JULIE M. BODE, Employee/Appellant, v. 3M CO., SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., INC., Employer/Respondent.

The employee appeals the compensation judge’s determination that a change of qualified rehabilitation consultant (QRC) was not in the best interest of the parties. We reverse.

The employee began working in the self-insured employer’s New Ulm manufacturing plant on a part-time basis in January 2010 and became a full-time employee in 2011. Although the employee’s stipulated date of injury is March 26, 2014, the employee began to experience symptoms in her shoulders in November 2013 while working in a position that required constant, repetitive reaching and pulling at shoulder height.

The employee initially received physical therapy from the employer’s on site therapist. In August 2014, she was seen by Dr. Scott Rysdahl, her family practitioner, who continued physical therapy and imposed restrictions including no overhead reaching. The employer initially provided light-duty work, then tried to gradually work the employee back into her normal job duties. The employee stated her symptoms flared up and down depending on the work she was doing. On October 6, 2014, Dr. Rysdahl, noting the employee had a lot of shoulder pain, imposed restrictions of no lifting over 10 pounds, occasional pushing/pulling up to 25 pounds, occasional overhead reaching, up to 33 percent of the time, and avoidance of extensive use of the right shoulder. Physical therapy was discontinued, and the employee was referred to the orthopedic clinic.

On October 10, 2014, the employer’s claims administrator requested rehabilitation services and a QRC was assigned to the employee’s case. The QRC testified the majority of her assignments come directly from insurance companies and that Sedgwick Claims Management Services (hereinafter “insurer”) is the workers’ compensation administrator for 3M Company, the employer. (Tr. 22, 68; Resp. Ex. 1.)

Prior to meeting with the employee, the QRC contacted the employer and obtained a description of the employee’s pre-injury position. The QRC met with the employee on October 14, 2014, and determined the employee was qualified for rehabilitation services. Included in the rehabilitation plan was coordination of the employee’s medical treatment with a goal of returning the employee to her pre-injury status with the employer in the same or similar work.

The employee was examined by Dr. Jean Eelma, an orthopedic surgeon, on October 14, 2014. The doctor noted the employee had had shoulder problems for many months. The employee reported the more she used the shoulder, the more it hurt and felt she was being asked to do too much at work. The doctor noted a good deal of muscle tenderness and spasm and diagnosed a right shoulder strain. New restrictions were imposed including avoiding regular use of the right arm, even with the upper arm at the side, and lifting over 10 pounds only occasionally, two pounds regularly. In November 2014, the employee also began receiving chiropractic care which seemed to provide some relief. An MRI scan was ordered and the employee was prescribed Flexeril to assist with sleep.

In her Initial Report of October 22, 2014, the QRC noted the employee complained of numbness into the right arm, had difficulty sleeping which required change of sleep positions to avoid pain from the right shoulder, and had difficulty driving. The QRC contacted Dr. Eelma’s office on October 23 to clarify whether the employee’s hours were restricted. Dr. Eelma’s office responded that so long as the work restrictions were followed, there were no limitations on the hours of work.

The employee stated that, at that point, she was still trying to figure out what she could or could not do but continued to have flare-ups. The employee testified that her work supervisors did not always comply with her restrictions. At times, they did not follow the weight lifting restrictions and sometimes they did not follow the restrictions relative to the repetitiveness of the work.

Over the next nine months, the employee repeatedly reported to the QRC, to her medical providers, and to her work supervisors that her restrictions were not being followed. The QRC testified she relayed the employee’s restrictions to the employer’s occupational health nurse, Verna Walters, who disseminated the information to the employee’s supervisors. Ms. Walters and the employee’s supervisor, Todd Holbrook, told the QRC they were honoring the employee’s restrictions. The QRC told the employee she needed to speak up when asked to do something outside her restrictions because the information she was getting from the employer was that they did not know she was working outside the restrictions.

The employee also reported she felt pressured to report good results on her transitional work forms.^[1] She stated she was told by Ms. Walters and her supervisors that she needed to get her restrictions lifted to in order to maintain her job. The QRC passed this information on to Ms. Walters who stated the employer did not tell people what to put on the forms.

In April 2015, Dr. Eelma recommended a second opinion by a shoulder specialist in Mankato. The employee was seen by Dr. Jesse Botker on April 29, 2015. The doctor provided a cortisone injection and referred the employee for additional physical therapy. He restricted the employee from lifting/carrying over 10 pounds; pushing/pulling over 25 pounds; and repetitive above shoulder work, and limited work to eight hours per day, five days a week. The employer then assigned the employee to Friday off, work on Saturday, and Sunday off. The employee reported problems caused by this schedule to the QRC, including the fact that one day off was not enough to rest her shoulders, but there is no indication that the QRC addressed this issue.

In April 2015, in a progress note to the employer and insurer, the QRC noted the employee’s husband had taken a new job in Mankato and they were putting their house up for sale. The QRC also mentioned the employee stated there was a cook position she would have liked to take, but did not try for it because she did not feel she could cook all day without irritating her shoulders. The employee feared sharing this information might jeopardize her job with the employer. In her May 2015 progress report, the QRC noted that at times work activities still aggravated the employee’s shoulders, but also stated that neither the employee nor the employer had discussed any concerns about tolerance of work activities at that time.

The employee testified that originally she was fine working with the QRC. However, at the June 8, 2015, appointment with Dr. Botker, the QRC pressed the doctor to decrease the employee’s restrictions and increase her work hours. The employee felt she was finally getting better and wanted to continue working on the improvements. The doctor continued restrictions of 20 pounds lift/carry, 25 pounds push/pull with elbow down by her side, and one hour of overhead reaching, with no change in work hours.

On July 9, 2015, the QRC contacted the employer by phone to review the employee’s job duties and her transitional work forms. In the phone memorandum, the QRC stated there did not seem to be any issues with the assigned tasks being outside the employee’s restrictions and noted “I will make sure Dr. Botker is informed there are accommodations in place and assistance available for her. If she is working outside of restrictions it is due to her own call.” (Pet. Ex. DD.) On July 10, the QRC received a voice message from the insurer’s claims adjuster stating the employer was concerned they might not have a job for the employee if she was not released to work with no restrictions at the appointment with Dr. Botker on July 20, and to please try to obtain that. (Pet. Ex. EE.) In an email to the employer on July 13, 2015, the QRC stated she had spoken to the employee’s supervisor the previous week and felt they should be able to get a full release at the next appointment. (Pet. Ex. FF.)

At the July 20 appointment with Dr. Botker, the QRC requested to be in the room with the employee, but the employee indicated she wanted to speak to the doctor first, without the QRC. The QRC informed the employee she had spoken to her supervisor who informed her they were keeping the employee well within her restrictions and that she had not indicated any problems on the transitional work forms. The QRC requested the employee to send copies of the forms to her so she could see what the employee was turning in to the employer. After the examination with the employee, Dr. Botker stated he was going to keep the same restrictions in place and additionally limit activities to no work at or above shoulder height. The QRC told Dr. Botker the employer might not have a job for the employee if she was not released without restrictions that day. She further reiterated to the employee that she needed to be more proactive at work and speak up or stop what she was doing and find someone with whom to discuss the situation or ask to be moved. (Resp. Ex. 1, QRC Report of July 23, 2015.) In the same report, under the caption of “Vocational Update,” the QRC appears to contradict herself by acknowledging that Mr. Holbrook had indeed reviewed a transition form which was marked by the employee indicating a less than “good” day at work for the period between June 29 and July 4, 2015.

On July 22, 2015, the employee sent a letter to the QRC enclosing, as requested, copies of the transitional work forms she had submitted to her supervisor, noting the QRC had questioned whether she was reporting problems with work assignments. The employee additionally expressed her frustration with the QRC regarding ongoing issues with work assignments outside her restrictions, and stating that when she reported problems she was harassed and felt her job was threatened by her supervisor and the plant occupational health nurse for making the report. She specifically addressed recent incidents in which she had been assigned to jobs outside her restrictions that aggravated her symptoms, and again addressed the employer’s assignment of a schedule with only one day off instead of two days over the weekend. (Pet. Ex. LL.)

The employee testified she was very angry when she wrote the letter and felt the QRC had accused her in front of Dr. Botker of not reporting problems to the employer after she had told the QRC repeatedly that she had been reporting problems and was filling out transition forms showing issues with assignments. The employee felt the QRC didn’t believe her. (Tr. at 136.)

Two or three days later, the employee received an email from the employer’s human resources manager requesting a meeting to discuss her letter to the QRC. The QRC acknowledged she sent a copy of the employee’s letter to both the employer and the insurer. She stated she thought it was important for them to understand how the employee was feeling as she didn’t think that, at times, the employee actually voiced those concerns directly to the employer. The QRC stated her purpose in sending them the July 22 letter was to get everything out in the open. The employee testified she had no idea the QRC would give the letter to the employer and insurer and felt betrayed. (Tr. at 116, 137.)

On July 29, 2015, the QRC received a call from Ms. Walter who indicated concern that the employee felt they were harassing her and stated she intended to show the letter to their legal department. On August 4, 2015, the employee was taken off work by the employer, stating they could no longer accommodate her restrictions.

The employee returned to see Dr. Botker on August 31, 2015. After three weeks off work, her shoulder improved. The doctor decreased her restrictions permitting lift/carry to 40 pounds and push/pull up to 50 pounds. He continued to restrict overhead reaching to one to three hours per day. Dr. Botker said he would consider a functional capacities evaluation (FCE) in 6 weeks if there was no improvement.

The employee returned to work with the employer, in her previous work area, on September 1, 2015. The QRC continued to work with the employee after she returned to work.

On October 12, 2015, Dr. Botker ordered an FCE and kept the employee’s restrictions the same until completion of the evaluation. The FCE was scheduled on November 9 and 10, 2015. The results had not been received as of the date of the hearing.

On August 27, 2015, the employee filed a Rehabilitation Request seeking a change of QRC. A hearing was held on November 19, 2015, before a compensation judge. The sole issue presented was whether a change in QRC would be in the best interest of the parties. In Findings and Order filed December 28, 2015, the judge denied the employee’s request, finding the employee failed to establish that a change of QRC was in the best interest of the parties “at this time.” (Finding 21.) In his memorandum, the judge concluded there was nothing in the record to reasonably justify the employee’s lack of trust in the QRC. The employee appealed.

In reviewing cases 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 (2012). 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, 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 evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

“A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Worker’s Compensation Court of Appeals] may consider de novo.” Krovchuck v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

We consider in this case whether the compensation judge misconstrued the responsibilities of a QRC when addressing an injured employee’s work assignments and whether the judge’s determination that a change of QRC was not in the best interest of the parties, at this time, is legally erroneous and unsupported by the evidence in the record as a whole.

The employee asserts this case raises important issues about an employee’s ability to change a QRC, the duties of the QRC, and whether the compensation judge misconstrued the QRC’s responsibilities when addressing the employee’s work assignments and restrictions. The employee argues the QRC failed to ensure the employee’s restrictions were in fact being met by the employer or to explore alternative solutions, and that when the employee expressed to the QRC the pressure she was getting at work regarding assignment of work duties that were beyond her restrictions, the QRC’s response was only to tell her to speak up for herself.

Any party may propose a change of QRC once an employee has exhausted her right to choose pursuant to Minn. R. 5220.0710, subp. 1.^[2] If a request for a change of QRC is disputed, a compensation judge may grant or deny the request based on “the best interest of the parties” considering the goals of rehabilitation as set forth in Minn. Stat. § 176.102, subd. 1(b), and Minn. R. 5220.0710, subp. 3.^[3]

The compensation judge acknowledged in his memorandum the employee’s claim that she was required to perform tasks and job duties that were outside her physical restrictions and that the QRC did not advocate for her to make sure the duties were indeed within her physical restrictions. The judge noted the employee’s concerns were well-documented in the medical records, the QRC’s case notes and rehabilitation reports, and were discussed with the QRC and the employee’s treating physicians.

The compensation judge, nevertheless, concluded the QRC appropriately relayed these concerns to the employee’s treating physicians and to the employer and insurer. The judge concluded the QRC provided professional, prompt, and necessary rehabilitation services to assist the employee in returning to work with the employer,^[4] and denied the request to change QRCs, concluding it was not in the best interest of the parties “at this time.”

Given the findings of the compensation judge, the material facts in this case are essentially undisputed. We, accordingly, approach the issues presented as questions of law which this court may consider de novo.^[5]

The compensation judge’s conclusion that the QRC provided professional, prompt, and necessary rehabilitation services to assist the employee in returning to work with the employer is incomplete. At the hearing and on appeal, the employee argued that the rehabilitation rules impose a duty on the QRC to take due care to ensure that a rehabilitation client is placed in a job that is within the client’s physical restrictions, and that the QRC failed in her charge.^[6]

The employee asserts that during the nine months the QRC worked with the employee she did nothing more than attend medical appointments, communicate with the employee, and report to the employer and insurer. She contends a QRC is responsible for more than simply acting as a “go-between.” The employee and her physicians told the QRC on multiple occasions that she was being asked to do work beyond her restrictions,^[7] but the QRC failed to monitor and facilitate a return to work within those restrictions. The employee testified she did speak up for herself with the employer and brought up issues with work restrictions verbally as well as in writing on a fairly regular basis, but the QRC failed to follow through. To the contrary, the QRC instead supported the insurer’s requests, pressing the employee’s doctors to reduce and/or remove all restrictions and increase her work hours. We question whether advocating for removal or modification of medical restrictions is an appropriate role for a QRC since the imposition of restrictions is essentially a medical decision.

Given the number and regularity of complaints related by the employee about continued assignment to pre-injury jobs and duties that aggravated her symptoms, the QRC could have requested a rehabilitation conference to discuss which duties on which machines were causing the employee physical problems, or suggest the employee be taken off work for a period of time to allow recovery. Alternatively, the QRC could have conducted an onsite analysis of the assignments complained of and shared this information with the employer to ensure effective accommodation of the employee’s restrictions.^[8]

It is the responsibility of a QRC to provide essential services needed to ensure that an injured employee is returned to suitable work. While the employee has a self-interest in not exacerbating her injuries and reporting tasks and/or duties that do so, as she did in this case, it is the QRC’s responsibility to ensure that the employee is provided suitable work within her physical restrictions.

The employer and insurer, however, argue the QRC is supposed to be a neutral entity, who does not lobby or advocate on behalf of either the employee or the employer.^[9] To do more than simply relaying information between the persons and entities involved, is not “advocating” for the employee, but is part of a QRC’s responsibilities under the rehabilitation statute and rules.

The employee also asserts the QRC reported information to the employer and insurer that the employee told her in confidence, increasing the stress the employee felt in the workplace and placing her job in jeopardy, in violation of the prohibition against engaging in adversarial communication.^[10]

In his memorandum, the compensation judge acknowledged several instances in which the employee felt betrayed by the QRC. The first two were communicated to the employer in the April 30, 2015 report, relating to a cook position in Sleepy Eye, and that the employee’s husband found a job in Mankato and they were putting their house up for sale. The second communication to the employer was the employee’s July 22, 2015, letter to the QRC reflecting her concerns about failure of the employer to meet her restrictions and her lack of confidence in the QRC.

An adversarial communication is defined as reporting information not directly related to an employee’s rehabilitation plan. As to the position in Sleepy Eye, the QRC wrote, “there was a cook position in Sleepy Eye and she would have liked to take it, same pay, and no shift work. But did not try for it because she does not feel she can cook all day with her shoulders without irritating them.” In the same report, the QRC wrote, “[s]he said her husband took a new job in Mankato, so they are putting their house up for sale and are moving to Nicollet.” (Pet. Ex. W, Resp. Ex. 1, QRC Report of April 30, 2015.) Under the facts presented, neither of these communications has any bearing on the rehabilitation plan to return the employee to her pre-injury work status with this employer. While it could be argued that if the employee had terminated her employment for another job, these facts would have had a bearing on the rehabilitation plan, they were not the facts at the time this communication took place. The employee has demonstrated sincere attempts to work with the QRC and the employer to comply with the rehabilitation plan, sometimes to her detriment, but evinced no intention of leaving the employer. This communication was not appropriate and was in violation of the rule.

Our review of the employee’s letter of July 22, 2015, leads us to the conclusion that while the employee felt betrayed by the QRC’s sharing of the letter with the employer and insurer, the letter was directly related to the employee’s rehabilitation plan. The letter addresses complaints about the QRC and about efforts to return her back to work with the employer and was consistent with the rehabilitation plan.

The QRC testified that since she began working with the employee in October 2014, the employer had stated throughout that time that they were honoring the employee’s restrictions, and she thought she and the employee had worked well together. The employee, on the other hand testified she had no trust in the QRC and did not want to continue to work with the QRC. (Tr. at 140-41.)

Given that the QRC failed to ensure that the employee was, in fact, consistently assigned work within her restrictions leading to ongoing shoulder problems for over nine months, the QRC’s efforts to have medical restrictions removed at the behest of the employer, and the QRC’s sharing of sensitive information with the employer and insurer without first communicating an intent to do so with the employee, it was not unreasonable for the employee to lose faith in the QRC. In light of the facts and law in this case, we conclude a change of QRC is in the best interest of the parties, and, accordingly, reverse.