APPEALS – SCOPE OF REVIEW. When a foundation objection to the admission of expert testimony is not raised at the hearing, that objection may not be raised for the first time on appeal.
PRACTICE & PROCEDURE – MATTERS AT ISSUE. Where the parties did not put the nature of the personal care services provided at issue in the proceeding, the compensation judge did not err in awarding an increase in reimbursement where the record contains an adequate description of the services provided and there is substantial evidence that costs for such services had increased.
JURISDICTION – SUBJECT MATTER. A compensation judge has no authority to award benefits beyond the date of the hearing. As the order language imposes an ongoing annual adjustment to the benefits awarded, the order is prospective and beyond the subject-matter jurisdiction of the judge.
Compensation Judge: Rolf G. Hagen
Attorneys: Gary L. Manka, Katz & Manka, Ltd., Minneapolis, Minnesota, for the Respondent. Thomas L. Cummings and Keith R. Czechowicz, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota, for the Appellants.
Affirmed in part and vacated in part.
DEBORAH K. SUNDQUIST, Judge
The employer and insurer appeal the award of a 3.7 percent annualized increase for home nursing services provided by a family member under Minn. Stat. § 176.135, subd. 1(b). As the nursing services are adequately defined in the record of the proceeding and were not raised as an issue before the compensation judge, and substantial evidence supports the award of a 3.7 percent annualized increase in the cost of the nursing services, that award is affirmed. To the extent that the award purports to impose a further future increase of the awarded amount by 3.7 percent calculated on an annualized basis, we vacate that language.
On July 22, 1993, the employee, James Sirian, suffered burns over much of his body when natural gas exploded at the work site causing destruction and an ensuing fire. Glass was embedded in the employee’s face, eyes, and throat from the force of the explosion. The explosion threw the employee into the street where he was struck by a passing vehicle which ran over his right hand. The self-insured employer, the City of St. Paul, accepted liability and paid workers’ compensation benefits.
Following the employee’s hospitalization, the employee’s spouse was instructed to care for his burn wounds. For two years the employee wore a body suit to protect his injured skin and his spouse assisted him in and out of this protective garment. She also monitored his body temperature, drove him to necessary appointments, and gave him paraffin baths and massage. The employee returned to light duty part-time work for a brief period. Due to the contractions in his hands from the burns, the employee was unable to return to the work he had been doing. He tolerated the pain sufficiently to increase his hours to full-time employment over a period of years. The employee’s spouse provided care to allow him sufficient flexibility to continue working. Fifteen years after the accident, as of July 24, 2008, the employee was no longer able to tolerate work.
The employer and insurer retained Dr. Matthew Monsein in 2008 for an independent medical examination. The employer also obtained surveillance of the employee bowling as part of a bowling league and sent it to Dr. Monsein for review. Dr. Monsein opined that the employee was engaged in symptom magnification and possibly malingering. He opined that the employee lacked any major deficits in hand function and that he could perform light duty work. (Finding 6-8, Oct. 23, 2013.) The self-insured employer denied payment for family nursing services after July 2008.
The matter went to hearing before Compensation Judge Rolf Hagen and was tried over four days ending on June 22, 2012. The record remained open for the receipt of a report from a neutral physician and post-hearing briefs until September 3, 2013. The parties stipulated that the employee was permanently and totally disabled (PTD) as of July 24, 2008. In a Findings and Order filed on October 28, 2013, the judge awarded home nursing services provided by the employee’s spouse from July 24, 2008, to December 31, 2009, in the amount of $462.00 a week, calculated as 21 hours of services at $22.00 per hour. The judge awarded nursing services provided by the employee’s spouse from January 1, 2010, to June 22, 2012, in the amount of $525.00 a week, calculated as 21 hours of services at $25.00 per hour.[1] The award was not appealed.
In July 2015, the employee filed a claim for a 10 percent increase in the reimbursement received for home nursing care provided by the employee’s spouse. The matter was heard at the Department of Labor and Industry and the employee requested a formal hearing. The matter went to hearing on April 29, 2016, before Judge Hagen, who had previously presided over the matter resulting in the 2013 award of payment for nursing services. The parties stipulated that the employee’s spouse continued to provide in-home nursing services. The issue as stated in the transcript of the proceeding was whether the “employee’s spouse, is entitled to an increase in the value of family home nursing services provided by her from and after June 22, 2012; if so, the amount.”
The employee introduced the October 28, 2013, Findings and Order (2013 Order) into the hearing record. The 2013 Order contains detailed findings of the services provided to the employee by his spouse and that the agency rate for the provision of home health aide/personal care attendant (HHA/PCA) services was awarded.[2] The employee also introduced the expert opinions of Linda K. Graham, R.N., M.A., C.L.C.P. Ms. Graham provided the detailed opinion that was relied upon in the 2013 Order. Regarding the current matter, Ms. Graham described an appropriate increase in the rate of reimbursement for the services that the employee’s spouse continues to provide to the employee as “3.7% per year . . . a fair and conservative estimate of a rate of increase for home care workers.” Ms. Graham relied on the cost increases documented by the employer’s expert witness, Nancy Mitchell, M.A., OTR/L, C.L.C.P., F.I.A.L.C.P., in arriving at the percentage increase.[3]
The employer relied on the opinion of Ms. Mitchell, introducing her expert opinion advanced in the earlier proceeding and a current opinion. Ms. Mitchell’s earlier opinion set out in detail the care that was provided to the employee by his spouse. Ms. Mitchell indicated that her current opinion was “on the current market rate for family-provided nursing services.” A survey of agency rates was provided showing a range from $18.00 to over $30.00 per hour. The 2013 to 2015 period showed a range of percentage increases in the cost of care from no change to 21.1%.[4]
The employee asserted that, based on the rising costs of home health care, the employee’s spouse was entitled to a 3.7 percent increase per year beginning June 23, 2012. The compensation judge agreed. He ordered “that during the period from June 22, 2012 through April 29, 2016 (date of hearing), and thereafter as may be warranted, the self-insured employer shall pay the reasonable value of family home nursing services provided to the employee by his spouse $25.00 per hour (21 hours per week) at an annualized adjusted rate of 3.7%, together with statutory interest.” (Emphasis added.) The self-insured employer 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(3). 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), summarily aff’d (Minn. June 3, 1993).
The self-insured employer argues that in order to determine the “reasonable value” of services provided by the employee’s spouse, it is necessary to be familiar with the nature and extent of the services provided. We agree. In this matter, the nature and extent of the services provided were identified in detail in the two expert opinions and the 2013 Order. The self-insured employer’s appellant brief sets out a summary of the services provided to the employee by his spouse. The employer’s witness also set forth a description of the services performed.[5]
Minn. Stat. § 176.135, subd. 1(b), provides that “the employer shall pay for the reasonable value of nursing services provided by a member of the employee’s family in cases of permanent total disability.” In the context of an existing award of nursing services, the reasonable value of the services may change over time or different services may be required. In this matter, the parties put at issue only the value of services. While the services at issue in this proceeding are for a new period, June 23, 2012, to April 29, 2016, the employer expressly indicated that there was no issue regarding the services actually provided. (Transcript at 41.) A colloquy at the hearing indicated that, in the event that the nature of the services was at issue, an additional day of hearing would be required. The employer indicated that there was no contention that the services provided later differed from those adjudicated in the 2013 Order. Based on these statements by the employer, the compensation judge foreclosed further inquiry into the nature and extent of the in-home health care services provided by the employee’s spouse as outside of the issues to be decided.
On appeal, the employer contends that the employee’s expert witness, Ms. Graham, lacked foundation to opine regarding the reasonable cost of care, citing her unfamiliarity with the specific services provided to the employee. The employee responded that no foundation objection was made at the hearing and that Ms. Graham has an adequate foundation for her opinion regarding the matter at issue in the hearing, the cost of home care services.
Generally, health care providers are subject to limits in what they receive for payment in workers’ compensation matters under the medical fee schedules. Minn. Stat. § 176.136; Minn. R. 5221.4020 et seq. However, there is no provision in the statute or rules specifically allowing for an adjustment for nursing services by a family member. “A determination of what are ‘nursing services’ and what is the ‘reasonable value’ of such services is, in sum, a question of fact to be determined by the informative practical judgment of the court.” Alexander v. Kenneth R. Lalonde Enters., 288 N.W.2d 18, 21, 32 W.C.D. 312, 317 (Minn. 1980). As applied to this matter, the nursing services provided were described in detail in the written record. The reasonable value of those services was the subject of dispute at the hearing.
Both the experts called by the parties to this matter treated the issue as whether the costs in providing HHA/PCA services rose over the past few years and, if so, by how much. Neither of the experts testifying in this matter performed an analysis of the actual services that the employee’s spouse was providing from June 22, 2013, onward, to arrive at the determination that those costs had risen by an average of 3.7%. (Transcript at 18, 27-33, 61-62, 65.) Ms. Graham explicitly assumed that the services provided by the employee’s spouse are “typical” of those of a HHA. (Transcript, at 38.)
The self-insured employer argues that the employee’s expert witness lacked foundation to testify as to the reasonable value of home care services because she had not prepared to answer questions related to the nature of the nursing services provided by the employee’s spouse. We disagree. Neither party raised the nature of the nursing services as an issue. Both parties relied on the prior exhaustive assessment of the nature of the nursing services in presenting their positions. Neither Ms. Graham nor Ms. Mitchell indicated that there was any problem in determining the reasonable change in cost of HHA/PCA services over the period from June 22, 2013, onward, which was the issue presented to the compensation judge for determination. Indeed, both experts arrived at the same percentage as reasonable, differing only as to whether the change should be calculated on an annualized basis or as a single cumulative change.
Further, any objection regarding the foundation of a witness must be made at the trial. Mikel v. Allina/United Hosp., No. WC08-152 (W.C.C.A. Oct. 9, 2008); Kelsey v. Lovegreen Indus. Servs., No. WC07-159 (W.C.C.A. Dec. 12, 2007). In this matter, Ms. Graham’s written and oral testimony was received with no such objection being made. The self-insured employer’s cross-examination of Ms. Graham was the subject of repeated, sustained objections, all of which arose from the nature of the question being outside of the scope of the issues. A witness cannot be excluded for lacking foundation in matters outside of the scope of the proceeding. As the tenor of the self-insured employer’s questions became clear, the compensation judge noted that the issues could be expanded to include the nature of the nursing services. The self-insured employer declined to expand the scope of the proceeding, thus this issue cannot be raised for the first time on appeal. Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 479, 42 W.C.D. 1118, 1124 (Minn. 1990); Gollop v. Gollop, 389 N.W.2d 202, 203, 38 W.C.D. 757, 758 (Minn. 1986); Myers v. Minn. Vikings Football Club, 67 W.C.D. 389 (W.C.C.A. 2007); Brandstrom v. Honeywell, slip op. (W.C.C.A. Mar. 7, 1997); Malinoski v. North Am. Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989).
The compensation judge correctly applied Minn. Stat. § 176.135, subd. 1(b), to arrive at a determination of the reasonable value of the nursing services provided by the employee’s spouse. Substantial evidence in the record in the form of well-founded opinions by Ms. Graham and Ms. Mitchell show that the reasonable value of HHA/PCA services increased by 3.7% over the period at issue. The judge’s choice of Ms. Graham’s opinion regarding the percentage of increase and calculation on an annualized basis is supported by substantial evidence and that portion of the decision is affirmed.
The compensation judge’s award of benefits states: “during the period from June 22, 2012 through April 29, 2016 (date of hearing) and thereafter as may be warranted, the self-insured employer shall pay the reasonable value of family home nursing services provided to the employee by his spouse $25.00 per hour (21 hours per week) at an annualized adjusted rate of 3.7%, together with statutory interest.” (Emphasis added.) Due to the position of the “thereafter” language in relation to the order to pay an annualized adjusted rate, the order requires an annual adjustment every year following the issuance of the compensation judge’s order. This language has the effect of awarding an increase in benefits prospectively, which is outside of the jurisdiction of the compensation judge. See Donnahue v. Glory Shine Cleaning, Inc., slip op. (W.C.C.A. June 13, 1996); Dills v. Seco, Inc., slip op. (W.C.C.A. Nov. 14, 1996)(footnote 4); Keiser v. Merit HVAC, slip op. (W.C.C.A. Feb. 1, 1995); Lacey v. Arrowhead Tree Serv., slip op. (W.C.C.A. Oct.14, 1994).
We acknowledge that in some cases, compensation judges appropriately award benefits to the date of hearing and continuing “as warranted.” Wiirre v. Health Pers. Options, slip op. (W.C.C.A. Feb. 26, 2007). In this matter, the sentence structure of the award goes beyond continuing the awarded benefits so long as the employee remains entitled to that benefit. In this instance, the language creates a judicially-fashioned cost of living adjustment that is triggered annually regardless of the actual reasonable cost of the services provided. As this is a defect in subject matter jurisdiction, there is no basis for remanding this matter to the compensation judge for further proceedings. See Seehus v. Bor-Son Construction, Inc., 783 N.W.2d 144, 147, 70 W.C.D. 455 (Minn. 2010)(“Defects in subject-matter jurisdiction may be raised at any time, and cannot be waived by the parties.”). Since the compensation judge had no authority to make findings of a prospective effect, the phrase “and thereafter as may be warranted,” is vacated and removed from Order paragraph number 1.
[1] Findings and Order October 28, 2013.
[2] Employee’s Exhibit 8.
[3] Employee’s Exhibit 1.
[4] Employer’s Exhibit C.
[5] Ms. Nancy Mitchell’s July 29, 2015, report listed multiple daily assistance provided by Mrs. Sirian to include: dressing, bathing, medications, toileting, range of motion exercises, application of TENS electrodes, and paraffin baths. Employer’s Exhibit C.