RICHARD PARKER, Employee, v. UNIVERSITY OF MINNESOTA, Self-Insured Employer/Appellant, and ASKEW REHABILITATION SERVS., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 16, 2003

                                                                             

HEADNOTES

 

REHABILITATION - FEES AND COSTS.  Substantial evidence supports the determination of the compensation judge that the services of the QRC were reasonable and necessary where the employer=s offer of employment was physically unsuitable.

 

REHABILITATION - FEES AND COSTS.  The QRC was not barred from payment for services where the services were provided after the initiation of litigation over entitlement to rehabilitation.

 

Affirmed.

 

Determined by Stofferahn, J., Johnson, C.J., and Pederson, J.

Compensation Judge: Peggy A. Brenden

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The self-insured employer appeals from the determination of the compensation judge that the rehabilitation services provided by intervenor, Askew Rehabilitation Services, were reasonable and necessary.  We affirm.

 

BACKGROUND

 

Richard Parker began his employment with the University of Minnesota as a custodian in 1998.  During his employment there, he sustained three work related injuries to his low back: June 11, 1998, July 21, 1999, and August 2, 2000.  The self-insured employer admitted primary liability for all three injuries. 

 

On November 3, 2000, QRC Dave Hobson prepared a rehabilitation consultation report in which he indicated that the employee was expected to return to work with the pre-injury  employer and was eligible for rehabilitation services by reason of his 2000 injury.  As of the date of the rehabilitation consultation, the employee was off work, receiving temporary total disability benefits and was under the care of Dr. James Anderson at Fairview Health Works Clinic and Dr. Lawrence An, his personal doctor. 

 

The employee saw Dr. David Boxall on November 3, 2000 at the referral of Dr. Anderson.  Dr. Boxall recommended an epidural injection and released the employee to return to work on a four hour per day basis with a ten pound lifting restriction.  The employer had no work within these restrictions so the employee remained off work. 

 

On November 4, 2000, the employee had an MRI which had been ordered by Dr. An.  The MRI showed degenerative changes at the L3-4, L4-5, and L5-S1 levels and a Avery prominent@ central disc herniation at the L5-S1 level.  On November 13, the employee had the epidural injection recommended by Dr. Boxall and reported improvement in his condition.  The employee returned to work as of November 20 in his usual job but only worked for a couple of hours before increased back pain made him stop. 

 

The employee saw Dr. Anderson on November 28, 2000.  Dr. Anderson=s diagnosis was of lumbar disc extruded at L4-S1 level and sciatic pain, left greater than right.[1]  Dr. Anderson placed severe restrictions on the employee=s return to work, including the necessity of lying down occasionally, until the employee saw Dr. Boxall again.  The employee apparently saw Dr. Boxall again on December 1.  No records from Dr. Boxall are in evidence.  The employee also saw Dr. An on December 29.  Dr. An took the employee off work until there was a surgical evaluation by an orthopedic surgeon.

 

On December 22, 2000, QRC Kathy Tuff of Askew Rehabilitation Services (ARS) sent a letter to QRC Hobson advising him that the employee had elected to change QRCs and would be working with ARS.  Ms. Tuff acted as the employee=s QRC thereafter. 

 

The employee was seen for a surgical consultation by Dr. James Schwender at University Orthopedic Clinic on January 9, 2001, on the referral of Dr. An.  According to the QRC=s report of that date, Dr. Schwender did not recommend surgery but instead recommended a referral to Medical Advance Pain Specialist (MAPS) for a pain consultation.  Dr. Schwender did not address work restrictions and indicated that he would refer those questions to Dr. An.  The employee returned to see Dr. An on January 22, 2001, who agreed with the referral to MAPS and who released the employee to return to work with a five pound lifting restriction.  The employee returned to work with the employer on a four hour per day basis on January 30 dusting office spaces and entering information into a computer.

 

The employer refused to allow the MAPS referral until there was an IME with Dr. Nolan Segal.  On March 1, 2001, that IME took place.  In his March 19, 2001 report, Dr. Segal diagnosed the employee as having degenerative disc disease with a bulge/herniation at the lumbosacral level.  Dr. Segal also concluded that the employee exhibited marked evidence of functional overlay.  Dr. Segal released the employee to full-time work with restrictions of no lifting or carrying above 20 pounds.  Dr. Segal also agreed that a referral to MAPS for a Amore comprehensive rehabilitation approach@ and a pain clinic evaluation was appropriate. 

 

The MAPS evaluation was done by Dr. Thomas Cohn on April 23, 2001.  Dr. Cohn=s impression was of a L4-S1 or L5-S1 herniated disc with moderate to severe central canal stenosis and significant low back pain radiating across the back and into the legs.  Dr. Cohn recommended non-narcotic medications and a chronic pain program.  The employer denied authorization for the pain program and a medical request was filed by the employee on July 2, 2001.  During the pendency of the request, Dr. An continued to see the employee on a monthly basis and continued to restrict the employee to four hour work days until the completion of the pain program. 

 

Dr. Segal generated another report on June 19, 2001, after reviewing additional medical records and a surveillance video.  Dr. Segal concluded that the activities depicted on the video which consisted of ambulating, getting in and out of his car, and bending forward to 90 degrees without any apparent discomfort, were inconsistent with the functional capabilities which had been reported by the employee.  Dr. Segal did not change his diagnosis but decided that the employee would not need a chronic pain program.  According to Dr. Segal the employee was capable of returning to work at a job which avoided repetitive bending, twisting and lifting above 25 pounds.

 

On July 12, 2001, the employer sent a letter to the employee, offering him a job within the restrictions set forth by Dr. Segal.  The employee was told to report for work on July 23.  The employee did not accept the job and by letter of July 25, 2001 from the employer, the employee was terminated. 

 

On August 2, 2001, the employer filed a notice of intention to discontinue benefits seeking to discontinue temporary partial disability benefits as of July 27, 2001 on the grounds that the employee had refused suitable gainful employment.  The employee objected and an administrative conference was held on August 22, 2001.  In the Order on Discontinuance, served and filed on August 24, 2001, the compensation judge allowed the discontinuance of temporary partial disability benefits and ordered the reinstatement of temporary total disability benefits as of July 27, 2001.  The employer did not file a petition to discontinue benefits but appealed the order of the compensation judge to this court.  The employee also subsequently filed a claim petition which claimed temporary total from July 27, 2001, permanent partial disability, and penalties for non-payment of benefits. 

 

After the employee=s termination, the employee=s QRC contacted the claims adjuster about initiating job search services.  After the QRC was advised that job placement services were not authorized, the QRC wrote the adjuster.  In her letter of August 2, 2001, Ms. Tuff indicated that she was obligated to follow the treating doctor=s restrictions and since the employee was not working and not able to return to his pre-injury employment, job placement services were appropriate and she would begin those services.  The employer and insurer filed a request for rehabilitation assistance on August 15, 2001, seeking to end all rehabilitation on the grounds that the employee had refused an offer of suitable gainful employment.  The employee filed a response which denied that the employee had rejected gainful employment and which sought continued rehabilitation services. 

 

No administrative conference was scheduled or held on either the medical request or the rehabilitation request.  The file was referred to the Office of Administrative Hearings to be set for hearing.  While the litigation was pending at the Office of Administrative Hearings, the employee=s QRC continued to provide rehabilitation services, including job search assistance.  No payment for rehabilitation services was made by the employer after August 7, 2001.  ARS intervened in the pending litigation.

 

The employee and employer entered into an partial stipulation for settlement which was the subject of an award served and filed on March 14, 2002.  The settlement closed out all workers= compensation claims of the employee on a full, final and complete basis except for certain medical expenses.  The agreement specifically did not resolve the intervention claim of ARS.  The QRC stopped providing rehabilitation service as of the date of the agreement and an R-8, Notice of Plan Completion was filed on March 12, 2002.[2]

 

The intervention claim of ARS was the subject of a Parker/Lindberg hearing on July 1, 2002 on the issue of whether ARS had been excluded or effectively excluded from settlement discussions.  The compensation judge determined that ARS had not been excluded from negotiations and ordered a hearing on the claims of ARS. 

 

The hearing on the claim by ARS took place on December 18, 2002.  The issue for the compensation judge was whether the services provided by ARS for the period of August 7, 2001 through March 12, 2002 were reasonable and necessary.  In the Findings and Order, served and filed on December 31, 2002, the compensation judge found the services to be reasonable and necessary and ordered the employer to pay ARS its outstanding bill in the amount of $7,521.47.  The employer appeals. 

 

DECISION

 

The employer appeals from the determination of the compensation judge that the services provided by ARS were reasonable and necessary.  The employer argues that the employee was not entitled to rehabilitation services because he improperly rejected an offer of suitable gainful employment.  The employer also contends that the services provided by the QRC were not in accord with the rehabilitation plan. 

 

Rehabilitation services are provided with a goal of returning the employee to former employment or to an economic status that would have occurred without disability.  Minn. Stat. ' 176.102, subd. 1 (b).  An injured employee is eligible for rehabilitation services:

1.         if the employee is permanently precluded or is     likely to be permanently precluded from the        employee=s usual and customary occupation or from the job the employee held at the time of injury;

 

2.         if the employee can not reasonably be expected to return to suitable gainful employment with the date of injury employer; and

 

3.         if the employee can be reasonably expected to return to suitable gainful employment through the provision of rehabilitation services.

 

Minn. R. 5220.0100, subp. 22.  In the present case the employer argues that it made available suitable gainful employment to the employee and the employee=s rejection of that employment made him ineligible for further rehabilitation services. 

 

The question of whether the employment offered to the employee was suitable was the issue presented to the compensation judge at hearing.  The employer contended that the most appropriate physical restrictions in employment were those set out by Dr. Segal and since the job offer made by the employer was within Dr. Segal=s restrictions, the job offer constituted suitable gainful employment.  The intervenor argued at hearing that the employee=s rejection of the job offer was in compliance with the restrictions set out by his treating doctor. 

 

The compensation judge determined that the restrictions placed on the employee by Dr. An were reasonable and necessary and that the job offered by the employer, since it was outside the restrictions set by Dr. An, was physically unsuitable.  The employer argues on appeal that the compensation judge should not have accepted Dr. An=s opinion because Dr. An did not view the surveillance video and his opinion therefore lacked adequate foundation.

 

The compensation judge viewed the surveillance video and concluded that the activities shown were not inconsistent with the employee=s report of his capabilities to Dr. An or inconsistent with the restrictions set forth by Dr. An.  As we do not find foundation for Dr. An=s opinion to be lacking, the compensation judge=s adoption of one medical opinion over a competing medical opinion is to be affirmed.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

Substantial evidence supports the determination of the compensation judge that the employer did not offer suitable gainful employment to the employee.  The employee remained eligible for rehabilitation services and the compensation judge=s finding that the services provided by ARS were reasonable and necessary is supported by substantial evidence as well.

 

The employer argues on appeal that even if the services of the QRC were otherwise reasonable and necessary the services must be in compliance with the rehabilitation plan in order for the QRC to be paid for those services. 

 

Although the employer has made this its central argument on appeal, it does not appear to have been presented to the compensation judge and it is not clear that the rehabilitation plan was in evidence before the compensation judge.  It was not part of any exhibit marked and introduced by any party.  It may have been assumed that the rehabilitation plan would of been in evidence as part of Athe record.@  However, as we have indicated previously, under the imaging system adopted by the Department of Labor and Industry, no judgment roll is assembled and the question of what may have been reviewed by the compensation judge is impossible to determine.  Beckwith v. Sun Country Airlines, slip. op, (July 3, 2003 W.C.C.A.).  Despite the indications that the rehabilitation plan was not before the compensation judge, we will consider the arguments raised by the employer.

 

The employer suggests that the QRC should have filed an R-3, rehabilitation plan amendment, which would have changed the direction of rehabilitation services to job search.  However, in order for a rehabilitation plan amendment to take effect, it must be signed by all parties.  A party who does not agree with the proposed rehabilitation plan amendment may file a rehabilitation request, which results in an administrative conference.  Minn. R. 5220.0510.

 

However, the dispute in this matter was not one over the direction of rehabilitation but rather whether any rehabilitation should be provided.  The QRC advised the adjuster by her letter of August 2, 2001, that she intended to provide job placement assistance.  The response of the employer was to file a rehabilitation request seeking to discontinue rehabilitation services.  The employer did not object solely to the QRC=s bill for placement services but rather would not pay for any rehabilitation services provided after the employee=s termination from the University of Minnesota.  Preparing a rehabilitation plan amendment in that situation would serve no purpose.  Further, we would note that nothing in the rules makes preparation of a rehabilitation plan amendment mandatory.[3]

 

The basic question in this matter is what action a QRC may take and expect to be paid for  when there is a dispute between the employee and the employer over whether rehabilitation services should be continued at all.  The employer has argued that the QRC should simply do nothing, without specific authorization from the adjuster, until there has been a hearing and an order from a compensation judge.  However, adoption of the employer=s approach would give employers more control over the rehabilitation process than contemplated by the statute or rules while at the same time thwarting basic rehabilitation objectives.

The rehabilitation request in the present case was filed in August 2001.  The pre-trial order issued by the Office of Administrative Hearings indicated that the hearing in this case was expected to be held in February, March or April 2002.  Under the employer=s theory, the employee would have received no rehabilitation services for at least seven months.  That kind of interruption of services is clearly contrary to the goal of rehabilitation, which is to return the employee to suitable gainful employment which is Areasonably attainable,@ as soon as possible.  See Minn. Stat. ' 176.102, subd. 1, Minn. R. 5220.0100, subp. 34.  We think that the better approach was advanced by the employer=s attorney at hearing.  That is, a QRC who continues to provide rehabilitation services during the pendency of a dispute over rehabilitation eligibility runs the risk of non-payment in the event that the employer prevails in the eventual hearing on the merits of the employee=s entitlement to rehabilitation services.  However, if the employee prevails, all appropriate services are compensable.  Either way, the employer is only responsible for payment of those rehabilitation services to which the employee was otherwise entitled under Minn. Stat. ' 176.102.

 

In the present case, the compensation judge found the disputed services to be reasonable, and the QRC is therefore entitled to payment.