CATHERINE L. ADAMS, Employee/Appellant, v. MARVIN WINDOWS, SELF-INSURED, Employer, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.
WORKERS' COMPENSATION COURT OF APPEALS
JANUARY 18, 1995
HEADNOTES
REHABILITATION - ELIGIBILITY. Employee was not a qualified employee for rehabilitation services where substantial evidence established that the employee had returned to suitable gainful employment.
REHABILITATION - FEES. Payment of fees for rehabilitation services denied as not being reasonable and necessary where a rehabilitation plan had not been approved and the employee was receiving services under a managed care plan.
MANAGED CARE. Substantial evidence supported a finding that managed care services were appropriate under Minn. Stat. § 176.1351.
Affirmed.
Determined by Hefte, J., Johnson, J., and Wilson, J.
Compensation Judge: Harold W. Schultz
OPINION
RICHARD C. HEFTE, Judge
The employee appeals from the compensation judge's findings that the employee was not a qualified employee for rehabilitation; that rehabilitation services of Mesabi Rehabilitation were not reasonable or necessary; and that the case management services were appropriate and necessary under Minn. Stat. § 176.1351. We affirm.
BACKGROUND
The employee injured her low back while working for the employer on May 3, 1993. Her return to work from this injury gives rise to the issues in this case. The employee was initially treated by Dr. David Kidder, D.O., of Warroad, Minnesota, and later was referred to Dr. Robert Cooper, M.D., at the Medical Center Rehabilitation Hospital in Grand Forks, North Dakota.
The employee returned to work for the employer in July 1993 in the employer's modified work department where she was involved in light-duty work and work hardening. By August 1993 Dr. Cooper had released the employee for full-time work at a light-duty job. As of November 1993, the employee's restrictions, as outlined by Dr. Cooper, were light-duty work, lifting a maximum of 20 pounds, with frequent lifting and/or carrying of objects up to 10 pounds and alternating tasks requiring repetitive use of her upper extremities. On November 15, 1993, the employer offered the employee a job in the rework area. The job offered was a position wherein the employee sorts pieces of wood, washes and cleans parts, primes or paints the ends of sashes, and does some feeding or tailing of wood into a wood bead machine. She was to begin working two hours a day in the plant, six hours in the modified work department, later increasing two extra hours in the plant weekly until she was working full-time in the plant. Dr. Cooper and Dr. Kidder reviewed a videotape of the job offered by the employer and approved the job for the employee under her restrictions.
Managed care, pursuant to Minn. Stat. § 176.1351, was provided the employee by the employer prior to the job offer. Under managed care, the medical case manager, Susan Forneris, a registered nurse, as well as Ed Hanson, a physical therapist, performed an on-site job analysis of the November 1993 job offered to the employee.
Initially, the employee sought a rehabilitation consultation in August of 1993. After a conference, a rehabilitation consultation was approved, which was performed at Mesabi Rehabilitation Services (Mesabi) by QRC intern Gary Grell. After the consultation, Grell continued to provide rehabilitation services for the employee. From the time the employee commenced working in the rework area in December 1993 to the date of the hearing, the employee worked full-time for the employer without any further injury.
In January 1994, the employee filed for a conference, requesting a number of items, including a change of physician from Dr. Kidder. The employer initially resisted the change of physician request. However, shortly before the request was heard, the change of a physician to Peter Johnson, M.D., was agreed to by the parties. Dr. Johnson, after examining the employee in February 1994, did not agree that the employee was able to work full-time. The employee also filed a request for additional rehabilitation as well as asking that Mesabi be paid for the services they had rendered to the employee. The employee also maintained that the services provided to the employee by way of the managed care plan were not appropriate. Following a conference, it was determined that the employee was not a qualified employee for rehabilitation and that the employer was not responsible to pay for rehabilitation services to Mesabi subsequent to the rehabilitation consultation. The employee then filed for a formal hearing, which was held on May 19, 1994. From the compensation judge's denial of rehabilitation services, the denial of payment to Mesabi for rehabilitation services, and finding that the managed care was appropriate, the employee appeals.
STANDARD OF REVIEW
In reviewing cases 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 (1992). 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, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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 the evidence or not reasonably supported by the evidence as a whole." Id.
DECISION
Rehabilitation Benefits
The employee maintains that the compensation judge's finding that she was not a qualified employee entitled to rehabilitation was clearly erroneous. We disagree.
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. Rehabilitation to a job with a higher economic status than would have occurred without disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of reemployment. Economic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.
Minn. Stat. § 176.102, subd. 1(b) (1992). Minn. R. 5220.0100, subp. 22 (1992) defines an employee qualified for rehabilitation services to be:
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 likely to be precluded from engaging in the usual and customary occupation or in the job the individual held at the time of the injury; and
B. can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services.
A subsequent revision of Minn. R. 5223.0100, subp. 22 added an additional definition of a qualified employee stating: "cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer." A threshold issue was whether this latest rule applies here. The compensation judge concluded that this latest rule did apply. However, under either rule, one requirement is that the employee can reasonably be expected to return to suitable gainful employment through rehabilitation. Since the compensation judge reasonably found that the employee has suitable employment, denial of rehabilitation was appropriate.
Subsequent to her work-related injury, the employer offered the employee a job in the rework area of the plant in November 1993 which was approved by two of the employee's treating physicians, Dr. Cooper and Dr. Kidder. Both of these physicians had treated the employee for her work-related injury. They were aware of the employee's medical condition and restrictions at the time the employer offered the employee a job in the rework area. The doctors were also aware of the work that the employee had done in the modified work department from and after July 1993. The doctors then viewed a video showing the duties and tasks of the job offered the employee and approved the job as suitable employment for the employee.
The employee accepted the job offer of the employer made to her in November 1993. However, the employee testified the job description and the video of the job offered by the employer was not accurate and not within her restrictions. However, substantial evidence supports the fact that the job the employee was performing was suitable gainful employment. Dr. Cooper reported on November 12, 1993 "[t]he videotape of a job description in the rework area for parts cleaning and inspection provided by Marvin Windows and Doors was viewed with the patient and her husband. This involves a sorting operation, cleanup of reject material, painting and wood bead sorting and gathering. This job falls within the light work category and is entirely suitable for Ms. Adams." (Employee Exh. 7)(emphasis added).) After viewing the video, the employee complained of a few of duties of the job. Dr. Cooper assured the employee that he felt the nature of the work did not require a lot of strenuous muscle activity and the work was unlikely to result in any further injury. Therefore, the employee agreed she would like to try this job which, of course she did, and was still working at the job at the time of the hearing, May 19, 1994. (Id.)
The compensation judge also relied upon the job analysis of physical therapist Hanson and medical case manager Forneris who testified the job was suitable and within the restrictions of the employee. Both Hanson and Forneris conducted an on-the-job analysis of the job described in the job offer. Also, Bill Poole, the employer's supervisor, testified that the employee has been performing the job up to the time of the hearing and he felt it was within her described restrictions. To the contrary, the employee's latest physician, Dr. Johnson, took issue with the employee being able to tolerate the job described. And, QRC Grell from Mesabi Rehabilitation, on the basis of a hypothetical description of the job, which he did not see performed, felt the job was not within the employee's restrictions and not suitable.
The issue here revolves on questions of fact. The judge heard conflicting testimony and reasonably relied upon the testimony and reports of Dr. Cooper, Dr. Kidder, Poole and Forneris that the job offered was suitable gainful employment. The assessment of witnesses' credibility is the unique function of the trier of fact, Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), and as it is the compensation judge's responsibility to resolve conflicts in expert testimony, the compensation judge's findings will be upheld in this situation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
Substantial evidence supports the compensation judge's finding that the employee was not a qualified employee entitled to rehabilitation services. The employer offered the employee suitable employment, which was accepted and performed by the employee. Therefore, considering the medical opinions and witnesses' testimony to the employee's work ability with restrictions, which was accepted by the compensation judge, it was reasonable that the employee could, and did, return to suitable gainful employment with the employer. There is no question that the job produced the same economic status that the employee enjoyed without her disability. Having returned to suitable gainful employment, substantial evidence establishes that the employee does not qualify for further rehabilitation services. Minn. Stat. § 176.102, subd. 1(b) (1992); Minn. R. 5220.0010, subp. 22 (1992).
Payment for Rehabilitation Services
The employer paid Mesabi Rehabilitation for the rehabilitation consultation which Mesabi completed pursuant to a workers' compensation conference order. The employer refused to pay for Mesabi's rehabilitation services subsequent to the rehabilitation consultation, which involved working with the employee under a proposed rehabilitation plan. The compensation judge found that the Mesabi rehabilitation services were not reasonable and necessary under Minn. R. 5220.1900, subp. 2. (Finding 29.)
The compensation judge noted that the Minnesota Department of Labor and Industry and the insurer had not approved the proposed rehabilitation plan. (Finding 29.) The employer objected to the proposed plan in writing to QRC Grell on November 8, 1993 and also filed a request for a rehabilitation waiver pursuant to Minn. R. 5220.0120. At this time the employee was working for the employer and was receiving services under a managed care plan. The QRC services and the managed care plan services appeared duplicative. The employee had not been determined to be a qualified employee for rehabilitation. Substantial evidence supports the compensation judge's finding that the rehabilitation services of Mesabi, subsequent to the rehabilitation consultation, were not reasonable and necessary services under Minn. R. 5220.1900. We affirm on this issue.
Managed Care Provider
The employee questions the authority of the comprehensive managed care manager in this situation where a QRC from Mesabi was also apparently acting on behalf of the employee. The facts indicate that the employee was refusing to work with the managed care provider. The employee argues in her brief, page 16, that "[i]f this court finds that the employee is a qualified employee, then this court should carefully delineate the functions of the QRC and the managed care provider." It is not necessary to respond to this issue raised by the employee as we have affirmed the finding that the employee is not a qualified employee entitled to rehabilitation services. Also, we have affirmed the denial of Mesabi's request to be paid for rehabilitation services subsequent to the rehabilitation consultation. Substantial evidence supports the compensation judge's finding that the management services provided by the comprehensive management care provider were appropriate (Finding 36) and we affirm.
Minnesota Rule 5220.1900, subp. 2, provides as follows:
Subp. 2. Reasonable and necessary services. A rehabilitation provider shall bill for only those necessary and reasonable services which are rendered in accordance with Minnesota Statutes, section 176.102 and the rules adopted to administer that section. A dispute about reasonable and necessary services and costs shall be determined by the commissioner or a compensation judge. The commissioner's or a compensation judge's review must include all the following factors.
A. the employee's unique disabilities and assets in relation to the goals, objectives, and timetable of the rehabilitation plan;
B. the type of rehabilitation services provided and the actual amount of time and expense incurred in providing the service;
C. an evaluation of whether services provided were unnecessary, duplicated other services, were available at no charge to public, or were excessive relative to the actual needs of the employee; and
D. an evaluation of whether services rendered were expressly called for by the employee's rehabilitation plan.