The employee appeals from the compensation judge’s decision finding the employee is not presently qualified for job search assistance, and denying the employee’s request for a revised rehabilitation plan that includes job placement services and a job search for employment in Minnesota.  We vacate and remand for reconsideration in accordance with this decision.

The employee began working as a roofer-foreman for the employer, Centimark Corporation, in March 2011.  The employee had worked as a roofer for approximately ten years.  On May 23, 2012, the employee sustained an admitted work injury when he fell from a ladder sustaining multiple injuries including a left elbow fracture and a concussion.  Shortly after the injury, Paul Kriegler, a qualified rehabilitation counselor [QRC], began providing rehabilitation services to the employee focusing on medical management and coordination of a return to work with the same employer.

The employee was treated by Dr. Patrick Kraft, an orthopedic surgeon, and Dr. Stan Kruglikov, a psychiatrist.  He was released to light duty work by Dr. Kraft and, in the week of August 22, 2012, returned to work for the employer in a temporary, light-duty job doing warehouse work and deliveries.  The employee was eventually given permanent restrictions of no working at heights, climbing, or using ladders.  As a consequence, he was unable to return to his date-of-injury job as a roofer.

The employee is the father of a then 9-year-old boy.  By mutual agreement with his son’s mother, Ashley Kurth, the employee has custody/visitation with his son every other weekend, on holidays, and at other times arranged in advance.  Centimark was aware of this arrangement and the employee testified he never had a problem with weekend visitation with his son while working as a roofer for Centimark.

In January or February 2013, the employee met with Matt Urbanek, the midwest Regional Manager, and Andy Delisio, a salesperson, with Questmark, a flooring subsidiary of Centimark Corporation, based in West Chicago, Illinois.  During the meeting they discussed the type of work involved, and the fact that the job required some travel.  The employee testified he told them he had his son every other weekend, and that he was told that everyone scheduling his work would know that and it would not be a problem.  The employee also stated that he was told that Questmark was going to open an office in Minnesota and he would be able to work in Minnesota.^[2]  The employee was offered the flooring installation job, at the same rate of pay, and accepted it.  He began working for Questmark on March 11, 2013.

The employee initially went to West Chicago to train with crews there.  He testified that during training, he returned home on the weekends and things were working out fine with his son.  By early April 2013, however, the employee expressed concern to QRC Kriegler about the extent of traveling required by the new position.  The employee was concerned about his ability to see and spend time with his son while being away from the Twin Cities for extended periods of time.  The QRC contacted the employer and was advised there was currently no flooring office in Minnesota, although there were plans to open one within six months to a year.  Regardless of location, however, flooring laborers typically do a lot of traveling and weekend work.  On April 30, 2013, QRC Kriegler prepared an R-3 Rehabilitation Plan Amendment seeking revision of the rehabilitation plan to include a job search for employment in the Twin Cities metropolitan area.

Mark Cruz, the West Chicago branch manager for Questmark, and the employee’s supervisor/scheduler, testified at the hearing.  He stated he was not involved in the interview with the employee, did not know who was present or when it took place, and that he did not know what job offer was made to the employee before he came to work at Questmark.^[3]  Mr. Cruz testified that Questmark does commercial flooring jobs, the bulk of which require travel outside of Minnesota, and that a good share of the work is done on evenings and weekends when businesses are closed.

Mr. Cruz testified that he first became aware of the employee’s situation around June, when the employee was scheduled for work over a weekend and told him that he was unable to work because he had to take care of his son that weekend.  The employee agreed with this, and stated that he was then taken off the work schedule.  Mr. Cruz agreed the employee has brought his concerns about his schedule and its impact on his time with his son to him, and that he has worked with the employee, as best he can, to try to accommodate that, but is not always able to do so.  The employee testified that, as a consequence, he has had to work on visitation weekends or turn down jobs, go off the schedule, and work fewer hours.

Questmark opened an office in Bloomington, Minnesota, in approximately July 2013.  At the time of the hearing in October 2013, the company had just hired a salesman and was hoping to generate more work in the Twin Cities area.  Mr. Cruz agreed the employee would, however, continue to be scheduled primarily for work out-of-state.  He further stated that work had been slow, and there had been stretches of time in the last several months where the employee had been out of work for a week at a time due either to scheduling conflicts with his visitation time or lack of work.

On May 9, 2013, the employee filed a Rehabilitation Request seeking a change in his rehabilitation plan to include a job search in Minnesota, asserting his current job with Questmark separated him from his son for long periods of time, and the job was not, therefore, suitable.  The employer and insurer objected to amendment of the rehabilitation plan on the basis that the employee was currently working with the date-of-injury employer in a job within his restrictions at no wage loss.  Following an administrative conference on June 10, 2013, an arbitrator/mediator ordered the rehabilitation plan be amended to include a job search.  The employer and insurer filed a Request for Formal Hearing on July 22, 2013.  The case was heard by a compensation judge at the Office of Administrative Hearings.  In a Findings and Order, served and filed April 24, 2014, the judge found that following his injury in 2012, the employee was provided with suitable gainful employment by the employer, and that the employee was not qualified for job search assistance as part of a rehabilitation plan.  The employee appealed.

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.^[4]  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.^[5]  Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.  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.^[6]  Questions of law may be considered by the Workers’ Compensation Court of Appeals de novo.^[7]

The employee argues the compensation judge erred as a matter of law by failing to make necessary findings pursuant to Minn. R. 5220.0510, subp. 1 and subp. 2d.  Subpart 1 provides, in pertinent part:

Subpart 2d provides that

The R-3 Rehabilitation Plan Amendment is dated April 30, 2013, but was not filed at the department until May 20, 2013.  The employee filed a Rehabilitation Request, dated May 5, 2013, with the department on May 9, 2013.  The employer and insurer filed a Rehabilitation Response on May 15, 2013.  Subdivision 2b requires a response within 15 days of receipt of the proposed amendment.  On this record, it appears the employer and insurer promptly responded to the proposed plan amendment.  Secondly, as acknowledged by counsel for the employee at the hearing, while Minn. R. 5220.0510, subp. 2d, creates a presumption that the opposing party agrees with the proposed amendment, the rule goes on to say that “[a] party’s failure to sign a plan amendment shall not constitute a waiver of any right to subsequently dispute it.”^[9]

The employee contends that because (1) the terms and conditions of the date-of-injury job permitted the employee to maintain a reasonable and responsible pattern of regular visitation with his son; and (2) his post-injury light-duty job with Centimark permitted the employee to maintain regular visitation with his son; and (3) Matt Urbanek, Questmark’s Regional Manager, offered and the employee accepted a different position with the understanding that the employer would schedule the employee in a way that allowed him to continue regular visitation with his son; and (4) in fact, the employment has not permitted regular visitation, pursuant to Begin v. Thermo Service Company^[10] and Parson v. Bureau of Engraving, Inc.,^[11] the compensation judge erred in denying the requested revision of the rehabilitation plan to include a job search for employment in Minnesota.

The employer and insurer contend the employee is not permanently precluded from engaging in his usual and customary occupation, and that the compensation judge’s finding that the employee is not a “qualified employee” is, therefore, supported by substantial evidence.  The respondents further contend that substantial evidence supports the compensation judge’s determination that the employer has provided suitable gainful employment, and that the employee’s concerns do not meet the standard of a dramatic alteration in a reasonable and responsible pattern of living as set forth in Parson and similar cases.

A.  Usual and customary occupation.  Pursuant to Minn. R. 5220.0100, subp. 22, an employee must establish s/he is a “qualified employee” to be eligible for rehabilitation benefits.  All three criterion listed in the rule must be met.  Subpart A. provides that an employee must be “permanently precluded . . . from engaging in the employee’s usual and customary occupation or from engaging in the job the individual held at the time of injury.”

First, the question of whether the employee met the requirement of subpart A. was not at issue at the hearing.  The sole question presented to the compensation judge was whether the employee was entitled to a revision of the rehabilitation plan to include a job search in Minnesota based on the suitability of the job provided by Questmark vis a vis the employee’s established pattern of regular weekend visitation with his son.^[12]  As acknowledged by the employer and insurer in their brief, this case was initiated by a Rehabilitation Request and subsequently by a Request for Formal Hearing, therefore, the hearing below was an expedited hearing.  As such, the issues before the judge were strictly limited to the issues raised in the rehabilitation request.^[13]

Second, it is not clear that the compensation judge found the employee ineligible for job search assistance on this basis.  In her memorandum, the compensation judge stated, “The employer has provided the employee with suitable skilled laborer work since October 2012.”^[14]  In her findings, however, the compensation judge found that following the employee’s injury in 2012, the employer offered and provided the employee with “suitable gainful employment,” and that the employee was, therefore, not presently qualified for job search assistance as part of a rehabilitation plan.^[15]

Finally, substantively, the employee was clearly unable to return to his work as a roofer-foreman with Centimark as a result of his post-injury restrictions of no working at heights, climbing, or using ladders.  The employee had previously worked as a roofer for ten years.  As a result of his restrictions, the employee was offered work installing flooring in commercial buildings with Questmark, a subsidiary of Centimark.  In Holt v. Ford Motor Co.^[16], this court observed that subpart A. is an “either-or rule” providing either the employee is likely to be permanently precluded from engaging in his/her usual and customary occupation or that the employee is likely to be permanently precluded from engaging in the job s/he held at the time of the injury.  This court has held on numerous occasions that rehabilitation assistance is available so long as an employee is precluded from returning to his or her previous work duties as a result of the work injury.  The relevant inquiry is whether the employee was able to engage in the work duties the employee performed at the time of injury.^[17]  The employee clearly was not.  He was unable to return to his pre-injury position as a roofer-foreman with Centimark and was unable to return to his previous occupation as a roofer.  To the extent the compensation judge’s decision that the employee currently is working at a suitable job rests on the conclusion that the date-of-injury employer (Centimark) provided “suitable skilled laborer work,” it is legally erroneous and is, to that extent, vacated.

B.  Suitable gainful employment.  Subpart B. of Minn. R. 5220.0100, subp. 22, provides that to be a qualified employee, the employee “cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer.”  There is no dispute the flooring installation job with Questmark is physically suitable.  The employer and insurer contend the employee is working in a suitable gainful job, earning close to or the same hourly wage as he earned at the time of his injury, and does not meet the requirements for an exception based on a dramatic alteration in a reasonable and responsible pattern of living.  The employee contends the job with Questmark involves evening and weekend work hours different from the weekday hours he had with Centimark at the time of his injury, and requires him to work out-of-state, which interferes with his established every-other-weekend visitation with his son.  The employee also argues that due to both lack of work and turning down work due to weekend visitation with his son, his hours of work, and thus his income, are significantly less than before the injury.

When the employee applied for work as a roofer-foreman with Centimark on March 9, 2011, he answered “yes” to whether he was willing to travel out-of-town and stay out-of-town to work on specific jobs, and work on Saturdays and/or Sundays, if necessary, but advised the employer he had his “son every other weekend but can work around it.”^[18]  Both the employee and Ms. Kurth testified that if they had enough time they could work things out.  The employee testified that while working as a roofer for Centimark he had the opportunity to work weekends now and then, but it was not required.  “It was more if you wanted to get extra hours, you could work the weekends.”  The employee maintained that while working for Centimark he never had a problem with weekend visitation with his son.^[19]  Between his return to work with Centimark around August 22, 2012, and March 2013, the employee had consistent hours, 40 hours a week, with no overtime and no weekend work.^[20]

The employee began working as a flooring installer for Questmark on March 11, 2013.  He understood that Questmark was going to be opening an office in Minnesota relatively soon, so he would not be traveling as much, and he’d be able to work in Minnesota.^[21]  The employee went to West Chicago, Illinois, to train with crews there for the first few weeks, and continued to work in the West Chicago area for at least a month.  He stated he was coming home on the weekends and things were working out fine with his son.  Around the beginning of June 2013, the employee first told Mr. Cruz he could not work because he needed to care for his son that weekend.  The employee was taken off the work schedule.  The employee testified that if he didn’t work the weekends he was scheduled for, he didn’t get work.  As a result, he was having to choose between working scheduled projects and earning income and maintaining regular visitation with his son.

Ashley Kurth testified in her deposition that since they broke up, about three years ago, the employee had had his son every other weekend from Friday until Sunday dinnertime and other times he wanted him.  It had always worked out.  Ms. Kurth stated, however, that it started to change when the employee started the overnight flooring job.  She stated the employee would be out of town and call and say he had to work the weekend.  As a result, nearly every other month, he had been unable to see his son, and it was very hard on their son.  The employee testified that trying to reschedule the weekends he would normally have with his son has not worked out very well.  Ms. Kurth has plans she has already made and it is not easy to change the weekends on short notice.  The employee testified it causes unnecessary arguments, and has been hard on all of them.

Mr. Cruz testified that most of Questmark’s work is out-of-state, and that much of the work spans weekends and evenings when businesses are closed.  Although Questmark opened an office in Minnesota in about July 2013, it will eventually be responsible for all of Minnesota, the northwestern tip of Wisconsin, and both Dakotas, and has not yet generated much work in the metro area.  Mr. Cruz testified that he gets together with the sales staff on Wednesday and Thursday and puts together the projects that need doing for the following week.  The projects are staffed, and then he emails the schedule to everyone on Friday.  He testified he has worked with the employee the best he can to try to accommodate the employee’s concerns about visitation with his son but, based on available projects, cannot always accommodate his schedule.  The bottom line is that he needs to work within the customers’ scheduling demands, so it is often difficult to work with an individual’s scheduling constraints, particularly requests for weekends off.  Mr. Cruz agreed there have been stretches of time in the last two months where the employee has been out of work for a week at a time.  Some of it is due to scheduling conflicts with visitation with his child, and some due to a lack of work/projects.

The issue presented to the compensation judge was whether the flooring installer job offered by the Regional Manager of Questmark, and accepted by the employee, beginning on March 11, 2013, is or is not suitable because it does not permit the employee to maintain an established reasonable and responsible pattern of regular visitation with his son.  The compensation judge did not directly address this issue.  Instead, she seems to imply in her memorandum that because the employee, in his application for the Centimark roofer-foreman position, indicated he was not averse to travel out of town to work on specific projects, and had indicated he was willing to work on Saturday and/or Sunday - - with the caveat that he had his son every other weekend - - had agreed to the terms of the flooring installation job with Questmark.  And that because the employee accepted the flooring installer job, knowing there was travel involved, he cannot complain after the fact that the job is not suitable.  We disagree.  The application for the Centimark roofer-foreman position was for a different job.  Moreover, the relevant inquiry is the actual hours, days, and locations worked in the Centimark position versus the work hours, days, and locations required by the Questmark flooring installation position.  Nor does the fact that the employee accepted the Questmark job necessarily prohibit the employee from later seeking job search assistance to look for employment in Minnesota.

Minnesota courts have long recognized that an injured employee is not required to dramatically alter a reasonable and responsible pattern of living to be eligible for workers’ compensation benefits.  In Talmage v. Medtronic, Inc.,^[22] the employee limited her job search to work during hours in which her daughter was in school to avoid leaving the child without supervision.  The supreme court held the employee’s refusal of second and third shift work “was not unreasonable,” and the employee was entitled to ongoing workers’ compensation benefits.  Similarly, in Furrer v. Campbell Soup Company, Riley v. Chuck Meuer’s Restaurant, and Parson v. Bureau of Engraving, Inc.,^[23] this court found the employees did not unreasonably refuse a post-injury job offer where they had, in their pre-injury positions, established a reasonable and responsible pattern of life allowing them to fulfill their family responsibilities, including spending time with and properly caring for their children.  The employee argues that he had, similarly, established a reasonable and responsible pattern of regular visitation with his son while working as a roofer with Centimark which the flooring installer work with Questmark does not permit the employee to maintain.

The employer and insurer argue that the employee’s situation does not meet the “high standard” set by these cases.  They argue the facts here do not involve the kind of special care and supervision of a child involved in these cases, but involves only the employee’s convenience.  This is an overly restrictive interpretation of the case law.  In Begin v. Thermo Service Company,^[24] cited in virtually every case, the employee worked the night shift for the employer in order to attend college classes during the day.  This court held the employee did not unreasonably refuse daytime work offered by the date-of-injury employer.  In Haldeman v. Next Innovations, Ltd.,^[25] the employee worked the graveyard shift prior to his injury in order to have his days free to complete a restaurant remodeling project.  The date-of-injury employer offered the employee a day shift job “that would dramatically alter the employee’s ability to engage in building his restaurant business,” and this court held the employee’s refusal of the job offer was not unreasonable.

This issue was not addressed directly in the compensation judge’s findings.  In view of the issues raised above, including the lack of a specific finding or findings on the issue of whether the employee was entitled to revision of his rehabilitation plan to include job placement assistance and job search for employment in Minnesota on the basis that his post-injury job as a flooring installer with Questmark prevented him from maintaining established, regular weekend visitation with his son, we vacate and remand for reconsideration in accordance with this decision.