The employee appeals from the compensation judge’s decision denying payment for services provided by the employee’s original Qualified Rehabilitation Consultant (QRC) following approval of the employer’s request for a change of QRC.  The employer contends that the employee lacks standing to pursue payment for these services and that the appeal should be dismissed because the employee’s brief was late.  We reject the employer’s arguments on standing, deny their request for dismissal of the appeal, and affirm the judge’s decision denying payment of the disputed QRC bills.

The employee sustained work-related injuries on March 24, 2008, while employed as a driver for FedEx Freight [the employer].  He began receiving rehabilitation services from QRC Ione Tollefson in June or July of 2009.  The initial goal of rehabilitation was to return the employee to work with the employer, but that goal could not be accomplished due to the restrictions necessitated by the employee’s work injury.  The rehabilitation plan was therefore amended to provide for placement assistance, which was provided by placement vendor Steve Kocher, under the direction of the QRC.

On October 25, 2012, the self-insured employer filed a rehabilitation request seeking termination of rehabilitation services or, in the alternative, a change of QRC.  On January 20, 2013, following a conference held pursuant to Minn. Stat. § 176.106, the department mediator/arbitrator denied the request for termination of the rehabilitation plan, but she granted the request to change QRC.  The employee filed a request for formal hearing, and, on April 9, 2013, the matter was heard by Compensation Judge Miriam P. Rykken.

In a decision issued on June 10, 2013, Judge Rykken concluded that a change of QRC was in the best interests of the parties, and she granted the employer’s request.  In her memorandum, the judge indicated that, “since the employer, FedEx, did not request a specific QRC, it is suggested that the parties attempt to reach a mutual agreement,” with the opportunity, if desired, for the parties to “consult with the court concerning reaching an agreement.”

No appeal was taken from Judge Rykken’s June 10, 2013, decision, but QRC Tollefson filed a rehabilitation request, later amended, seeking payment for rehabilitation services provided by her, and possibly another QRC then in the firm, from December 26, 2012, through June 14, 2013, apparently the date she received Judge Rykken’s order.  In a decision issued on September 16, 2013, the department mediator/arbitrator denied the majority of the QRC’s bill.  However, she did award a portion of the claim for preparation and participation in the original administrative conference held in January of 2013, with respect to time spent on the employer’s request to terminate rehabilitation services entirely.

The employee filed another request for formal hearing after the denial of QRC Tollefson’s bill, and the matter came on again for hearing before Judge Rykken.  In her findings and order issued on January 17, 2014, Judge Rykken denied the employee’s claim for payment of the disputed QRC charges.  The employee appeals.

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 (2014).  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, “[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 Foods Products, 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, “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.”  Id.

The employer contends that the employee lacks standing to pursue payment of the disputed QRC bills because there is no indication that the employee could be found liable for payment.  The employer also contends that the employee’s appeal should be dismissed in any event because his appellate brief was filed one day late.  We are not persuaded.

The employee has always been a party to the proceedings, and it was the employee who received the services giving rise to the current billing dispute.  Rehabilitation assistance is a form of compensation as contemplated by Minn. Stat. § 176.011, subd. 8.  Whether or not the employee could be held responsible for payment of the QRC bills in question, he clearly has adequate connection to the matter to claim payment of those bills and to dispute the compensation judge’s order denying payment.  In fact, employees routinely bring claims for both medical and rehabilitation bills.  We therefore reject the employer’s arguments as to standing.^[1]

We also reject the employer’s request that we dismiss the appeal.  The employee’s brief was indeed one day late, and the rules allow any party to move the court for dismissal when appellants’ briefs are not timely filed.  See Minn. R. 9800.1710.  We have, however, seldom, if ever, dismissed an appeal based solely on the fact that a brief was simply late, and the employer has not asserted any prejudice due to the late filing.  Whether or not the rules might allow us to dismiss the appeal under these circumstances, we decline to do so.

In a decision and order filed January 10, 2013, following an administrative conference, a department mediator/arbitrator granted the employer’s request to change QRC.^[2]  The employee disputed the order by filing a request for formal hearing, and Judge Rykken again approved the request to change QRC in a decision issued on June 10, 2013.  In the period between those two decisions, QRC Tollefson continued to provide certain services, and she ultimately sought payment for those services by filing a rehabilitation request, as later amended, for work she performed between December 2, 2012, and June 14, 2013.  A small portion of that claim was awarded by the mediator/arbitrator, for work performed by the QRC in connection with the employer’s original request to terminate all rehabilitation services.  The remaining charges were denied, and, after the employee requested and received a formal hearing on the denied bills, Judge Rykken, too, rejected the claim, then amounting to $1,705.90.

In her memorandum, Judge Rykken explained her decision in part by citing Parker v. University of Minnesota, slip op. (W.C.C.A., Sept. 16, 2003), quoting from that decision as follows:

On appeal, the employee contends that Judge Rykken misinterpreted Parker, arguing that, because the employer did not prevail on its request for termination of all rehabilitation services, which they were seeking at the January 2013 administrative conference, “all appropriate services are compensable” under the rehabilitation plan then still in effect.  Therefore, the employee argues, because the plan remained in effect, and because QRC Tollefson remained the QRC of record pending a final decision on the request to change QRC, the issue was whether the services provided by QRC Tollefson were reasonable and necessary.  As such, the employee maintains that, because Judge Rykken failed to evaluate the dispute under the appropriate standard, her decision should be reversed and the matter remanded for reconsideration.  We are not persuaded.

Many of the arguments contained in the employee’s brief, and also asserted by counsel at oral argument, are based on what the relevant rules purportedly require of the QRC.  For example, in her brief, counsel for the employee contends that, under “the rules provided to QRC’s for providing rehabilitation services, the QRC of record must provide monthly reports; must attend scheduled administrative conferences and court hearings; and is responsible to oversee any job placement vendor who is providing placement services to an injured worker.”  At oral argument, counsel suggested that a QRC who failed to provide these services, even during the course of litigation over rehabilitation, might be subject to discipline.  However, counsel did not cite a single specific rule to support any of her assertions, and, with respect to at least some of those assertions, we are unable to find any support in either the statute or the rules.^[3]  We are also unable to find any authority establishing that a QRC is required to continue providing rehabilitation services during the pendency of a rehabilitation dispute.  On the contrary, in Parker, we clearly indicated that a QRC has no obligation to provide services during litigation on the question of the employee’s eligibility for rehabilitation services.  See also Minn. R. 5220.0710, subp. 7a (a QRC may withdraw as QRC if the employer has notified the parties in writing that the employer is denying further liability for the injury).  We fail to see why the principle should differ when the dispute is over which QRC should provide services.  In fact, the rules suggest that a QRC may reduce or suspend services as long as the parties are advised of the reason, Minn. R. 5220.1801, subp. 9O, and QRC Tollefson herself acknowledged that she limited her services during the pendency of the rehabilitation dispute because she knew that she might not be paid.  It is also noteworthy that a significant portion of the claimed bill covers time the QRC spent on preparation and attendance at the April 2013 hearing before Judge Rykken, where the sole issue was whether the employer’s request to change QRC should be granted.  The employer prevailed, with a decision for the second time indicating that QRC Tollefson should not remain on the case.  We find no authority to support the conclusion that QRC Tollefson should be paid for time spent on her unsuccessful effort to continue serving as the employee’s QRC.

The employee contends that, if a QRC cannot be assured of payment for services rendered during a dispute over a requested change of QRCs, injured employees will be left without services for months, if not years, pending resolution of the dispute.  This, of course, is simply not the case.  Nothing prevents an employee from accepting the services of the QRC chosen by the employer while at the same time maintaining litigation over his claim to keep his chosen QRC.  This available continuation of services adequately serves the goals of rehabilitation - - to help the employee secure suitable employment as soon as reasonably possible.  Minn. Stat. § 176.102, subd. 1(b).

Physicians risk nonpayment if they provide medical services where approval to change physicians is required but is ultimately not obtained.  See Minn. R. 5221.0430, subp. 3; Henschel v. Interfaith Social Services; slip op. (W.C.C.A. Oct. 2, 1995).  Similarly, pursuant to Parker, QRCs risk nonpayment for services provided after an employer disputes an employee’s eligibility for rehabilitation assistance, if the employer ultimately prevails on that issue.  We can see no compelling justification for reaching a different result when the issue is a request to change QRCs.  The QRC here was on notice as early as October 2012 that the employer was disputing the employee’s right to further services and was also seeking a change of QRC.  The mediator/ arbitrator granted the request to change QRCs in January 2013, and Judge Rykken reached the same conclusion in June 2013.  Much of the billed time was related solely to the QRC dispute, and the employer prevailed on that issue.  Under these circumstances, we affirm Judge Rykken’s denial of the disputed rehabilitation bills.

I concur and join the majority with regard to the issues of standing and the late brief.

I respectfully dissent on the issue of whether the compensation judge applied the correct standard in denying the claimed fees.  I would reverse and remand on this issue for a determination of whether the disputed services, including time spent in connection with conferences and hearings, were reasonable under the rehabilitation plan.