DANA M. REZAIE, Employee/Cross-Appellant, v. WAL MART and AMERICAN HOME ASSURANCE CORP./AIG/CLAIMS MGMT., INC., Employer-Insurer/Appellants, and HENNEPIN CNTY. MED. CTR., UCARE/INGENIX, and MINNESOTA DEP’T OF HUMAN SERVS./BRU, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 20, 2012
EVIDENCE - RES JUDICATA. Where the determination of the employee’s permanent partial disability rating was not decided in a prior hearing but was left for future determination, the employee’s claim for permanent total disability benefits, based on permanent partial disability from before the earlier hearing, is not barred by res judicata or collateral estoppel.
PERMANENT TOTAL DISABILITY - THRESHOLD. The compensation judge did not err in awarding permanent total disability benefits from the date the employee became unable to work where he properly considered whether the employee met the permanent total disability threshold at the time of his determination.
MEDICAL TREATMENT & EXPENSE - NURSING SERVICES. The amount of nursing services - - assistance for an employee who is permanently and totally disabled - - is modified since the compensation judge relied on a home care assessment which required the employee to rely on her sons for assistance with life activities as part of their household production instead of a compensable service performed out of necessity.
Affirmed in part and modified in part.
Determined by: Stofferahn, J., Johnson, J., and Wilson, J.
Compensation Judge: Paul V. Rieke
Attorneys: Thomas A. Klint and Andrew J. Hippert, Midwest Disability, Coon Rapids, MN, for the Cross-Appellant. Christopher E. Sandquist and Cory A. Genelin, Gislason & Hunter, Mankato, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal the compensation judge’s award of permanent total disability benefits. We affirm that award. The employee cross-appeals the compensation judge’s award of nursing services. We modify that award.
Dana Rezaie, the employee, sustained injuries to her right foot and ankle on November 10, 2005, and January 6, 2006, while employed by Wal Mart Stores, Inc., the employer. The employer and its insurer admitted liability for the employee’s personal injuries and commenced payment of workers’ compensation benefits.
Thereafter, the employee filed a claim petition seeking payments for additional benefits, including permanent total disability benefits from and after October 6, 2006. Following a hearing on February 3, 2010, Compensation Judge Paul Rieke found that as a substantial result of the January 6, 2006, personal injury, the employee developed a right foot and ankle condition and reflex sympathetic dystrophy [RSD]. (Findings & Order served and filed February 10, 2010.) The judge further found that the employee sustained permanent partial disability as a result of her work injuries, but found the evidence of record was insufficient to determine the level of permanent disability at that time. Finally, the compensation judge found the employee’s total disablement status became permanent as of October 6, 2006, entitling the employee to payment of permanent total disability benefits. The employer and insurer appealed the compensation judge’s award of permanent total disability benefits. On appeal, this court held that without a finding that the employee met the applicable statutory threshold contained in Minn. Stat. § 176.101, subd. 5(2), the employee could not be determined to be permanently and totally disabled for purposes of receipt of permanent total disability benefits. Accordingly, this court reversed the compensation judge’s award of permanent total disability benefits. Rezaie v. Wal Mart, No. WC10-5073 (W.C.C.A. June 21, 2010).
Rebecca Cummins, a qualified rehabilitation consultant, met with the employee on March 2010 to evaluate the extent of nursing services needed by the employee. Ms. Cummins reported the employee resided in a two-story home together with three adult sons. The employee and her youngest son had bedrooms on the main floor and her two older sons had bedrooms in the basement which contained the washer and dryer and a large freezer for storing food. The employee told Ms. Cummins she was not able to walk on her right foot, so she often crawled when moving around within her home and used a wheelchair outside the home. The employee reported the family primarily heated up frozen dinners for meals because she was unable to tolerate the standing required for food preparation, cooking, and clean up. She stated she relied on her sons to bring her frozen food from the basement freezer and assist her with cooking and meal clean-up. Ms. Cummins concluded the employee needed assistance one hour per day seven days per week for cooking and cleaning after meals. The employee stated she was independent in bathing, grooming, and toileting. The employee stated house cleaning was very difficult for her because of her lack of mobility and stated her sons generally performed most of the housecleaning. Ms. Cummins concluded the employee required housecleaning assistance for three hours per week. The employee was unable to do the laundry because she could not go up and down the stairs. Ms. Cummins opined that doing laundry for a family of four took an average of two hours per week. Ms. Cummins concluded that the employee needed three hours of assistance a week for shopping, errands, banking, and doctors’ appointments. Finally, Ms. Cummins stated that the yard work took one hour a week and was performed by the employee’s sons. Ms. Cummins concluded the employee needed services for sixteen hours a week and she valued these services at $12.65 per hour for a total of $202.40 a week.
Nancy Mitchell, a certified life care planner, performed a home care assessment of the employee in May 2011 at the request of the employer and insurer to evaluate the employee’s need for nursing services. The employee reported she cooked while sitting on a stool and did some housecleaning, including dusting and cleaning the floor, on her hands and knees. Ms. Mitchell concluded no home care was needed for cooking or clean up. She noted some cooking and clean up was performed by the employee’s sons but stated this should be considered part of their household production. Ms. Mitchell opined one hour a week of home care service was appropriate to do the employee’s laundry and one hour a week for heavy cleaning tasks. The employee stated she used a taxi for shopping and errands in the community and did some shopping online. Ms. Mitchell concluded the employee could order groceries online and use metro mobility for shopping and medical appointments. She opined the employee would need some assistance for errands in the community and pushing her wheelchair over long distances and stated one hour a week was reasonable for completion of these tasks. In conclusion, Ms. Mitchell determined three hours a week of services were reasonable, one hour for cleaning, one hour for laundry, and one hour for shopping.
The employee filed a second claim petition again claiming entitlement to permanent partial disability benefits, permanent total disability benefits from and after October 6, 2010, and payment for nursing services. Following a hearing, the compensation judge found the employee suffered from RSD of each leg and had developed depression. The compensation judge found the employee sustained 17% permanent disability of each leg due to the RSD and 21% permanent partial disability due to the depression. The judge found that as of October 6, 2006, the employee was unable to engage in sustained gainful employment activities due to the effects of her work injuries, entitling her to an award of permanent total disability benefits. The compensation judge further found the employee was unable to perform many of her daily life activities due to her personal injury. The judge concluded the employee needed assistance for three hours a week which should be compensated at the rate of $12.00 an hour. The employer and insurer appeal the compensation judge’s finding that the employee was entitled to permanent total disability benefits as of October 6, 2006. The employee cross-appeals the judge’s award of nursing services.
1. Res Judicata/Collateral Estoppel
In the February 10, 2010, Finding and Order, the compensation judge found the evidence of record was insufficient to make a determination of permanent partial disability. The appellants contend this finding is res judicata and assert the employee is estopped from claiming permanent total disability benefits prior to the date of the last hearing, February 3, 2010. Accordingly, the appellants argue the compensation judge’s award of permanent total disability benefits retroactive to October 6, 2006, is legally incorrect.
The principles of res judicata are applicable in worker’s compensation proceedings. Abrahams v. University of Minn., Duluth, 61 W.C.D. 103, 107 (W.C.C.A. 2001). The doctrine precludes litigation of issues and claims that were in fact decided in an earlier proceeding. Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993); Westendorf v. Campbell Soup Co., 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976). Collateral estoppel is a limited form of res judicata, whereby a prior judgment is conclusive in a later suit between the same parties as to issues finally decided in the earlier action. Travelers Ins. Co. v. Thompson, 281 Minn. 547, 163 N.W.2d 289 (1968). The Minnesota Supreme Court has held that the principles of collateral estoppel are appropriately applied in the following circumstances: “(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.” Nelson v. American Family Ins. Group, 651 N.W.2d 499, 511 (Minn. 2002) (quoting Willems v. Commissioner of Pub. Safety, 333 N.W.2d 619, 621 (Minn. 1983)).
In the February 10, 2010, Findings and Order, the compensation judge found: “The determination of the employee’s permanent partial disability as a result of her work injury is left to future determination.” (Finding No. 12.) Accordingly, there was no final judgment on the merits of the employee’s claim for permanent partial disability benefits. The doctrines of res judicata and collateral estoppel are not, therefore, applicable.
2. Date of Permanent Total Disability
The employer and insurer argued at the hearing and again on appeal that the employee may not be paid permanent total disability benefits until the date of medical records or a medical report which establishes the requisite amount of permanent partial disability as set forth in Minn. Stat. § 176.101, subd. 5(2). We disagree.
The statute, amended in 1995 to add the permanent partial disability threshold, provides that the vocational factors of age, education, training and experience are to be considered in “determining” whether the employee is permanently incapacitated after the threshold has been met. The compensation judge properly considered whether the employee met the applicable threshold in making his determination. We see no language that would mandate the result requested by the employer and insurer and the employer and insurer provide no authority for their argument.
3. Nursing Services
The compensation judge found the employee is unable to perform many life activities as a result of her personal injury, including laundry, housekeeping, and running errands and yard work. The judge found the employee’s three sons regularly perform and assist in the performance of these services for which they are due a fee. The judge further found the evaluation and the opinions of Ms. Mitchell most accurately reflected the amount of assistance the employee needed and awarded three hours of services per week at the rate of $12.00 an hour commencing June 15, 2011. The employee contends the opinions of Ms. Mitchell are unreasonable and inconsistent with the extent of the employee’s disability. She further argues Ms. Mitchell’s conclusions are based on what she considers the employee’s sons should be performing as members of the household. The employee argues the compensation judge erred in adopting the opinions of Ms. Mitchell.
Minn. Stat. § 176.135, subd. 1(a), requires the employer to furnish any medical treatment, including nursing, as may reasonably be required to cure and relieve the employee from the effects of the injury. In cases of permanent total disability, the employer shall also pay “the reasonable value of nursing services provided by a member of the employee’s family.” Id. at subd. 1(b). If an employee is not permanently and totally disabled, only nursing services that cure and relieve the effects of the injury are compensable; in cases of permanent and total disability, however, “a broader type of general nursing care is reimbursable.” Ross v. Northern States Power Co., 442 N.W.2d 296, 299, 42 W.C.D. 7, 13 (Minn. 1989). Such care may include services rendered necessary by the employee’s disability such as meal preparation, driving an employee who is unable to drive, and performing certain homemaking or maintenance chores. Lundeen v. Horizon Fabricators, Inc., 56 W.C.D. 336 (W.C.C.A. 1997), summarily aff’d (Minn. Apr. 15, 1997). If a permanently and totally disabled employee is receiving services and assistance from a family member, “the compensation judge must carefully consider whether personal services and household tasks which may well have been performed out of affection prior to the injury may, at some point, become compensable when performed - - and performed more frequently - - out of necessity.” Sorcan v. USX Corp., 58 W.C.D. 159, 172 (W.C.C.A. 1997), summarily aff’d (Minn. Apr. 7, 1998).
The employee testified she is able to get into the kitchen and sit on a stool to prepare some foods. However, she stated she is unable to obtain ingredients from the shelf or from the refrigerator and needs assistance with cooking and cleaning up after meals. Ms. Mitchell acknowledged that some cooking and clean up likely is performed by the employee’s sons but stated “this should be considered part of their household production.” (Employee’s Ex. K.) We disagree. While these household tasks may be performed by the employee’s sons out of affection for their mother, they are also performed out of necessity due to her disability. The evidence is this case supports the conclusion of Ms. Cummins that the employee needs assistance one hour per day, seven days a week, for cooking and cleaning up after meals. The employee is unable to drive and takes a taxi for shopping and errands in the community. At least one of her sons must accompany her on any trip to assist her with transfers, her wheelchair, and grocery shopping. Ms. Mitchell concluded one hour per week was adequate because the employee could order groceries online and use metro mobility for shopping rather than a taxi. We cannot agree. We do not believe the employee is obligated to remain confined in her home in order to reduce the cost of reasonable trips into the community for shopping or other errands. Under these circumstances, we conclude Ms. Cummins’ assessment of three hours per week for shopping and errands outside the home is more reasonable.
The compensation judge’s award of nursing services is modified to include seven hours per week for cooking and cleaning and three hours a week for shopping and errands in the community. The balance of the compensation judge’s award of nursing services is affirmed.
 The employee was fifty-one years old at the time of her injury and under the statutory threshold required a minimum of 15% permanent partial disability to qualify for permanent total disability benefits. Minn. Stat. § 176.101, subd. 5(2)(b).