LORRAINE Y. LEMKE, Employee/Appellant, v. ISD  #112, and SELF-INSURED/BERKLEY RISK ADMIN. CO., Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 30, 2003

 

 

HEADNOTES

 

REHABILITATION - CHANGE OF QRC.  Where the employee and QRC have managed to work together regarding the employee=s return to work, the employer has accommodated the employee=s return to work, and extensive rehabilitation and job search efforts are not currently needed, the compensation judge=s denial of the employee=s request to change QRCs was not clearly erroneous and was supported by substantial evidence.

 

Affirmed.

 

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

Compensation Judge: Jane Gordon Ertl

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s order denying her request to change the qualified rehabilitation consultant assigned to her case.  We affirm.

 

BACKGROUND

 

On November 6, 2001, Lorraine Y. Lemke, the employee, sustained an admitted work-related injury to her left foot while working for Independent School District No. 112, the self-insured employer, as a special education teacher and case manager for special education students.  The employer paid various workers= compensation benefits, including temporary total disability benefits and medical expenses.  In February 2002, the employer advised the employee that a qualified rehabilitation consultant (QRC), Charlotte O=Keefe, was being assigned to her, and also filed a Disability Status Report confirming this QRC assignment.  The employee decided to choose a different QRC, and requested a list of QRCs from the Department of Labor and Industry.  The employee interviewed QRC Kay Ness by telephone on February 28, 2002.  Ms. Ness has a Bachelor of Science degree in nursing and 20 years experience as a QRC.  The employee selected Ms. Ness to be her QRC, and met with her on March 8, 2002, for a rehabilitation consultation.  At that meeting, the employee signed authorizations allowing the QRC to obtain copies of her medical records and to disclose relevant information to the parties, the employee=s physician and/or the Minnesota Department of Labor and Industry in order to develop an appropriate rehabilitation plan.  The employee asked for copies of the authorization forms she had signed, but the QRC advised that since a copy machine was not available at the meeting location, she would mail copies to the employee.

 

The QRC testified that she dictated her report from the rehabilitation consultation the  day following the consultation.  She also testified that she typically dictates her reports and correspondence, then has her dictation transcribed by a secretary, with the entire process taking four to five days, and that she sends copies of her reports to her employee-clients.  On March 11, 2002, three days after the rehabilitation consultation, the employee sent a letter to the QRC revoking the  authorization forms she had signed.  The employee testified that she was concerned that the authorization forms were too generic and allowed too broad a release of information.   The employee later requested copies of all rehabilitation reports before the QRC sent them to anyone else so that she could review them and check them for accuracy.  Rehabilitation records in the hearing record contain revisions made to those reports by the employee.

 

In her report dated March 9, 2002, the QRC concluded that she expected the employee to return to her pre-injury occupation and employer, that she expected the employee to return to suitable gainful employment through rehabilitation services, and, therefore, that the employee was eligible for rehabilitation services.  The employer provided rehabilitation services to the employee, with Ms. Ness serving as her QRC; those services were primarily comprised of  monitoring the employee=s medical progress and facilitating a return to work with the same  employer.  On March 25, 2002, the QRC met with the employer to determine whether accommodations were available to allow the employee to return to work.  The employer responded by letter dated March 26, 2002, and outlined physical and scheduling accommodations that it could  provide to the employee. 

 

The QRC also had planned to discuss the employer=s ability to accommodate with the employee and her treating physician, Dr. John Kasmirski, at a medical appointment scheduled for April 2, 2002.  However, the employee requested that the QRC not attend any of the employee=s medical appointments and that she only communicate with the employee=s medical providers in writing.  The QRC accommodated this request, and on April 1, 2002, the QRC wrote to Dr. Kasmirski, requesting information regarding the employee=s condition, treatment, and whether the employee could return to work.  The QRC provided the physician with a copy of the March 26, 2002, letter from the employer.  Dr. Kasmirski released the employee to return to work given the accommodations available from the employer; the employee returned to part-time work with the employer on April 10, 2002, and was paid temporary partial disability benefits.  The QRC later communicated with Dr. Daniel Kurtti, a physiatrist who evaluated the employee at Dr. Kasmirski=s request, for his opinion concerning diagnosis and appropriate return to work.  Dr. Kurtti concluded that the employee was disabled from work as of April 23, 2002; the employee discontinued working and the employer resumed payment of temporary total disability benefits after that date.  

 

The employee retained an attorney, and informally advised the insurance administrator that she wished to request a change in QRC=s.  On April 24, 2002, the employer filed a rehabilitation request seeking a conference to resolve the employee=s alleged Anon-communication and/or non-cooperation with her QRC,@ and to maintain the current QRC on the case.  On May 14, 2002, the employee filed a rehabilitation response objecting to the retention of the current QRC and requesting a change of QRC.  An administrative conference was held on May 30, 2002, and by order issued on June 25, 2002, the employer=s rehabilitation request was approved, retaining Ms. Ness as the employee=s QRC.^[1]  The employee objected to the administrative decision, and a formal hearing was scheduled for September 11, 2002.

 

In the interim, prior to the hearing, the employee and the QRC continued to work together; the employee, her attorney and the QRC met together in July 2002 specifically to discuss how to proceed with the QRC=s relationship with the employee.  As a result of that meeting, the employee and her attorney agreed that, until the employee was released to return to work, the QRC would limit her professional rehabilitation services to monitoring the employee=s medical progress, gathering pertinent medical information and communicating that information to the appropriate parties, and communicating with medical providers solely in written format. In late August 2002, the employee returned to work for the employer, on a part-time light-duty basis.

 

In findings and order served and filed on October 10, 2002, the compensation judge denied the employee=s request to change 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.  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

 

An employer is required to provide an employee with a rehabilitation consultation, conducted by a qualified rehabilitation consultant.  If the employee objects to the employer=s selection of the QRC, the employee may select a QRC within 60 days after the filing of a copy of the employee=s rehabilitation plan.  Minn. Stat. ' 176.102, subd. 4(a); Minn. R. 5220.0710, subp. 1.^[2]  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.  Reaney v. Weyerhaeuser, 58 W.C.D. 432, 433 (W.C.C.A. 1998).  The employee need not provide a reason or justification for the requested change.  Minn. Stat. ' 176.102, subd. 4(a).

 

After an employee has exercised a choice under the provisions of the statute and rule, the employee may later request a change to a different QRC, subject to approval by a compensation judge or the commissioner, based upon a determination that the change is in Athe best interests of the parties.@  Minn. Stat. ' 176.102, subd. 4(d).  AThe best interest of the parties shall be determined based on the goals of rehabilitation@ as provided in Minn. Stat. ' 176.102, subd. 1(b).  Minn. R. 5220.0710, subp. 3.  The goal of rehabilitation is to return the injured employee Ato 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.@  Minn. Stat. ' 176.102, subd. 1(b).

 

On appeal, the employee does not dispute that she already has exercised her right to choose a QRC under Minn. Stat. ' 176.102, subd. 4(a), when she selected QRC Ness.  However, the employee argues that, in her interest, a change should be allowed, as there has been a breakdown of her relationship with the QRC.  For example, the employee testified that she was uncomfortable signing the medical authorizations provided by the QRC and that she did not receive copies of the papers she signed until two or three weeks after her initial consultation with the QRC.  Further, the employee testified that, in her opinion, Dr. Kasmirski felt pressured to return the employee to work after the QRC sent a letter to the physician by facsimile, inquiring about the employee=s work restrictions and informing him of the accommodations the employer was willing to provide.  The employee testified that she felt betrayed and that she had lost all trust and confidence in QRC Ness.  The employee argues that the interests of the employer and the employee are different, and that the employee=s loss of faith and trust in her QRC should be given greater consideration than the employer=s interests.  However, this court rejected a similar argument in Owens v. New Morning Windows, slip op. (W.C.C.A. June 5, 2000), and concluded that a Acertain reasonable efficiency and practicality is expedient in rehabilitation matters . . . and . . . that effective work remains effective even in cases where the relationship and communication are less than optimum.@   The compensation judge also concluded that both the employee=s and the employer=s interests were to be taken into consideration when determining whether a change in QRC was appropriate.

 

In this case, even though the employee testified that she wanted a QRC to help with her medical situation, she decided to revoke her medical release forms three days after her initial rehabilitation consultation.  In addition, the employee testified that she lost all trust and confidence in QRC Ness after she wrote to the employee=s physician, inquiring about the employee=s work restrictions and informing him of the accommodations the employer was willing to provide.  Instead, she felt that the QRC should have made more inquiry as to the employee=s medical condition and necessary medical treatment, and should have contacted the employee=s physical therapist for an estimate as to when the employee would be able to return to work.  The compensation judge noted in her memorandum that there was no reason to justify the employee=s distrust so early on in the rehabilitation process, and that there was Anothing to establish that the employee would have acted any differently with any other QRC.@  It appears that the employee may have been confused as to the role of the QRC in the rehabilitation process, and may have expected the QRC to work solely as her advocate rather than to Aprovide prompt and necessary rehabilitation services to assist a qualified employee to return to suitable gainful employment.@ Minn. R. 5220.1801, subp. 1.  

 

In her memorandum, the compensation judge concluded that the employee and QRC have managed to work together on the employee=s return to work, and that it would not be reasonable in this situation to have another QRC repeat the interviews and employer contacts already completed.  The QRC testified that the employee has been pleasant and agreeable, and that she believed she had a positive working relationship with the employee and the employee=s husband.  The compensation judge also noted that the Aemployer, so far, has been accommodating and it is likely that the QRC=s primary function will be to monitor and facilitate a return to work with the employer.  Extensive rehabilitation and job search efforts are not currently needed.@  (Memo., p. 5.)  She further concluded that the QRC had presented herself credibly and professionally, and that

 

Her reports were thorough and appropriately addressed rehabilitation efforts.  She attempted to address the concerns of the employee, in spite of the limitations the employee placed on her activities.  She testified credibly that the employee did not tell her of some of her concerns and if she had done so they could have been addressed at the time. 

 

(Memo., p. 4.)  It is the trier of fact's responsibility to assess the credibility of a witness, and the compensation judge could reasonably rely on the QRC=s reports and testimony concerning the efficacy of the QRC=s rehabilitation efforts.  See  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)).  In view of the record as a whole and under these particular circumstances, the compensation judge found that a change of QRC was not in the best interests of both parties.  Substantial evidence supports this finding, and we affirm.