JERRY PHIPPS, Employee, v. MASTERSON PERSONNEL and WESTERN NAT’L INS. GROUP, Employer-Insurer/Appellants, and PAR, INC., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 18, 2011
REHABILITATION - ELIGIBILITY. Where the record reasonably supported the conclusion that the employee required restrictions on his activities as a result of his work injury, he has no high school diploma or drivers license, and the QRC intern testified that the services provided were reasonable, substantial evidence supported the compensation judge’s decision ordering the employer and insurer to pay for rehabilitation services rendered through the date of hearing.
Determined by: Wilson, J., Pederson, J., and Stofferahn, J.
Compensation Judge: Adam Wolkoff
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Respondent. Larry J. Peterson and Krista L. Hiner, Peterson, Logren & Kilbury, St. Paul, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge’s award of rehabilitation expenses. We affirm.
The employee began working for Masterson Personnel, the employer, in 2008. The employer is a temporary employment agency, and the employee has been placed with a number of different businesses over the course of his employment there. The employee lives in Winona, and he does not have a drivers license or own a car. However, he was at times able to accept job assignments outside of Winona when a friend was available to drive him.
On September 10, 2010, the employee sustained a work-related injury to his left leg. About six weeks later, Rebecca Pagel, a QRC intern, performed a rehabilitation consultation. Finding the employee qualified for rehabilitation services, Ms. Pagel began providing those services, including medical management, under the supervision of a licensed QRC.
On November 30, 2010, the employee was evaluated by Dr. Stephen Barron, at the request of the employer and insurer. In his subsequent report, Dr. Barron concluded that the employee had sprained his left thigh on September 10, 2010, but that that injury had resolved by the date of his examination and that the employee had no need for any continuing restrictions as a result of that injury. In contrast, the employee’s treating physician, Dr. Jonathan Knight, recommended that the employee observe restrictions on lifting and bending, that he use anti-inflammatories, and that he attend physical therapy to treat his work-related leg injury.
In late December 2010, Dr. Knight released the employee to work without restrictions, on a trial basis. By January 13, 2011, Dr. Knight had reinstituted restrictions on the employee’s lifting, squatting, climbing, kneeling, sitting, and walking. According to Ms. Pagel, the employee reported increased symptoms, and, when the employee’s physical therapist noted increased weakness, Dr. Knight reinstituted limitations on the employee’s activities.
On January 24, 2011, the employer placed the employee in a job with a company called TDI. The employee apparently worked at this job for almost two weeks without physical or transportation-related problems. However, TDI then informed the employer that the employee had missed too many days of work and that they no longer wanted him assigned there. The employer has never formally terminated the employee, but the employee has not worked since February 3, 2011.
Ms. Pagel continued to provide rehabilitation assistance, including medical monitoring, after the employee’s return to work in January of 2011. In February of 2011, Ms. Pagel administered vocational testing, and the employee also received job placement assistance for some period. Rehabilitation records indicate that Ms. Pagel at times had difficulty maintaining contact with the employee because of issues related to his cell phone, which was the only means to reach him. Ms. Pagel also had trouble communicating with Kelly Goodwater, the employer’s representative designated as Ms. Pagel’s contact person. In fact, Ms. Pagel testified that, although she left messages for Ms. Goodwater, “I don’t believe I’ve been able to communicate with her.”
At one point, placement services were suspended for a short period due to Ms. Pagel’s inability to reach the employee. The employee failed to attend a medical appointment Ms. Pagel had scheduled to obtain a second opinion as to the employee’s condition, and the employee also failed to attend a follow-up appointment with Dr. Knight set around the same time. Ms. Pagel testified that she last had contact with the employee on March 17, 2011, about two weeks prior to the hearing.
The matter came on for hearing before a compensation judge on March 31, 2011, for resolution of a dispute over the compensability of rehabilitation services provided by QRC intern Pagel and her firm. Evidence included the employee’s rehabilitation records, the report of Dr. Barron, various pleadings and invoices, and the testimony of Ms. Pagel and Ms. Goodwater. The employee did not testify.
In a decision issued on May 2, 2011, the compensation judge concluded that the disputed rehabilitation services provided through the date of hearing were reasonable and necessary, and he ordered the employer and insurer to pay the outstanding balance. The employer and insurer appeal.
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 (2010). 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).
In determining that the disputed rehabilitation services were compensable, the compensation judge concluded in part that, “[f]or the time period relevant hereto, the weight of the evidence is that the employee was under restrictions from his treating physician.” On appeal, the employer and insurer contend, essentially, that the compensation judge should have relied on the opinion of Dr. Barron in this regard, because even Dr. Knight had released the employee to work without restrictions shortly after Dr. Barron issued his report. As such, the employer and insurer contend, Dr. Barron’s opinion that the employee has no restrictions is most credible and consistent with the other evidence. We are not persuaded.
The employer and insurer’s argument completely ignores the fact that Dr. Knight released the employee to unrestricted work only on a trial basis. Within two or three weeks, after the employee apparently complained of increased symptoms, Dr. Knight reinstated his recommendation that the employee observe limitations on bending, lifting, squatting, and other activities. All of the employer and insurer’s arguments to the contrary notwithstanding, the compensation judge was entitled to accept Dr. Knight’s recommendations over the opinion of Dr. Barron. See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). And it was reasonable for the QRC intern to monitor the situation to see if the trial would be successful. In fact, it was not. We find no basis to reverse the compensation judge’s award on grounds of the employee’s purported ability to work without any restrictions related to his injury, in that the record supports the conclusion that restrictions were in fact necessary for the relevant period.
The employer and insurer also argue that the compensation judge erred in awarding rehabilitation benefits after January 24, 2011, because, on that date, the employee returned to “suitable gainful employment with the date-of injury employer,” meaning that he was not precluded from engaging in his usual and customary occupation, or his pre-injury job, as a result of the work injury, as specified by Minn. R. 5220.0130, subp. 1 (defining “Qualified Employee”). Again, we are not persuaded. The employee was removed from the job cited by the employer and insurer, and he has apparently not worked since February 3, 2011. It is true that his loss of this job placement was unrelated to his work injury. It is also true that the QRC intern was at times unable to contact the employee due to his cell phone issues, and there is no evidence indicating that the employee is incapable of performing his specific pre-injury job duties. However, as we indicated earlier, the record reasonably supports the compensation judge’s conclusion that the employee continued to require restrictions, due to his work injury, through the date of the hearing. While the employer may not have formally terminated the employee, neither has he been placed in another position after February 3, 2011. And, while the employee may have been difficult for the QRC to reach at times, so too was Ms. Goodwater, the employer’s workers’ compensation claims manager.
The employee has no high school degree, he is not able to drive, he lives in Winona, and his recent employment history involves work for a temporary employment agency. He has restrictions as a result of his work injury, and Ms. Pagel testified that the services provided, including vocational testing, were reasonable and necessary rehabilitation services. In view of the record as a whole, substantial evidence supports the judge’s award of expenses, and we affirm.
 The recommended physical therapy was the subject of a separate dispute, which was resolved in the employee’s favor.
 The missed work was unrelated to the employee’s injury.
 There is some confusion as to when the employer and insurer stopped paying for rehabilitation services, but any discrepancies in that regard appear to be irrelevant to the issues raised for our review.
 Because of a malfunction in the recording equipment, it was necessary for the compensation judge to reconstruct some of Ms. Goodwater’s testimony. Neither party disputes the compensation judge’s reconstruction on appeal.