DELWIN C. GRAGE, deceased Employee, by MERILEE GRAGE, Appellant, v. ACME ELEC. MOTOR, INC., and CINCINNATI INS. COS., Employer-Insurer/Cross-Appellants.


No. WC15-5898

REHABILITATION - SURVIVING SPOUSE; STATUTES CONSTRUED - MINN. STAT. § 176.102, SUBD. 1a. A 54 year-old surviving spouse, whose dependency benefits will cease within 6 years, in need of additional training to obtain full licensure to secure and maintain employment, has demonstrated a need for rehabilitation services to become self-supporting and is a qualified dependent surviving spouse entitled to rehabilitation assistance as contemplated by Minn. Stat. § 176.102, subd. 1a.

DEPENDENCY BENEFITS - BURIAL EXPENSES.  A granite bench placed on the petitioner’s husband’s grave in the customary position of a headstone constitutes a compensable “expense of burial” pursuant to Minn. Stat. § 176.111, subd. 18.

Determined by:
            Deborah K. Sundquist, Judge
            Gary M. Hall, Judge
            Manuel J. Cervantes, Judge

Compensation Judge: John R. Baumgarth

Attorneys: John P. Bailey, Bailey Law Office, Bemidji, Minnesota, for the Appellant.  Timothy S. Crom and Nicholas M. Matchen, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota, for the Cross-Appellants.

Affirmed in part and reversed in part.



The employee’s 54-year-old dependent surviving spouse appeals the compensation judge’s finding that she is not qualified to receive vocational rehabilitation services pursuant to Minn. Stat. § 176.102, subd. 1a. We reverse. The employer and insurer cross-appeal from the compensation judge’s award of reimbursement for a bench monument as a burial expense pursuant to Minn. Stat. § 176.111, subd. 18. We affirm.


It is undisputed that the employee’s electrocution by high voltage power line on May 17, 2012, arose out of his employment with Acme Electric Motor. The electrocution occurred 50 feet off the ground and propelled the employee off the equipment on which he was working. He landed on his head, crushing his already burned body. (Tr. at 31.) Because of the condition of her husband’s remains, the employee’s surviving spouse, Merilee Grage, chose cremation and opted for a simple funeral.

The employer was insured for workers’ compensation liability by Cincinnati Insurance Companies. The claims adjuster contacted Ms. Grage by letter on May 30, 2012, informing her that “Workers’ Compensation allows for reasonable burial and funeral expenses up to $15,000.00. You may send receipts to me . . . and I will review for reimbursement.” (Ex. C.)

In July 2012, Ms. Grage obtained quotes for a bench-style monument along with mounting of a Veterans’ Administration bronze plaque as her deceased husband had served in the military. The bench was placed on her husband’s grave in the customary position of a headstone. The cost of the bench with tax and cemetery lot fee totaled $10,946.28. Ms. Grage issued a personal check in payment of the bench charges. She then sought reimbursement from the employer and insurer. The insurer refused to pay the claimed expenses asserting they had already paid burial expenses.[1]

At the time of the employee’s death, Ms. Grage was attending school to obtain a master’s degree in special education. She was in her last semester, but due to financial constraints and emotional distress following her husband’s death, she was unable to finish. The employer and insurer have paid dependency benefits pursuant to Minn. Stat. § 176.111 representing 50 percent of the employee’s weekly wage or, in this case, a benefit of $303.22 per week. These benefits will cease 10 years after the date of death, or May 17, 2022, approximately 6 years from now.

Ms. Grage has limited work experience. She worked as a custodian in Bemidji schools until a shoulder injury in 2004. For a year and a half, she worked as a job coach for an occupational development center for disabled adults. The petitioner then attended school full-time at Bemidji State University. In 2008, she completed undergraduate degrees in theater and art and, in 2009, obtained a license to teach K-12 art. In 2012, she obtained certification allowing her to teach students with emotional behavior disorders and specific learning disabilities. As of the date of hearing, Ms. Grage had not completed her master’s degree in special education.

To support herself following the death of her husband, Ms. Grage accepted a teaching job at Oshki Manidoo, a residential treatment facility for high school students with addictions. The job proved emotionally stressful and in May 2013, the petitioner was taken off work by her physician. (Tr. at 87.) In November 2014, she found a work as a part-time substitute teacher at a charter school earning about $2,000.00 to $3,000.00 a year.

Ms. Grage found full-time employment in September 2015 as a special education teacher in the Red Lake Elementary School at a salary of $43,200.00 annually. This teaching position is limited by a three year contract dependent upon Ms. Grage obtaining a special license to teach autistic children.[2] If at any point a qualified teacher who has the required special license applies for the Red Lake Elementary position, Ms. Grage will lose her job. (Tr. at 43.) Because of the need for additional training to obtain full licensure, the petitioner requested vocational rehabilitation assistance pursuant to Minn. Stat. § 176.102, subd. 1a.

The matter was heard by a compensation judge on September 15, 2015. In Findings and Order, served and filed October 9, 2015, the judge awarded reimbursement for the bench gravestone as a burial expense and denied the request for vocational rehabilitation. Ms. Grage appealed the denial of vocational rehabilitation. The employer and insurer cross-appealed the order awarding reimbursement for the cost of the bench.


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, 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 Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).


1.   Vocational Rehabilitation for Surviving Spouse

Ms. Grage appeals the compensation judge’s denial of a vocational rehabilitation consultation. The applicable statute, Minn. Stat. § 176.102, subd. 1a, provides:

Upon the request of a qualified dependent surviving spouse, rehabilitation services shall be provided through the rehabilitation services section of the Workers’ Compensation Division. . . . [A] qualified dependent surviving spouse is a . . . surviving spouse . . . who is in need of rehabilitation assistance to become self-supporting.

The petitioner argues she sought only a consultation to determine whether she is qualified for rehabilitation services and that entitlement to a rehabilitation consultation is almost automatic. The employer and insurer maintain the petitioner conflates two separate and distinct statutes: Minn. Stat. § 176.102, subd. 1a, and Minn. Stat. § 176.102, subd. 4. Because a surviving spouse is treated differently from an injured employee under these sections, they argue that unlike an injured employee, the surviving spouse has no automatic right to a vocational rehabilitation consultation.

A “rehabilitation consultation” means a meeting of a qualified rehabilitation counselor (QRC) and the “employee” to determine whether the “employee” is a qualified employee entitled to vocational rehabilitation services. Minn. R. 5220.0100, subp. 26. However, no such requirement applies to a surviving spouse. Instead, the plain language of Minn. Stat. § 176.102, subd. 1a, defines a “qualified surviving spouse” for rehabilitation purposes as one “who is in need of rehabilitation assistance to become self-supporting” and mandates provision of rehabilitation services to a qualified spouse upon request.

The Minnesota Supreme Court addressed the issue of a surviving spouse’s entitlement to rehabilitation services under Minn. Stat. § 176.102, subd. 1a, in Wirtjes v. Interstate Power Co., 479 N.W.2d 713, 46 W.C.D. 95 (Minn. 1992). In Wirtjes, the surviving spouse, Ms. Greenfield, sought approval of a retraining plan leading to a master of arts degree in urban planning with dual emphasis in environmental studies. The parties previously stipulated the employer would provide placement services to the petitioner when she was ready and willing to accept employment.

Entitlement to rehabilitation assistance under Minn. Stat. § 176.102, subd. 1a, is a mixed question of law and fact, and “it is the individual talents, skills, experience, earning capacity, and employability of the surviving spouse . . . that determine whether the surviving spouse is in need of rehabilitation assistance and, if so, the kind of rehabilitation services required.” Id. at 714-15, 46 W.C.D. at 97-98. Applying these factors, the supreme court in Wirtjes rejected the retraining plan sought by Ms. Greenfield reasoning the petitioner would be entitled to dependency benefits for more than 25 years, was “young, intelligent and employable,” and had a current degree and training in a marketable field. The court concluded that with a few years’ experience and long before compensation payments ceased, the petitioner would be capable of being fully-self-supporting, and although she might need placement assistance, did not demonstrate a need for retraining of the kind described in the proposed retraining plan.

The circumstances in this case are significantly different. Ms. Grage was 54 years old as of the date of hearing, with limited work experience. While she has degrees in art and theater, the petitioner testified she was unable to obtain a job as an art teacher in the local economy, so returned to school to obtain a degree in special education. Her earning capacity and employability are tentative. Her very first teaching job in a facility for students with addictions proved extremely stressful. She found work as a part-time substitute teacher, but earned only $2,000.00 to $3,000.00 a year. In September 2015, Ms. Grage found full-time employment as a special education teacher at Red Lake Elementary School with a non-renewable license for autism spectrum disorders. To maintain her position at Red Lake, Ms. Grage must complete 30 hours of training and course work to obtain full licensure for autism spectrum disorders. She believes she will be unemployed if she fails to get this certification. (Tr. at 85.)

A purpose of the Workers’ Compensation Act is to compensate surviving dependents for loss suffered when the employee is accidentally killed or dies from compensable injuries. Reichart v. Victory Granite Co., 249 Minn. 407, 802 N.W.2d 497, 19 W.C.D. 14 (1957). At 54 years of age, with dependency benefits running out in 6 years, and struggling with licensing requirements to secure and maintain employment, the petitioner has demonstrated a need for rehabilitation assistance to become self-supporting.

Under the analysis of Wirtjes, we are persuaded that Ms. Grage is a qualified dependent surviving spouse entitled to rehabilitation assistance as contemplated by Minn. Stat. § 176.102, subd. 1a. We, therefore, reverse the denial of rehabilitation services.

2.   Burial Expense

The employer and insurer have cross-appealed from the compensation judge’s finding that the granite bench purchased by Ms. Grage and placed on her deceased husband’s grave is a burial expense and from the judge’s order directing the employer and insurer to pay the costs incurred up to $15,000.00.

Minn. Stat. § 176.111, subd. 18 provides:

Burial expense. In all cases where death results to an employee from a personal injury arising out of and in the course of employment, the employer shall pay the expense of burial, not exceeding in amount $15,000.

The employer and insurer argue that “burial expense” refers solely to the act of burying and a bench is not an integral act of burying a body. They further contend the bench is not a “reasonable” burial expense but instead constitutes a “graveside luxury” which is not integral to the process of burial or disposition of the decedent’s remains.

In response, the petitioner argues the statute represents a legislative compromise recognizing that what constitutes an “expense of burial” will vary depending upon the relationship of the decedent to the survivors and the religious or cultural background of the parties. She argues that any activities that are fairly typically practiced by a surviving spouse or family as part of laying a decedent to rest constitutes a burial expense. Ms. Grage argues that a gravestone is a gravestone — it marks the location of the gravesite providing a memorial in honor of the deceased employee. Is there any difference, the petitioner questions, between a bench gravestone that one can sit on and grieve and an upright headstone which one stands or sits in front of to remember and grieve?

This is a case of first impression. Both parties and the compensation judge agreed there is an absence of judicial guidance on this issue. In interpreting a statute, we first look to see whether the statute, on its face, is clear and unambiguous. When the plain meaning of a statute is clear, a court must apply its plain language. Allan v. R.D. Offutt Co., 869 N.W.2d 31, 35, 75 W.C.D. 401, 405 (Minn. 2015); Frandsen v. Ford Motor Co., 801 N.W.2d 177, 181, 71 W.C.D. 377, 380 (Minn. 2011). The first sentence is clear in meaning and intent. When an employee dies from a work injury, the statute mandates payment of burial expenses. There is no requirement that the expense be “reasonable,” only that it not exceed $15,000.00. The cross-appellants would have us add language that does not exist. In its wisdom, the legislature did not include the word “reasonable” in this sentence. All cultures in our state bring different and unique customs and practices to a burial. Burials, funerals, and final dispositions are reflections of the personal preferences, faiths, and traditions of the decedent or the decedent’s next of kin.[3] To a grieving survivor, the burial is the final act of a person’s life and when an employee dies from a work related injury, Minn. Stat. § 176.111, subd. 18, mandates payment of the expense of burial limited only to an amount up to $15,000.00.

The second sentence of Minn. Stat. § 176.111, subd. 18, provides:

In case any dispute arises as to the reasonable value of the services rendered in connection with the burial, its reasonable value shall be determined and approved by the commissioner, a compensation judge, or Workers’ Compensation Court of Appeals . . . before payment . . . .

By assigning authority to the compensation judge to determine the reasonable value of services rendered, before payment, this provision establishes a method for resolving valuation disputes, not for defining or limiting burial expenses.

The Workers’ Compensation Act does not define the term “expense of burial.” It offers no insight into whether a headstone, marker, or casket are covered under the Workers’ Compensation Act. Other statutes provide some guidance. Under Minn. Stat. § 149A.02, burial site goods and services are defined as any goods or services sold or offered directly to the public for use in connection with the final disposition of a human body. In addition, Minn. Stat. § 149A.71, outlining funeral industry practices and price disclosures, requires separate and conspicuous prices for items such as markers and headstones. The compensation judge relied upon the dictionary definition of “burial,” that is, “the act or process of burying a dead body” noting the term can be used as a modifier, “burial rites.” Relying upon this definition, the compensation judge concluded that a burial expense includes the expense of a bench-style headstone.

Ms. Grage purchased a granite bench in lieu of a traditional upright headstone. The total cost of the cremation, funeral, burial, and bench was less than $15,000.00. We agree that a bench monument placed on the petitioner’s husband’s grave in the customary position of a headstone constitutes an “expense of burial” pursuant to Minn. Stat. § 176.111, subd. 18, and affirm.

[1] Initially, the insurer mistakenly asserted they had already paid $6,544.46 in burial expenses. However, after filing of the Findings and Order, the employer and insurer stipulated that to-date they had paid a total of $3,543.00 and that $200.00 is payable for placement of the V.A. marker. (See Finding 9; Brief of Cross-Appellants, p. 4, n.4.)

[2] As of July 1, 2015, the State of Minnesota requires a separate license for autism spectrum disorders in order to teach students with autism. (Tr. at 40.)

[3] Compare Minn. Stat. § 261.035.