ALLEN SCHUG, Employee, v. CITY OF HIBBING, SELF-INSURED, Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 29, 2003

 

HEADNOTES

 

REHABILITATION - RETRAINING; TEMPORARY BENEFITS; STATUTES CONSTRUED - MINN. STAT. ' 176.102,   SUBD. 11(c).  Where the employee had been paid benefits based upon 104 weeks of a combination of temporary total or temporary partial compensation, and where the employee filed a request for retraining beyond the date when he had been paid such benefits, the employee=s request for retraining is barred by an untimely filing of a request for retraining.

 

Reversed.

 

Determined by En banc

Compensation Judge: Donald C. Erickson        

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge=s finding that the notice provided to the employee concerning his rights to retraining was not legally effective and therefore the employee=s claim for retraining benefits is not barred due to untimeliness.  We reverse.

 

BACKGROUND

 

The employee, Allen Schug, sustained injuries to his low back, left elbow and right knee on August 26, 1998, while employed with the City of Hibbing, the self-insured employer.  On October 2, 1998, the administrator of the employer=s workers= compensation plan, the League of Minnesota Cities Insurance Trust,  served the employee with a notice of insurer=s primary liability determination, advising that it was unable to determine if current symptoms were related to his work activities and that upon completion of investigation would make a final decision regarding compensability.  By letter dated October 30, 1998, the insurance administrator advised the employee that his claim for an injury on August 26, 1998, had been accepted.  Included in that letter was an itemization of the medical benefits for which the employer=s insurance administrator was responsible, the employee=s responsibilities concerning entitlement to wage loss benefits, and a statement that the employee may be entitled to rehabilitation services if unable to return to work.  That letter also contained the following statement regarding retraining benefits: 

 

This is the League of Minnesota Cities= notification to you that for personal injuries occurring on or after October 1, 1995, the law states, Aany requests for retraining shall be filed with the commissioner before 104 weeks of any combination of temporary total or temporary partial compensation have been paid.@

 

On November 2, 1998, the insurance administrator served the employee with a second notice of insurer=s primary liability determination, advising that his claim had been accepted and that they would pay wage loss benefits, including temporary total disability benefits for 6.8 weeks between September 16 and November 2, 1998.  Thereafter, between December 4, 1998, and September 19, 2001, the insurance administrator paid the employee intermittent temporary partial and temporary total disability benefits^[1] and permanent partial disability benefits based on a rating of 20% whole body impairment, and provided the employee with rehabilitation assistance. 

 

As a result of his injury, the employee has undergone two surgeries.  The first was to his left elbow on February 7, 2000, in the nature of a fasciotomy and debridement.  His second was to his low back on February 14, 2001, in the nature of a posterior lumbar decompression and fusion at the L4-5 and L5-S1 levels.  Since his low back surgery, the employee has not been released to return to work, nor has he yet been determined to be at maximum medical improvement from his August 26, 1998, injury.  According to the employee=s retraining request, filed September 18, 2001, his treating surgeon, Dr. Timothy Garvey, advised the employee that he likely will need to undergo an additional fusion surgery, that it is not at all likely that he will ever be able to return to his date-of-injury occupation but that eventually he most likely will be able to return to sedentary or light work.  On that basis, the employee requested retraining benefits.

 

On August 27, 2001, the employee=s qualified rehabilitation consultant (QRC) left a telephone voice mail message with the insurance administrator informing her that the employee was concerned that his 104 weeks of benefits would expire soon and asking the administrator to advise him when the 104-week period will be met.  On August 29, 2001, the employee=s QRC spoke by telephone with the administrator, who informed the QRC that the 104-week threshold would be reached on September 19, 2001, and that she would not agree to an extension of time with regard to the 104-week threshold.  The administrator apparently did not specify whether the 104-week threshold to which she referred was for payment of a combination of temporary total disability and temporary partial disability benefits, referred to in Minn. Stat. ' 176.102, subd. 11(c), or solely for temporary total disability benefits, pursuant to Minn. Stat. ' 176.101, subd. 1(k).  The parties later stipulated that the self-insured employer had paid a 104-week combination of temporary total disability benefits and temporary partial disability benefits as of August 15, 2001, and therefore the 104-week deadline to file a request for retraining pursuant to Minn. Stat. ' 176.102, subd. 11(c) was August 15, 2001.

 

On September 10, 2001, the self-insured employer served and filed a notice of intention to discontinue benefits, notifying the employee that his temporary total disability benefits would be discontinued once the statutory 104-week limit of temporary total disability benefits was reached on September 19, 2001.  On September 18, 2001, the employee=s QRC filed a rehabilitation request in which he requested retraining on behalf of the employee.  He proposed a retraining program whereby the employee would obtain his bachelor=s degree in mechanical engineering through course work at Hibbing Community College and the University of Minnesota.

 

By rehabilitation response filed on October 3, 2001, the self-insured employer objected to the employee=s request for retraining, contending that  it should not be approved as it was not filed on a timely basis.  As an alternative basis for denying the retraining request and plan, the employer contended that it was premature to consider retraining as the employee had not been released to return to work and had not yet been assigned permanent work restrictions, nor had he attempted a serious job search effort.  The administrator also contended that the labor market survey did not confirm that mechanical engineer positions would be specifically available within the employee=s geographic area, and inquired whether the employee would be willing to relocate for employment.

 

An interim administrative hearing under Minn. Stat. ' 176.106 was held to address the employee=s retraining claim, following which a compensation judge denied the employee=s claim based on his untimely request.  The employee requested a formal hearing to address the retraining claim.  He also filed an objection to discontinuance, contesting the employer=s alleged refusal to pay temporary partial disability benefits since December 3, 2001, and filed a claim petition, claiming entitlement to temporary partial disability benefits, permanent total disability benefits and retraining.  All matters were consolidated.  However, by agreement, the parties proceeded to hearing on March 5, 2002, on the sole issue of the employee=s entitlement to proceed with his request for retraining.  The merits of the employee=s retraining claim were not at issue.  This matter was presented to the compensation judge on stipulated facts.

 

In Findings and Order, served and filed August 5, 2002, the compensation judge concluded that Athe employee is not precluded from requesting retraining,@ despite the fact he requested it after 104 weeks of combined temporary total and temporary partial disability benefits had been paid.  The compensation judge found that the employee had received actual knowledge from his union that he must request retraining within the 104-week period.  He also found that the administrator did not mislead the QRC regarding when a retraining request must be filed, and, as a result, the employee did not rely to his detriment upon the administrator=s reference to a 104-week period.  However, the compensation judge found that Athe administrator=s notice to the employee of when he must request retraining, in its Notice of Primary Liability Determination, was legally ineffective as it was not reasonably calculated to inform the employee at a meaningful time that his right to retraining might expire.@  He found that the Aplacing of a statement about when retraining must be requested in a document entitled notice of primary liability determination is not reasonably calculated to give an employee actual notice about when he must request retraining.@^[2]  As a result, the compensation judge concluded that the employee=s claim for retraining benefits was not barred by the date on which he provided notice to the employer and insurance administrator that he desired retraining.  The self-insured employer appeals.

 

STANDARD OF REVIEW

 

"[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

 

In 1979, the Minnesota State Legislature amended the workers= compensation statute to include provisions for vocational rehabilitation assistance to be provided to employees.  Along with the statutory amendment, rules were promulgated to govern the procedures followed within the vocational rehabilitation realm, including requirements for QRC=s, registered rehabilitation vendors and, later, disability case managers.  The general purpose of rehabilitation is to assist injured workers with returning to their former employment or, if precluded from returning to their pre-injury job, to allow injured employees to return to a modified job and to encourage them to increase their employability by acquiring new or additional skills through on-the-job training or retraining.  Jerde v. Adolfson and Peterson, 484 N.W.2d 793, 46 W.C.D. 620 (Minn. 1992); Langa v. Fleischmann-Kurth Malting Co.,  481 N.W.2d 35, 37, 46 W.C.D. 156, 159 (Minn. 1992); see also Minn. R. 5220.0100 (34).

 

Minn. Stat. ' 176.102(1)(b) defines the scope of rehabilitation as follows:

 

Rehabilitation is intended to restore the injured employee so the employee may return to 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.  Rehabilitation to a job with a higher economic status than would have occurred without disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of reemployment.  Economic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.

 

The rules governing the rehabilitation assistance process outline the primary requirements for eligibility for rehabilitation assistance, initiation of services through a rehabilitation consultation, commencement of rehabilitation assistance, appointment and change of rehabilitation personnel, and development and execution of a rehabilitation plan.  Rehabilitation services to be provided to an employee attempting to obtain suitable employment may include medical management, vocational evaluation, counseling, job analysis, job modification, job development, job placement, labor market survey, vocational testing, transferable skills analysis, work adjustment, job seeking skills training, on-the-job training, and retraining.  Minn. R. 5220.0100, subp. 29.  Direct job placement, through the assistance of a QRC and job placement vendor, is commonly provided to an employee once it is determined that the employee is unable to return to his previous job or employer.

 

In certain cases, retraining is considered as an option to assist an employee in returning to suitable gainful employment.  Retraining is defined in the statute as Aa formal course of study in a school setting which is designed to train an employee to return to suitable gainful employment.@  Minn. Stat. ' 176.011 (23).  Retraining differs from other forms of rehabilitation assistance in that an individual who has been approved to participate in a retraining program is entitled to receive weekly compensation benefits that are, essentially, temporary total disability benefits for up to 156 weeks while participating in an approved retraining program.    In 1992, the rehabilitation rules were revised to require that retraining Ais to be given equal consideration with other rehabilitation services, and proposed for approval if other considered services are not likely to lead to suitable gainful employment.@  The rules outline requisite information to be included in a proposed retraining plan.  Minn. R. 5220.0750, subp. 2. 

 

In 1995, the legislature amended the statute to add a statute of limitations specifically limiting claims for retraining benefits.  A request for retraining must be filed with the Commissioner of the Department of Labor and Industry before 104 weeks of any combination of temporary total or temporary partial disability benefits have been paid.  Minn. Stat. ' 176.102, subd. 118), in effect on the employee=s injury date of August 26, 1998, stated that

 

Any request for retraining shall be filed with the commissioner before 104 weeks of any combination of temporary total or temporary partial compensation have been paid.  Retraining shall not be available after 104 weeks of any combination of temporary total or temporary partial compensation benefits have been paid unless the request for the retraining has been filed with the commissioner prior to the time that 104 weeks of compensation have been paid.^[3]

Along with the time limitation for the employee to request retraining, the statute also requires an employer and insurer to notify an employee in writing of that time limitation.  Minn. Stat. ' 176.102, subd. 11(d), in effect on the employee=s injury date of August 26, 1998, stated that

 

The employer or insurer must notify the employee in writing of the 104-week limitation for filing a request for retraining with the commissioner.  This notice must be given before 80 weeks of temporary total disability or temporary partial disability compensation have been paid, regardless of the number of weeks that have elapsed since the date of injury.

 

In this case, the employer and insurance administrator gave this notice to the employee in a letter dated October 30, 1998.  No other written notice was provided to the employee as the 104-week limitation approached.

 

In the present case, the 104-week threshold for temporary total disability benefits wasn=t reached until September 19, 2001.  However, by August 15, 2001, approximately one month before the QRC filed the retraining request on September 18, 2001, the self-insured employer had paid a combination of 104 weeks of temporary total and temporary partial disability benefits.  The sole issue before the compensation judge at hearing was whether the employee was entitled to proceed with his request for retraining, in view of the statutory requirements for filing a request for retraining.

 

The self-insured employer argues that it fully complied with the statutory requirements for providing notice to an employee of the deadline to file a request for retraining.  The employer provided notice approximately two months after the employee=s injury, and asserts that the language of the statute, which requires notice to be given before 80 weeks of temporary disability benefits have been paid, contemplates that employers provide notice of the retraining deadline early in a workers= compensation case . 

 

The employee argues that the self-insured employer=s notice, given shortly after the injury, was not effective as it was not reasonably calculated to effectuate its purpose of notifying the employee that his right to claim retraining benefits would be extinguished by failure to timely request retraining.  The employee further argues that the pro forma language contained in the employer=s letter to the employee, under the heading ARehabilitation,@ obfuscated any importance or consequences of the notice contained in that letter; that language, the employee argues, could imply physical therapy or similar physical-oriented recovery process, not occupational retraining.  Finally, the employee argues that rehabilitation benefits are a critical component of the Minnesota workers= compensation benefits structure, legislated with the purpose of returning workers to an economic status similar to that which they held at the time of injury, and that a pro forma notice, provided shortly after the employee=s injury, was not effective.

 

The compensation judge concluded that the employer=s notice was not legally effective, in part, because the notice was placed in a document entitled Notice of Primary Liability Determination.  Based on that determination, the compensation judge found that the employee=s untimely filing of a retraining request did not bar him from seeking retraining benefits.  Contrary to the compensation judge=s finding, the employer=s notice was not included in a Notice of Primary Liability Determination but instead was included a letter to the employee, and complied with the specific requirements of Minn. Stat. ' 176.102, subd. 11(d).  While it would have been preferable for the employer to have provided this notice in a separate document and to have advised the employee of the consequences of a failure to timely file a retraining request, and while an additional notice closer to the expiration of the 104-week period would have provided an instructive reminder to the employee,^[4] the self-insured employer provided the necessary information in its notice to the employee.  Accordingly, we reverse the compensation judge=s finding that the employer=s notice was legally ineffective.  The issue remaining on appeal, therefore, is whether the employee=s claim is barred by his untimely filing of a request for retraining.

 

Minn. Stat. ' 176.102, subd. 11(c), in effect on the employee=s injury date, required an employee to file a request for retraining with the commissioner before he has received 104 weeks of any combination of temporary total or temporary partial compensation benefits.  The self-insured employer asserts that the plain meaning of that provision requires the interpretation that an employee is precluded from claiming retraining if, as occurred in this case, he requests retraining beyond the point in time when he has been paid benefits based on a combination of 104 weeks of temporary total and temporary partial disability benefits.

 

The statute of limitations for workers= compensation actions is contained at Minn. Stat. ' 176.151.  Once there has been an action or proceeding under the statute resulting in payment to the employee of any kind of benefit, primary liability is established for the injury and the statute of limitations may no longer be asserted as a defense to a claim.  Livgard v. Cornelius Co., 308 Minn. 467, 243 N.W.2d 309, 28 W.C.D. 413 (1976).  Although primary liability may have been established for a personal injury, Minn. Stat. ' 176.102, subd. 11(c), provides a second statute of limitations specifically limiting claims for retraining benefits.

 

The policy behind a statute of limitations is to compel the exercise of a right of action within a reasonable time so that a defendant will have a fair opportunity to prepare an adequate defense.  Swenson v. Emerson Elec. Co., 374 N.W.2d 690 (Minn. 1985).  What constitutes a reasonable time to commence an action Adepends upon the sound discretion of the legislature in the light of the nature of the subject and the purpose of the enactment.@  DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 505, 30 W.C.D. 109, 115 (Minn. 1977).  The legislative purpose of the limitation in Minn. Stat. ' 176.102, subd. 118), is unclear.  Presumably, it is premised on some theory other than barring so-called stale claims since the period of the limitation is not fixed but is variable.  The statute in question bars claims for retraining benefits after the employee has received 104 weeks of benefits.  For an employee receiving a continuing stream of wage loss benefits, the bar will occur two years after the date of the injury.  For an employee receiving periodic wage loss benefits, the 104 week limitation may not be reached until many years after the date of the injury.  The legislative intent in treating two employees injured on the same day in a different manner is unclear.

 

As a general rule, a cause of action accrues when the accident occurs.  In Dalton v. Dow Chemical Co., 158 N.W.2d 580 (Minn. 1968), however, the supreme court noted that an injustice can result from application of this test where the injured party does not discover the occurrence of the injury until after the period of limitations has run.  Thus, the court has held a cause of action accrues and the applicable statute of limitations begins to run when the cause of action will survive a motion to dismiss for failure to state a claim upon which relief can be granted.  Hermann v. McMenomy & Severson, 590 N.W.2d 641 (Minn. 1999).  In Jones v. Thermo King, 461 N.W.2d 915, 917, 43 W.C.D. 458, 460-61 (Minn. 1990), the court stated that Afor both personal injury and occupational disease, the statute of limitations [Minn. Stat. ' 176.151] begins to run when the employee has sufficient information of the nature of the injury or disease, its seriousness, and probable compensability.@  The date an employee=s cause of action for retraining benefits actually accrues may be, in practice, problematic and difficult to define.  As written, however, the 104-week period begins to run on the first day an employee receives wage loss benefits.  Few, if any, injured employees will have viable claims for retraining benefits on the day the statute begins to run.^[5]

 

In this case, the employee had surgery to his left elbow on February 7, 2000, and to his low back on February 14, 2001.  On the date the 104-week window for asserting a retraining claim expired, the employee had not yet been released to return to work, had not yet reached maximum medical improvement, nor had his final employment restrictions and limitations been determined.  The employee=s treating surgeon advised the employee he would likely need to undergo an additional fusion surgery.  Thus, even had the employee=s retraining request been timely filed, it is difficult to envision how a compensation judge could properly evaluate whether retraining was appropriate.^[6]

 

The stated goal of rehabilitation is to return an employee to a job which Aproduces an economic status as close as possible to that the employee would have enjoyed without the disability.@  Minn. Stat. ' 176.102, subd. 1(a).  In general, Athe determination that rehabilitation would significantly reduce or eliminate any decrease in employability and any decision about the kind of rehabilitation services which would be useful in achieving that end cannot be made until the employee=s condition stabilizes sufficiently that the nature and extent of permanent disability and its effects on the employee=s employability are known.@  Langa v. Fleischmann-Kurth Malting Co., 481 N.W.2d 35, 37, 46 W.C.D. 156, 160-161 (Minn. 1992).  In certain cases, Minn. Stat. ' 176.102, subd. 11(c), will bar an injured employee from asserting a claim for retraining before the employee has sufficient information to establish that retraining may be necessary to return him or her to suitable gainful employment.

 

                        This court has carefully evaluated the briefs and arguments presented by counsel and concludes that Minn. Stat. ' 176.102, subd. 11(c), is unambiguous, and that the plain meaning of the statute requires a denial of consideration of a retraining claim if an employee does not file a request for retraining with the commissioner before 104 weeks^[7] of any combination of temporary total or temporary partial compensation benefits have been paid, even though in its application the statute may yield unreasonable results.  To read the statute in any other way would void the plain meaning of this statute, to which this court is required to adhere.  ABecause the statute is clear and unambiguous, no further argument should be necessary.@  Schlotz v. Hyundai Motor Co., 557 N.W.2d 613 (Minn. 1997); Homart Development Co. v. Co. of Hennepin, 538 N.W.2d 907 (Minn. 1995).  We therefore reverse the compensation judge=s determination that the employer=s notice was legally ineffective and conclude that the employee=s claim for retraining is barred by the untimely filing of his request for retraining.