KELLY S. CONKLIN, Employee/Appellant, v. BECKER COUNTY DEVELOPMENTAL ACHIEVEMENT CTR. and MINNESOTA NON-PROFIT EMPLOYER’S WORKERS’ COMP. FUND/BERKLEY: RISK ADM’RS CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 28, 2011
EVIDENCE - ADMISSION. Exhibits which contain hearsay are not thereby necessarily inadmissible. The compensation judge’s admission of certain testimony and exhibits even not directly relevant to the underlying legal issue was not improper where there is no indication that the compensation judge relied on this material in her decision.
REHABILITATION - ELIGIBILITY. Substantial evidence supported the compensation judge’s finding that the employee was not a qualified employee and was not eligible for rehabilitation services.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Kathleen Behounek
Attorneys: Dennis W. Hagstrom, Fergus Falls, MN, for the Appellant. Gina M. Uhrbom, Brown & Carlson, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that she failed to prove she was a “qualified employee” as defined by Minn.R.5220.0100, subp. 22, and was eligible for rehabilitation services. We affirm.
Kelly Conklin began working for the employer, Becker County Developmental Achievement Center, as a job trainer in April 1994. She worked with medically or behaviorally disabled clients who were employed in a variety of structured workshop settings. The work was usually done at the employer’s center but also from time to time at off-site locations called “enclaves.” The tasks performed by the employee included managing projects, including ordering project supplies, coordinating inventory, and preparing invoices for projects; performing clerical activities documenting the projects and the activities of the clients; training, assigning, supervising and assisting the client workers while at their tasks; assisting the clients with first aid and personal hygiene as needed; and operating an employer-owned vehicle to transport clients to and from various work locations. In addition, the employee was often required to provide site maintenance and to attend interdisciplinary meetings and client reviews.
The employee’s day generally started with picking up some of the employer’s clients using either a bus or van provided by the employer. This part of the job was performed in rotation with other employees, so that the employee picked up clients only five out of every seven work weeks. When she did this task, it would take two or two and a half hours of her work day, depending on whether she was assigned a bus or a van. The buses could hold up to eight ambulatory people and six wheelchairs. When driving a bus, the employee had to maneuver the wheelchair clients onto a lift and onto the bus, and strap down their wheelchairs. Clients transported in the vans were ambulatory but could require some assistance getting in and out of the van and strapping into their seatbelts.
Once the employee arrived at the center or at enclaves where she assisted the clients in performing their workshop employment tasks, the employee spent about 80 percent of her time standing or walking, and about 20 percent sitting.
On March 17, 2008, the employee sustained an admitted work-related injury when she slipped on snow or ice when she arrived at work. She was taken to the emergency room at the St. Mary’s Regional Health Center in Detroit Lakes, where she was diagnosed with a displaced fracture of the left distal tibia and comminuted displaced fracture of the fibula. Surgery was performed that same day by Dr. Martin Benoit, an open reduction and internal fixation of the distal fibula with plate and screws and open reduction and internal fixation of a distal tibial pilon fracture with a long periarticular distal tibial plate.
The employee was taken entirely off work following the surgery. Some time in May 2008, she was prescribed the use of a bone stimulator. On May 16, 2008, she was released to return to work and given initial restrictions that allowed sedentary work but prohibited lifting, carrying, pushing, pulling, bending, twisting, climbing, squatting, or kneeling. No weight-bearing on the left leg was permitted.
The employee returned to work for the employer about May 20, 2008. She was provided with rehabilitation assistance from a qualified rehabilitation consultant [QRC], Judy Gaub, and the employer accommodated her restrictions. At first, the employee used a wheelchair as she performed some of her job duties. Over time, she progressed from using a wheelchair to using crutches, and eventually she was able to dispense with the crutches as well.
On December 24, 2008, the employee was seen at the Innovis Health Detroit Lakes Clinic for follow up of her fractures. The employee reported that she now only needed to use a cane occasionally. There was a slight herniated muscle gap towards the distal third of the fibula, but it was not painful when palpated. Ankle range of motion was at 80 percent. The tibia appeared to be healing slowly with slight callus formation while the fibula did not show callus. Overall, the doctor felt there had been slow progress with healing due to a persistent gap formation. She was given work restrictions to avoid lifting more than 10 pounds and to avoid pushing/pulling a wheelchair. She could drive a van if she was transporting independent people who did not need to have her buckle them in. Weight bearing was now permitted on the left leg.
The employee testified that she started driving a van again at work in January 2009. She did not feel physically able to drive the larger buses and was still restricted from pushing or pulling wheelchairs or squatting to tie down restraints. As a result, the employer assigned her to drive a van and not a bus. The employee did most of the same duties she did before her work injury, except that she was not able to help clients perform janitorial work at one of the enclave sites where she had previously worked. She was taken off work at this enclave and worked with clients only at the employer’s center. Through the employee’s termination on August 3, 2009, she did not report any difficulties in performing her work to the employer.
On May 5, 2009, the employee was seen at the Matthys Orthopaedic Center where she complained of left lower leg pain which had been persistent since the injury on March 17, 2008. The pain had continued ever since surgery and was unchanged over the past two months. It was worse with weight bearing activities and better when she was able to elevate the leg. The employee reported that she had also experienced intermittent swelling, skin discoloration, and diminished temperature in the leg. She was seen to walk with a mild antalgic limp, but there was no obvious cyanosis or clubbing. Mild swelling was visible in the leg, but no malalignment or asymmetry. There was crepitation and tenderness to palpation at the left distal fibular region. X-rays of the left ankle were taken. A fracture lucency was visible over the distal fibula at the site of the surgical fixation and there was disuse osteopenia. The mortise was intact and the left ankle joint was congruent. The doctor recommended that the employee undergo bone grafting and revision fixation of the left distal fibular nonunion, with hardware removal and revision of the left tibia/fibula fracture, possibly using a bone graft from the left iliac crest.
The employee was referred to Dr. Philip Johnson at Orthopaedic Associates in Fargo, North Dakota, for examination of a presumed nonunion of the tibia/fibula fracture. Dr. Johnson saw her on May 13, 2009. He stated that by history the employee had a fairly uneventful course after open reduction and internal fixation surgery but had been left with pain in the lateral aspect of the distal leg and plate irritation on the anteromedial aspect. The employee brought in recent x-rays. Examination showed no infection or swelling, except mild edema in the ankle area. Dorsiflexion was possible to neutral and the employee could only flex to about 25 degrees. Dr. Johnson also recommended a possible revision surgery using allograft bone, but the employee stated she preferred not to have surgery. Dr. Johnson put the employee back on an ultrasound stimulator and recommended she discontinue smoking. He advised her to return in August.
On July 23, 2009, the employee was driving the employer’s van to pick up clients when she allegedly was driving erratically and struck and damaged a garage at an apartment complex. There was an investigation by the employer as a result of which the employee was discharged for misconduct on or about August 3, 2009.
On August 12, 2009, the employee returned to Dr. Johnson for reexamination of her nonunion of the distal fibula. She reported that she was doing better with less pain and was more ambulatory and comfortable. There was now no antalgic limp and lower extremity swelling was minimal. A repeat x-ray showed what Dr. Johnson thought might be a little calcium buildup as bridging bone in the area of the fibula fracture. The employee again stated that she was not interested in removal of her fixation hardware and revision by bone grafting. Dr. Johnson agreed that she might "leave well enough alone" and continue use of the bone stimulator. He also issued a note stating that she should remain sedentary for most of her work day.
On October 14, 2009, Dr. Johnson again saw the employee in follow up. The employee stated that she was doing well and that her discomfort was tolerable. She had not noted any redness or untoward effects. X-rays showed good alignment but a small area of no healing of bone was still present. Dr. Johnson thought it likely that this finding would probably always be there. He agreed with the employee that she might “leave well enough alone” with regard to further surgery. She was told to continue with the bone stimulator, to favor sedentary work over a lot of standing, and to return as needed. She was given an instruction form indicating “no jumping” but which otherwise expressly indicated she could work without restrictions.
Following the release to work without restrictions, the QRC closed her file by agreement of all parties.
The employee was next seen by Dr. Johnson in November 2009. She still preferred to leave her nonunion alone and stated she was doing pretty well. Dr. Johnson noted that he continued to recommend that she be more involved in sedentary than standing work, and considered it reasonable to assume that prolonged standing work would eventually become a problem for her down the line. He deferred a rating of permanency or determination of maximum medical improvement [MMI] for a few months as the employee was still undergoing treatment with the bone stimulator.
The employee returned to Dr. Johnson for reexamination on February 10, 2010. The employee reported that she had recently been doing more exercise and handling that reasonably well. She was able to tolerate her current activities. She was still having intermittent swelling in her leg, which the doctor thought would probably be a chronic finding. The employee was advised to continue to increase her activities as tolerated. Dr. Johnson stated that she was probably now at MMI.
The employee’s prior QRC was asked to conduct a new rehabilitation consultation to determine whether the employee was qualified to receive rehabilitation services. In her report, dated March 4, 2010, the QRC indicated that the employee was not permanently precluded from performing her pre-injury job, but also expressed the opinion that the employee was qualified for rehabilitation services. During hearing testimony, the QRC stated that she had indicated that the employee was not precluded from performing her usual and customary occupation because she had been able to do “the essential functions of her job” with self-modifications permitted by the employer. She noted that there were a wide variety of potential jobs for the employee in the human services field, but refused to speculate whether or not employers offering other jobs in the same field would allow the same kinds of modifications.
A hearing was held before Compensation Judge Kathleen Behounek on September 13, 2010, on the issue of whether the employee was entitled to vocational rehabilitation assistance. Following the hearing, the compensation judge found that the preponderance of the evidence failed to establish that the employee was permanently precluded or likely to be precluded from engaging in her usual and customary pre-injury occupation or the job she held at the time of the injury. The compensation judge concluded that the employee was not a qualified employee as defined by Minn. R. 5220.0100, subp. 22, and was not eligible for rehabilitation services. The employee appeals.
On appeal, the employee claims that the compensation judge erred in admitting prejudicial evidence concerning the circumstances of her termination for misconduct and in allowing the employee to be cross-examined on this issue. The employee also argues that substantial evidence does not support the finding that the employee was not a qualified employee.
Admission of Allegedly Prejudicial and Irrelevant Evidence.
At the hearing, the employee stipulated that she had been discharged for misconduct. She objected to exhibits offered by the employer bearing on the details of the alleged misconduct, arguing that the exhibits were both irrelevant and potentially prejudicial. The compensation judge reserved ruling on the admissibility of the exhibits pending completion of the employee’s testimony. The employee also objected to questions she was asked on cross-examination about the incident leading to her termination. The judge allowed the questions and the employee testified that she had not committed the misconduct for which she was discharged. The employer then argued that the documentary evidence about the incident should be admitted as relevant to the issue of the employee’s credibility. The compensation judge admitted the exhibits and the employee contends that the admission of these exhibits and testimony was prejudicial.
Evidentiary rulings are generally within the sound discretion of the compensation judge. Cici v. Methodist Hosp., 63W.C.D. 421 (W.C.C.A. 2003). In our review of evidentiary rulings, considerable latitude is given with respect to the conduct of a workers’ compensation hearing under Minn. Stat. § 176.411, subd. 1, which provides that
Except as otherwise provided by this chapter, when a compensation judge makes an investigation or conducts a hearing, the compensation judge is bound neither by common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure. Hearsay evidence which is reliable is admissible. The investigation or hearing shall be conducted in a manner to ascertain the substantial rights of the parties. Findings of fact shall be based on relevant and material evidence only, as presented by competent witnesses, and shall comport with section 176.021.
After examining the transcript of the hearing, the exhibits in question, and the compensation judge’s findings, order and memorandum, we note that the evidence did contain hearsay, but under the statute this does not, in itself, render its admission improper.
We agree with the employee that the evidence had no relevance to the underlying issues in this case, which were whether the employee had sufficient limitations from her work injury to affect her ability to do past relevant work. Further, a discharge for misconduct does not disqualify an employee from rehabilitation services. Wolf v. G & K Servs., 43 W.C.D. 371 (W.C.C.A. 1990). In her memorandum, the compensation judge noted this principle, however, and clearly did not consider the evidence in this context. In addition, although the employer and insurer introduced this evidence for impeachment purposes, the compensation judge apparently did not give the evidence any weight, since there is no indication that the compensation judge based her decision on a rejection of the employee’s testimony as to her job duties and symptoms because of a lack of credibility.
The remaining question is whether the evidence was so prejudicial as to warrant a remand or reversal. While the use of irrelevant character attacks is inappropriate, we have noted previously that evidence which could be prejudicial if revealed to a jury is not to be presumed so when the finder of fact is a compensation judge, unless the record clearly suggests that the evidence did in fact have a prejudicial effect. Robles v. Kelly Servs., Inc., 47 W.C.D 591 (W.C.C.A. 1992). In this case, the compensation judge did not discuss the questionable exhibits or cross-examination in her findings or memorandum, and the judge’s stated rationale for her conclusions does not indicate that she was improperly influenced by exposure to this evidence.
Accordingly, we see no basis for a remand or reversal on this issue.
Eligibility for Rehabilitation Services
“Rehabilitation is intended 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.” Minn.Stat. § 176.102, subd. 1(b).
Minn. R. 5220.0130, subp. 1, provides that an employee must be a “qualified employee” before a rehabilitation plan is implemented. Pursuant to Minn. R. 5220.0100, subp. 22,
“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:
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 the 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 the treating physician’s opinion of the employee’s work ability.
To determine whether an employee is eligible for rehabilitation services, a compensation judge must determine whether, as a result of the work injury, the employee is likely to be permanently precluded from the employee’s customary occupation or pre-injury job. Implicit in this determination is the issue of whether or not the employee has restrictions. Absent restrictions, an employee is not a “qualified employee” pursuant to the rule. See Guled v. Heartland Foods, slip op. (W.C.C.A. Nov. 30, 1994).
The compensation judge found in the present case that the employee had been released for work without restrictions, except for no jumping, as of October 14, 2009. Dr. Johnson’s work release of that date provides substantial support for this finding. It was undisputed that neither the employee’s pre-injury job nor her customary occupation required any jumping. Absent the imposition of more stringent restrictions through the date of hearing, the release without restrictions on October 14, 2009, provides substantial support for the compensation judge’s finding that the employee was not entitled to rehabilitation services.
Dr. Johnson also suggested that the employee would be best served by trying to avoid standing and prefer sedentary work, noting in particular that she might eventually have difficulty with standing work in the long term. This evidence could possibly support an interpretation that his suggestion was the equivalent of an informal work restriction. On the other hand, it can also be interpreted as a more long-range advisory suggestion which did not actually restrict the employee to work that was predominantly sedentary but only noted that this might be necessary at some point in the future. The compensation judge appears to have given it the latter interpretation, which we think is adequately supported by the evidence as a whole.
The parties argued at length about whether the employee’s restrictions during the time she still worked for the employer in a modified job after the injury allowed her to perform “the core duties” of her employment. We note that these arguments are not relevant to our review. The decision before the compensation judge involved the employee’s eligibility for rehabilitation as of the date of the hearing, and not at an earlier date when she had different restrictions. We have affirmed the finding that the employee did not, as of the date of the hearing, have work restrictions that affected her ability to perform her customary occupation. The decision denying rehabilitation benefits follows from that finding, and is also affirmed.