The employer and insurer appeal from the compensation judge’s finding that the employee’s pool therapy at the Chaska Community Center is reasonable and necessary treatment and from the compensation judge’s resulting award of mileage and penalties.  The employee cross-appeals from the compensation judge’s award of contingent attorney fees under Minn. Stat. § 176.081.  We affirm the compensation judge’s award of mileage and penalties.  We vacate the award of contingent attorney fees and remand that question for further consideration.

Mavonne Richardson was employed by Hot Shot Products, Inc., on March 22, 1989, when she sustained a work injury to her neck and low back.  The employer and its insurer, SFM Mutual Insurance Company [SFM], admitted liability for the injury.

Since 1992, Ms. Richardson’s treating physician has prescribed pool therapy.  When Ms. Richardson began pool therapy, there were few health clubs near her home and she started using the facilities at the Chaska Community Center [CCC].  Ms. Richardson has continued her pool therapy at the CCC two or three times a week since that time.  She pays the annual membership fee and then submits it to the adjuster at SFM for reimbursement.  On a periodic basis, she also submits requests for reimbursement of her mileage to and from the CCC.  Ms. Richardson testified that the round trip mileage is 29.3 miles and that the actual mileage she traveled might vary to some extent depending on road construction, bridge closing due to flooding, or her desire to change her route to break her routine.

On July 1, 2010, Debby Larson, the adjuster at SFM handling Ms. Richardson’s file, contacted Jean Murray, the QRC on the file, and asked her to look into the possibility of Ms. Richardson using a different health club for her pool therapy.  The QRC obtained information about the costs of these clubs, the distance from Ms. Richardson’s home in Savage, and the amenities available at the clubs.  The QRC also discussed the question of changing health clubs with Ms. Martinson, who decided she did not want to leave the CCC.

Ms. Richardson testified at the hearing that she had visited some of the clubs that had pools and found them not as satisfactory as the CCC.  She stated that the pool at the CCC, in contrast to other facilities, had a pool with different depths that would allow her to do her walking and exercises comfortably.  She also found the water jets in the spas at other facilities were not as helpful at relieving her symptoms as were the water jets at the CCC which she testified were better placed for her condition and had more power.  Ms. Richardson also testified she is dyslexic and has difficulty in driving because she gets lost easily.  Ms. Richardson also has problems with anxiety and depression.  She finds her routine at the CCC and interacting with the regular attendees there eases her anxiety.

QRC Murray also testified at the hearing.  She stated that Ms. Richardson had been very committed to attending CCC on a regular basis and that many of her clients have difficulty in continuing this type of therapy over the long term.  Ms. Murray attributed Ms. Richardson’s continued attendance in part to Ms. Richardson’s familiarity with the facilities and other clients at the CCC.  The QRC noted that Ms. Richardson has no social network other than her work at a Quality Inn and her visits to the CCC.  Because of Ms. Richardson’s anxiety with change and a concern about Ms. Richardson continuing with pool therapy, the QRC recommended that Ms. Richardson continued to use the CCC for her pool therapy.

The annual membership at the CCC is renewed each July.  Ms. Richardson submitted a request in July 2010 for reimbursement of $223.00 she had paid for membership for July 1, 2010, to July 30, 2011.  SFM made payment to Ms. Richardson for this amount in March 2011.  In July 2011, Ms. Richardson submitted her request for reimbursement of the membership fee for the next year.  The adjuster at SFM advised her that no payment for health club membership would be made “per the pending litigation.”  SFM also changed the reimbursement it made to Ms. Richardson for mileage to and from pool therapy.  Rather than pay her for the 29.3 miles Ms. Martinson claimed to and from the CCC, SFM paid for round-trip mileage of 6.5 miles.  Ms. Larson testified in her deposition that she had arrived at that figure by averaging the distance from Ms. Richardson’s home to two of the closest health clubs she had identified in her contact with the QRC.

Ms. Richardson filed a medical request in April 2011 seeking payment of membership fees at the CCC and reimbursement for her mileage expense.  After an administrative conference, a request for formal hearing was filed by the employer and insurer.  A formal hearing on the employee’s claims was held before Compensation Judge Jeanne Knight on October 18, 2011.

The issues at the hearing, as identified by the compensation judge, were whether Ms. Richardson’s use of the CCC for pool therapy was reasonable and necessary; whether the employee was owed additional reimbursement for mileage; and whether a penalty should be awarded against the employer and insurer for its delay in paying medical expenses.

The compensation judge issued her findings and order on November 17, 2011.  The compensation judge determined Ms. Richardson’s continued use of the CCC to be reasonable and necessary.  The employer and insurer were ordered to reimburse Ms. Martinson for the membership fees there and ordered to make additional payment of mileage expense based on the compensation judge’s finding that the appropriate round trip mileage for visits to the CCC was 29.3 miles.  The compensation judge also awarded a penalty against the employer and insurer for delayed payment of mileage expenses.  The employer and insurer have appealed these determinations and orders.  The compensation judge also awarded contingent fees to the employee’s attorney under Minn. Stat. § 176. 081.  The employee has cross-appealed from the award of contingent fees.

The employer and insurer agree that pool therapy is appropriate for the employee.  They also agree the CCC is an appropriate facility for that therapy.  The position of the employer and the insurer is that the employee should change her pool therapy to a club closer to her home so that they do not have to pay mileage to and from the CCC.

The employer and insurer’s argument rests on the premise that there is no difference between pool therapy at the CCC and pool therapy at any other health club that has the same equipment.  The employee testified, however, that there were differences between the different facilities.  For example, she stated that at the YMCA the depth of the pool was too shallow for the exercises she did and the pressure of the jets in the hot tub was insufficient to provide her with relief.  The employee provided similar testimony about some of the other health clubs that had been suggested as alternatives to the CCC.

In her memorandum explaining her decision, the compensation judge referred to the evidence she found significant in this case.  She cited to testimony by QRC Murray concerning Ms. Richardson’s adherence to recommended pool therapy and stated she was impressed by that evidence.  The compensation judge also cited to Ms. Richardson’s anxiety and how that might compromise continued therapy.  The compensation judge also noted that Ms. Richardson had continued to be employed throughout this time.  Based on this evidence, the compensation judge found the employee’s continued use of the CCC to be reasonable.

The employer and insurer challenge the “speculative” nature of the QRC’s testimony but that objection was made and overruled at the hearing.  In reaching her decision, the compensation judge clearly accepted the testimony of the employee and her QRC.  It is the function of the compensation judge as the fact finder to assess witness testimony.  Even v. Kraft Inc., 445 N.W. 2d 831, 42 W.C.D. 220 (1989).  It is not the role of this court to assess credibility or draw a different inference from the evidence than the compensation judge has done.  Perez v. Arby’s Restaurant Group, No. WC11-5273 (W.C.C.A.  Sept. 12, 2011).

In addition to questioning the compensation judge’s acceptance of the employee’s and the QRC’s testimony, the employer and insurer also argue that the compensation judge failed to apply the proper legal analysis in this matter.  The employer and insurer refer to Minn. R. 5221.0430, which identifies travel distance as a factor to be considered in denying an employee’s request to change physicians.  This rule has no relevance to the present case.  The present case does not deal with an employee’s request to change health care providers from a nearby provider to one further away.  Further, even under the rule, travel distance is only one of five factors and is considered an “unnecessary expense,” when the “same care” is available at a nearer location.  The compensation judge in the present case accepted the employee’s argument that pool therapy at other locations was not the same as her therapy at the CCC.

The question of whether claimed medical care is reasonable and necessary is one of fact for the compensation judge.  Hopp v. Grist Mill, 499 N.W. 2d 812, 48 W.C.D. 450 (Minn. 1993); Garcia v. Northern State Power Co., No. WC07-251 (WCCA Feb. 22, 2008).  We conclude that the compensation judge’s determination here, based on testimony she found credible, is supported by substantial evidence and must be affirmed by this court.  Hengemuhle v. Long Prairie Jaycees, 358 N.W. 2d 54, 37 W.C.D. 235 (Minn. 1984).  Accordingly, we affirm the compensation judge’s determination that the employee’s continued pool therapy at CCC is reasonable and necessary.

The employer and insurer argue that even if pool therapy at CCC is reasonable, the compensation judge erred in finding the employee’s round trip mileage to be 29.3 miles, the mileage claimed by the employee.  Extensive and conflicting evidence was submitted by the parties on this point.  The employee testified on direct examination and cross-examination as to the route she took, the reasons for the routes she took, and whether she failed to take the shortest route to and from the CCC from her house.  The QRC testified that she had reviewed MapQuest and had found a mileage of 32.34 miles.  Ms Larson testified in her deposition that the round trip mileage she arrived at in driving from the employee’s house to the CCC was 27.6 miles.  The employer and insurer introduced into evidence a map from MapQuest that indicated round trip mileage of 28.44.  Given the conflicting evidence on this issue, we are unable to conclude the compensation erred in accepting the employee’s testimony and the determination on this question is affirmed.

Finally, the employer and insurer have appealed the compensations judge’s award of $149.43 in penalties for late payment of mileage reimbursement for the period of March 28, 2011, through October 17, 2011.  The employer and insurer argue that the compensation judge failed to apply a credit that the employer and insurer had for an overpayment of mileage reimbursement up to March 26, 2011.  The claimed overpayment, however, is based on the use of 6.5 miles as the appropriate round trip mileage by the employer and insurer.  If the round trip mileage is 29.3 miles, as found by the compensation judge, there was no overpayment of mileage.  We find substantial evidence supports the compensation judge’s award of a penalty.

The employee cross appealed the compensation judge’s award of contingent attorney fees and claimed that a Roraff fee should have been awarded.^[1]  The employer and insurer do not disagree.  Accordingly, we vacate the compensation judge’s award of a contingent attorney fee and remand to the compensation judge for consideration of Roraff fees.