ms. Maldonado he had purchased a lift chair and was using it a lot because it was the only way he could get any sleep.
On November 18, Dr. Park provided a note stating “Lift chair medically necessary to get out of bed” due to the shoulder surgery. (Pet. Ex. G.) Dr. Bogel stated in his January 30, 2009, report that a lift chair was “reasonable and necessary” because of the employee’s right shoulder injury. (Pet. Ex. A.)
As with all factual determinations, this court is very reluctant to overturn a compensation judge’s decision. At the same time, however, fact issues are not immune from review. Neither Dr. Park nor Dr. Bogel offered any explanation as to why a lift chair was “necessary to obtain proper treatment” for the shoulder, why it should be approved despite the fact that the purchase was contrary to the treatment parameters, or why purchase of a lift chair should qualify for the “rare case” exception. See e.g., Kozlak v. Minnegasco, 64 W.C.D. 454 (W.C.C.A. 2004). Nor was the employee working so the purchase of a lift chair had no bearing on his ability to return to work or continue working. Compare Asti, 588 N.W.2d 737, 59 W.C.D. 59.
On balance, we conclude the evidence is insufficient to support a conclusion that the purchase of a lift chair qualifies for the “rare case” exception. The evidence does not support the conclusion that the employee’s case presents an “exceptional circumstance” in which the purchase of a lift chair “was necessary to obtain proper treatment” or maintain or improve vocational functioning. The “rare case” exception may not be used “simply to avoid application of the permanent treatment parameters.” Martin, 59 W.C.D. at 517. It would be difficult, on this record, to distinguish the employee’s purchase of a lift chair from any employee with a rotator cuff condition seeking payment for a lift chair or similar durable medical equipment specifically precluded under Minn. R. 5221.6300, subp. 8.D. Such a result would be inconsistent both with the intent of the treatment parameters and the case law governing the rare case exception. See, e.g., Hausladen v. Egan Mech., slip op. (Jan 7, 2010); Kozlak, 64 W.C.D. at 454. Accordingly, the compensation judge’s award of payment for the mechanical lift chair is reversed.
4. Change of QRC
On January 16, 2009, the employer requested a change of QRC on the basis that Ms. Maldonado did not appear to be a neutral party and was not working to satisfy the best interests of all parties. Specifically, the appellant contended Ms. Maldonado failed to timely file the rehabilitation plan, failed to identify available public transportation which prevented the employee from returning to work with the employer, and acted as the employee’s advocate rather than as a neutral party. The appellant argues Ms. Maldonado’s conduct frustrated the goal of Minn. Stat. § 176.102, subd. 1.(b), which is to return the employee to work at a job with a suitable economic status.
Ms. Maldonado drafted the original rehabilitation plan in October 2008, but did not file it until May 2009. Minn. Stat. § 176.102 provides that the rehabilitation plan must be filed within 15 days after the rehabilitation consultation. Ms. Maldonado concedes the rehabilitation plan was not timely filed due to an administrative error in her office.
The appellant cites Kerber v. Farmington Ford, slip op. (W.C.C.A. May 13, 1996), in which the QRC failed to timely file a rehabilitation consultation report within 7 days of meeting with the employee as required by Minn. R. 5220.0130, subp. 3.D. In affirming the compensation judge’s order to change the QRC, this court noted the delay in filing the report frustrated the purpose of rehabilitation by delaying the efficient delivery of rehabilitation services. In this case, however, we find no evidence that rehabilitation services were delayed despite the late filing of the rehabilitation plan. Ms. Maldonado’s failure to timely file the rehabilitation plan does not, therefore, require a change of the QRC.
The appellant next contends Ms. Maldonado failed to respond to a letter from its attorney and communicated with a union representative on the employee’s behalf. These actions, the appellant contends, give the appearance that the QRC was taking an adversarial role. We find no merit to these arguments. Neither the QRC’s failure to respond to defense counsel’s letter or her contact with the union constitute advocacy on behalf of the employee.
Finally, the appellant argues Ms. Maldonado mistakenly concluded public transportation was not available to enable the employee to return to work. The appellant asserts the QRC was unaware of the bus line from North St. Paul to downtown St. Paul and failed to adequately investigate the transportation options. Accordingly, the appellant contends Ms. Maldonado should be replaced as the employee’s QRC.
Ms. Maldonado did research the availability of bus transportation through Metro Transit. She did not, however, explore whether transportation services provided by DART and Metro Mobility were available. The compensation judge found the QRC’s failure to thoroughly explore public transportation did not rise to a level of conduct that justifies replacing her as the employee’s QRC. Given the evidence in this case, we cannot conclude that was an unreasonable conclusion. The compensation judge’s finding is affirmed.
 In Ross, the supreme court distinguished between cases where the employee is permanently and totally disabled and cases where the employee is otherwise disabled. If the employee is permanently totally disabled, the court held subdivision 1.(b) of the statute, which provides for payment of nursing services provided by a family member, was meant to expand the type of nursing care available. For employees who are not permanently totally disabled, only nursing care which “may reasonably be required at the time of the injury and anytime thereafter to cure and relieve from the effects of the injury” is compensable. Minn. Stat. § 176.135, subd. 1.(a). The Ross court then outlined a four-factor test to assist the trier of fact in determining when compensation may be allowed for nursing care provided by a family member to an injured employee who is not permanently and totally disabled.
 See e.g., Timmer v. Independent Sch. Dist. #482, 67 W.C.D. 202 (W.C.C.A. 2007); Meyer, 49 W.C.D. 583; Morris v. Methodist Hosp., slip op. (W.C.C.A. Oct. 1, 2002).
 Subpart 8.D. precludes payment for durable medical equipment intended for home use including beds, mattresses, chairs, recliners, and loungers for certain upper extremity disorders.