PATRICK OWENS, Employee/Appellant, v. NEW MORNING WINDOWS and MICOA/SUPERIOR EMPLOYERS PLAN, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 5, 2000

 

HEADNOTES

 

PRACTICE & PROCEDURE - EXPEDITED HEARING.  Where the matter was heard on an expedited track pursuant to the employee=s Request for Formal Hearing, where the sole basis for that request for formal hearing was an administrative denial of the employee=s request to change QRCs, and where, at the outset of the formal hearing, the compensation judge without qualification identified the employee=s right to change QRCs as Athe issue@ to be determined, the judge=s subsequent finding that the employee was not a qualified employee for rehabilitation services in general constituted an improper expansion of the issues, and the judge=s finding to that effect was vacated.

 

REHABILITATION - CHANGE OF QRC; RULES CONSTRUED - MINN. R. 5220.0710, SUBPS. 1 & 3.  The potentially Aexhausted@ choice referenced in Minn. R. 5220.0710, subp. 3, is not the mere choice of QRC but is instead the employee=s option of either selecting the initial QRC or changing to a different QRC within the 60-day post-filing period referenced in both subpart 1 of that rule and subdivision 4(a) of Minn. Stat. ' 176.102.

 

REHABILITATION - CHANGE OF QRC.  Where it was not unreasonable to conclude that the employee=s existing QRC was not biased in favor of the employer and insurer and did not act incompetently or outside his statutory authority, where the employee=s claimed distrust of the QRC did not apparently affect the effectiveness of rehabilitation efforts, and where the employee=s existing job with the employer provided the employee with not only greater than his pre-injury wage but also reasonably as great or greater economic status as that he would have enjoyed without his work injury, the compensation judge=s denial of the employee=s request to change QRCs was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed in part and vacated in part.

 

Determined by Pederson, J., Johnson, J. and Rykken, J.

Compensation Judge:  Jennifer Patterson

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's finding that the employee is not a qualified employee for purposes of rehabilitation assistance and from the judge=s order denying the employee=s request to change QRCs.  We vacate the finding as to entitlement but affirm the denial of the request to change QRCs.

 

BACKGROUND

 

On July 8, 1998, Patrick Owens sustained a bilateral Gillette-type injury^[1] to his hands and wrists^[2] in the course of his employment with New Morning Windows.  Mr. Owens= job at New Morning Windows had entailed nearly constant use of his hands in the assembly of window parts and in the use of tools.  Mr. Owens [the employee] was forty-seven years old at the time of his injury, had worked for New Morning Windows [the employer] for about three months, and was earning an average weekly wage of $449.91.  The employee=s work and educational history prior to his employment with the employer had included the earning of a GED, a short car mechanic training program in 1970, various construction jobs, twenty years of plastic fabrication, and a safety course with the employer.  The job at the employer at which the employee was working at the time of his injury sometimes entailed as many as five to ten hours of overtime work a week during periods of peak production, but there were no guarantees of the availability of such overtime.  The employer and its workers= compensation insurer accepted liability for the injury and commenced payment of benefits.

 

Subsequent to his work injury, the employee received treatment from Dr. Glen Steeves, who prescribed anti-inflammatories, splints, range-of-movement exercises, and physical therapy.  In mid October of 1998, Dr. Steeves took the employee off work for two weeks due to worsened symptoms, and the employee subsequently began receiving rehabilitation assistance from QRC Matthew Tolpingrud, evidently at the recommendation of the employer.  The employee returned on November 4, 1998, to a lighter duty production job at the employer, which still required frequent hand use, nearly continuous grasping, and some fine manipulations.  When symptoms continued, Dr. Steeves restricted the employee from working with vibrating tools, from doing coarse manipulation, and from doing any gripping or heavy grasping.  Eventually Dr. Steeves referred the employee to various other specialists, including occupational medicine specialist Dr. John Knutson, hand specialist Dr. Paul Donahue, and a Dr. Floberg, a neurologist, all of whom continued to treat the employee conservatively.^[3]  Dr. Knutson eventually restricted also the employee=s lifting of fifty pounds only occasionally.  On December 10, 1998, the employee and QRC Tolpingrud executed a Rehabilitation Plan contemplating the employee=s continuing employment with the employer.  Beginning in January 1999, the employee was taken off window production work entirely and given instead first clerical and filing duties and eventually work involving more preparation, such as set-up work, data gathering, and record keeping.

 

The employee=s symptoms apparently continued, and on May 24, 1999, Dr. Knutson diagnosed ACMC arthritis aggravated by work,@ noting as follows:

 

We will get a second opinion.  I talked with a QRC by the name of Michael Stern.  Apparently, [the employee] had been in contact with him.  Mr. Stern had given him a list of doctors who he might look at for consultations.  With this in mind, we have chosen for him to see Dr. Seth Rosenbaum, a physiatrist, for a second opinion.

 

On that same date, May 24, 1999, the employee filed a Rehabilitation Request, asking Athat rehabilitation services be provided@ and seeking Aa change of Qualified Rehabilitation Consultants@ from Mr. Tolpingrud to QRC Mike Stern.  The employee supported his request as follows:

 

Matt Tolpingrud was telling Dr. Knutson to reduce my restriction while I was trying to tell the doctor the pain was increasing, I feel insecure about the job I have been given, it has changed three times in the last five months and does not feel permanent.  The job I was injured at would have al[low]ed me to make more money th[an] the one I am doing now.  Because of what has happened with Dr. Knutson and the raising of restriction I no longer trust Matt Tolpingrud in this matter.

 

Three days later, on May 27, 1999, the employee saw Dr. Rosenbaum, who diagnosed a local CMC capsulitis due to repetitive overuse and Acompletely agree[d] with Dr. Floberg that an EMG is not necessary.@

 

On June 1, 1999, the employer issued the employee a written offer of a permanent modified job paying $11.50 an hourB$.50 an hour more than the employee=s date-of-injury hourly wage.  This job involved setting up in the morning, collecting daily work slips for all shop stations, entering data on a computer, shipping and receiving, and assisting the production and operations managers, as well as certain safety program duties.  Three days later, on June 4, 1999, the employer and insurer filed a Rehabilitation Response, disagreeing with the employee=s May 24, 1999, request to change QRCs but asserting no response to his request for rehabilitation services.  In that response, the employer and insurer asserted in part that the job that they had offered the employee Adoes fall within the restrictions of avoiding heavy pinching with both hands.  At no time have we been advised this is a permanent restriction.@  The employee apparently subsequently accepted the offered position, although he has apparently never performed the safety program duties.

 

The employee=s Rehabilitation Request came on for hearing at an administrative conference pursuant to Minn. Stat. ' 176.106 on July 7, 1999.  At that conference, the employer and insurer contested the employee=s request to change QRCs but expressly agreed that further rehabilitation services should be provided, apparently to monitor the employee=s return to work.  Later that month, the employee refused to talk with QRC Tolpingrud in light of his pending request to change QRCs, and his rehabilitation services were suspended.  By a Decision and Order Pursuant to Minn. Stat. ' 176.106, filed August 4, 1999, Rehabilitation and Medical Specialist John C. Gaudette, for the Commissioner of Labor and Industry, ordered Athat the agreement between the employee and employer/insurer [that A[t]he employee remains entitled [to] rehabilitation services] is approved,@ but he ordered also that Athe employee=s request to change qualified rehabilitation consultant from Mathew Tolpingrud to Michael Stern is denied@ because it was Anot in the best interest of the rehabilitation plan.@  The employee filed a Request for Formal Hearing on this decision on August 16, 1999.  On September 1, 1999, the Office of Administrative Hearings issued a Notice of Hearing, indicating that the matter had been scheduled for an Expedited de Novo Hearing pursuant to Minn. Stat. ' 176.106, subd. 7, and that A[t]he issues and claims raised at hearing generally are limited to those Rehabilitation/Medical issues forming the basis for the Request for Formal Hearing.@ 

 

On October 5, 1999, the employee was examined for the employer and insurer by hand specialist Dr. William Call.  Dr. Call concluded in part that the employee was capable of performing the light duty job of assistant production manager, that he was at maximum medical improvement from any work-related injury that he may have sustained with the employer,^[4] and that there was no objective reason to suspect that the employee needed any further care and treatment.

 

On October 22, 1999, the matter came on for hearing before a compensation judge as scheduled, who announced at the outset that the parties had Aspent some time pretrying the case this morning@ and were Ahere on a expedited hearing following a request for formal hearing received August 16, 1999.@  As of the date of the hearing, the employee had lost no full days of work as a result of his work injury since returning to work on November 4, 1998.  Also as of that date, the employee was earning $12.00 an hour, for a weekly wage of about $480.00, which was about $30.00 more than his date-of-injury wage.  Near the outset of the hearing, the compensation judge stated expressly that the proceeding was Aan expedited hearing following a request for formal hearing@ and indicated without qualification that A[t]he issue is whether the employee has cause for changing QRC.@  The parties stipulated subsequently that the employee=s original request to change QRCs had been filed more than sixty days after the filing of a rehabilitation plan and that no R-8 form to terminate the employee=s rehabilitation services had been filed.  The stipulation as to expiration of the referenced sixty-day period implied that the employee=s absolute right to a change of QRCs within that period, pursuant to Minn. Stat. ' 176.102, subd. 4(a), and Minn. R. 5220.0710, subp. 1, had expired.  When counsel for the employer and insurer offered the report of Dr. Call into evidence, counsel for the employee objected, contending in part that it was not relevant because

 

[t]his is a change of QRCs from the company QRC, Matt Tolpingrud, to a neutral QRC, Michael Stern.  That=s the only issue.  At the conference down below there was a .106 conference on July 7, 1999.  The parties agreed the - - that rehab services were necessary.  There=s never been any claim that I know of that they are not necessary.  So the issue is limited to a change of QRC only.

 

The judge then queried counsel for the employer and insurer, AIf that=s the only issue before me and there is no issue on whether or not the employee needs further rehab services, what relevance does this have?@.  To this counsel for the employer and insurer responded in part,

 

the issue of Dr. Call is relevant as to whether or not the employee needs or is entitled to QRC services from this date forward.  I think the Court has authority to indicate that - - as the employee has to prove he=s in need of a QRC=s services on an ongoing basis as of this date and that the employee - - if - - and, therefore, Dr. Calls report becomes highly relevant to that issue.

 

Following this argument, the judge asked counsel for the employee if he wanted additional time to seek out another medical report or to depose Dr. Call, and when the employee declined the judge overruled his objection to admission of Dr. Call=s report.  In his opening argument, immediately following that ruling, the employee=s counsel reiterated his position that Athis is a very limited issue - - a request for a change of QRCs."  There was no response or ruling by the judge to the contrary.

 

In her Findings and Order, filed November 10, 1999, the compensation judge concluded in part the following:  that A[t]he agreement [at the administrative conference] on July 7, 1999 that the employee needed further rehabilitation services at that point was not binding on the employer for the indefinite future@; that A[a]s of October 22, 1999, the employee was not a qualified employee for purposes of receiving additional rehabilitation services within the meaning of Minn. Rule 5220.0100, subp. 22@; that A[t]he employee=s position that a different QRC would be able to obtain for him with this employer an even better job than the one he held from June 1, 1999 through the date of hearing is not supported by a preponderance of the evidence@; and that therefore, A[e]ven if the employee were entitled to further rehabilitation services, he would not have carried the burden of showing cause for changing QRCs.@  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, A[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, Aunless 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.

 

A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

On appeal, the employee contends the following:  (1) that the compensation judge improperly expanded the issues for determination by addressing the employee=s very entitlement to rehabilitation services, in addition to his request to change QRCs; (2) that, in addressing the matters at issue, the judge applied an improper standard as to the economic goal of rehabilitation; and (3) that, assuming the employee=s entitlement to ongoing rehabilitation services, the compensation judge improperly denied the employee=s request to change QRCs, in that (a) the employee=s unqualified right to choose a QRC at least once has never been exhausted and, (b) even if that right had been exhausted, the judge=s denial was improper for being not in the Abest interests@ of the parties.

 

Expansion of the Issues

 

This matter came on for hearing on an expedited track pursuant to the employee=s Request for Formal Hearing on issues addressed in an administrative decision.  That administrative decision was contrary to the employee=s interests only for its denial of his request to change QRCs.  The September 1, 1999, notice and scheduling of the formal hearing stated expressly that A[t]he issues and claims raised at hearing generally are limited to those . . . issues forming the basis for the Request for Formal Hearing.@ At the outset of the formal hearing, the compensation judge identified the sole issue for determination as Awhether the employee has cause for changing QRC.@  This was the issue Aforming the basis for@ the employee=s Request for Formal Hearing.  Subsequent to the formal hearing, in the AStatement of Issues@ in her November 10, 1999, Findings and Order, the compensation judge identified issues for determination as A1.  Is the employee a qualified employee within the meaning of Minn. Rule 5220.0100, subp. 22 for purposes of receiving ongoing rehabilitation services?@ and A2. Has the employee shown cause for changing qualified rehabilitation consultants?@.  Although the judge issued no express order per se addressing the general entitlement issue, she did make an express finding, in Finding 19, that A[a]s of October 22, 1999, the employee was not a qualified employee for purposes of receiving additional rehabilitation services.@  Nowhere either in that Findings and Order nor in the transcript of the hearing does the judge explain or otherwise comment on her decision to address the general entitlement issue in addition to the change of QRC issue.  The employee contends that, in addressing the issue, the compensation improperly expanded the issues for determination, particularly given the expedited nature of the hearing.  We agree and vacate Finding 19 to the extent that it may be interpreted to terminate the employee=s entitlement to rehabilitation benefits in general.  The issue as to the economic standard applied by the judge is therefore moot as it pertained to the general entitlement issue, but we will address the issue of that economic standard below in our discussion of the change of QRCs issue.

 

Change of QRC

 

(a) Exhaustion of the right to choose.  The employee contends that he has an unqualified right under the statute and rules to choose a QRC at least once and that that right has never been exhausted.  He argues that, while Minnesota Statutes ' 176.102 (subdivision 4) and Minnesota Rule 5220.0710,^[5] subpart 1, provide the employee with a right to choose a QRC only prior to the expiration of sixty days following the filing of a rehabilitation plan, subpart 3 of that same rule provides the employee with a continuing right to choose A[i]f the employee=s choice has not been exhausted.@  The employee contends that, because the QRC with whom he had been working was a Acompany@ QRC and not one chosen by the employee, Athe employee never >exhausted= his choice.@  We are not persuaded.

 

Minnesota Statutes ' 176.102, subd. 4(a), provides in part as follows:

 

If a rehabilitation consultation is requested, the employer shall provide a qualified rehabilitation consultant.  If the injured employee objects to the employer=s selection, the employee may select a qualified rehabilitation consultant of the employee=s own choosing within 60 days following the filing of a copy of the employee=s rehabilitation plan with the commissioner.

 

Minnesota Rule 5220.0710, subp. 1, provides that, pursuant to that statutory provision,

 

the qualified employee has a right to choose a qualified rehabilitation consultant . . . once during the period commencing before a referral by the insurer or commissioner to a qualified rehabilitation consultant, or before a first in-person visit between a qualified rehabilitation consultant and the employee and continuing until 60 days after filing of the rehabilitation plan.

 

Subpart 3 of that same rule goes on to establish A[d]ispute resolution@ procedures concerning Achange or selection@ of the QRC, either A[a]fter exhaustion of the employee=s choices in subpart 1@ or Aat any time@ in the conduct of the case.  The subpart provides that, A[i]f the employee=s choice has not been exhausted, the determination shall be made according to the employee=s choice,@ providing also that the determination is to be made Ain the best interest of the parties@ in cases where the employee=s Achoice has been exhausted.@  We conclude that the potentially Aexhausted@ choice here is not, as the employee has argued, the mere choice of QRC but is instead the employee=s option of either selecting the initial QRC or changing to a different QRC within the sixty-day post-filing period referenced in both subpart 1 of the rule and subdivision 4(a) of Minnesota Statutes ' 176.102.  To construe the rule otherwise would render the sixty-day period established in the statute essentially meaningless.  Cf. Reaney v. Weyerhaeuser, 58 W.C.D. 432, 433 (W.C.C.A. 1998) (Minn. Stat. ' 176.102, subds. 4(a) and 4(d), Aprovide the employee with a right to make a change of QRC from a QRC selected by the employer to one selected by the employee.  This change may be made at any time following the employer=s initial selection of a QRC, even before a rehabilitation consultation has been conducted but no later than the sixty days after the filing of a rehabilitation plan@ (emphasis added)).

 

(b) The Abest interests@ of the parties.  The employee contends finally that, even if his unqualified right to choose a QRC was exhausted or expired, the judge=s denial was improper for being contrary to the Abest interests@ of the parties.  See Minn. Stat. ' 176.102, subd. 4(d); Minn. R. 5220.0710, subp. 3.  With some overlap and redundancy, the employee enumerates seven arguments on this issue, essentially contending that QRC Tolpingrud was biased in favor of the employer and insurer=s interests, was less than fully competent and compliant with the rules, and was distrusted by  the employee.  The employee argues that the judge failed to address this  Abest interests@ issue and that Ait seems clear that it would be in the best interests of all concerned to allow a change of QRC.@  Again we are not persuaded.

 

Although she may not have addressed the Abest interests@ of the parties in just those words, we note that the compensation judge did make clear near the beginning of her Memorandum that, A[d]uring th[e] first 60 days [after the filing of a rehabilitation plan], the employee can request a change of QRC for any reason or no reason; after 60 days, the employee must show cause for changing.@  While this language does place an onus of proof on the moving party, in this case the employee, we conclude that this language in the context of the remainder of the judge=s decision indicates that the compensation judge was contemplating the Abest interests@ of the parties sufficiently to satisfy Minn. Stat. ' 176.102, subd. 4(d), and Minn. R. 5220.0710, subp. 3.

 

With regard to his bias argument, the employee contends (a) that QRC Tolpingrud was a Acompany QRC@ with a Aprior affiliation@ with the employer, (b) that he was Adoing things behind the employee=s back@ by communicating more fully with the employer and insurer and certain medical providers than with the employee, and (c) that he apparently had Asome type of a >deal= with the insurance company,@ as evidenced by his firm=s indication to the employer and insurer that it had saved them $10,000.00.  We conclude, however, that QRCs inevitably work in coordination with employers and insurers and that one prior affiliation with an employer does not render a QRC a Acompany QRC,@ nor does a QRC=s documentation of the effectiveness with which he has assisted an employee in staying employed.  While the lapses in QRC Tolpingrud=s communication with the employee, as addressed at hearing and documented in the employee=s brief, are to some extent troubling, we do not find them so egregious as to constitute bias, particularly given the pay level of the employment that the QRC assisted the employee in maintaining.

 

The employee suggests also that QRC Tolpingrud Afailed in the basic aspects of his job@ when he did an onsite analysis of Athe wrong job@ three days after meeting the employee in late October 1998 and that the QRC provided rehabilitation services without statutory authority when he attended a doctor=s appointment with the employee in November 1998.  It seems fairly clear to us from the transcript of testimony, however, that the referenced Awrong job@ analysis was an analysis of the employee=s own previous job at the employer and was never presumed or held out to be anything other.  Moreover, we do not find an initial QRC=s attendance at an employee=s medical exam preparatory to the development of a rehabilitation plan a material breach of statutory authority, if a breach at all.

 

The employee argues also that his trust in QRC Tolpingrud has eroded on various grounds and that the QRC himself acknowledged this lack of trust on the part of the employee and conceded that trust between an injured employee and his rehabilitation provider was important.  A certain reasonable efficiency and practicality is expedient in rehabilitation matters as in any other matters, however, and we conclude that effective work remains effective even in cases where the relationship and communication are less than optimum.  In this case, it was not at all unreasonable for the compensation judge to implicitly conclude that both the employee and the employer have apparently been served well by QRC Tolpingrud and that it would not be Ain the best interest of the parties@ to begin again with a different QRC.  Should the employee=s physical condition or employment options with the employer deteriorate, such a change may be in order, but it is not now.  The employee has argued that the compensation judge erroneously suggested in her Memorandum that the goal of rehabilitation is limited to restoring the employee only to his or her date-of-injury wage, whereas Athe statutory goal of rehabilitation is to return an injured employee as close as possible to the economic status he or she would have enjoyed without injury.  It is not limited to the date of injury wage, as stated by the judge@ (italics added, underscoring in the original).  We conclude, however, that the employee=s current employment with the employer provides for the employee at least as great - - if not a greater - - economic status as that he would have enjoyed without his injury, providing as it does not only a materially higher weekly wage but also evidently options for further advancement in the company.  Should the job prove impermanent, as the employee has argued that he is concerned it will, the employee will have the option to readdress his rehabilitation concerns.  Under the current facts of the case, however, it was not unreasonable for the compensation judge to deny the employee=s request for a change in rehabilitation assistance.  Therefore we affirm that decision of the judge.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.