RONALD A. KONOSKE, Employee, and KEN MOBERG, QRC. vs. ASSEMBLY ENG=G and EMC INS. CO., Employer-Insurer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 4, 2002

                                                                             

HEADNOTES

 

SETTLEMENTS - INTERPRETATION.  The issue before the compensation judge was to interpret the parties= stipulation concerning payment of rehabilitation expenses.  Based upon the evidence of record, the compensation judge=s interpretation was not clearly erroneous and therefore is affirmed.

 

JURISDICTION - PROSPECTIVE AWARD.  A compensation judge has no authority to award benefits beyond the date of the hearing.  As the compensation judge=s award of rehabilitation expenses incurred through the date the findings and order were issued was prospective and beyond the jurisdiction of the judge, that portion of the award therefore is reversed.

 

Affirm in part and reverse in part.

 

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

Compensation Judge: Gary P. Mesna

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s award of payment for rehabilitation services.  We affirm in part and reverse in part.

 

BACKGROUND

 

This appeal involves two claimed injuries sustained by the employee, Ronald Konoske, while employed with Assembly Engineering, the employer.  On August 21, 1998, the employee sustained an injury to his right wrist.  On October 21, 1999, the employee claims to have sustained an injury to his right shoulder.   The employer was insured for workers= compensation liability in the state of Minnesota by EMC Insurance Company (EMC Insurance) on August 21, 1998, and by Managed Comp, Travelers Insurance Group (Managed Comp) on October 21, 1999.

 

The employer is a small business which assembles electrical wire harnesses and antennas, and typically employs about five employees.  The employee performed various duties, including pulling parts in and out of machines, using manual tools such as pliers, wire strippers or small power tools, performing carpentry duties and manually shrink wrapping wires.  Those duties required him to reach with his right arm, rotate his right wrist, and lift and grasp small tools and parts on a repetitive basis.

 

The employee noted an onset of pain in his right wrist on August 21, 1998, after performing a job which required him to move his hand back and forth horizontally to heat the sides and ends of wires.  The employee sought medical treatment and was referred to a hand surgeon, Dr. Jeffrey Chapman, M.D.  Dr. Chapman diagnosed right wrist synovitis and a peripheral tear of the right triangular fibrocartilage (TFCC).  On September 17, 1998, Dr. Chapman performed arthroscopic surgery of the employee=s right wrist, including debridement and repair of the fibrocartilage tear.  The employer and EMC Insurance initially admitted primary liability for the right wrist injury and paid certain benefits to and on behalf of the employee, including temporary disability benefits, medical expenses and rehabilitation expenses. 

 

Between September 1998 and January 1999, the employer and EMC provided rehabilitation assistance through Ms. Linda Ditterick, qualified rehabilitation consultant (QRC).  Dr. Chapman released the employee to return to work in December 1998, within a 10-pound lifting limit and within restrictions on repetitive right wrist motions.  He returned to work on a part-time basis, eventually working his regular four-hour shift.  The employee was also released to return to his part-time position driving school bus.^[1]  The employee continued to notice constant pain while working, but he was able to perform part-time job duties for the employer. 

 

The employer and EMC Insurance again provided rehabilitation assistance to the employee between April and June 1999, through QRC Ditterick, at a time when the employee was exhibiting symptoms indicative of carpal tunnel syndrome.  The QRC conducted an on-site job analysis in April 1999; Dr. Chapman imposed revised work restrictions on May 13, 1999.  The employee continued to work for the employer on a part-time basis within physical restrictions.

 

In October 1999, the employee developed right shoulder symptoms, and was later diagnosed with bursitis and impingement.  He was disabled from work between October 23 to November 5, 1999, due to these symptoms, and then returned to work at his jobs with the employer and driving school bus.  Thereafter he experienced gradually worsening symptoms in his right shoulder, and by April 2000, the employee received additional medical treatment for his right shoulder.  By approximately May 2, 2000, the employee discontinued working at the recommendation of his treating physician.   The employer and Managed Comp initially admitted primary liability for the employee=s alleged October 21, 1999, right shoulder injury.

 

On June 15, 2000, the employee filed a claim petition, alleging entitlement to temporary partial and temporary total disability benefits, permanent partial disability benefits, payment of medical benefits and provision of rehabilitation assistance.  In their answer to the claim petition, the employer and EMC Insurance alleged that the employee=s current disability had no relationship to his August 21, 1998, right wrist injury.  In their answer, the employer and Managed Comp denied primary liability for the employee=s claimed injury of October 21, 1999.

 

On June 16, 2000, the employee filed a rehabilitation request with the Department of Labor and Industry, requesting provision of rehabilitation assistance through Kenneth A. Moberg, qualified rehabilitation assistant (QRC).  On July 3, 2000, the employer and EMC Insurance filed a rehabilitation response in which they denied liability for the claimed rehabilitation assistance on that basis that there was no causal relationship between the employee=s right wrist injury and his current disability.

 

On July 5, 2000, QRC Moberg conducted an initial rehabilitation consultation, and determined that the employee was qualified for rehabilitation services because he was not likely to return to the employer and was likely to benefit from rehabilitation services.  On July 18, the QRC submitted a proposed rehabilitation plan to the employer and insurers, and on July 26, 2000, the employee filed an amended rehabilitation request for rehabilitation assistance.  In their rehabilitation response, the employer and Managed Comp asserted their denial of primary liability and alleged that any prior payments were made under mistake of fact or law.

 

According to the QRC=s testimony, the proposed rehabilitation plan was neither accepted or objected to by the employer and insurers and therefore he filed it, unsigned, with the Department of Labor and Industry on August 11, 2000.  On October 17, 2000, the QRC filed a rehabilitation request,  in which he claimed payment for rehabilitation services rendered between July 23 and September 23, 2000.  The employer and EMC Insurance again denied liability for the rehabilitation expenses, alleging that the employee=s disability and need for rehabilitation services was causally related solely to the employee=s shoulder injury.   

 

Claims related to both injuries were addressed at hearing before Compensation Judge Jennifer Patterson on November 1, 2000.  At some point prior to that hearing, the employer and EMC Insurance retroactively denied primary liability for the employee=s injuries. Multiple issues were litigated or presented to the compensation judge for resolution, including the employer and insurers= denial of primary liability for the claimed injuries and liability for Mr. Moberg=s services.

 

At the outset of the hearing, the parties entered into various stipulations, and the following exchange took place:

 

THE COURT: With respect to the rehabilitation issue, there=s been an agreement that, to the extent the employee prevails on one or both injury dates, whoever is found responsible would pay for rehabilitation, is that correct, that he=s entitled to the services he=s been receiving and you=re not objecting today to the charges we=ve seen; is that correct?

MR. GILLIN: That=s correct, Your Honor.

MR. CAHILL: That=s correct.

 

(T. 12-13.)

 

In a Findings and Order served and filed January 5, 2001, the compensation judge found that the employee had sustained a work-related right wrist injury on August 21, 1998, and that as a result of that injury had sustained five percent permanent partial disability of the whole body,^[2] and was entitled to an underpayment of temporary total disability benefits.  The compensation judge found that the employee had not proved that he sustained a work injury to his right shoulder on October 21, 1999, in the nature of either minute trauma or specific injury, and denied all medical and weekly disability benefits the employee claimed relative to that injury.  The compensation judge also found that the Acondition of the employee=s right wrist was not a substantial contributing factor to the loss of income he experienced from October 25, 1999 to the date of hearing.@  (Finding 28.) 

 

In the findings and order, the compensation judge listed the following stipulation related to the rehabilitation claim:

 

2e.       If the employee proves liability for one or two work injuries, he is entitled to receive rehabilitation services and the insurer or insurers found liable will provide these services;

 

(Finding 2, Findings & Order Jan. 5, 2001.)  Despite the compensation judge=s finding, she did not issue a corresponding order for payment of the agreed-upon rehabilitation expenses.  No appeal was taken from the findings and order.

 

Following issuance of the findings and order, the employer and EMC Insurance paid the temporary total, temporary partial and permanent partial disability benefits ordered by the compensation judge, but did not issue payment for rehabilitation services.  (See Notice of Benefit Payment, dated January 19, 2001.)   On February 12, 2000, the QRC filed an additional rehabilitation request, requesting payment for rehabilitation services in the amount of $6,875.29, for services rendered between July 23, 2000 and January 20, 2001.  In their response, the employer and EMC Insurance denied payment for the claimed rehabilitation services.   They alleged that since the right wrist injury for which EMC Insurance was liable was not a substantial contributing factor to the employee=s disability during the period during which rehabilitation benefits were claimed, they were not responsible for payment of services. 

 

An administrative conference was held on March 14, 2001, before a commissioner=s representative at the Department of Labor and Industry.  In a decision issued pursuant to Minn. Stat. ' 176.106, the representative denied payment for the requested rehabilitation services.  The QRC filed a formal request for hearing, and the claim for rehabilitation services was addressed by Compensation Judge Gary Mesna on June 22, 2001.  The QRC and the employer/EMC Insurance waived their right to present witnesses, and submitted documentary evidence and written arguments to the compensation judge.  In Findings and Order served and filed July 25, 2001, Compensation Judge Mesna found that the QRC was entitled to payment for the rehabilitation expenses incurred prior to January 6, 2001.  The compensation judge found that in the stipulation entered into between the parties at the hearing on November 1, 2000, both insurers waived all defenses regarding the rehabilitation claim except for primary liability.  The compensation judge found that since the employer and EMC Insurance were adjudicated as being liable  for the employee=s August 21, 1998, work-related injury, under the terms of the stipulated agreement they accordingly are liable for payment of the specific claim for rehabilitation services presented at the first hearing.  The compensation judge also found that the employer and EMC Insurance are liable for payment of rehabilitation services through January 5, 2001, the date on which the initial findings and order were issued, but were liable for no additional rehabilitation services provided after January 5, 2001.  The employer and EMC Insurance appeal.

 

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.

 

DECISION

 

Assembly Engineering and EMC Insurance appeal the compensation judge=s finding interpreting the parties= stipulation to require them to pay the rehabilitation services of Mr. Moberg provided prior to January 6, 2001.  They contend Judge Patterson=s finding that the August 21, 1998 injury was not a substantial contributing cause of the employee=s disability after October 25, 1999, essentially overruled the stipulation of the parties.  They assert that since no appeal was taken from Judge Patterson=s Findings and Order, the QRC is precluded from obtaining payment for his services by the doctrine of res judicata. 

 

Res judicata, or claim preclusion, is a finality doctrine in which Aa final judgment on the merits bars a second suit for the same claim by parties or their privies.@  Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1984).  It is well settled that principles of res judicata are applicable in workers= compensation proceedings, and Abar[] subsequent proceedings to determine claims which are litigated in a prior proceeding.@  Alexander v. Kenneth R. LaLonde Enters., 288 N.W.2d 18, 20, 32 W.C.D. 312, 314 (Minn. 1980).  We disagree, however, that the doctrine of res judicata is applicable in this case.  Rather, the parties= stipulation is controlling on the issue of liability for the rehabilitation expenses.  Daddario v. Ziem=s Floor Covering, 58 W.C.D. 538 (W.C.C.A. 1998).  Accordingly, the issue before Compensation Judge Mesna at the hearing on June 22, 2001, was to interpret the parties= stipulation.

 

The interpretation of a contract is not made solely by an inspection of the writing itself, but the writing must be read in light of the situation of the parties, the subject matter and purposes of the transaction and like attendant circumstances.  Bussard v. College of St. Thomas, Inc., 294 Minn. 215, 200 N.W.2d 155 (1972).  AWhere a written agreement is ambiguous or incomplete, evidence of oral agreements tending to establish the intent of the parties is admissible.@  Material Movers, Inc. v. Hill, 316 N.W.2d 13, 17 (Minn. 1982) (citations omitted); see also Gutierrez v. Red River Distrib. Inc., 50 W.C.D. 244 (affirmance with memorandum) (Minn. 1994).

 

The parties were afforded an evidentiary hearing before Judge Mesna.  The parties offered no testimony, but submitted documentary evidence and written arguments to the compensation judge.  The judge reviewed the transcript of the hearing before Judge Patterson, reviewed Judge Patterson=s Findings and Order, and considered the arguments and exhibits offered by the parties.  The compensation judge then concluded the appellants were liable for Mr. Moberg=s rehabilitation expenses.  Based upon the record before us, we cannot conclude the compensation judge=s determination was clearly erroneous.  We therefore affirm the compensation judge=s order that the employer and EMC Insurance pay the rehabilitation expenses through November 1, 2000, the date of the first hearing before Compensation Judge Patterson.

 

In his Findings and Order, Compensation Judge Mesna ordered the employer and EMC Insurance to pay the rehabilitation expenses through January 5, 2001, the date of Judge Patterson=s Findings and Order.  Judge Mesna stated that, as of that date, Mr. Moberg first had reason to believe he might not be paid for his continuing services.  Therefore, the judge reasoned, it would be unfair to Mr. Moberg to cease payment for his services prior to January 5, 2001.

 

As a general rule, a compensation judge has no authority to award benefits beyond the date of the hearing.  Such an order would be prospective and beyond the jurisdiction of the judge.  Donnahue v. Glory Shine Cleaning, Inc., slip op. June 13, 1996; Yacoub v. American Nat=l Ins., 60 W.C.D. 168 (W.C.C.A. 2000).  Further, we reject the compensation judge=s reasoning in awarding rehabilitation services through January 5, 2001.  Finding no further legal basis in the record for such an award, the award of rehabilitation services from November 2, 2000 through January 5, 2001 is reversed.