HARRY McQUILLEN, Employee, v. JELAN PRODUCTS, and RAM INS., Employer-Insurer/Appellants, and LAKELAND MFG., and INDIANA INS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 15, 2003

 

HEADNOTES

 

REHABILITATIONBREHABILITATION CONSULTATION.   Where an employee is seeking a new period of rehabilitation bene­fits, after pre­vious rehabilitation services have been completed and the file closed, a rehabilitation consultation is appropriate. 

 

REHABILITATIONBCHOICE OF QRC.  The employee has the right to change QRCs even before a rehabilitation consultation has been conducted under Minn. Stat. ' 176.102, subd. 4(a).

 

Affirmed.

 

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

Compensation Judge: John Ellefson

 

Attorneys: Howard Y. Held and Aaron P. Frederickson, Fitch, Johnson, Larson, Walsh and Held, Minneapolis, MN, for the Appellants.  DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Respondent.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge=s finding that the employee was entitled to a rehabilitation consultation by a QRC of his choice where the employee had previously been provided rehabilitation services by another QRC.  We affirm.

 

BACKGROUND

 

On April 28, 1998, Harry McQuillen, the employee, sustained an admitted left shoulder injury while working for Jelan Products, the employer, which was insured for workers= compensation liability by RAM Mutual Insurance Company, the insurer.  The employer and insurer paid various workers= compensation benefits, including temporary total disability benefits, temporary partial disability benefits, permanent partial disability benefits, medical expenses, and rehabilitation benefits.  In October 1998, the employer and insurer assigned a qualified rehabilitation consultant (QRC), Tom Lanes, to work with the employee.  QRC Lanes began working with the employee in October 1998 and worked with him until December 1998, when the file was transferred to Ms. Gwen Hendrickson, a QRC in the same rehabilitation firm.^[1]

 

In July 1999, the employee found employment with a different employer, Lakeland Manufacturing, which paid more than his pre-injury wage.  QRC Hendrickson had concerns that this job was beyond the employee=s restrictions, and the employee acknowledged that he had some physical difficulties in completing his tasks, but he remained at that job for financial reasons.  The QRC continued to monitor the employee=s work and medical treatment until July 2000, when she closed the employee=s rehabilitation plan based upon his return to work.  In November 2001, the employee sustained a work-related injury, in the nature of a hernia, while working at Lakeland Manufacturing.  The employee underwent surgery and was off work, but returned to work for Lakeland Manufacturing.  In January 2002, the employee=s position at Lakeland Manufacturing was terminated.

 

By October 2002, the employee remained unemployed and sought the services of legal counsel.  The employee=s attorney confirmed that rehabilitation services had been closed and then provided the employee with the names of three QRCs from which he could select a QRC to conduct a rehabilitation consultation.  The employee filed a request for a rehabilitation consultation with a new QRC, Ione Tollefson.  The employer and insurer objected, arguing that the employee should work with his previous QRC.  An administrative conference was held on December 17, 2002, and the rehabilitation consultation with the new QRC was approved.  The employer and insurer filed a request for formal hearing, which was held on April 8, 2003.  In Findings and Order served and filed on April 18, 2003, the compensation judge found that the employee was entitled to select the new QRC and approved his request for a rehabilitation consultation.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

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.  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, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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), summarily aff=d  (Minn. June 3, 1993).

 

DECISION

 

This court has considered this issue in a similar case.  In Volcke v. Stuarts, Inc., 55 W.C.D. 283 (W.C.C.A. 1996), the employee received rehabilitation services from March 1992 through May 1993.  The rehabilitation file was closed in 1993 and an R-8 rehabilitation plan completion form was filed.  In 1995, the employee requested a rehabilitation consultation and selected a new QRC to perform that consultation.  The employer and insurer objected.  The court concluded that the plan had been closed in 1993 and that there was no current QRC.  This court stated:

 

An employee is entitled to rehabilitation services if the employee meets the criteria for a Aqualified employee@ and would benefit from rehabilitation assistance.  Where, as here, an employee is seeking a new period of rehabilitation bene­fits, after pre­vious rehabilitation services have been completed and the file closed, the logical Afirst step@ is a rehabilitation consultation. 

 

Volcke, 55 W.C.D. at 290.  The court noted that the employer has the right to initially select the QRC to provide a rehabilitation consultation, but that the employee has the right to change QRCs pursuant to Minn. Stat. ' 176.102, subd. 4(d), which requires a finding by a compensation judge that the change is in the best interests of the parties.  This court has clarified the QRC selection process in Reaney v. Weyerhaeuser, 58 W.C.D. 426, 433 (W.C.C.A. 1998) where the court stated that the employee has the right to change QRCs even before a rehabilitation consultation has been conducted under Minn. Stat. ' 176.102, subd. 4(a).

 

The employee=s initial rehabilitation plan was closed by QRC Hendrickson in July 2000.  The employee filed a request for a rehabilitation consultation with QRC Tollefson in October 2002.  The compensation judge correctly determined that, in these circumstances, the employee has the right to a rehabilitation consultation and the right to choose a different QRC before that rehabilitation consultation.  Accordingly, we affirm.