JAMES A. PALMI, Employee, v. INTER CITY OIL, and WESTERN NAT=L. MUT. INS., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 24, 2004
No. WC04-191
HEADNOTES
CAUSATION - SUBSTANTIAL EVIDENCE. Where the employee has physical restrictions from his work injury and is restricted from returning to his previous truck driving job, and he has not been able to earn his pre-injury wage since his work injury, substantial evidence, including medical records in evidence and the employee=s testimony, supports the compensation judge=s finding that the employee=s work injury was a substantial contributing cause of the employee=s loss of earning capacity and need for certain rehabilitation services.
REHABILITATION - CHANGE OF QRC. Substantial evidence supports the compensation judge=s finding that a change in QRC would help to restore effective and balanced communications between parties and that a change of QRC is in the best interests of the parties.
REHABILITATION - ELIGIBILITY. Where the employee had a job available to him with a guaranteed annual salary, with the potential to earn additional money through commissions, and there was evidence that the employee is reasonably likely to return to his pre-injury wage in a reasonable time, substantial evidence supports the compensation judge=s finding that additional vocational assessment or other rehabilitation services in the nature of new job development or retraining research were unreasonable and unnecessary.
Affirmed.
Determined by: Rykken, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Kathleen S. Bray and Faye M. Witt, Hanft Fride, Duluth, MN, for the Appellants. Jeremy M. Hurd and Patrick M. Hurd, Orman Nord & Spott Law Office, Duluth, MN, for the Respondent.
OPINION
MIRIAM P. RYKKEN, Judge
After remand, the employer and insurer appeal the compensation judge=s finding that the employee=s February 22, 1999, work injury was a substantial contributing factor in the employee=s loss of earning capacity through the date of the hearing and in the employee=s need for vocational services. Issues remaining from the earlier appeal include the employee=s appeals from the compensation judge=s grant of the employer and insurer=s request for a change of QRC and from the compensation judge=s finding that the employer and insurer were not liable for rehabilitation services related to new job placement or retraining research. We affirm.
BACKGROUND
On February 22, 1999, James Palmi, the employee, sustained an admitted injury to his cervical spine while working as an truck owner-operator hauling and delivering fuel oil for Inter City Oil, the employer, which was insured for workers= compensation liability by Western National Mutual Group, the insurer. At that time, he earned a weekly wage of $1,027.76. As a result of his injury, the employee remained off work until December 1999, except for two brief periods in May and July 1999, when he attempted to return to work but experienced a flare-up of symptoms. The employee was paid temporary total disability benefits and was provided with rehabilitation assistance. He was initially referred for disability case management, and since 1999 has been provided rehabilitation services through Greg Kestly, qualified rehabilitation consultant (QRC). Since December 1999, the employee has worked as a truck driver and also in truck sales. The employee testified that he periodically changed jobs to find better paying work to replace his pre-injury wage; the QRC testified that the employee occasionally switched jobs if the work was seasonal or part-time or was beyond his physical restrictions. Although the employee has received intermittent medical treatment for his injury, including physical therapy, he acknowledged that his physical restrictions did not always enter into decisions about jobs.
In August 2001, the employee began working in a sales position for Lake Superior Mack Sales. In January 2002, the employee was deployed to active duty with the Naval Reserve. The employee returned to Mack Sales in October 2002 and was earning $2000 per month plus a sales commission of ten percent. About a month later, the employee resigned, indicating that he was not earning enough. Mack Sales renegotiated the employee=s compensation for a guaranteed salary of $36,000 per year plus commissions. In February 2003, the employee again resigned, citing conflicts with his Naval Reserve obligations beyond the usual requirements.
In November 2002, while the employee was still working in the sales position for Lake Superior Mack Sales, the employee=s QRC prepared a rehabilitation plan amendment, an R-3 form, requesting AVocational Guidance/Testing@ in order to locate a more suitable job. The employer and insurer objected, contending that they had not been provided adequate information to evaluate the employee=s need for any additional rehabilitation services. The employer and insurer also requested a change of QRC, contending that the QRC was not providing services in a neutral manner. After an administrative conference, the rehabilitation issues were addressed at a formal hearing. Evidence admitted into the hearing record included reports documenting the rehabilitation services provided to the employee between 1999 and 2003, the employee=s medical records, reports issued by Richard Van Wagner, independent vocational consultant, and Dr. Jack Drogt, independent medical examiner, financial records, and testimony by the employee, QRC, and representatives from Mack Sales, the employee=s most recent employer.
In her findings and order, served and filed June 3, 2003, the compensation judge denied the employee=s claim for vocational assessment in view of the presently existing job opportunity available to the employee. The compensation judge allowed a change in QRC, and ordered the parties to consult to see if a mutually agreeable QRC could be identified, and, if not, then asked the parties to schedule a conference call with her to determine how the parties would proceed with choosing a new QRC. The compensation judge awarded specific rehabilitation services to facilitate the employee=s return to the sales position that evidently remained available to him with Lake Superior Mack Sales.
The employee appealed from the compensation judge=s grant of the employer and insurer=s request for a change of QRC and from the compensation judge=s finding that the employer and insurer were not liable for rehabilitation services related to new job placement or retraining research. The employer and insurer cross-appealed from the award of limited rehabilitation services, contending that the findings and order did not dispose of all questions of fact and law submitted at hearing. This court found that the compensation judge erred by limiting her findings to the suitability of the Mack Sales position rather than addressing the larger causation issue and remanded the matter for reconsideration of whether the employee=s 1999 work injury was the cause of any loss of earning capacity and need for the proposed vocational services. The court directed the matter to be returned for further consideration if necessary.
In Findings and Order on Remand served and filed April 24, 2004, incorporating by reference her findings and order issued on June 3, 2003, the compensation judge found that the employee=s February 22, 1999, work injury was a substantial contributing factor in the employee=s loss of earning capacity through the date of the hearing and in the employee=s need for vocational services authorized in the Findings and Order served and filed June 3, 2003. The employer and insurer appeal the findings on remand.
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
Causation
After the initial hearing, the compensation judge awarded specific rehabilitation services to facilitate the employee=s return to the sales position that remained available to him with Lake Superior Mack Sales, including services designed to facilitate communications between the employee and his former supervisors and to improve his computer and sales skills. On remand, the compensation judge addressed the issue of whether the employee=s loss of earnings and earning capacity, and his need for additional rehabilitation services, were causally related to his February 22, 1999, injury.
After remand, the compensation judge found that the employee=s February 22, 1999, work injury was a substantial contributing factor in the employee=s loss of earnings and loss of earning capacity through the date of the hearing and in the employee=s need for vocational services authorized in the Findings and Order served and filed June 3, 2003. The employer and insurer argue that substantial evidence does not support the compensation judge=s finding that the employee=s work injury substantially contributed to the employee=s loss of earning capacity and need for rehabilitation services.
Questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The employee has physical restrictions from his work injury and has received intermittent medical treatment for his neck and upper back symptoms since his injury, including physical therapy. The evidence shows that the employee is restricted from returning to his previous truck driving job, and the employer and insurer do not contend that he is able to return to his pre-injury position. The record contains contrary medical evidence; Dr. Drogt rendered an opinion that there was no medical or objective support for any work restrictions related to the employee=s February 22, 1999, injury. However, we note that it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony, and where Amore than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld." Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985); see also Wilson v. Scanlon, Inc., slip op. (W.C.C.A. Sept. 10, 2004). While the employee has indicated that his physical restrictions did not always enter into decisions about jobs, he has not been able to earn his pre-injury wage since his injury in 1999. Substantial evidence, including medical records in evidence and the employee=s testimony, supports the compensation judge=s finding that the employee=s work injury was a substantial contributing cause of the employee=s loss of earning capacity and need for specified rehabilitation services, and we affirm that finding.
Change of QRC
The compensation judge allowed the employee=s request for a change in QRC, to allow for provision of limited rehabilitation services. The employee argues that the compensation judge erred by allowing a change of QRC. A change of QRC may be requested by the employee, employer or insurer and will be granted or denied according to the Abest interests of the parties.@ Minn. Stat. ' 176.102, subd. 4; Minn. R. 5220.0710, subp. 3. The best interests of the parties is Adetermined based on the goals of rehabilitation.@ Lemke v. Independent School Dist. No. 112, slip op. (W.C.C.A. May 30, 2003). See also Kerber v. Farmington Ford, slip op. (W.C.C.A. May 13, 1996). Rehabilitation is intended to restore the injured employee to a job Awhich produces an economic status as close as possible to that the employee would have enjoyed without disability.@ Minn. Stat. ' 176.102, subd. 1(b).
The compensation judge found that the QRC failed to provide the employer and insurer with timely notice of important developments in the employee=s work status. The employer and insurer cite two examples of the lack of timely communication from the QRC. For example, the employee=s job with Lake Superior Mack Sales (Mack Sales) ended in resignation shortly before a 2003 rehabilitation conference which addressed the issues underlying this appeal. The conference proceeded on the following Monday, and although the QRC was aware that the employee had resigned from his position at Mack Sales on the previous Friday, he did not inform the employer and insurer of that information during the conference. The employer and insurer were otherwise advised of the resignation at the rehabilitation conference. In addition, the employer and insurer argue that, prior to the evidentiary hearing in May 2003, the QRC again failed to timely communicate a change in the employee=s employment status. Although the employee had purchased a dump truck with plans to act as an owner/operator for the construction season, and advised the QRC of this fact in April 2003, the QRC did not advise the employer and insurer of this change until his written report which was prepared and mailed the day before the evidentiary hearing and received by the employer and insurer after the hearing had concluded. That change in employment status was significant in that the QRC testified, in a post-hearing deposition, that in his opinion the employee=s owner/operator job had the potential to restore the employee to, or even exceed, his pre-injury wage.
The record contains records and reports documenting the rehabilitation services provided to the employee by the QRC, and contains testimony provided by the employee and the QRC. The compensation judge concluded that a change in QRC would help to restore effective and balanced communications between parties. Varying inferences can be made from the evidence in the record regarding the QRC=s communication with the employer and insurer. It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990). Substantial evidence supports the compensation judge=s finding that a change of QRC is in the best interests of the parties, and we affirm.
Vocational assessment
In August 2001, the employee began working in a sales position for Mack Sales. In January 2002, the employee was deployed to active duty with the Naval Reserve. The employee returned to Mack Sales in October 2002 and was earning $2000 per month plus additional commission payments. About a month later, the employee resigned, indicating that he was not earning enough. Mack Sales renegotiated the employee=s compensation for a guaranteed salary of $36,000 per year plus commissions. In February 2003, the employee again resigned, citing conflicts with his employer as to the amount of time off they would provide to him for his Naval Reserve obligations and for his requested additional time off to provide support to reservists being deployed. The employee also cited to his dissatisfaction with and pressure from sales work, and his unfamiliarity with required computer work associated with his sales duties.
The employee=s supervisor with Mack Sales testified by deposition that he would rehire the employee at Mack Sales. In an unappealed finding, the compensation judge found that the truck sales position was currently available to the employee. The employee=s QRC testified that the employee had no physical problems with his Mack Sales work, and there is no claim that the job with Mack Sales was physically unsuitable. Information was presented at hearing concerning the employee=s earning potential at Mack Sales. During his last period of employment with Mack Sales, the employee was earning a guaranteed salary of $36,000 per year, or $692.30 per week, with the potential to earn additional money through commissions. The employee=s supervisor testified that the employee is reasonably likely to return to his pre-injury wage in a reasonable time. The QRC testified that he did not conduct any kind of investigation or research into what the employee=s ultimate earning capacity at Mack Sale would have been. Instead, in late 2002, shortly after the employee returned to work for Mack Sales following his military deployment, the QRC proposed vocational assessment and testing with the goal of obtaining what the QRC termed a more suitable job.
The goal of rehabilitation is to return the employee as closely as possible to the economic status the employee would have enjoyed but for the injury. Minn. Stat. ' 176.102, subd. 1(b). In addition, Aeconomic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.@ The compensation judge found the opinions of the Mack Sales representatives to be credible Athat the truck sales position is reasonably likely to return the employee to his post injury earnings in a reasonable amount of time.@ She also stated, in her memorandum, that AI am mindful of the employee=s reservations about the job, but both the words and actions of Lake Superior Mack Sales indicate the employer is more than willing to work with the employee on relieving his concerns, and that
As long as the job at Lake Superior Mack Sales remains available to the employee and he continues to make reasonable progress toward a return to his pre-injury earning capacity at that job, rehabilitation servicesBother than those designed to facilitate his success at the truck sales positionBare unreasonable and unnecessary.
(Memo, June 3, 2003, at 5.)
The compensation judge could reasonably conclude that additional vocational assessment or other rehabilitation services in the nature of new job development or retraining research were unreasonable and unnecessary. Substantial evidence in the record, including vocational and rehabilitation evidence and testimony, supports this finding, and we affirm.