SUSAN M. SMITH, Employee, v. FAIRVIEW HOSP., SELF-INSURED/HEALTH CARE SERVS., Employer-Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 5, 2000

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Where testing had not yet been performed to determine whether the employee would be physically capable of driving a modified van, it was premature to determine that the proposed modified van was reasonable and necessary, and it was therefore unnecessary to determine whether a modified van qualifies as a compensable medical expense under Minn. Stat. ' 176.135, subd. 1.  The judge=s award is therefore vacated.

 

Vacated.

 

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

Compensation Judge:  Nancy Olson

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s decision requiring it to provide the employee with a modified van as a reasonable and necessary medical expense.  We vacate the judge=s decision as premature.

 

BACKGROUND

 

On February 23, 1993, the employee sustained a work-related injury while employed as a nurse by Fairview Hospital [the employer], when a loaded cart rolled over her right foot.  She developed reflex sympathetic dystrophy [RSD] as a result of the injury and has not worked at all since at least March of 1994.  Medical and rehabilitation records suggest that the employee is not likely to return to competitive employment.

 

The employee began using a wheelchair in October of 1994 and was provided with a motorized wheelchair beginning sometime in early 1995.  From April 1, 1996, through April 30, 1999, the employer also provided the employee with a wheelchair-accessible, modified van, which allowed her to drive.^[1]  She used the van to drive to medical appointments and for church, school, and social activities.

 

On July 12, 1999, following the expiration of the van lease agreement, the employee filed a medical request, seeking provision of another wheelchair-accessible van, with certain additional modifications recommended by W. H. Snyder of Complete Mobility Systems.^[2]  The additional modifications were intended to compensate for a deterioration in the employee=s condition.  Among other things, the new proposed modifications would allow the employee to drive directly from her motorized wheelchair, without transferring to a driver=s seat.  More sensitive hand controls for driving were also recommended.  According to an attachment to the medical request, the purchase price of the new van, with modifications, was estimated to be $49,450.  The employee testified that, without the use of a modified van, she is for the most part confined to her house.  However, a medical van service is available, by appointment, to convey the employee to scheduled medical appointments.

 

A hearing on the employee=s medical request was held on November 9, 1999.  Evidence included certain medical records, the deposition testimony of Dr. Ronald Bateman, D.O., one of the employee=s treating physicians, and the testimony of the employee, Mr. Snyder, and the employee=s disability case manager.  Issues included whether the recommended modified van qualified as a medical expense under Minn. Stat. ' 176.135 and whether the van was otherwise reasonable and necessary under the statute.  In a decision issued on January 7, 2000, the compensation judge ordered the employer to provide the employee with a van, consistent with Mr. Snyder=s recommendations, either through lease or purchase.  The employer 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

 

Minn. Stat. ' 176.135, subd. 1, provides in relevant part as follows:

 

    Subdivision 1.  Medical, psychological, chiropractic, podiatric, surgical, hospital.  (a)  The employer shall furnish any medical, psychological, chiropractic, podiatric, surgical and hospital treatment, including nursing, medicines, medical, chiropractic, podiatric, and surgical supplies, crutches and apparatus, including artificial members, or, at the option of the employee, if the employer has not filed notice as hereinafter provided, Christian Science treatment in lieu of medical treatment, chiropractic medicine and medical supplies, as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.  This treatment shall include treatments necessary to physical rehabilitation.

 

(Emphasis added.)  The underlying legal question in this case is whether a modified van can qualify as a medical expense under this provision.  The compensation judge concluded that Wong v. Won Ton Foods, 50 W.C.D. 289 (W.C.C.A. 1993), was controlling and ordered the employer to pay all necessary costs, either through lease or purchase, to provide the employee with a modified van consistent with the recommendations of Mr. Snyder.  On appeal, the employer argues in part that the compensation judge erred as a matter of law in interpreting Wong to hold that a modified van qualifies as a medical expense under the statute.  We agree that Wong does not govern here.

 

The employee in Wong became a quadriplegic as a result of a work-related automobile accident.  Although statutorily permanently and totally disabled, the employee sought approval of an electric wheelchair and modified van at least in part to allow him to return to work.  The matter came on for hearing before a compensation judge for consideration of the employee=s request for the wheelchair and van and also for vocational rehabilitation services.  The judge resolved all issues in the employee=s favor, and the employer and insurer appealed.  In considering the judge=s award of the modified van, this court quoted the statutory provision governing the purpose of vocational rehabilitation, Minn. Stat. ' 176.102, subd. 1, and expressed agreement Awith the compensation judge that, under [the] circumstances, a handicap-equipped van would be useful in restoring the employee to a job related to his former employment or in another work area.@  Wong, 50 W.C.D. at 294.  In closing, we indicated that Athe van would rehabilitate the employee by enabling him to function independently and to seek and engage in employment compatible with his education, employment skills and disability.@  Id. at 295.  Thus, while there is some language in the opinion indicating that the van would also assist the employee in his day-to-day activities, Wong is best understood as a rehabilitation expense case, not a medical expense case, and, because the employee in the present matter is not expected to be released to work, Wong is not controlling.

 

We have found no Minnesota case addressing the legal issue of whether a modified van, or the modifications alone, can qualify as a medical expense under Minn. Stat. ' 176.135, subd. 1.^[3]  However, whatever the answer to this question, there is also a factual issue as to whether a modified van is reasonable and necessary under the circumstances.  After thorough consideration of the record, we conclude that the legal issue need not be resolved, because the compensation judge=s factual finding as to reasonableness and necessity is not, at this time, supported by substantial evidence.

 

As previously indicated, Mr. Snyder, of Complete Mobility Ssystems, drafted a list of recommended van modifications, including a wheelchair lift and more sensitive hand controls.  Dr. Bateman agreed that certain additional modifications would be necessary to allow the employee to drive.  However, the employee has not as yet attempted to drive a van containing all the recommended new modifications,^[4] most of which were suggested because her condition has deteriorated.  More importantly, it has not as yet been ascertained, at least as of the hearing date, that the employee will in fact be able to safely operate the modified van.  Mr. Snyder testified that testing and evaluation of the employee=s driving must be performed by an occupational therapist, in a van with all of the proposed modifications, and that the employee Astill needs to be tested@ on the proposed hand controls in view of the Adeterioration in further function of her right upper extremity.@^[5]  Dr. Bateman, too, testified that he did not know whether the employee=s functional deterioration would allow her to satisfactorily complete a driver assessment and training program.

 

Because there is no real evidence that the employee is reasonably likely to be able to drive the van with the proposed modifications, especially the hand controls, there is simply no basis in the record to conclude that the modified van is reasonable and necessary, legal issues aside.  Therefore, because the award was premature absent the necessary testing, we vacate the judge=s decision.