The employee, Julie Halvorson, age 51, obtained a GED certificate and later attended some post-secondary classes without completing a degree or certificate program.  Prior to starting work with the employer, B&F Fastener Supply, she worked in unskilled entry-level jobs in restaurants, a bakery, and in performing assembly work.  Her job for the employer also involved assembly work.

On March 9, 2007, the employee injured her right elbow, both knees, cervical spine, low back and left hip, and sustained a partial tear of the left hamstring, while working for the employer, B&F Fastener Supply, at an average weekly wage of $390.89.  The employee's job involved machine operation, set-up and repair, and included repetitive lifting, bending and standing.  Her fringe benefit package included health insurance, vacation, and an optional 401K program.  She was unable to return to work with the employer following the injury.

The employee underwent surgical repair of her left hamstring tear on February 6, 2008.  She underwent a discectomy and fusion at C5-6 for a cervical disc herniation.

The employee was permanently precluded from engaging in the job she held at the time of her work injury.  The insurer paid temporary total disability compensation, which ended on May 26, 2009.  The employee did not work again until January 13, 2010, when she found part-time work at Arby’s within her restrictions, which at that time limited her to 20 hours per week at a 20 pound lifting limit.  In 2013, the employee was terminated by Arby’s, and then found work at a Popeye’s restaurant.  The employer and insurer have paid temporary partial disability compensation during the employee’s post-injury employment.

Dr. Byron C. Holth provided the employee’s primary health care since 2007.  In November 2013, Dr. Holth approved light-duty work for up to 30 hours per week.  The employee thereafter worked about 30 hours per week, but experienced increased low back pain.  Dr. Holth’s assessment was of worsening lumbar radicular symptoms.

In February 2014, Dr. Holth expressed concern over the employee’s ability to return to work full time, although this had been her goal.  Dr. Holth felt that the employee might be close to MMI and might be limited to working 30 hours per week on a permanent basis.  That same month, the employee’s QRC noted that the employee loved her job at Popeye’s restaurant, and had discussed the possibility of a management position there, but that this would require her to work full time.  She anticipated closing the rehabilitation file in the next few months.

In June 2014, the employee reported worsened back pain radiating into the right buttock which was bad enough that she felt unable to work.  Dr. Holth took her off work and recommended an epidural injection.  On August 15, 2014, he released the employee to work only every other day.  In September 2014, Dr. Holth referred the employee to see Dr. Hanson at the Midwest Spine Institute for an opinion regarding the advisability of surgery.

On October 14, 2014, the QRC noted that the employee had been terminated by Popeye’s.  Formal job search development was deferred pending the employee’s appointment with Dr. Hanson.  After evaluating the employee, Dr. Hanson recommended a laminectomy.  The employee underwent a right lumbar micro laminectomy at L3 on November 14, 2014.

The employee interviewed with McDonald’s restaurants on November 18, 2014, shortly after her surgery, and was offered a job doing food prep work.  She began working part time at McDonald’s on November 23, 2014.

On January 15, 2015, the QRC prepared a rehabilitation plan amendment to continue services for 12 weeks and then reevaluate, noting that the employee was still recovering from surgery and her permanent restrictions were as yet unknown.

On January 21, 2015, the employee saw Dr. Holth and reported that she was very tired after four hours of work.  Dr. Holth restricted her to work four hours per day “for now and likely permanently,” with no bending, twisting, or lifting over 15 pounds.  In February 2015, Dr. Holth referred the employee to MAPS for pain management.  In his chart note of February 12, 2015, Dr. Holth wrote that the employee’s lifting and bending restrictions would be permanent and that she would stay at a 20-hour work week permanently.

The employer and insurer filed a Rehabilitation Request on February 26, 2015, seeking termination of the employee's rehabilitation services and alleging that she was no longer a “qualified employee” under Minn. R. 5220.0100, subp. 22, because she had attained suitable gainful employment.

The employer and insurer also asserted that there was “good cause” to terminate rehabilitation services under Minn. R. 5220.0510, subp. 5, and the employee was unlikely to benefit from further rehabilitation services.

The employee was seen at MAPS on March 19, 2015, by Dr. David M. Schultz.  Her chief complaint was of multilevel body pain on the right radiating to her arms and legs with numbness in the fingers and legs.  It was noted that the lumbar surgery in 2014 had not improved her lumbar or leg pain.  Dr. Schultz recommended physical therapy, a TENS unit, injections and medications.  He also requested a repeat MRI scan.

The repeat MRI study, done on March 20, 2015, showed bulging at L4-5 causing lateral recess narrowing.  There was a mass effect on the left L5 nerve root.  Moderate foraminal narrowing at L4-5 on the left was thought to possibly affect the left L4 nerve root.  There was mild foraminal narrowing at L3-4.  The employee was seen to be post-laminotomy on the right at L3-4.

On March 25, 2015, the QRC noted that while Dr. Holth had made the employee’s restrictions permanent, the doctor had stated this could change if there was improvement from her treatment at MAPS.  The employee was still working up to 20 hours per week at McDonald’s and felt the job was a good fit.

Following an administrative conference, a Decision and Order was issued on April 8, 2015, denying the employer and insurer’s request for termination of rehabilitation services.  The employer and insurer filed a request for formal hearing on May 1, 2015.

In June 2015, the QRC noted that a lumbar injection a month previously had given the employee significant pain improvement for about three weeks, after which her symptoms had returned.  The MAPS nurse practitioner had recommended medial branch blocks to see if the employee was a candidate for radiofrequency ablation.  The goal at MAPS was to get the employee’s pain under better control and increase her physical activities.  On July 2, 2015, Dr. Holth continued the employee at 20 hours per week, but noted that the goal was now to increase her back to 30 hours per week if the anticipated radiofrequency ablations were successful.

A hearing was held before Compensation Judge Bradley J. Behr on July 8, 2015, on the employer and insurer’s request to discontinue rehabilitation services.  The issue before the compensation judge was whether the employee was a qualified employee for rehabilitation services and whether she had returned to suitable gainful employment such that she would be precluded from receiving ongoing rehabilitation services.  The issue of whether there was good cause to terminate rehabilitation services under Minn. R. 5220.0510, subd. 5, as the employee is unlikely to benefit from further rehabilitation services was withdrawn by the employer and insurer.

The employee testified that she loves her job at McDonald’s, and that the work is within her restrictions.  She presently earns $8.00 an hour and expects her income to increase slightly with a raise.  She testified that she plans to continue working at McDonald’s even if her doctor changes her restrictions to allow her to work 30 hours per week.  She testified that she receives Social Security Disability Income (SSDI) and is limited from earning income greater than $1,000.00 a month as anything above that would jeopardize her SSDI benefits.  She stated that getting SSDI did not affect her desire to work full time because she hoped to make more income working at McDonald’s full time as a part of the management team.

The QRC testified that the ultimate goal of the vocational rehabilitation she had been providing was a return to full-time employment.  She acknowledged that rehabilitation services to date had focused primarily on medical management and had not involved active job placement efforts, but that if Dr. Holth increased the employee’s hours, she would try to assist the employee in exploring the possibility of a management position in the fast food industry.  Both the employee and her QRC acknowledged that a management position at McDonald’s would require the employee to work more than 40 hours per week.  The QRC testified that the employee’s current job at McDonald’s was within the employee’s physical restrictions and skills, but testified that the job at McDonald’s was not suitable gainful employment because it provides an economic status that is significantly below that which she had on the date of injury.

The compensation judge ordered discontinuance of rehabilitation services, having found that the McDonald’s job constituted suitable gainful employment and that the employee was not a qualified employee pursuant to Minn. R. 5220.0100, subp. 22.^[1]  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, 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).

“Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee’s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.”  Minn. Stat. § 176.102, subd. 1(b).  In order for a plan of rehabilitation to be implemented, an injured employee must be deemed a “qualified employee.”  The employer and insurer sought termination of rehabilitation services arguing that the employee’s job at McDonald’s constituted suitable gainful employment and that she was not a “qualified employee.”  The employer and insurer argued that the rules governing this limited issue are Minn. R. 5220.0100, subps. 22 and 34.  Subpart 22 of the rule provides as follows:

The compensation found that the employee’s job at McDonald’s was suitable, and that the employee was accordingly not a qualified employee for rehabilitation services.

The employee makes essentially two arguments on appeal.  First, the employee argues that the compensation judge erred as a matter of law by concluding that the employee’s job constituted suitable gainful employment.  Second, that the compensation judge committed an error of law in expanding the issues to include an issue that had been withdrawn.

The specifics are a bit unclear in the employee’s brief but it would appear that the employee’s argument is primarily based on a contention that the disparity in wages and benefits is simply too great to support the judge’s finding.

There are a number of cases cited dealing with what constitutes suitable gainful employment in the context of retraining requests or as pertinent to the old IC/ERC distinction.  However, none of these cases deal with the question in the context of termination of rehabilitation services.  The  employee discusses the two cases that the compensation judge cited in support of his determination, Adams v. Marvin Windows, 52 W.C.D. 585 (W.C.C.A. 1995), summarily aff’d, 535 N.W.2d 858 (Minn. 1995), and Holliday v. REM-Minn., Inc., slip op. (W.C.C.A. Mar. 14, 2003).  In both cases, this court affirmed findings by a compensation judge that an employee was not entitled to rehabilitation services where there was evidence that the employee had returned to suitable gainful employment.  The employee argues that both of these cases actually should be deemed to support her position, as the employee in each had returned to work which was not only physically suitable for the employee’s restrictions but which paid as much or more than the date of injury employment.  The employer and insurer cite Dvorak v. Lutheran Home, slip op. (W.C.C.A. Dec. 9, 1998), which was not cited by the compensation judge, but which they contend more closely fits the current factual situation than Adams and Holliday.

These cases can be distinguished from the facts here.  In all three cases cited, the employee sought to “initiate” rehabilitation or seek additional rehabilitation in which being a “qualified employee” or working a “suitable job” is relevant.  These cases did not involve the “termination” of rehabilitation benefits which is the case here.  Accordingly, we must consider the plain language of the statute and the rules governing vocational rehabilitation, in order to determine what constitutes a basis for termination as opposed to implementation.

As her second argument on appeal, the employee contends that the compensation judge applied an improper standard or, in the alternative, expanded the issue from the issues stipulated at the hearing.

In their Request for Formal Hearing, the employer and insurer alleged both that the employee was not a qualified employee for rehabilitation services, and that she was unlikely to benefit from further rehabilitation services.  The parties agreed at the opening of the hearing, however, that the sole issues before the compensation judge were whether the employee is a qualified employee for rehabilitation services and whether she had returned to suitable gainful employment such that she would be precluded from receiving ongoing rehabilitation services.^[2]  The employer and insurer withdrew the argument that she was unlikely to benefit from further rehabilitation services.

In his memorandum, the compensation judge noted that “while she has not attained her pre-injury wage, there was no persuasive evidence to suggest the additional rehabilitation services are likely to enable her to obtain a higher paying position.”  The employee contends that this statement, together with the specifics of certain findings,^[3] indicate that the compensation judge expanded the issues to include whether the employee was likely to benefit from rehabilitation, despite that issue having been taken off the table at the hearing.

The employer and insurer respond that it is hardly an unfair expansion of the issues for the compensation judge to make findings on these points where the employee’s attorney elicited testimony intended to show that rehabilitation services would assist the employee, both through medical management and, potentially, in obtaining an economic status closer to that she had at the time of injury, should her restrictions improve after ablation.  The employer and insurer further argue that the judge properly found under the evidence that the employee’s work for McDonald’s was suitable.

We conclude that the compensation judge improperly expanded the issues, but more importantly, applied an incorrect standard in his order terminating rehabilitation benefits.  The issues before him were whether the employee was a “qualified employee for rehabilitation services” pursuant to Minn. R. 5220.0100, subp. 22, and whether she had returned to suitable gainful employment such that she would be precluded from receiving ongoing rehabilitation services.^[4]  Minn. R. 5220.0100, subp. 22, is found within the “definition” section of the rules governing vocational rehabilitation.  In other words, there is no specific rule that allows termination of vocational rehabilitation under this section.  Minn. R. 5220.0130 requires that an employee be a “qualified employee” before rehabilitation is “implemented.”  This section provides no mechanism to terminate rehabilitation if an employee is not a “qualified employee.”  There are rules governing the termination of vocational rehabilitation, but those rules were not at issue before the compensation judge.  Both Minn. R. 5220.0510, subp. 5, and Minn. Stat. § 176.102, subd. 8, provide the mechanism for terminating vocational rehabilitation.

Minn. R. 5220.0510, subp. 5 provides:

The statute also provides the mechanism to terminate rehabilitation benefits.  Minn. Stat. § 176.102, subd. 8, states:

None of the elements under Minn. Stat. § 176.102 or Minn. R. 5220.0510 were raised at the hearing.  The only issues before the compensation judge were whether the employee was a “qualified employee” and whether her job at McDonald’s was sustained gainful employment.  These issues provided no basis to terminate rehabilitation benefits.  Because the statute and rules specifically governing termination of the employee’s rehabilitation were not properly before the compensation judge, we must reverse.